SUCCESSION

Case Digests
Assoc. Dean Viviana M. Paguirigan
Uson vs Del Rosario
92 Phil 531
Facts: This is an action for the recovery of the
ownership and possession of 5 parcels of land situated
in Pangasinan, filed by Maria Uson against Maria del
Rosario and her 4 children who are all of minor age.
Maria Uson was the lawful wife of Faustino Nebreda who
upon his death in 1945 left the lands involved in this
litigation. Faustino Nebreda left no other heir except his
widow Maria Uson. However, plaintiff claims that when
Faustino Nebreda died in 1945, his common-law wife
Maria del Rosario took possession illegally of said lands
thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense
that on February 21, 1931, Maria Uson and her husband,
executed a public document whereby they agreed to
separate as husband and wife and, in consideration of
their separation, Maria Uson was given a parcel of land
by way of alimony and in return she renounced her right
to inherit any other property that may be left by her
husband upon his death.
After trial, at which both parties presented their
respective evidence, the court rendered decision
ordering the defendants to restore to Maria Uson the
ownership and possession of the lands in dispute.
Defendants also contend that under the New Civil Code
which became in force in 1950 they are given the status
and rights of natural children and are entitled to the
successional rights which the law accords to the latter
and because these successional rights were declared for

the first time in the new code, they shall be given

retroactive effect even though the event which gave
rise to them may have occurred under the prior
legislation.
Issues: (1) To whom the right of ownership of the 5
parcel of lands belong?
(2) Whether the illegitimate children have successional
rights
Held: (1) There is no dispute that Maria Uson is the
lawful wife of Faustino Nebreda, former owner of the 5
parcels of lands litigated in the present case. There is
likewise no dispute that Maria del Rosario was merely a
common-law wife of the late Faustino Nebreda with
whom she had four illegitimate children.
It likewise appears that Faustino Nebreda died in 1945
much prior to the effectivity of the new Civil Code. With
this background, it is evident that when Faustino
Nebreda died in 1945 the five parcels of land he was
seized of at the time passed from the moment of his
death to his only heir, his widow Maria Uson.
As this Court aptly said, "The property belongs to the
heirs at the moment of the death of the ancestor as
completely as if the ancestor had executed and
delivered to them a deed for the same before his
death". From that moment, therefore, the rights of
inheritance of Maria Uson over the lands in question
became vested.
The claim of the defendants that Maria Uson had
relinquished her right over the lands in question

because she expressly renounced to inherit any future

property that her husband may acquire and leave upon
his death in the deed of separation they had entered
into on February 21,
1931, cannot be entertained for the simple reason that
future inheritance cannot be the subject of a contract
nor can it be renounced.
(2) No. Article 2253 provides indeed that rights which
are declared for the first time shall have retroactive
effect even though the event which gave rise to them
may have occurred under the former legislation, but this
is so only when the new rights do not prejudice any
vested or acquired right of the same origin. Thus, said
article provides that "if a right should be declared for
the first time in this Code, it shall be effective at once,
even though the act or event which gives rise thereto
may have been done or may have occurred under the
prior legislation, provided said new right does not
prejudice or impair any vested or acquired right, of the
same origin." As already stated in the early part of this
decision, the right of ownership of Maria Uson over the
lands in question became vested in 1945 upon the
death of her late husband and this is so because of the
imperative provision of the law which commands that
the rights to succession are transmitted from the
moment of death. The new right recognized by the new
Civil Code in favor of the illegitimate children of the
deceased cannot, therefore, be asserted to the
impairment of the vested right of Maria Uson over the
lands in dispute.
Coronel vs CA
263 SCRA 15
Facts: The Coronels executed a document entitled
Receipt of Down Payment in favor of plaintiff Ramona
Patricia Alcaraz in the sum of Php50,000.00. 00.

Clearly, the conditions appurtenant to the sale are the

following:
1. Ramona will make a down payment of P50,000.00
upon execution of the document aforestated
2. The Coronels will cause the transfer in their names of
the title of the property registered in the name of their
deceased father upon receipt of the P50,000.00 down
payment
3. Upon the transfer in their names of the subject
property, the Coronels will execute the deed of absolute
sale in favor of Ramona and the latter will pay the
former the whole balance of P1,190,000.00
On the same date (January 15, 1985), Concepcion D.
Alcaraz, mother of Ramona, paid the down payment of
P50,000.00.
On February 6, 1985, the property originally registered
in the name of the Coronels father was transferred in
their names under TCT.
However, on February 18, 1965, 5, the Coronels sold the
property covered to intervenor appellant Catalina B.
Mabanag P1,580,000.00 after the latter has paid
P300,000.00.
For this reason, Coronels canceled and rescinded the
contract with Ramona by depositing the down payment
paid by Concepcion in the bank in trust for Ramona
Patricia Alcaraz.
On February 22, 1985, Concepcion, et al., filed a
complaint for specific performance against the Coronels
and caused the annotation of a notice of lis pendens at
the back of TCT.

Catalina caused the annotation of a notice of adverse

claim covering the same property with the Registry of
Deeds of Quezon City.
On April 25, 1985, the Coronels executed a Deed of
Absolute Sale over the subject property in favor of
Catalina and thereafter a new title over the subject
property was issued in the name of Catalina.
Issue: Whether the petitioners were not yet the
absolute owners of the inherited property at the time
when the contract of sale was executed
Held: Yes.
Article 774 of the Civil Code defines
Succession as a mode of transferring ownership as
follows:
Art. 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the
extent and value of the inheritance of a person are
transmitted through his death to another or others by
his will or by operation of law.
Petitioners sellers in the case at bar being the sons and
daughters of the decedent Constancio P. Coronel are
compulsory heirs who were called to succession by
operation of law. Thus, at the point their father drew his
last breath, petitioners stepped into his shoes insofar as
the subject property is concerned, such that any rights
or obligations pertaining thereto became binding and
enforceable upon them. It is expressly provided that
rights to the succession are transmitted from the
moment of death of the decedent.
Be it also noted that petitioners claim that succession
may not be declared unless the creditors have been
paid is rendered moot by the fact that they were able to
effect the transfer of the title to the property from the
decedents name to their names on February 6, 1985.

Litonjua vs Montilla
90 Phil 757
Facts: Litonjua obtained a judgment against Claudio
Montilla for the payment of the sum of P4.000 with legal
interest, plus costs amounting to P39.00.
In due time, a writ of execution was issued, but no
property of Claudio Montilla was found which could be
levied upon.
On June 12, 1950, Litonjua filed in Special Proceeding,
Intestate Estate of Agustin Montilla, Sr., deceased, a
motion praying that the interest, property and
participation of Claudio Montilla, one of the heirs of
Agustin Montilla, Sr., in the latter's intestate estate be
sold and out of the proceeds the judgment debt of
Claudio Montilla in favor of Litonjua be paid. This
motion was opposed by Claudio Montilla and by Agustin
Montilla, Jr., administrator of the intestate estate.
Issue: Whether a person not a creditor of the deceased
has the right to intervene in the proceedings brought in
connection with the estate or the settlement of the
succession
Held: No. In the case of Ortiga Brothers & Co. vs.
Enage and Yap Tico, it was held 'that the creditor of
the heirs of a deceased person is entitled to collect
his claim out of the property which pertains by
inheritance to said heirs, only after all the debts of
the testate or intestate succession have been paid
and when the net assets that are divisible among
the heirs are known, because the debts of the
deceased must first be paid before his heirs can
inherit. It was therein also held that a person who is not
a creditor of a deceased, testate or intestate, has no

right to intervene either in the proceedings brought in

connection with the estate or in the settlement of the
succession. We quote hereunder pertinent passages of
the decision:
"A person who, having a claim against a deceased
person which should be considered by the committee
does not, after publication of the required notice, exhibit
his claim to the committee as provided by law, shall be
barred from recovering such demand or from pleading
the same as an offset to any action, under the provision
of section 695 of the Code of Civil Procedure, excepting
the case referred to in Section 701 of the same with
still less reason can one who is not a creditor of the said
deceased intervene in the proceedings relative to the
latters intestate estate and to the settlement of his
succession (article 1034 of the Civil Code), because
such creditor has no right or interest that call for the
protection of the law and the courts, except in any
remainder which may be found due the heir.
"An execution cannot legally be levied upon the
property of an intestate succession to pay the debts of
the widow and heirs of the deceased, until the credits
held against the latter at the time of his death shall
have been paid, and only after the debts of the estate
have been paid can the remaining property that
pertains to the said debtor heirs be attached.
The foregoing pronouncements are perfectly applicable
to the case at bar, because the appellant is not a
creditor of the deceased Agustin Montilla, Sr. and he
seeks to collect his claim out of the inheritance of
Claudio Montilla, an heir, before the net asset of the
intestate estate have been determined.
Ledesma vs Mclachlin
66 Phil 547

Facts: In the year 1916, the plaintiff Socorro Ledesma

lived martially with Lorenzo M. Quitco, while the latter
was still single, of which relation lasting until the year
1921, was born a daughter who is the other plaintiff Ana
Quitco Ledesma.
In 1921, it seems that the relation between Socorro
Ledesma and Lorenzo M. Quitco came to an end. But
the latter executed a deed acknowledging the plaintiff
Ana Quitco Ledesma as his natural daughter and issued
in favor of the plaintiff Socorro Ledesma a promissory
note of the following tenor:
P2,000.
For value received I promise to pay Miss
Socorro Ledesma the sum of P2,000.
Philippine
currency under the following terms: P250 to be paid on
the first day of March.
1922: Another P250 to be paid on the first day of
November. 1922: The remaining P1,500 to be paid two
years from the date of the execution of this note.
Subsequently, Lorenzo M. Quitco married the defendant
Conchita McLachlin with whom he had 4 children who
are the other defendants. Lorenzo M. Quitco died and
later on December 15, 1932, his father Eusebio Quitco
also died, and as the latter left real and personal
properties upon his death, administration proceedings
of said properties were instituted in this court, the said
case being known as the intestate of the deceased
Eusebio Quitco.
Upon the institution of the intestate of the deceased
Eusebio Quitco and the appointment of the committee
on claims and appraisal, the plaintiff Socorro Ledesma
filed before said committee the aforequoted promissory
note for payment, and the commissioners, upon receipt

of said promissory note, instead of passing upon it,

elevated the same to this court en consulta and
however due to lack of jurisdiction was denied the
same.

and the properties inherited from the latter by the

children of said deceased do not answer for the
payment of the indebtedness contracted during the
lifetime of said person.

The court issued an order of declaration of heirs in the

intestate of the deceased Eusebio Quitco, and as Ana
Quitco Ledesma was not included among the declared
heirs, Socorro Ledesma, as mother of Ana Quitco
Ledesma, asked for the reconsideration of said
order, a petition which the court denied.

When Successional Rights Transmitted

Issue: Whether the properties inherited by the

defendants can be subject to payment from the debts
and obligations of their deceased father
Held: No. While it is true that under the provisions of
articles 924 to 927 of the Civil Code, a child represents
resents his father or mother who died before him in the
properties of his grandfather or grandmother, this right
of representation does not make the said child
answerable for the obligations contracted by his
deceased father or mother, because, as may be seen
from the provisions of the Code of Civil Procedure
referring to partition of inheritances, the inheritance is
received with the benefit of inventory, that is to say, the
heirs only answer with the properties received from
their predecessor. The herein defendants, as heirs of
Eusebio Quitco, in representation of their father Lorenzo
M. Quitco, are not bound to pay the indebtedness of
their said father from whom they did not inherit
anything.
For the foregoing considerations, we are of the opinion
and so hold: That the claim for the payment of an
indebtedness contracted by a deceased person cannot
be filed for its collection before the committee on claims
and appraisal, appointed in the intestate of his father,

DKC Holdings vs CA
329 SCRA 66
Facts: The subject of the controversy is a parcel of land
located in Malinta, Valenzuela, Metro Manila which was
originally owned by private respondent Victor U.
Bartolomes deceased mother, Encarnacion Bartolome.
This lot was in front of one of the textile plants of
petitioner and, as such, was seen by the latter as a
potential warehouse site.
DKC Holdings entered into a Contract of Lease with
Option to Buy with Encarnacion Bartolome, whereby
petitioner was given the option to lease or lease with
purchase the subject land, which option must be
exercised within a period of 2 years counted from the
signing of the Contract. In turn, petitioner undertook to
pay P3,000.00 a month as consideration for the
reservation of its option. Within the 2 year period,
petitioner shall serve formal written notice upon the
lessor Encarnacion Bartolome of its desire to exercise its
option. The contract also provided that in case
petitioner chose to lease the property, it may take
actual possession of the premises. In such an event, the
lease shall be for a period of six years, renewable for
another six years, and the monthly rental fee shall be
P15,000.00 for the first six years and P18,000.00 for the
next six years, in case of renewal.
Petitioner regularly paid the monthly P3,000.00
provided for by the Contract to Encarnacion until her

death. Thereafter, petitioner coursed its payment to

private respondent Victor Bartolome, being the sole heir
of Encarnacion. Victor, however, refused to accept these
payments.
Meanwhile, on January 10, 1990, Victor executed an
Affidavit of Self-Adjudication over all the properties of
Encarnacion, including the subject lot. Accordingly,
Register of Deeds cancelled TCT and issued a TCT in the
name of Victor Bartolome.
Petitioner served upon Victor, via registered mail, notice
that it was exercising its option to lease the property,
tendering the amount of P15,000.00 as rent for the
month of March. Again, Victor refused to accept the
tendered rental fee and to surrender possession of the
property to petitioner.
Petitioner thus opened Savings Account with the China
Bank in the name of Victor Bartolome and deposited
therein the P15,000.00 rental fee for March as well as
P6,000.00 reservation fees for the months of February
and March.

whether it binds her sole heir, Victor, even after her

demise
Held: The general rule, therefore, is that heirs are
bound by contracts entered into by their predecessors
in interest except when the rights and obligations
arising therefrom are not transmissible by (1) their
nature, (2) stipulation or (3) provision of law.
In the case at bar, there is neither contractual
stipulation nor legal provision making the rights and
obligations under the contract intransmissible. More
importantly, the nature of the rights and obligations
therein are, by their nature, transmissible.
The nature of intransmissible rights as explained by
Arturo Tolentino, an eminent civilist, is as follows:

Thus, petitioner filed a complaint for specific

performance and damages against Victor and the
Register of Deeds.

Among contracts which are intransmissible are those

which are purely personal, either by provision of law,
such as in cases of partnerships and agency, or by the
very nature of the obligations arising therefrom, such as
those requiring special personal qualifications of the
obligor. It may also be stated that contracts for the
payment of money debts are not transmitted to the
heirs of a party, but constitute a charge against his
estate. Thus, where the client in a contract for
professional services of a lawyer died, leaving minor
heirs, and the lawyer, instead of presenting his claim,
for professional services under the contract to the
probate court, substituted the minors as parties for his
client, it was held that the contract could not be
enforced against the minors the lawyer was limited to a
recovery on the basis of quantum meruit.

Issue: Whether or not the Contract of Lease with Option

to Buy entered into by the late Encarnacion Bartolome
with petitioner was terminated upon her death or

In American jurisprudence, (W)here acts stipulated in a

contract require the exercise of special knowledge,
genius, skill, taste, ability, experience, judgment,

Petitioner also tried to register and annotate the

Contract on the title of Victor to the property. Although
respondent Register of Deeds accepted the required
fees, he nevertheless refused to register or annotate the
same or even enter it in the day book or primary
register.

discretion, integrity, or other personal qualification of

one or both parties, the agreement is of a personal
nature, and terminates on the death of the party who is
required to render such service.
It has also been held that a good measure for
determining whether a contract terminates upon the
death of one of the parties is whether it is of such a
character that it may be performed by the promissors
personal representative. Contracts to perform personal
acts which cannot be as well performed by others are
discharged by the death of the promissor. Conversely,
where the service or act is of such a character that it
may as well be performed by another, or where the
contract, by its terms, shows that performance by
others was contemplated, death does not terminate the
contract or excuse nonperformance.
In the case at bar, there is no personal act required from
the late Encarnacion Bartolome. Rather, the obligation
of Encarnacion in the contract to deliver possession of
the subject property to petitioner upon the exercise by
the latter of its option to lease the same may very well
be performed by her heir Victor.
As early as 1903, it was held that (H)e who contracts
does so for himself and his heirs. In 1952, it was ruled
that if the predecessor was duty bound to reconvey land
to another, and at his death the reconveyance had not
been made, the heirs can be compelled to execute the
proper deed for reconveyance. This was grounded upon
the principle that heirs cannot escape the legal
consequence of a transaction entered into by their
predecessor in interest because they have inherited the
property subject to the liability affecting their common
ancestor.

It is futile for Victor to insist that he is not a party to the

contract because of the clear provision of Article 1311
of the Civil Code. Indeed, being an heir of Encarnacion,
there is privity of interest between him and his
deceased mother. He only succeeds to what rights his
mother had and what is valid and binding against her is
also valid and binding as against him.
In the case at bar, the subject matter of the contract is
likewise a lease, which is a property right. The death of
a party does not excuse nonperformance of a contract
which involves a property right, and the rights and
obligations
thereunder
pass
to
the
personal
representatives
of
the
deceased.
Similarly,
nonperformance is not excused by the death of the
party when the other party has a property interest in
the subject matter of the contract. Under both Article
1311 of the Civil Code and jurisprudence, therefore,
Victor is bound by the subject Contract of Lease with
Option to Buy.
Aruego vs CA
254 SCRA 711
Facts: A Complaint for Compulsory Recognition and
Enforcement of Successional Rights was filed by the
minors, private respondent Antonia F. Aruego and her
alleged sister Evelyn F. Aruego, represented by their
mother and natural guardian, Luz M. Fabian. Named
defendants therein were Jose E. Aruego, Jr. and the five
(5) minor children of the deceased Gloria A. Torres,
represented by their father and natural guardian, Justo
P. Torres, Jr., now the petitioners herein.
The complaint avers that the late Jose M. Aruego, Sr., a
married man, had an amorous relationship with Luz M.
Fabian sometime in 1959 until his death. Out of this

relationship were born Antonia F. Aruego and Evelyn F.

Aruego.

that it should not be given retroactive effect in this

particular case?

The complaint prayed for an Order praying that herein

private respondent and Evelyn be declared the
illegitimate children of the deceased Jose M. Aruego, Sr.
that herein petitioners be compelled to recognize and
acknowledge them as the compulsory heirs of the
deceased Jose M. Aruego that their share and
participation in the estate of their deceased father be
determined and ordered delivered to them.

Held: In the case at bench, petitioners point out that,

since the complaint of private respondent and her
alleged sister was filed on March 7, 1983, or almost one
(1) year after the death of their presumed father on
March 30, 1982, the action has clearly prescribed under
the new rule as provided in the Family Code. Petitioners,
further, maintain that even if the action was filed prior
to the effectivity of the Family Code, this new law must
be applied to the instant case pursuant to Article 256 of
the Family Code which provides: This Code shall have
retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the
Civil Code or other laws.

The main basis of the action for compulsory recognition

is their alleged open and continuous possession of the
status of illegitimate children as stated in the
Complaint, to wit: (1) The plaintiffs father, Jose M.
Aruego, acknowledged and recognized the herein
plaintiffs as his children verbally among plaintiffs and
their mothers family friends, as well as by myriad
different paternal ways, including but not limited to the
following: (a) Regular support and educational
expenses (b) Allowance to use his surname (c)
Payment of maternal bills (d) Payment of baptismal
expenses and attendance therein (e) Taking them to
restaurants and department stores on occasions of
family rejoicing (f) Attendance to school problems of
plaintiffs (g) Calling and allowing plaintiffs to his office
every now and then (h) Introducing them as such
children to family friends. (2) The plaintiffs are thus, in
continuous possession of the status of (illegitimate)
children of the deceased Jose M. Aruego who showered
them, with the continuous and clear manifestations of
paternal care and affection as above outlined.
Issue: Should the provisions
applied in the instant case?
application of the Family Code
impair any vested right of the

of the Family Code be

As a corollary Will the
in this case prejudice or
private respondent such

The phrase vested or acquired rights under Article

256, is not defined by the Family Code. The Committee
did not define what is meant by a vested or acquired
right, thus leaving it to the courts to determine what it
means as each particular issue is submitted to them. It
is difficult to provide the answer for each and every
question that may arise in the future.
In the Tayag case, it applies foursquare with the case at
bench. The action brought by private respondent
Antonia Aruego for compulsory recognition and
enforcement of successional rights which was filed prior
to the advent of the Family Code, must be governed by
Article 285 of the Civil Code and not by Article 175,
paragraph 2 of the Family Code. The present law cannot
be given retroactive effect insofar as the instant case is
concerned, as its application will prejudice the vested
right of private respondent to have her case decided
under Article 285 of the Civil Code. The right was vested
to her by the fact that she filed her action under the
regime of the Civil Code. Prescinding from this, the

conclusion then ought to be that the action was not yet

barred, notwithstanding the fact that it was brought
when the putative father was already deceased, since
private respondent was then still a minor when it was
filed, an exception to the general rule provided under
Article 285 of the Civil Code.
Lorenzo vs Posadas
64 Phil 353
Facts: Pablo Lorenzo, in his capacity as trustee of the
estate of Thomas Hanley, deceased, brought this action
against the defendant, Juan Posadas, Jr., then the
Collector of Internal Revenue, f or the ref und of the
amount of P2,052.74, paid by the plaintiff as inheritance
tax on the estate of the deceased, and for the collection
of interest thereon at the rate of 6 per cent per annum,
computed from September 15, 1932, the date when the
aforesaid tax was paid under protest.
It appears that on May 27, 1922, one Thomas Hanley
died in Zamboanga leaving a will and considerable
amount of real and personal properties. On June 14,
1922, proceedings for the probate of his will and the
settlement and distribution of his estate were begun in
the Court of First Instance of Zamboanga. The will was
admitted to probate. Said will provides that: (1) Any
money left by him be given to his nephew, Matthew
Hanley; (2) That all real estate owned by him at the
time of his death be not sold or otherwise disposed of
for a period of ten (10) years after his death, and that
the same be handled and managed by his executors,
and proceeds thereof to be' given to his nephew,
Matthew Hanley, at Castlemore, Ballaghaderine, County
of Rosecommon, Ireland, and that he be directed that
the same be used only for the education of his brother's
children and their descendants; (3) That ten (10) years
after his death his property be given to the above

mentioned Matthew Hanley to be disposed of in the way

he thinks most advantageous; and (4) At the time he
executed his will he has one brother living, named
Malachi Hanley, and that his nephew, Matthew Hanley,
is a son of his said brother, Malachi Hanley.
The CFI of Zamboanga considered it proper for the best
interests of the estate to appoint a trustee to administer
the real properties which, under the will, were to pass to
Matthew Hanley ten years after the testator's death.
Accordingly, P. J. M. Moore, one of the two executors
named in the will, was, on March 8, 1924, appointed
trustee. Moore took his oath of office and gave bond on
March 10, 1924. He acted as trustee until February 29,
1932, when he resigned and the plaintiff herein was
appointed in his stead.
During the incumbency of the plaintiff as trustee, the
defendant Collector of Internal Revenue, alleging that
the estate left by the deceased at the time of his death
consisted of realty valued at P27,920 and personality
valued at P1,465, and allowing a deduction of P480.81,
assessed against the estate an inheritance tax in the
amount of P1,434.24 which, together with the penalties
for delinquency in payment.
The plaintiff paid this amount under protest, notifying
the defendant at the same time that unless the amount
was promptly refunded suit would be brought for its
recovery.
Issues: (a) When does the rights to succession of a
person be transmitted? (b) Whether the estate of
Thomas Hanley in so far as the real properties are
concerned, did not and could not legally pass to the
instituted heir, Matthew Hanley, until after the
expiration of ten years from the death of the testator on
May 27, 1922?

Held: (a) The accrual of the inheritance tax is distinct

from the obligation to pay the same. Section 1536 as
amended, of the Administrative Code, imposes the tax
upon "every transmission by virtue of inheritance,
devise, bequest, gift mortis causa, or advance in
anticipation of inheritance, devise, or bequest." The tax
therefore is upon transmission or the transfer or
devolution of property of a decedent, made effective by
his death. It is in reality an excise or privilege tax
imposed on the right to succeed to, receive, or take
property by or under a will or the intestacy law, or deed,
grant, or gift to become operative at or after death.
According to article 657 of the Civil Code, "the rights to
the succession of a person are transmitted from the
moment of his death." "In other words", said Arellano, C.
J., "* * * the heirs succeed immediately to all of the
property of the deceased ancestor. The property
belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed
and delivered to them a deed for the same before his
death."
Plaintiff, however, asserts that while article 657 of the
Civil Code is applicable to testate as well as intestate
succession, it operates only in so far as forced heirs are
concerned. But the language of article 657 of the Civil
Code is broad and makes no distinction between
different classes of heirs. That article does not speak of
forced heirs it does not even use the word "heir". It
speaks of the rights of succession and of the
transmission thereof from the moment of death. The
provision of section 625 of the Code of Civil Procedure
regarding the authentication and probate of a will as a
necessary condition to effect transmission of property
does not affect the general rule laid down in article 657
of the Civil Code. The authentication of a will implies its
due execution but once probated and allowed the

transmission is effective as of the death of the testator

in accordance with article 657 of the Civil Code.
Whatever may be the time when actual transmission of
the inheritance takes place, succession takes place in
any event at the moment of the decedent's death. The
time when the heirs legally succeed to the inheritance
may differ from the time when the heirs actually receive
such inheritance.
Thomas Hanley having died on May 27, 1922, the
inheritance tax accrued as of that date.
(b) The plaintiff contends that the estate of Thomas
Hanley, in so far as the real properties are concerned,
did not and could not legally pass to the instituted heir,
Matthew Hanley, until after the expiration of ten years
from the death of the testator on May 27, 1922 and,
that the inheritance tax should be based on the value of
the estate in 1932, or ten years after the testator's
death. The plaintifF introduced evidence tending to
show that in 1932 the real properties in question had a
reasonable value of only P5,787. This amount added to
the value of the personal property left by the deceased,
which the plaintiff admits is P1,465, would generate an
inheritance tax which, excluding deductions, interest
and surcharge, would amount only to about P169.52.
If death is the generating source from which the power
of the state to impose inheritance taxes takes its being
and if, upon the death of the decedent, succession takes
place and the right of the state to tax vests instantly,
the tax should be measured by the value of the estate
as it stood at the time of the decedent's death,
regardless of any subsequent contingency affecting
value or any subsequent increase or decrease in value.
"The right of the state to an inheritance tax accrues at
the moment of death, and hence is ordinarily measured

as to any beneficiary by the value at that time of such

property as passes to him. Subsequent appreciation or
depreciation is immaterial."
Parulan vs Garcia
GR No. 184148
Facts: This is a Complaint for Annulment of Sale and
Reconveyance of Property filed by respondents Rosario
CalalangGarcia, Leonora CalalangSabile, and Carlito S.
Calalang asserted their ownership over a certain parcel
of land against the petitioners Nora B. CalalangParulan
and Elvira B. Calalang. The said lot was allegedly
acquired by the respondents from their mother
Encarnacion Silverio, through succession as the latters
compulsory heirs.
Pedro Calalang contracted two marriages during his
lifetime. The first marriage was with their mother
Encarnacion Silverio. During the subsistence of this
marriage, their parents acquired the abovementioned
parcel of land from their maternal grandmother
Francisca
Silverio.
Despite
enjoying
continuous
possession of the land, however, their parents failed to
register the same. On June 7, 1942, the first marriage
was dissolved with the death of Encarnacion Silverio.
Pedro Calalang entered into a second marriage with
Elvira B. Calalang who then gave birth to Nora B.
CalalangParulan and Rolando Calalang. According to the
respondents, it was only during this time that Pedro
Calalang filed an application for free patent over the
parcel of land with the Bureau of Lands. Pedro Calalang
committed fraud in such application by claiming sole
and exclusive ownership over the land since 1935 and
concealing the fact that he had three children with his
first spouse. As a result, the Register of Deeds of

Bulacan issued Original Certificate of Title (OCT) in favor

of Pedro Calalang only.
Pedro Calalang sold the said parcel of land to Nora B.
CalalangParulan as evidenced by a Deed of Sale
executed by both Pedro Calalang and Elvira B. Calalang.
Accordingly, the Register of Deeds of Bulacan cancelled
OCT and issued Transfer Certificate of Title (TCT) in the
name of Nora B. CalalangParulan.
The respondents argued that the sale of the land was
void because Pedro Calalang failed to obtain the
consent of the respondents who were coowners of the
same. As compulsory heirs upon the death of
Encarnacion Silverio, the respondents claimed that they
acquired successional rights over the land. Thus, in
alienating the land without their consent, Pedro
Calalang allegedly deprived them of their pro indiviso
share in the property.
Issue: Whether Pedro Calalang was the exclusive owner
of the disputed property prior to its transfer to his
daughter Nora B. Calalang-Parulan
Held: The petitioners argue that the disputed property
belonged to the conjugal partnership of the second
marriage of Pedro Calalang with Elvira B. Calalang as
evidenced by OCT which was issued to Pedro Calalang
during the subsistence of his marriage to Elvira B.
Calalang. On the other hand, the respondents claim that
the disputed property was transferred by their maternal
grandmother, Francisca Silverio, to their parents, Pedro
Calalang and Encarnacion Silverio, during the latters
marriage. Thus, the respondents argue that it belonged
to the conjugal partnership of the first marriage of Pedro
Calalang with Encarnacion Silverio.

We have carefully reviewed the records of this case and

sustain the finding of the CA that Pedro Calalang is the
sole and exclusive owner of the disputed property.
As correctly pointed out by the CA, a close perusal of
the records of this case would show that the records are
bereft of any concrete proof to show that the subject
property indeed belonged to respondents maternal
grandparents. The evidence respondents adduced
merely consisted of testimonial evidence such as the
declaration of Rosario CalalangGarcia that they have
been staying on the property as far as she can
remember and that the property was acquired by her
parents
through
purchase
from
her
maternal
grandparents. However, she was unable to produce any
document to evidence the said sale, nor was she able to
present any documentary evidence such as the tax
declaration issued in the name of either of her parents.
Moreover, we note that the free patent was issued
solely in the name of Pedro Calalang and that it was
issued more than 30 years after the death of
Encarnacion and the dissolution of the conjugal
partnership of gains of the first marriage. Thus, we
cannot subscribe to respondents submission that the
subject property originally belonged to the parents of
Encarnacion and was acquired by Pedro Calalang and
Encarnacion.
We likewise cannot sustain the argument of the
petitioners that the disputed property belongs to the
conjugal partnership of the second marriage of Pedro
Calalang with Elvira B. Calalang on the ground that the
title was issued in the name of Pedro Calalang, married
to Elvira Berba [Calalang].
A plain reading of the above provision would clearly
reveal that the phrase Pedro Calalang, married to Elvira
Berba [Calalang] merely describes the civil status and

identifies the spouse of the registered owner Pedro

Calalang. Evidently, this does not mean that the
property is conjugal.
It must likewise be noted that in his application for free
patent,[16] applicant Pedro Calalang averred that the
land was first occupied and cultivated by him since
1935 and that he had planted mango trees, coconut
plants, caimito trees, banana plants and seasonal crops
and built his house on the subject lot. But he applied for
free patent only in 1974 and was issued a free patent
while already married to Elvira B. Calalang. Thus,
having possessed the subject land in the manner and
for the period required by law after the dissolution of
the first marriage and before the second marriage, the
subject property ipso jure became private property and
formed part of Pedro Calalangs exclusive property. It
was therefore excluded from the conjugal partnership of
gains of the second marriage.
As the sole and exclusive owner, Pedro Calalang had the
right to convey his property in favor of Nora B. CalalangParulan by executing a Deed of Sale on February 17,
1984.
It is hornbook doctrine that successional rights are
vested only at the time of death. Article 777 of the New
Civil Code provides that [t]he rights to the succession
are transmitted from the moment of the death of the
decedent.
Thus, it is only upon the death of Pedro Calalang on
December 27, 1989 that his heirs acquired their
respective inheritances, entitling them to their pro
indiviso shares to his whole estate. At the time of the
sale of the disputed property, the rights to the
succession were not yet bestowed upon the heirs of
Pedro Calalang. And absent clear and convincing
evidence that the sale was fraudulent or not duly

supported by valuable consideration (in effect an

inofficious donation inter vivos), the respondents have
no right to question the sale of the disputed property on
the ground that their father deprived them of their
respective shares.
Balus vs Balus
GR No. 168970
Facts: Herein petitioner and respondents are the
children of the spouses Rufo and Sebastiana Balus.
Sebastiana died on September 6, 1978, while Rufo died
on July 6, 1984.
In 1979, Rufo mortgaged a parcel of land, which he
owns, as security for a loan he obtained from the Rural
Bank of Maigo, Lanao del Norte (Bank). The said
property was originally covered by Original Certificate of
Title.
Rufo failed to pay his loan. As a result, the mortgaged
property was foreclosed and was subsequently sold to
the Bank as the sole bidder at a public auction held for
that purpose. On November 20, 1981, a Certificate of
Sale was executed by the sheriff in favor of the Bank.
The property was not redeemed within the period
allowed by law. More than two years after the auction
the sheriff executed a Definite Deed of Sale in the
Banks favor. Thereafter, a new title was issued in the
name of the Bank.
Now, herein petitioner and respondents executed an
Extrajudicial Settlement of Estate adjudicating to each
of them a specific onethird portion of the subject
property consisting of 10,246 square meters. The
Extrajudicial Settlement also contained provisions
wherein the parties admitted knowledge of the fact that
their father mortgaged the subject property to the Bank

and that they intended to redeem the same at the

soonest possible time. Three years after the execution
of the Extrajudicial Settlement, herein respondents
bought the subject property from the Bank. A Deed of
Sale of Registered Land was executed by the Bank in
favor of respondents. Subsequently, Transfer Certificate
of Title (TCT) was issued in the name of respondents.
Meanwhile, petitioner continued possession of the
subject lot.
Respondents filed a Complaint8 for Recovery of
Possession and Damages against petitioner, contending
that they had already informed petitioner of the fact
that they were the new owners of the disputed property,
but the petitioner still refused to surrender possession
of the same to them.
Issue: Whether the parcel of land was still part of the
estate of the deceased Rufo when the bank bought it
during the bidding upon foreclosure of the mortgage
Held: No. Petitioner and respondents are arguing on the
wrong premise that, at the time of the execution of the
Extrajudicial Settlement, the subject property formed
part of the estate of their deceased father to which they
may lay claim as his heirs.
At the outset, it bears to emphasize that there is no
dispute with respect to the fact that the subject
property was exclusively owned by petitioner and
respondents father, Rufo, at the time that it was
mortgaged in 1979. This was stipulated by the parties
during the hearing conducted by the trial court on
October 28, 1996. Evidence shows that a Definite Deed
of Sale was issued in favor of the Bank on January 25,
1984, after the period of redemption expired. There is
neither any dispute that a new title was issued in the
Banks name before Rufo died on July 6, 1984. Hence,

there is no question that the Bank acquired exclusive

ownership of the contested lot during the lifetime of
Rufo. The rights to a persons succession are
transmitted from the moment of his death. In addition,
the inheritance of a person consists of the property and
transmissible rights and obligations existing at the time
of his death, as well as those which have accrued
thereto since the opening of the succession.
In the present case, since Rufo lost ownership of the
subject property during his lifetime, it only follows that
at the time of his death, the disputed parcel of land no
longer formed part of his estate to which his heirs may
lay claim. Stated differently, petitioner and respondents
never inherited the subject lot from their father.

himself or by someone else in his presence and under

his express direction. That section requires (1) that the
will be in writing and (2) either that the testator sign it
himself or, if he does not sign it, that it be signed by
someone in his presence and by his express direction.
Who does the mechanical work of writing the will is a
matter of indifference. The fact, therefore, that in this
case the will was typewritten in the office of the lawyer
for the testatrix is of no consequence.
To establish conclusively as against everyone, and once
for all, the facts that a will was executed with the
formalities required by law and that the testator was in
a condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a
will.

Will A Personal Act

Castaneda vs Alemany
3 Phil 426
Facts: Dona Juana Moreno executed a written will in the
presence of three witnesses, who signed it as witnesses
and under the express direction of the testatrix as
required by the law.
Issue: Whether said will is valid
Held: Yes. The evidence in this case shows to our
satisfaction that the will of Doa Juana Moreno was duly
signed by herself in the presence of three witnesses,
who signed it as witnesses in the presence of the
testatrix and of each other. It was therefore executed in
conformity with law.
There is nothing in the language of section 018 of the
Code of Civil Procedure which supports the claim of the
appellants that the will must be written by the testator

The judgment in such proceedings determines and can

determine nothing more. In them the court has no
power to pass upon the validity of any provisions made
in the will. It can not decide, for example, that a certain
legacy is void and another one valid. It could not in this
case make any decision upon the question whether the
testatrix had the power to appoint by will a guardian for
the property of her children by her first husband, or
whether the person so appointed was or was not a
suitable person to discharge such trust.
Law Governing Intrinsic Validity
Miciano vs Brimo
50 Phil 867
Facts: 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.

inasmuch as he is one of the persons designated as

such in the 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:

Issue: What law will apply to the Brimos will

Held: The Philippine 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 of 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
testamentary 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.
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.
In regard to the first assignment of error which deals
with the exclusion of the herein appellant as a legatee,

"Second. I likewise 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, 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 laws.
Bellis vs Bellis
20 SCRA 358
Facts: Amos G. Bellis, born in Texas, was "a citizen of
the State of Texas and of the United States." By his first
wife, Mary E. Mallen, whom he divorced, he had five
legitimate children; by his second wife, Violet Kennedy,
who survived him, he had three legitimate children and
finally, he had three illegitimate children.
Amos G. Bellis executed a will in the Philippines, in
which he directed that after all taxes, obligations, and
expenses of administration are paid f or, his
distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first
wife, Mary E. Mallen (b) P120,000.00 to his three

illegitimate children or P40,000.00 each and (c) after

the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his
first and second wives in equal shares.
Subsequently, Amos G. Bellis died, a resident of San
Antonio, Texas, U.S.A. His will was admitted to probate
in the Court of First Instance of Manila.
The People's Bank and Trust Company, as executor of
the will, paid all the bequests therein including the
amount of $240,000.00 in the form of shares of stock to
Mary E. Mallen and to the three (3) illegitimate children
in various amounts totalling P40,000.00 each in
satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time
accordingly as the lower court approved and allowed.
Preparatory to closing its administration, the executor
submitted and filed its "Executor's Final Account, Report
of Administration and Project of Partition" wherein it
reported, inter alia, the satisfaction of the legacy of
Mary E. Mallen by the delivery to her of shares of stock
amounting to $240,000.00, and the legacies of the 3
illegitimate children in the amount of P40,000.00 each
or a total of ?120,000.00. In the project of partition, the
executor pursuant to the "Twelfth" clause of the
testator's Last Will and Testamentdivided the
residuary estate into seven equal portions for the
benefit of the testator's seven legitimate children by his
first and second marriages.
Maria and Miriam, 2 of the illegitimate children, filed
their respective oppositions to the project of partition on
the ground that they were deprived of their legitimes as
illegitimate children and, therefore, compulsory heirs of
the deceased.

After the parties filed their respective memoranda and

other pertinent pleadings, the lower court, issued an
order overruling the oppositions and approving the
executor's final account, report and administration and
project of partition. Relying upon Art. 16 of the Civil
Code, it applied the national law of the decedent, which
in this case is Texas law, which did not provide for
legitimes.
Issue: Which law must applyTexas law or Philippine
law.
Held: Texas law applies or the law of the nationality of
the decedent, Amos Bellis.
In this regard, the parties do not submit the case on, nor
even discuss, the doctrine of renvoi, applied by this
Court in Aznar v. Christensen Garcia.
Said doctrine is usually pertinent where the decedent is
a national of one country, and a domicile of another. In
the present case, it is not disputed that the decedent
was both a national of Texas and a domicile thereof at
the time of his death. So that even assuming Texas has
a conflict of law rule providing that the domiciliary
system (law of the domicile) should govern, the same
would not result in a reference back (renvoi) to
Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule adopting the
situs theory (lex) where the properties are situated,
renvoi would arise, since the properties here involved
are found in the Philippines. In the absence, however, of
proof as to the conflict of law rule of Texas, it should not
be presumed different from ours. Appellants' position is
therefore not rested on the doctrine of renvoi. As stated,
they never invoked nor even mentioned it in their
arguments. Rather, they argue that their case falls
under the circumstances mentioned in the third

paragraph of Article 17 in relation to Article 16 of the

Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate
or testamentary successions, with regard to four items:
(a) the order of succession (b) the amount of
successional rights (c) the intrinsic validity of the
provisions of the will and (d) the capacity to succeed.
They provide that "ART. 16. Real property as well as
personal property is subject to the law of the country
where it is situated. "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." Appellants would
however counter that Art. 17. paragraph three, of the
Civil Code, stating that "Prohibitive laws concerning
persons, their acts or property, and those which have
for their object public order, public policy and good
customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or
conventions agreed upon in a foreign country."
prevails as the exception to Art. 16, par. 2 of the Civil
Code aforequoted. This is not correct. Precisely,
Congress deleted the phrase, "notwithstanding the
provisions of this and the next preceding article" when
they incorporated Art. 11 of the old Civil Code as Art. 17
of the new Civil Code, while reproducing without

substantial change the second paragraph of Art. 10 of

the old Civil Code as Art. 16 in the new. It must have
been their purpose to make the second paragraph of
Art. 16 a specific provision in itself which must be
applied in testate and intestate successions. As further
indication of this legislative intent. Congress added a
new provision, under Art. 1039, which decrees that
capacity to succeed is to be governed by the national
law of the decedent.

Philippine law on legitimes cannot be applied to the

testacy of Amos G. Bellis.

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.

Notwithstanding the long residence of the decedent in

the Philippines, his stay here was merely temporary,
and he continued and remained to be a citizen of the
United States and of the state of his particular choice,
which is Nevada, as stated in his will. He had planned to
spend the rest of his days in that state. His permanent
residence or domicile in the United States depended
upon his personal intent or desire, and he selected
Nevada as his domicile and therefore at the time of his
death, he was a citizen of that state.

Appellants would also point out that the decedent

executed two willsone to govern his Texas estate and
the other his Philippine estatearguing from this that
he intended Philippine law to govern his Philippine
estate. Assuming that such was the decedent's intention
in executing a separate Philippine will, it would not alter
the law, for as this Court ruled in Miciano v. Brimo.
A provision in a foreigner's will to the effect that his
properties shall be distributed in accordance with
Philippine law and not with his national law, is illegal
and void. for his national law cannot be ignored in
regard to those matters that Article 10now Article 16
of the Civil Code states said national law should
govern. The parties admit that the decedent, Amos G.
Bellis, was a citizen of the State of Texas, U.S.A., and
that under the laws 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

Testate Estate of Bohanan

106 Phil 997
Facts: Testator was born in Nebraska and therefore a
citizen of that state, or at least a citizen of California
where some of his properties are located.

The Philippine Trust Company was named as the

executor of the will.
The executor filed a project of partition making, in
accordance with the provisions of the will, the following
adjudications: (1) onehalf of the residuary estate, to the
Farmers and Merchants National Bank of Los Angeles,
California, U.S.A. in trust only for the benefit of
testator's grandson Edward George Bohanan, which
consists of cash and onehalf in shares of stock of
several mining companies (2) the other half of the
residuary estate to the testator's brother, F. L. Bohanan,
and his sister, Mrs. M. B. Galbraith, share and share
alike. This consists in the same amount of cash and of
shares of mining stock similar to those given to
testator's grandson (3) legacies of P6,000 each to his
(testator) son and his daughter to be paid in three

yearly installments (4) legacies to Clara Daen, in the

amount of P1 0,000.00 Katherine Woodward, P2,000
Beulah Fox, P4,000 and Elizabeth Hastings, P2,000.

her in an order which had become final, as Magdalena

C. Bohanan does not appear to have appealed
therefrom to question its validity.

The wife Magdalena C. Bohanan and her two children

question the validity of the testamentary provisions
disposing of the estate in the manner above indicated,
claiming that they have been deprived of the legitime
that the laws of the forum concede to them.

Moreover, the court below had found that the testator

and Magdalena C. Bohanan were married on January 30,
1909, and that divorce was granted to him on May 20,
1922 that sometime in 1925, Magdalena C. Bohanan
married Carl Aaron and this marriage was subsisting at
the time of the death of the testator. Since no right to
share in the inheritance in favor of a divorced wife exists
in the State of Nevada and since the court below had
already found that there was no conjugal property
between the testator and Magdalena C. Bohanan, the
latter can now have no legal claim to any portion of the
estate left by the testator.

Issue: (1) Whether Magdalena can claim her legitime

from the deceased testate estate (2) What law should
govern, Laws of Nevada or Philippine Law
Held: (1) No. The first question refers to the share that
the wife of the testator, Magdalena C. Bohanan, should
be entitled to receive. The will has not given her any
share in the estate left by the testator. It is argued that
it was error for the trial court to have recognized the
Reno divorce secured by the testator from his Filipino
wife Magdalena C. Bohanan, and that said divorce
should be declared a nullity in this jurisdiction.
The court below refused to recognize the claim of the
widow on the ground that the laws of Nevada, of which
the deceased was a citizen, allow him to dispose of all of
his properties without requiring him to leave any portion
of his estate to his wife.
Section 9905 of Nevada Compiled Laws of 1925
provides "Every person over the age of eighteen years,
of sound mind, may, by last will, dispose of all his or her
estate, real and personal, the same being chargeable
with the payment of the testator's debts."
Besides, the right of the former wife of the testator,
Magdalena C. Bohanan, to a share in the testator's
estate had already been passed upon adversely against

(2) Laws of Nevada. The most important issue is the

claim of the testator's children, Edward and Mary Lydia,
who had received legacies in the amount of P6,000 each
only, and, therefore, have not been given their shares in
the estate which, in accordance with the laws of the
forum, should be two-thirds of the estate left by the
testator. Is the failure of the testator to give his children
twothirds of the estate left by him at the time of his
death, in accordance with the laws of the forum valid?
The old Civil Code, which is applicable to this case
because the testator died in 1944, expressly provides
that successional rights to personal property are to be
governed by the national law of the person whose
succession is in question. Says the law on this point:
"Nevertheless, legal and testamentary successions, in
respect to the order of succession as well as to the
extent 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

and the country in which it is found."
In the proceedings for the probate of the will, it was
found out and it was decided that the testator was a
citizen of the State of Nevada because he had selected
this as his domicile and his permanent residence.
It is not disputed that the laws of Nevada allow a
testator to dispose of all his properties by will.
It does not appear that at the time of the hearing of the
project of partition, the abovequoted provision was
introduced in evidence, as it was the executor's duty to
do. The law of Nevada, being a foreign law, can only be
proved in our courts in the form and manner provided
for by our Rules.
We have, however, consulted the records of the case in
the court below and we have found that during the
hearing Nevada Laws, was introduced in evidence by
appellants. Again said law was presented by the counsel
for the executor and admitted by the Court.
Under all the above circumstances, we are constrained
to hold that the pertinent law of Nevada, especially
Section 9905 of the Compiled Nevada Laws of 1925, can
be taken judicial notice of by us, without proof of such
law having been offered at the hearing of the project of
partition.
As in accordance with Article 10 of the old Civil Code,
the validity of testamentary dispositions are to be
governed by the national law of the testator, and as it
has been decided and it is not disputed that the national
law of the testator is that of the State of Nevada,
already indicated above, which allows a testator to
dispose of all his property according to his will, as in the
case at bar, the order of the court approving the project

of partition made in accordance with the testamentary

provisions, must be, as it is hereby affirmed.
Aznar vs Garcia
7 SCRA 95
Facts: This is an appeal from a decision of the Court of
First Instance of Davao approving among things the final
accounts of the executor, directing the executor to
reimburse Maria Lucy Christensen the amount of P3,600
paid by her to Helen Christensen Garcia as her legacy,
and declaring Maria Lucy Christensen entitled to the
residue of the property to be enjoyed during her
lifetime, and in case of death without issue, onehalf of
said residue to be payable to Mrs. Carrie Louise C.
Borton, etc., in accordance with the provisions of the will
of the testator Edward E. Christensen.
The will was executed in Manila and contains the
following provisions: (1) I declare that I have but ONE
(1) child, named MARIA LUCY CHRISTENSEN (now Mrs.
Bernard Daney), who was born in the Philippines about
twentyeight years ago, and who is now residing at
California, USA; (2) I further declare that I now have no
living ascendants, and no descendants except my above
named daughter, MARIA LUCY CHRISTENSEN DANEY; (3)
I give, devise and bequeath unto MARIA HELEN
CHRISTENSEN, now married to Eduardo Garcia, about
eighteen years of age and who, notwithstanding the fact
that she was baptized Christensen, is not in any way
related to me, nor has she been at any time adopted by
me, and who, from all information I have now resides in
Egpit, Digos, Davao, Philippines, the sum of THREE
THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine
Currency the same to be deposited in trust for the said
Maria Helen Christensen with the Davao Branch of the
Philippine National Bank, and paid to her at the rate of
One Hundred Pesos (P100.00), Philippine Currency per

month until the principal thereof as well as any interest

which may have accrued thereon, is exhausted; (4) I
hereby give, devise and bequeath, unto my wellbeloved
daughter, the said MARIA LUCY CHRISTENSEN DANEY
(Mrs. Bernard Daney), all the income from the rest,
remainder, and residue of my property and estate, real,
personal and/or mixed, of whatsoever kind or character,
and wheresoever situated, of which I may be possessed
at my death and which may have come to me from any
source whatsoever, during her lifetime.
It is in accordance with the abovequoted provisions that
the executor in his final account and project of partition
ratified the payment of only P3,600 to Helen
Christensen Garcia and proposed that the residue of the
estate be transferred to his daughter, Maria Lucy
Christensen.
Opposition to the approval of the project of partition was
filed by Helen Christensen Garcia, insofar as it deprives
her (Helen) of her legitime as an acknowledged natural
child, she having been declared by Us in G.R. Nos.
L1148384 an acknowledged natural child of the
deceased Edward E. Christensen. The legal grounds of
opposition are (a) that the distribution should be
governed by the laws of the Philippines, and (b) that
said order of distribution is contrary thereto insofar as it
denies to Helen Christensen, one of two acknowledged
natural children, onehalf of the estate in full ownership.
In amplification of the above grounds it was alleged that
the law that should govern the estate of the deceased
Christensen should not be the internal law of California
alone, but the entire law thereof because several foreign
elements are involved, that the forum is the Philippines
and even if the case were decided in California, Section
946 of the California Civil Code, which requires that the
domicile of the decedent should apply, should be
applicable. It was also alleged that Maria Helen

Christensen having been declared an acknowledged

natural child of the decedent, she is deemed for all
purposes legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen
was a citizen of the United States and of the State of
California at the time of his death, the successional
rights and intrinsic validity of the provisions in his will
are to be governed by the law of California, in
accordance with which a testator has the right to
dispose of his property in the way he desires, because
the right of absolute dominion over his property is
sacred and inviolable.
Issue: What law should govern the intrinsic validity of
the will of Christensen
Held: We therefore find that as the domicile of the
deceased Christensen, a citizen of California, is the
Philippines, the validity of the provisions of his will
depriving his acknowledged natural child, the appellant,
should be governed by the Philippine Law, the domicile,
pursuant to Art. 946 of the Civil Code of California, not
by the internal law of California.
There is no question that Edward E. Christensen was a
citizen of the United States and of the State of California
at the time of his death. But there is also no question
that at the time of his death he was domiciled in the
Philippines, as witness the following facts admitted by
the executor himself.
In arriving at the conclusion that the domicile of the
deceased is the Philippines, we are persuaded by the
fact that he was born in New York, migrated to California
and resided there for nine years, and since he came to
the Philippines in 1913 he returned to California very
rarely and only for short visits (perhaps to relatives),

and considering that he appears never to have owned

or acquired a home or properties in that state, which
would indicate that he would ultimately abandon the
Philippines and make home in the State of California.
As to his citizenship, however, We find that the
citizenship that he acquired in California when he
resided in Sacramento, California from 1904 to 1913,
was never lost by his stay in the Philippines, for the
latter was a territory of the United States (not a state)
until 1946 and the deceased appears to have
considered himself as a citizen of California by the fact
that when he executed his will in 1951 he declared that
he was a citizen of that State so that he appears never
to have intended to abandon his California citizenship
by acquiring another.
The law that governs the validity of his testamentary
dispositions is defined in Article 16 of the Civil Code of
the Philippines, which is as follows: ART. 16. Real
property as well as personal property is subject to the
law of the country where it is situated. 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 where said
property may be found.
The national law indicated in Article 16 of the Civil
Code above quoted cannot, therefore, possibly mean or
apply to any general American law. So it can refer to no
other than the private law of the State of California.
The decision of the court below, sustains the contention
of the executorappellee that under the California

Probate Code, a testator may dispose of his property by

will in the form and manner he desires, citing the case
of Estate of McDaniel. But appellant invokes the
provisions of Article 946 of the Civil Code of California,
which is as follows: If there is no law to the contrary, in
the place where personal property is situated, it is
deemed to follow the person of its owner, and is
governed by the law of his domicile. The existence of
this provision is alleged in appellants opposition and is
not denied. We have checked it in the California Civil
Code and it is there.
Appellant, on the other hand, insists that Article 946
should be applicable, and in accordance therewith and
following the doc trine of the renvoi, the question of the
validity of the testamentary provision in question should
be referred back to the law of the decedents domicile,
which is the Philippines.
We note that Article 946 of the California Civil Code is its
conflict of laws rule, while the rule applied in In re
Kaufman, Supra, its internal law. If the law on
succession and the conflict of laws rules of California are
to be enforced jointly, each in its own intended and
appropriate sphere, the principle cited In re Kaufman
should apply to citizens living in the State, but Article
946 should apply to such of its citizens as are not
domiciled in California but in other jurisdictions. The rule
laid down of resorting to the law of the domicile in the
determination of matters with foreign element involved
is in accord with the general principle of American law
that the domiciliary law should govern in most matters
or rights which follow the person of the owner.
Appellees argue that what Article 16 of the Civil Code of
the Philippines pointed out as the national law is the
internal law of California. But as above explained the
laws of California have prescribed two sets of laws for its

citizens, one for residents therein and another for those

domiciled in other jurisdictions. Reason demands that
We should enforce the California internal law prescribed
for its citizens residing therein, and enforce the conflict
of laws rules for the citizens domiciled abroad. If we
must enforce the law of California as in comity we are
bound to go, as so declared in Article 16 of our Civil
Code, then we must enforce the law of California in
accordance with the express mandate thereof and as
above explained, i.e., apply the internal law for
residents therein, and its conflictoflaws rule for those
domiciled abroad.
It is argued on appellees behalf that the clause if there
is no law to the contrary in the place where the property
is situated in Sec. 946 of the California Civil Code refers
to Article 16 of the Civil Code of the Philippines and that
the law to the contrary in the Philippines is the provision
in said Article 16 that the national law of the deceased
should govern. This contention cannot be sustained. As
explained in the various authorities cited above the
national law mentioned in Article 16 of our Civil Code is
the law on conflict of laws in the California Civil Code,
i.e., Article 946, which authorizes the reference or return
of the question to the law of the testators domicile. The
conflict of laws rule in California, Article 946, Civil Code,
precisely refers back the case, when a decedent is not
domiciled in California, to the law of his domicile, the
Philippines in the case at bar. The court of the domicile
cannot and should not refer the case back to California
such action would leave the issue incapable of
determination because the case will then be like a
football, tossed back and forth between the two states,
between the country of which the decedent was a
citizen and the country of his domicile. The Philippine
court must apply its own law as directed in the conflict
of laws rule of the state of the decedent, if the question
has to be decided, especially as the application of the

internal law of California provides

children while the Philippine law, Arts.
Civil Code of the Philippines, makes
legally acknowledged forced heirs
recognizing them.

no legitime for
887(4) and 894,
natural children
of the parent

Law Governing Formalities of Wills

In Re Will of Riosa
39 Phil 23
Enriquez vs Abadia
95 SCRA 627
Testamentary Capacity
Bugnao vs Ubag
14 Phil 163
Facts: This is an appeal from an order of the CFI of
Oriental Negros, admitting to probate a document
purporting to be the last will and testament of Domingo
Ubag, deceased. The instrument was propounded by his
widow,
Catalina
Bugnao,
the sole
beneficiary
thereunder, and probate was contested by the brothers
and sisters of the deceased, and who would be entitled
to share in the distribution of his estate, if probate were
denied, as it appears that the deceased left no heirs in
the direct ascending or descending line. Appellants
contend that the evidence of record is not sufficient to
establish the execution of the alleged will in the manner
and form prescribed and that at the time when it is
alleged that the will was executed, Ubag was not of
sound mind and memory, and was physically and
mentally incapable of making a will.
The instrument propounded for probate purports to be
the last will and testament of Domingo Ubag, signed by

him in the presence of three subscribing and attesting

witnesses, and appears upon its face to have been duly
executed in accordance with the provisions of the Code
of Civil Procedure touching the making of wills.
Two of the subscribing witnesses, Victor J. Bingtoy and
Catalino Mario, testified in support of the will, the latter
being the justice of the peace of the municipality
wherein it was executed and their testimony was
corroborated in all important details by the testimony of
the proponent herself, who was present when the will
was made.
The subscribing witnesses gave full and detailed
accounts of the execution of the will and swore that the
testator, at the time of its execution, was of sound mind
and memory, and in their presence attached his
signature thereto as his last will and' testament, and
that in his presence and in the presence of each other,
they as well as the third subscribing witness signed the
instrument as attesting witnesses.
One of the witnesses stated that the deceased sat up in
bed and signed his name to the will, and that after its
execution food was given him by his wife while the
other testified that he was assisted into a sitting
position, and was given something to eat before he
signed his name. We think the evidence discloses that
his wife aided the sick man to sit up in bed at the time
when he signed his name to the instrument, and that he
was given nourishment while he was in that position,
but it is not quite clear whether this was immediately
before or after, or both before and after he attached his
signature to the will.
But, however this may have been, we do not think that
a slight lapse of memory on the part of one or the other
witness, as to the precise details of an unimportant

incident, to which his attention may not have been

particularly directed, is sufficient to raise a doubt as to
the veracity of these witnesses, or as to the truth and
accuracy of their recollection of the fact of the execution
of the instrument.
The contestants put upon the stand four witnesses for
the purpose of proving that at the time and on the
occasion when the subscribing witnesses testified that
the will was executed, these witnesses were not in the
house with the testator, and that the alleged testator
was at that time in such physical and mental condition
that it was impossible for him to have made a will. Two
of these witnesses, upon cross-examination, admitted
that they were not in the house at or between the hours
of four and six in the afternoon of the day on which the
will is alleged to have been made, this being the time at
which the witnesses in support of the will testified that it
was executed.
Of the other two witnesses, one is a contestant of the
will, Macario Ubag, a brother of the testator, and the
other, Canuto Sinoy, his close relative. These witnesses
swore that they were in the house of the deceased,
where he was lying ill, at or about the time when it is
alleged that the will was executed, and that at that time
the alleged subscribing witnesses were not in the house,
and the alleged testator was so sick that he was unable
to speak, to understand, or to make himself understood,
and that he was wholly incapacitated to make a will. But
the testimony of Macario Ubag is in our opinion wholly
unworthy of credence. In addition to his manifest
interest in the result of the investigation, it clearly
discloses a fixed and settled purpose to overthrow the
will at all costs, and to that end an utter disregard of
the truth, and a readiness to swear to any fact which he
imagined would aid in securing his object.

An admittedly genuine and authentic signature of the

deceased was introduced in evidence for comparison
with the signature attached to the will, but this witness
in his anxiety to deny the genuineness of the signature
of his brother to the will, promptly and positively swore
that the admittedly genuine signature was not his
brother's signature, and only corrected his erroneous
statement in response to a somewhat suggestive
question by his attorney which evidently gave him to
understand that his former answer was likely to
prejudice his own cause. On cross-examination, he was
forced to admit that because his brother and his
brother's wife (in whose favor the will was made) were
Aglipayanos, he and his other brothers and sister had
not visited them for many months prior to the one
particular occasion as to which he testified and he
admitted further, that, although he lived near at hand,
at no time thereafter did he or any of the other
members of his family visit their dying brother, and that
they did not even attend his funeral. If the testimony of
this witness could be accepted as true, it would be a
remarkable coincidence indeed, that the subscribing
witnesses to the alleged will should have falsely
pretended to have joined in its execution on the very
day, and at the precise hour, when this interested
witness happened to pay his only visit to his brother
during his last illness, so that the testimony of this
witness would furnish conclusive evidence in support of
the allegations of the contestants that the alleged will
was not executed at the time and place or in the
manner and form alleged by the subscribing witnesses.
In the course of the proceedings, an admittedly genuine
signature of the deceased was introduced in evidence,
and upon a comparison of this signature with the
signature attached to the instrument in question, we are
wholly of the opinion of the trial judge, who held in this
connection as follows:

"No expert evidence has been adduced with regard to

these two signatures, and the presiding judge of this
court does not claim to possess any special expert
knowledge in the matter of signatures nevertheless,
the court has compared these two signatures, and does
not find that any material difference exists between the
same.
x x x but the court finds that the principal strokes in the
two signatures are identical."
Issue: Whether the deceased was of sound mind in has
the testamentary capacity to execute a will
Held: Yes. That the testator was mentally capable of
making the will is in our opinion fully established by the
testimony of the subscribing witnesses who swore
positively that, at the time of its execution, he was of
sound mind and memory. It is true that their testimony
discloses the fact that he was at that time extremely ill,
in an advanced stage of tuberculosis complicated with
severe intermittent attacks of asthma that he was too
sick to rise unaided from his bed that he needed
assistance even to raise himself to a sitting position
and that during the paroxysms of asthma to which he
was subject he could not speak but all this evidence of
physical weakness in no wise establishes his mental
incapacity or a lack of testamentary capacity, and
indeed the evidence of the subscribing witnesses as to
the aid furnished them by the testator in preparing the
will, and his clear recollection of the boundaries and
physical description of the various parcels of land set
out therein, taken together with the fact that he was
able to give to the person who wrote the will clear and
explicit instructions as to his desires touching the
disposition of his property, is strong evidence of his
testamentary capacity.

But when it is considered that the deceased at the time

of his death had no heirs in the ascending or desending
line that a bitter family quarrel had long separated him
from his brothers and sisters, who declined to have any
relations with the testator because he and his wife were
adherents of the Aglipayano Church and that this
quarrel was so bitter that none of his brothers or sisters,
although some of them lived in the vicinity, were
present at the time of his death or attended his funeral
we think the fact that the deceased desired to leave and
did leave all of his property to his widow and made no
provision for his brothers and sisters, who themselves
were grown men and women, by no means tends to
disclose either an unsound mind or the presence of
undue influence on the part of his wife, or in any wise
corroborates contestants' allegation that the will never
was executed.
And while in some cases testamentary capacity has
been held to exist in the absence of proof of some of
these elements, there can be no question that, in the
absence of proof of very exceptional circumstances,
proof of the existence of all these elements is sufficient
to establish the existence of testamentary capacity.
"Testamentary capacity is the capacity to comprehend
the nature of the transaction in which the testator is
engaged at the time, to recollect the property to be
disposed of and the persons who would naturally be
supposed to have claims upon the testator, and to
comprehend the manner in which the instrument will
distribute his property among the objects of his bounty."
In our opinion, the evidence of record establishes in a
strikingly conclusive manner the execution of the
instrument propounded as the last will and testament of
the deceased that it was made in strict conformity with
the requisites prescribed by law and that, at the time of

its execution, the deceased was of sound mind and

memory, and executed the instrument of his own free
will and accord.
Bagtas vs Paguio
22 Phil 227
Facts: This is an appeal from an order of the CFI of the
Province of Bataan, admitting to probate a document
which was offered as the last will and testament of
Pioquinto Paguio y Pizarro. The will purports to have
been executed in the pueblo of Pilar, Province of Bataan,
on the 19th day of April, 1908. The testator died on the
28th of September, 1909, a year and five months
following the date of the execution of the will. The will
was propounded by the executrix, Juliana Bagtas, widow
of the decedent, and the opponents are a son and
several grandchildren by a former marriage, the latter
being the children of a deceased daughter.
The basis of the opposition to the probation of the will is
that the same was not executed according to the
formalities and requirements of the law touching wills,
and further that the testator was not in the full
enjoyment and use of his mental faculties and was
without the mental capacity necessary to execute a
valid will.
The record shows that the testator, Pioquinto Paguio, for
some fourteen or fifteen years prior to the time of his
death suffered from a paralysis of the left side of his
body that a few years prior to his death his hearing
became impaired and that he lost the power of speech.
Owing to the paralysis of certain muscles his head fell to
one side, and saliva ran from his mouth. He retained the
use of his right hand, however, and was able to write
fairly well. Through the medium of signs he was able to

indicate his wishes to his wife and to other members of

his family.
At the time of the execution of the will there were
present the four testamentary witnesses, Agustin
Paguio, Anacleto Paguio, Francisco Paguio, and Pedro
Paguio, an attorney, Seor Marco, and one Florentino
Ramos. Anacleto Paguio and the attorney have since
died, and consequently their testimony was not
available upon the trial of the case in the lower court.
The other three testamentary witnesses and the witness
Florentino Ramos testified as to the manner in which the
will was executed.
According to the uncontroverted testimony of these
witnesses the will was executed in the following
manner: Pioquinto Paguio, the testator, wrote out on
pieces of paper notes and items relating to the
disposition of his property, and these notes were in turn
delivered to Seor Marco, who transcribed them and put
them in form. The witnesses testify that the pieces of
paper upon which the notes were written were delivered
to the attorney by the testator that the attorney read
them to the testator asking if they were his
testamentary dispositions that the testator assented
each time with an affirmative movement of his head
that after the will as a whole had been thus written by
the attorney, it was read in a loud voice in the presence
of the testator and the witnesses that Seor Marco
gave the document to the testator that the latter, after
looking over it, signed it in the presence of the four
subscribing witnesses and that they in turn signed it in
the presence of the testator and of each other.
Upon this point considerable evidence was adduced at
the trial. One of the attesting witnesses testified that at
the time of the execution of the will the testator was in
his right mind, and that although he was seriously ill, he

indicated by movements of his head what his wishes

were. Another of the attesting witnesses stated that he
was not able to say whether decedent had the full use
of his mental faculties or not, because he had been ill
for some years, and that he (the witness) was not a
physician. The other subscribing witness, Pedro Paguio,
testified in the lower court as a witness for the
opponents. He was unable to state whether or not the
will was the wish of the testator. The only reasons he
gave for his statement were the infirmity and advanced
age of the testator and the fact that he was unable to
speak. This witness stated that the testator signed the
will, and he verified his own signature as a subscribing
witness.
Florentino Ramos, although not an attesting witness,
stated that he was present when the will was executed
and his testimony was cumulative in corroboration of
the manner in which the will was executed and as to the
fact that the testator signed the will. This witness also
stated that he had frequently transacted matters of
business for the decedent and had written letters and
made inventories of his property at his request, and that
immediately before and after the execution of the will
he had performed offices of this character. He stated
that the decedent was able to communicate his
thoughts by writing. The testimony of this witness
clearly indicates the presence of mental capacity on the
part of the testator. Among other witnesses for the
opponents were two physicians, Doctor Basa and Doctor
Viado. Doctor Basa testified that he had attended the
testator some four or five years prior to his death and
that the latter had suffered from a cerebral congestion
from which the paralysis resulted.
Doctor Basa testified at more length, but the substance
of his testimony is that the testator had suffered a
paralysis and that he had noticed some mental disorder.

He does not say that the testator was not in his right
mind at the time of the execution of the will, nor does
he give it as his opinion that he was without the
necessary mental capacity to make a valid will. He did
not state in what way this mental disorder had
manifested itself other than that he had noticed that the
testator did not reply to him on one occasion when he
visited him.
Doctor Viado, the other physician, had never seen the
testator, but his answer was in reply to a hypothetical
question as to what would be the mental condition of a
person who was 79 years old and who had suffered from
a malady such as the testator was supposed to have
had according to the testimony of Doctor Basa, whose
testimony Doctor Viado had heard. He replied and
discussed at some length the symptoms and
consequences of the disease from which the testator
had suffered he read in support of his statements from
a work by a German physician, Dr. Herman Eichost. In
answer, however, to a direct question, he stated that he
would be unable to certify to the mental condition of a
person who was suffering from such a disease.
Issue: Whether the deceased was of sound mind in has
the testamentary capacity to execute a will
Held: Yes. We do not think that the testimony of these
two physicians in any way strengthens the contention of
the appellants. Their testimony only confirms the fact
that the testator had been for a number of years prior to
his death afflicted with paralysis, in consequence of
which his physical and mental strength was greatly
impaired. Neither of them attempted to state what was
the mental condition of the testator at the time he
executed the will in question. There can be no doubt
that the testator's infirmities were of a very serious
character, and it is quite evident that his mind was not
as active as it had been in the earlier years of his life.

However, we cannot conclude from this that he was

wanting in the necessary mental capacity to dispose of
his property by will.
There are many cases and authorities which we might
cite to show that the courts have repeatedly held that
mere weakness of mind and body, induced by age and
disease do not render a person incapable of making a
will. The law does not require that a person shall
continue in the full enjoyment and use of his pristine
physical and mental powers in order to execute a valid
will. If such were the legal standard, few indeed would
be the number of wills that could meet such exacting
requirements. The authorities, both medical and legal,
are universal in the statement that the question of
mental capacity is one of degree, and that there are
many gradations from the highest degree of mental
soundness to the lowest conditions of diseased
mentality which are denominated as insanity and idiocy.
The right to dispose of property by testamentary
disposition is as sacred as any other right which a
person may exercise and this right should not be
nullified unless mental incapacity is established in a
positive and conclusive manner.
In the above case the will was sustained. In the case at
bar we might draw the same contrast as was pictured
by the court in the case just quoted. The striking change
in the physical and mental vigor of the testator during
the last years of his life may have led some of those
who knew him in his earlier days to entertain doubts as
to his mental capacity to make a will, yet we think that
the statements of the witnesses to the execution of the
will and the statements of the, conduct of the testator
at that time all indicate that he unquestionably had
mental capacity and that he exercised it on this
occasion. At the time of the execution of the will it does
not appear that his conduct was irrational in any

particular. He seems to have comprehended clearly

what the nature of the business was in which he was
engaged. The evidence shows that the writing and
execution of the will occupied a period of several hours
and that the testator was present during all this time,
taking an active part in all the proceedings. Again, the
will in the case at bar is perfectly reasonable and its
dispositions are those of a rational person.
Neyra vs Neyra
76 Phil 333
Facts: Severo Neyra died intestate on May 6, 1938,
leaving certain properties and two children, by his first
marriage, named Encarnacion Neyra and Trinidad Neyra,
and other children by his second marriage that after his
death, the two sisters, Encarnacion Neyra and Trinidad
Neyra, had serious misunderstandings, in connection
with the properties left by their deceased father, and so
serious were their dissensions that, after March 31,
1939, they had two litigations concerning said
properties. In the first case, Trinidad Neyra and others
demanded from Encarnacion Neyra and others the
annulment of the sale of the property located at No. 366
Raon Street, Manila, which was finally decided in favor
of the defendants and the second is the instant case.
On October 25, 1939, Trinidad Neyra filed a complaint
against her sister, Encarnacion Neyra, for the recovery
of one-half of the property mentioned and described
therein, which had been left by their deceased father,
and which had been previously divided equally between
the two extrajudicially, demanding at the same time
one-half of the rents collected on the said property by
the defendant Encarnacion Neyra.
The defendant filed an answer admitting that the
property mentioned and described therein was

community property, and at the same time set up

counterclaims amounting to over P1,000, for money
spent, during the last illness of their father, and for
money loaned to the plaintiff.
In the meanwhile, Encarnacion Neyra, who had been
sickly for about two years, unexpectedly died, on
November 4, 1942, at the age of 48, allegedly from
heart attack, as a consequence of Addison's disease
from which, it was claimed, she had been suffering for
sometime.
In view of the decision of the Court of Appeals, dated
November 10, 1942, dismissing the appeal, by virtue of
said agreement or compromise, Atty. Lucio Javillonar,
claiming to represent Encarnacion Neyra, who had died
since November 4, 1942, and other relatives of hers,
filed a petition, dated November 23, 1942, asking for
the reconsideration of said decision of the Court of
Appeals, dismissing the appeal, claiming that the
alleged compromise or agreement, dated November 3,
1942, could not have been understood by Encarnacion
Neyra, as she was already then at the threshold of
death, and that as a matter of' fact she died the
following day and that if it had been signed at all by
said Encarnacion Neyra, her thumb mark appearing on
said document must have been affixed thereto by
Trinidad Neyra's attorney, against Encarnacion's will
and that the court had no more jurisdiction over the
case, when the alleged agreement was filed on
November 4, 1942, at the instance of Trinidad Neyra, as
Encarnacion was already dead at the time.
Issue: Whether or not said compromise or agreement
had been legally executed and signed by Encarnacion
Neyra

Held: The foregoing facts have been established by the

witnesses presented by Trinidad Neyra, who are all
trustworthy men, and who had absolutely no interest in
the final outcome of this case. Two of them are ministers
of the Gospel, while three of the attesting witnesses are
professional men of irreproachable character, who had
known and seen and actually talked to the testatrix.
Petitioner Teodora Neyra, half sister of Encarnacion, and
her young daughter Ceferina de la Cruz, and
Presentacion Blanco, daughter of petitioner Maria
Jacobo Vda. de Blanco, substantially corroborated the
testimony of the witnesses presented by Trinidad Neyra,
with reference to the signing of documents, in the
bedroom of Encarnacion Neyra, in the afternoon of
November 3, 1942.
And it has been conclusively shown that Encarnacion
Neyra died on November 4, 1942, due to a heart attack,
at the age of 48, after an illness of about two (2) years.

understood each other clearly, thus showing that the

testatrix was really of sound mind, at the time of signing
and execution of the agreement and will in question. It
may, therefore, be reasonably concluded that the
mental faculties of persons suffering from Addison's
disease, like the testatrix in this case, remain
unimpaired, partly due to the fact that, on account of
the sleep they enjoy, they necessarily receive the
benefit of physical and mental rest. And that like
patients suffering from tuberculosis, insomnia or
diabetes, they preserve their mental faculties until the
moments of their death. Judging by the authorities
above cited, the logical conclusion is that Encarnacion
Neyra was of sound mind and possessed the necessary
testamentary and mental capacity, at the time of the
execution of the agreement and will, dated November 3,
1942.

Insomnia, in spite of the testimony of two doctors, who

testified for the opponents to the probate of a will, to
the effect that it tended to destroy mental capacity, was
held not to affect the full possession of the mental
faculties deemed necessary and sufficient for its
execution.

The contention that the attesting witnesses were not

present, at the time Encarnacion Neyra thumbmarked
the agreement and will in question, on her bed, in the
sala of the house, as they were allegedly in the caida, is
untenable. It has been fully shown that said witnesses
were present at the time of the signing and execution of
the agreement and will in question, in the sala, where
the testatrix was lying on her bed. The true test is not
whether they actually saw each other, at the time of the
signing of the documents, but whether they might have
seen each other sign, had they chosen to do so and the
attesting witnesses actually saw it all in this case. And
the thumbmark placed by the testatrix on the
agreement and will in question is equivalent to her
signature.

Presentacion Blanco, in the course of her crossexamination, frankly admitted that, in the morning and
also at about 6 o'clock in the afternoon of November 3,
1942, Encarnacion Neyra talked to her and that they

It having been shown that the said compromise or

agreement had been legally signed and executed by
Encarnacion Neyra on November 3, 1942, in the
presence of credible and trustworthy witnesses, and

In connection with mental capacity, in several cases,

this court has considered the testimony of witnesses,
who had known and talked to the testators, more
trustworthy than the testimony of alleged medical
experts.

that she was compos mentis and possessed the

necessary testamentary and mental capacity at the
time.
Baltazar vs Laxa
G.R. No. 174489
11 April 2012
Facts: Paciencia was a 78 year old spinster when she
made her last will and testament entitled Tauli Nang
Bilin o Testamento Miss Paciencia Regala in the
Pampango dialect on September 13, 1981. The Will,
executed in the house of retired Judge Ernestino G.
Limpin (Judge Limpin), was read to Paciencia twice. After
which, Paciencia expressed in the presence of the
instrumental witnesses that the document is her last will
and testament. She thereafter affixed her signature at
the end of the said document on page 3 and then on the
left margin of pages 1, 2 and 4 thereof. The witnesses to
the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin),
Francisco Garcia (Francisco) and Faustino R. Mercado
(Faustino). The three attested to the Wills due
execution by affixing their signatures below its
attestation clause and on the left margin of pages 1, 2
and 4 thereof, in the presence of Paciencia and of one
another and of Judge Limpin who acted as notary public.
Childless and without any brothers or sisters, Paciencia
bequeathed all her properties to respondent Lorenzo R.
Laxa (Lorenzo) and his wife Corazon F. Laxa and their
children Luna Lorella Laxa and Katherine Ross Laxa.
The filial relationship of Lorenzo with Paciencia remains
undisputed. Lorenzo is Paciencias nephew whom she
treated as her own son. Conversely, Lorenzo came to
know and treated Paciencia as his own mother.
Paciencia lived with Lorenzos family in Sasmuan,
Pampanga and it was she who raised and cared for
Lorenzo since his birth. Six days after the execution of

the Will or on September 19, 1981, Paciencia left for the

United States of America. There, she resided with
Lorenzo and his family until her death on January 4,
1996.
In the interim, the Will remained in the custody of Judge
Limpin.
More than four years after the death of Paciencia,
Lorenzo filed a petition for the probate of the Will of
Paciencia and for the issuance of Letters of
Administration in his favor.
There being no opposition to the petition after its due
publication, the RTC issued an Order allowing Lorenzo
to present evidence. On said date, Dra. Limpin testified
that she was one of the instrumental witnesses in the
execution of the last will and testament of Paciencia on
September 13, 1981. The Will was executed in her
fathers (Judge Limpin) home office, in her presence and
of two other witnesses, Francisco and Faustino. Dra.
Limpin positively identified the Will and her signatures
on all its four pages. She likewise positively identified
the signature of her father appearing thereon.
Questioned by the prosecutor regarding Judge Limpins
present mental fitness, Dra. Limpin testified that her
father had a stroke in 1991 and had to undergo brain
surgery. The judge can walk but can no longer talk and
remember her name. Because of this, Dra. Limpin
stated that her father can no
longer testify in court.
The following day Antonio Baltazar filed an opposition to
Lorenzos petition. Antonio averred that the properties
subject of Paciencias Will belong to Nicomeda Regala
Mangalindan,
his
predecessor-in-interest
hence,
Paciencia had no right to bequeath them to Lorenzo.

Barely a month after, Antonio, now joined by other

petitioners filed a Supplemental Opposition contending
that Paciencias Will was null and void because
ownership of the properties had not been transferred
and/or titled to Paciencia before her death pursuant to
Article 1049, paragraph 3 of the Civil Code.
Later, petitioners filed an Amended Opposition asking
the RTC to deny the probate of Paciencias Will on the
following grounds: the Will was not executed and
attested to in accordance with the requirements of the
law that Paciencia was mentally incapable to make a
Will at the time of its execution that she was forced to
execute the Will under duress or influence of fear or
threats that the execution of the Will had been
procured by undue and improper pressure and influence
by Lorenzo or by some other persons for his benefit
that the signature of Paciencia on the Will was forged
that assuming the signature to be genuine, it was
obtained through fraud or trickery and, that Paciencia
did not intend the document to be her Will.
Issue: Whether the authenticity and due execution of
the notarial Will was sufficiently established to warrant
its allowance for probate
Held: (1) Faithful compliance with the formalities laid
down by law is apparent from the face of the Will.
Due execution of the will or its extrinsic validity pertains
to whether the testator, being of sound mind, freely
executed the will in accordance with the formalities
prescribed by law. These formalities are enshrined in
Articles 805 and 806 of the New Civil Code, to wit:
Art. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself
or by the testators name written by some other person

in his presence, and by his express direction, and

attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages
shall be numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to
the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of
the will, or file another with the Office of the Clerk of
Court.
Here, a careful examination of the face of the Will shows
faithful compliance with the formalities laid down by
law. The signatures of the testatrix, Paciencia, her
instrumental witnesses and the notary public, are all
present and evident on the Will. Further, the attestation
clause explicitly states the critical requirement that the
testatrix and her instrumental witnesses signed the Will
in the presence of one another and that the witnesses

attested and subscribed to the Will in the presence of

the testator and of one another. In fact, even the
petitioners acceded that the signature of Paciencia in
the Will may be authentic although they question her
state of mind when she signed the same as well as the
voluntary nature of said act.
(2) The burden to prove that Paciencia was of unsound
mind at the time of the execution of the will lies on the
shoulders of the petitioners.
We agree with the position of the CA that the state of
being forgetful does not necessarily make a person
mentally unsound so as to render him unfit to execute a
Will. Forgetfulness is not equivalent to being of unsound
mind. Besides, Article 799 of the New Civil Code states:
Art. 799. To be of sound mind, it is not necessary that
the testator be in full possession of all his reasoning
faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other
cause.
It shall be sufficient if the testator was able at the time
of making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act.
In this case, apart from the testimony of Rosie
pertaining to Paciencias forgetfulness, there is no
substantial evidence, medical or otherwise, that would
show that Paciencia was of unsound mind at the time of
the execution of the Will. On the other hand, we find
more worthy of credence Dra. Limpins testimony as to
the
soundness of mind of Paciencia when the latter went to
Judge Limpins house and voluntarily executed the Will.

The testimony of subscribing witnesses to a Will

concerning the testators mental condition is entitled to
great
weight
where
they
are
truthful
and
intelligent.More importantly, a testator is presumed to
be of sound mind at the time of the execution of the
Will and the burden to prove otherwise lies on the
oppositor. Article 800 of the New Civil Code states:
Art. 800. The law presumes that every person is of
sound mind, in the absence of proof to the contrary. The
burden of proof that the testator was not of sound mind
at the time of making his dispositions is on the person
who opposes the probate of the will but if the testator,
one month, or less, before making his will was publicly
known to be insane, the person who maintains the
validity of the will must prove that the testator made it
during a lucid interval.
Here, there was no showing that Paciencia was publicly
known to be insane one month or less before the
making of the Will.
(3) Bare allegations of duress or influence of fear or
threats, undue and improper influence and pressure,
fraud and trickery cannot be used as basis to deny the
probate of a will.
An essential element of the validity of the Will is the
willingness of the testator or testatrix to execute the
document that will distribute his/her earthly possessions
upon his/her death.
We take into consideration the unrebutted fact that
Paciencia loved and treated Lorenzo as her own son and
that love even extended to Lorenzos wife and children.
This kind of relationship is not unusual. It is in fact not
unheard of in our culture for old maids or spinsters to
care for and raise their nephews and nieces and treat

them as their own children. Such is a prevalent and

accepted cultural practice that has resulted in many
family discords between those favored by the
testamentary disposition of a testator and those who
stand to benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that
Paciencias relationship with Lorenzo and his family is
different from her relationship with petitioners. The very
fact that she cared for and raised Lorenzo and lived with
him both here and abroad, even if the latter was already
married and already has children, highlights the special
bond between them. This unquestioned relationship
between Paciencia and the devisees tends to support
the authenticity of the said document as against
petitioners allegations of duress, influence of fear or
threats, undue and improper influence, pressure, fraud,
and trickery which, aside from being factual in nature,
are not supported by concrete, substantial and credible
evidence on record. It is worth stressing that bare
arguments, no matter how forceful, if not based on
concrete and substantial evidence cannot suffice to
move the Court to uphold said allegations.
Formalities of Wills
Acop vs Piraso
52 Phil 660
Facts: This appeal was taken from the judgment of the
Court of First Instance of Benguet, denying the probate
of the instrument as the last will and testament of the
deceased Piraso. The proponent-appellant assigns the
following as alleged errors of the lower court:
(1) In holding that in order to be valid the will in
question should have been drawn up in the Ilocano
dialect.

(2) In not holding that the testator Piraso did not know
the Ilocano dialect well enough to understand a will
drawn up in said dialect.
(3) In refusing to admit the will in question to probate."
The fundamental errors assigned refer chiefly to the
part of
the judgment which reads as follows:
"The evidence shows that Piraso knew how to speak the
Ilocano dialect, although imperfectly, and could make
himself understood in that dialect, and the court is of
the opinion that his will should have been written in that
dialect."
Issue: Whether the will was valid
Held: Such statements were unnecessary for the
decision of the case, once it has been proved without
contradiction, that the said deceased Piraso did not
know English, in which language the instrument, alleged
to be his will, is drawn. Section 618 of the Code of Civil
Procedure, strictly provides that:
"No will, except as provided in the preceding section"
(as to wills executed by a Spaniard or a resident of the
Philippine Islands, before the present Code of Civil
Procedure went into effect), "shall be valid to pass any
estate, real or personal, nor charge or affect the same,
unless it be written in the language or dialect known by
the testator," etc. Nor can the presumption in favor of a
will established by this court in Abangan vs. Abangan
(40 Phil., 476), to the effect that the testator is
presumed to know the dialect of the locality where he
resides, unless there is proof to the contrary, even be
invoked in support of the probate of said document as a
will, because, in the instant case, not only is it not
proven that English is the language of the City of Baguio

where the deceased Piraso lived and where was drawn,

but that the record contains positive proof that said
Piraso knew no other language than the Igorrote dialect,
with a smattering of Ilocano that is, he did not know the
English language in which said will is written.

hand and put himself in position to sign the will as a

witness, but did not sign in the presence of Isabelo Jena
but nevertheless, after Jena had left the room the said
Julio Javellana signed as a witness in the presence of the
testator and of the witness Aniceto Jalbuena."

So that even if such a presumption could have been

raised in this case it would have been wholly
contradicted and destroyed. We consider the other
questions raised in this appeal needless and immaterial
to the adjudication of this case, it having been, as it
was, proven, that the instrument in question could not
be probated as the last will and testament of the
deceased Piraso, having been written in the English
language with which the latter was unacquainted.

Issue: Whether the requirements for a valid will was

complied

Jaboneta vs Gustilo
5 Phil 541
Facts: On the 26th day of December, 1901, Macario
Jaboneta executed under the following circumstances
the document in question, which has been presented for
probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this
province, he ordered that the document in question be
written, and calling Julio Javellana, Aniceto Jalbuena, and
Isabelo Jena as witnesses, executed the said document
as his will. They were all together, and were in the room
where Jaboneta was, and were present when he signed
the document, Isabelo Jena signing afterwards as a
witness, at his request, and in his presence and in the
presence of the other two witnesses. Aniceto Jalbuena
then signed as a witness in the presence of the testator,
and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being
in a hurry to leave, took his hat and left the room. As he
was leaving the house Julio Javellana took the pen in his

Held: Yes. We cannot agree with so much of the above

finding of facts as holds that the signature of Javellana
was not signed in the presence of Jena in compliance
with the provisions of section 618 of the Code of Civil
Procedure.
The fact that Jena was still in the room when he saw
Javellana moving his hand and pen in the act of affixing
his signature to the will, taken together with the
testimony of the remaining witnesses, which shows that
Javellana did in fact there and then sign his name to the
will, convinces us that the signature was affixed in the
presence of Jena. The fact that he was in the act of
leaving and that his back was turned while a portion of
the name of the witness was being written, is of no
importance. He, with the other witnesses and the
testator, had assembled for the purpose of executing
the testament, and were together in the same room for
that purpose, and at the moment when the witness
Javellana signed the document he was actually and
physically present and in such position with relation to
Javellana that he could see everything which took place
by merely casting his eyes in the proper direction, and
without any physical obstruction to prevent his doing so
therefore we are of opinion that the document was in
fact signed before he finally left the room.
The purpose of a statutory requirement that the witness
sign in the presence of the testator is said to be that the

testator may have ocular evidence of the identity of the

instrument subscribed by the witness and himself, and
the generally accepted tests of presence are vision and
mental apprehension.
In the matter of Bedell (2 Connoly (N. Y.), 328) it was
held that it is sufficient if the witnesses are together for
the purpose of witnessing the execution of the will, and
in a position to actually see the testator write, if they
choose to do so and there are many cases which lay
down the rule that the true test of vision is not whether
the testator actually saw the witness sign, but whether
he might have seen him sign, considering his mental
and physical condition and position at the time of the
subscription.
Avera vs Garcia
42 Phil 145
Facts: In proceedings in the court below, instituted by
Eutiquia Avera for probate of the will of one Esteban
Garcia, contest was made by Marino Garcia and Juan
Rodriguez, the latter in the capacity of guardian for the
minors Jose Garcia and Cesar Garcia. Upon the date
appointed for the hearing, the proponent of the will
introduced one of the three attesting witnesses who
testifiedwith details not necessary to be here specified
that the will was executed with all necessary external
formalities, and that the testator was at the time in full
possession of disposing faculties. Upon the latter point
the witness was corroborated by the person who wrote
the will at the request of the testator. Two of the
attesting witnesses were not introduced, nor was their
absence accounted for by the proponent of the will.
When the proponent rested the attorney for the
opposition introduced a single witness whose testimony
tended to show in, a vague and indecisive manner that
at the time the will was made the testator was so

debilitated as to be unable to comprehend what he was

about.
After the cause had been submitted for determination
upon the proof thus presented, the trial judge found that
the testator at the time of the making of the will was of
sound mind and disposing memory and that the will had
been properly executed. He accordingly admitted the
will to probate.
Issue: (1) Whether a will can be admitted to probate,
where opposition is made, upon the proof of a single at
testing witness, without producing or accounting for the
absence of the other
(2) Whether the will in question is rendered invalid by
reason of the fact that the signature of the testator and
of the three attesting
witnesses are written on the right margin of each page
of the will instead of the left margin
Held: (1) Upon the first point, while it is undoubtedly
true that an
uncontested will may be proved by the testimony of
only one of the three attesting witnesses, nevertheless
in Cabang vs. Delfinado (34 Phil., 291), this court
declared after an elaborate examination of the
American and English authorities that when a contest is
instituted, all of the attesting witnesses must be
examined, if alive and within reach of the process of the
court.
In the present case no explanation was made at the trial
as to why all three of the attesting witnesses were not
produced, but the probable reason is found in the fact
that, although the petition for the probate of this Will
had been pending from December 21, 1917, until the
date set for the hearing, which was April 5, 1919, no
formal contest was entered until the very day set for the

hearing and it is probable that the attorney for the

proponent, believing in good faith that probate would
not be contested, repaired to the court with only one of
the three attesting witnesses at hand, and upon finding
that the will was contested, incautiously permitted the
case to go to proof without asking for a postponement
of the trial in order that he might produce all the
attesting witnesses.
Although this circumstance may explain why the three
witnesses were not produced, it does not in itself supply
any basis for changing the rule expounded in the case
above referred to and were it not for a fact now to be
mentioned, this court would probably be compelled to
reverse this case on the ground that the execution of
the will had not been proved by a sufficient number of
attesting witnesses.
Properly understood, the case of Cabang vs. Delfinado,
supra, contains nothing inconsistent with the ruling we
now make, for it appears from the opinion in that case
that the proponent of the will had obtained an order for
a republication and new trial for the avowed purpose of
presenting the two additional attesting witnesses who
had not been previously examined, but nevertheless
subsequently failed without any apparent reason to take
their testimony. Both parties in that case were therefore
fully apprised that the question of the number of
witnesses necessary to prove the will was in issue in the
lower court.
(2) The second point involved in this case is whether,
under section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, it is essential to the validity
of a will in this jurisdiction that the names of the
testator and the instrumental witnesses should be
written on the left margin of each page, as required in
said Act, and not upon the right margin, as in the will

now before us and upon this we are of the opinion that

the will in question is valid.
It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left
margin of each and every page and it is undeniable
that the general doctrine is to the effect that all
statutory requirements as to the execution of wills must
be fully complied with. The same doctrine is also
deducible from cases heretofore decided by this court.
Still some details at times creep into legislative
enactments which are so trivial that it would be absurd
to suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect
that the signatures of the testator and witnesses shall
be written on the left margin of each pagerather than
on the right marginseems to be of this character. So
far as concerns the authentication of the will, and of
every part thereof, it
can make no possible difference whether the names
appear on the left or on the right margin, provided they
are on one or the other.
The instrument now before us contains the necessary
signatures on every page, and the only point of
deviation from the requirement of the statute is that
these signatures appear in the right margin instead of
the left. By the mode of signing here adopted every
page and provision of the will is authenticated and
guarded from possible alteration in exactly the same
degree that it would have been protected by being
signed in the left margin and the resources of casuistry
could be exhausted without discovering
the slightest difference between the consequences of
affixing the signatures in one margin or the other.
The controlling considerations on the point now before
us were well stated in Re: will of Abangan (40 Phil., 476,

479), where the court, speaking through Mr. Justice

Avancea, in a case where the signatures were placed
at the bottom of the page and not in the margin, said:
"The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud,
to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way
as to attain these primordial ends. But, on the other
hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an
interpretation already given as sure such ends, any
other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be
disregarded."
In the case before us, where ingenuity could not suggest
any possible prejudice to any person, as attendant upon
the actual deviation from the letter of the law, such
deviation must be considered too trivial to invalidate the
instrument.
Icasiano vs Icasiano
11 SCRA 423
Facts: This special proceeding was begun on October 2,
1958 by a petition for the allowance and admission to
probate of the original, Exhibit "A" as the alleged will of
Josefa Villacorte, deceased, and for the appointment of
petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for
November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to
the time appointed, in the newspaper "Manila

Chronicle", and also caused personal service of copies

thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of
the testatrix, filed her opposition and on November 10,
1958, she petitioned to have herself appointed as a
special administrator, to which proponent objected.
Hence, on November 18, 1958, the court issued an
order appointing the Philippine Trust Company as
special administrator.
On February 18, 1959, Enrique Icasiano, a son of the
testatrix, also filed a manifestation adopting as his own
Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent
commenced the introduction of his evidence but on
June 1, 1959, he filed a motion for the admission of an
amended and supplemental petition, alleging that the
decedent left a will executed in duplicate with all the
legal requirements, and that he was, on that dates
submitting the signed duplicate (Exhibit "A1"), which he
allegedly found only on or about May 26, 1959.
The evidence presented for the petitioner is to the effect
that Josefa Villacorte died in the City of Manila on
September 12, 1958 that on June 2, 1956, the late
Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published
before and attested by three instrumental witnesses,
namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy that the will was
acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before
attorney Jose Oyengco Ong, Notary Public in and for the
City of Manila and that the will was actually prepared
by attorney Fermin Samson, who was also present

during the execution and signing of the decedent's last

will and testament, together with former Governor
Emilio Rustia of Bulacan, Judge Ramon Icasiano, and a
little girl. Of the said three instrumental witnesses to the
execution of the decedent's last will and testament,
attorneys Torres and Natividad were in the Philippines at
the time of the hearing, and both testified as to the due
execution and authenticity of the said will So did the
Notary Public before whom the will was acknowledged
by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the
document. The latter also testified upon cross
examination that he prepared one original and two
copies of Josefa Villacorte's last will and testament at his
house in Baliuag, Bulacan, but he brought only one
original and one signed copy to Manila, retaining one
unsigned copy in Bulacan.
Issue: Whether the will is valid despite having only the
signature of the witness on the third page
Held: Yes. The records show that the original of the will,
which. was surrendered simultaneously with the filing of
the petition and marked as Exhibit "A" consists of five
pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting
witnesses, Atty. Jose V. Natividad, on page three (3)
thereof but the duplicate copy attached to the
amended and supplemental petition and marked as
Exhibit' "A1" is signed by the
testatrix and her three attesting witnesses in each and
every page.
The testimony presented by the proponents of the will
tends to show that the original of the will and its
duplicate were subscribed at the end and on the left
margin of each and every page thereof by the testatrix
herself and attested and subscribed by the three

mentioned witnesses in the testatrix's presence and in

that of one another as witnesses (except for the missing
signature of attorney Natividad 011 page three (3) of
the original) that pages of the original and duplicate of
said will were duly numbered that the attestation
clause thereof contains all the facts required by law to
be recited therein and is signed by the aforesaid
attesting witnesses that the will is written in the
language known to and spoken by the testatrix that the
attestation clause is in a language also known to and
spoken by the witnesses that the will was executed on
one single occasion in duplicate copies and that both
the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of
Manila on the same dateJune 2, 1956.
Witness Natividad, who testified on his failure to sign
page three (3) of the original, admits that he may have
lifted two pages instead of one when he signed the
same, but affirmed that page three (3) was signed in his
presence. Oppositors-appellants in turn introduced
expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A1") are not genuine
nor were they written or affixed on the same occasion
as "the original, and further aver 'that granting that the
documents were genuine, they were executed through
mistake and with undue influence and pressure because
the testatrix was deceived into adopting as her last will
and testament the wishes of those who will stand to
benefit from the provisions of the will, as may be
inferred from the facts and circumstances surrounding
the execution of the will and the provisions and
dispositions thereof, whereby proponents-appellees
stand to profit from properties held by them as
attorneys-in-fact of the deceased and not enumerated
or mentioned therein, while oppositors-appellants are
enjoined not to look for other properties not mentioned
in the will, and not to oppose the probate of it, on

penalty of forfeiting their share in the portion of free

disposal.

right the original. These factors were not discussed by

the expert.

We have examined the record and are satisfied, as the

trial court was, that the testatrix signed both original
and duplicate copies (Exhibits "A" and "A1",
respectively) of the will spontaneously, on the same
occasion, in the presence of the three attesting
witnesses, the notary public who acknowledged the will
and Atty. Samson, who actually prepared the
documents that the will and itsduplicate were executed
in Tagalog, a language known to and spoken by both the
testator and the witnesses, and read to and by the
testatrix and Atty. Fermin Samson, together before they
were actually signed that the attestation clause is also
in a language known to and spoken by the testatrix and
the witnesses. The opinion of expert for oppositors, Mr,
Felipe Logan, that the signatures of the testatrix
appearing in the duplicate original were not written by
the same hand which wrote the signatures in the
original will leaves us unconvinced, not merely because
it is directly contradicted by expert Martin Ramos for the
proponents, but principally because of the paucity of the
standards used by him to support the conclusion that
the differences between the standard and questioned
signatures are beyond the writer's range of normal
scriptural variation. The expert has, in fact, used as
standards only three other signatures of the testatrix
besides those affixed to the original of the testament
(Exh. A) and we feel that with so few standards the
expert's opinion and the signatures in the duplicate
could not be those of the testatrix becomes extremely
hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that there
are radical differences that would justify the charge of
forgery, taking into account the advanced age of the
testatrix, the evident variability of her signatures, and
the effect of writing fatigue, the duplicate being signed

Similarly, the alleged slight variance in blueness of the

ink in the admitted and questioned signatures does not
appear reliable, considering the standard and
challenged writings were affixed to different kinds of
paper, with different surfaces and reflecting power. On
the whole therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the
notary and the two instrumental witnesses, Torres and
Natividad (Dr. Diy, being in the United States during the
trial, did not testify). Nor do we find adequate evidence
of fraud or undue influence. The fact that some heirs are
more favored than others is proof of neither.
Diversity of apportionment is the usual reason for
making a testament otherwise, the decedent might as
well die intestate. The testamentary dispositions that
the heirs should not inquire into other property and that
they should respect the distribution made in the will,
under penalty of forfeiture of their shares in the free
part do not suffice to prove fraud or undue influence.
They appear motivated by the desire to prevent
prolonged litigation which, as shown by ordinary
experience, often results in a sizeable portion of the
estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a
matter to be litigated on another occasion.
On the question of law, we hold that the inadvertent
failure of one witness to affix his signature to one page
of a testament, due to the simultaneous lifting of two
pages in the course of signing, is not per se sufficient to
justify denial of probate. Impossibility of substitution of
this page is assured not only the fact that the testatrix
and two other witnesses did sign the defective page,
but also by its bearing the coincident imprint of the seal

of the notary public before whom the testament was

ratified by testatrix and all three witnesses. The law
should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of
a single witness over whose conduct she had no control,
where the purpose of the law to guarantee the identity
of the testament and its component pages are
sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record attests to
the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off.
Gaz. 1459, at 1479 (decision on reconsideration)
"witnesses may sabotage the will by muddling or
bungling it or the attestation clause".
That the failure of witness Natividad to sign page three
(3) was entirely through pure oversight is shown by his
own testimony as well as by the duplicate copy of the
will, which bears a complete set of signatures in every
page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the
time. This would not be the first time that this Court
departs from a strict and literal application of the
statutory requirements, where the purposes of the law
are otherwise satisfied. Thus, despite the literal tenor of
the law, this Court has held that a testament, with the
only page signed at its foot by testator and witnesses,
but not in the left margin, could nevertheless be
probated (Abangan vs. Abangan, 41 Phil. 476) and that
despite the requirement for the correlative lettering of
the pages of a will, the failure to make the first page
either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the
Court's policy to require satisfaction
of the legal
requirements in order to guard 'against fraud and bad
faith but without undue or unnecessary curtailment of
the testamentary privilege.

The appellants also argue that since the original of the

will is in existence and available, the duplicate (Exh. A1)
is not entitled to probate. Since they opposed probate of
original because it lacked one signature in its third
page, it is easily discerned that oppositors-appellants
run here into a dilemma if the original is defective and
invalid, then in law there is no other will but the duly
signed carbon duplicate (Exh. A1), and the same is
probatable. If the original is valid and can be probated,
then the objection to the signed duplicate need not be
considered, being superfluous and irrelevant. At any
rate, said duplicate, Exhibit A1, serves to prove that the
omission of one signature in the third page of the
original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A1, was produced and
admitted without a new publication does not affect the
jurisdiction of the probate court, already conferred by
the original publication of the petition for probate. The
amended petition did not substantially alter the one first
filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that
new interests were involved (the contents of Exhibit A
and A1 are admittedly identical) and appellants were
duly notified of the proposed amendment. It is nowhere
proved or claimed that the amendment deprived the
appellants of any substantial right, and we see no error
in admitting the amended petition.
Cagro vs Cagro
92 Phil 1033
Facts: This is an appeal interposed by the oppositors
from a decision of the Court of First Instance of Samar,
admitting to probate the will allegedly executed by
Vicente Cagro who died in Laoangan, Pambujan, Samar,
on February 14, 1949.

The main objection insisted upon by the appellants is

that the will is fatally defective, because its attestation
clause is not signed by the attesting witnesses. There is
no question that the signatures of the three witnesses
to the will do not appear at the bottom of the
attestation clause, although the page containing the
same is signed by the witnesses on the left-hand
margin.
Issue: Whether the will is valid for not signing the
attestation clause
Held: No. The attestation clause is "a memorandum of
the facts attending the execution of the will" required by
law to be made by the attesting wit nesses, and it must
necessarily bear their signatures. An unsigned
attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the
bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of
the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their
signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin
of all its pages. If an attestation clause not signed by
the three witnesses at the bottom thereof, be admitted
as sufficient, it would be easy to add such clause to a
will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.

the bottom, but also on the left-hand margin. The

witnesses testified not only that the will was signed by
the testator in their presence and in the presence of
each other but also that when they did so, the
attestation clause was already written thereon. Their
testimony has not been contradicted. The only objection
set up by the oppositors to the validity of the will is the
fact that the signatures of the instrumental witnesses do
not appear immediately after the attestation clause.
Nera vs Rimandi
18 Phil 450
Facts: This case is for the probate of the will of Pedro
Rimando.
Issue: Whether the will is valid when one of the
subscribing witnesses was present in the small room
where it was executed at the time when the testator
and the other subscribing witnesses attached their
signatures or whether at that time he was outside,
some eight or ten feet away, in a large room connecting
with the smaller room by a doorway, across which was
hung a curtain which made it impossible for one in the
outside room to see the testator and the other
subscribing witnesses in the act of attaching
their signatures to the instrument.

Dissenting Opinion by Justice Bautista Angelo:

Held: The decree entered by the court below admitting

the instrument propounded therein to probate as the
last will and testament of Pedro Rimando, deceased, is
affirmed.

I dissent. In my opinion the will in question has

substantially complied with the formalities of the law
and, therefore, should be admitted to probate. It
appears that the will was signed by the testator and was
attested by three instrumental witnesses, not only at

But we are unanimously of opinion that had this

subscribing witness been proven to have been in the
outer room at the time when the testator and the other
subscribing witnesses attached their signatures to the
instrument in the inner room, it would 'have been

invalid as a will, the attaching of those signatures under

such circumstances not being done "in the presence" of
the witness in the outer room. This because the line of
vision from this witness to the testator and the other
subscribing witnesses would
necessarily have been impeded by the curtain
separating the inner room from the outer one "at the
moment of inscription of each signature."
In the case just cited, on which the trial court relied, we
held that:
"The true test of presence of the testator and the
witnesses in the execution of a will is not whether they
actually saw each other sign, but whether they might
have seen each other sign, had they chosen to do so,
considering their mental and physical condition and
position with relation to each other at the moment of
inscription of each signature."
But it is especially to be noted that the position of the
parties with relation to each other at the moment of the
subscription of each signature, must be such that they
may see each other sign if they choose to do so. This, of
course, does not mean that the testator and the
subscribing witnesses may be held to have executed the
instrument in the presence of each other if it appears
that they would not have been able to see each other
sign at that moment, without changing their relative
positions or existing conditions. The evidence in the
case relied upon by the trial judge discloses that "at the
moment when the witness Javellana signed the
document he was actually and physically present and in
such position with relation to Jaboneta that he could see
everything that took place by merely casting his eyes in
the proper direction and without any physical
obstruction to prevent his doing so." And the decision
merely laid down the doctrine that the question whether
the testator and the subscribing witnesses to an alleged

will sign the instrument in the presence of each other

does not depend upon proof of the fact that their eyes
were actually cast upon the paper at the moment of its
subscription by each of them, but that at that moment
existing conditions and their position with relation to
each other were such that by merely casting the eyes in
the proper direction they could have seen each other
sign. To extend the doctrine further would open the door
to the possibility of all manner of fraud, substitution,
and the like, and would defeat the purpose for which
this particular condition is prescribed in the code as one
of the requisites in the execution of a will.
Caneda vs CA
222 SCRA 781
Facts: The records show that on December 5, 1978,
Mateo Caballero, a widower without any children and
already in the twilight years of his life, executed a last
will and testament at his residence in Talisay, Cebu
before three attesting witnesses, namely, Cipriano
Labuca, Gregorio Cabando and Flaviano Toregosa. The
said testator was duly assisted by his lawyer, Atty.
Emilio Lumontad, and a notary public, Atty. Filoteo
Manigos, in the preparation of that last will. It was
declared therein, among other things, that the testator
was leaving by way of legacies and devises
his real and personal properties to Presentacion Gaviola,
Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo,
Benoni G. Cabrera and Marcosa Alcantara, all of whom
do not appear to be related to the testator.
Four months, later, or on April 4, 1979, Mateo Caballero
himself filed a petition docketed as Special Proceeding
seeking the probate of his last will and testament. On
May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court. On
February 25, 1981, Benoni Cabrera, one of the legatees

named in the will, sought his appointment as special

administrator of the testators estate, the estimated and
he was so appointed by the probate court in its order of
March 6, 1981.
Thereafter, herein petitioners, claiming to be nephews
and nieces of the testator, instituted a second petition,
entitled In the Matter of the Intestate Estate of Mateo
Caballero.
On October 18, 1982, herein petitioners had their said
petition for intestate proceedings consolidated with
Special Proceeding No. 3899-R and opposed thereat the
probate of the testators will and the appointment of a
special administrator for his estate.
Benoni Cabrera died on February 1982 hence the
probate court, appointed William Cabrera as special
administrator. Thereafter, it issued an order for the
return of the records of Special Proceeding to the
archives since the testate proceedings for the probate
of the will had to be heard and resolved first.
In the course of the hearing in Special Proceeding herein
petitioners appeared as oppositors and objected to the
allowance of the testators will on the ground that on
the alleged date of its execution, the testator was
already in a poor state of health such that he could not
have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of
the signature of the testator therein.
On the other hand, one of the attesting witnesses,
Cipriano Labuca, and the notary public, Atty. Filoteo
Manigos, testified that the testator executed the will in
question in their presence while he was of sound and
disposing mind and that, contrary to the assertions of
the oppositors, Mateo Caballero was in good health and

was not unduly influenced in any way in the execution

of his will. Labuca also testified that he and the other
witnesses attested and signed the will in the presence
of the testator and of each other. The other two
attesting witnesses were not presented in the probate
hearing as they had died by then.
Issue: Whether or not the attestation clause contained
in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805,
in relation to Article 809, of the Civil Code.
Held: Yes. (1) A will has been defined as a species of
conveyance
whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the
disposition of his estate after his death. Under the Civil
Code, there are two kinds of wills which a testator may
execute. The first kind is the ordinary or attested will,
the execution of which is governed by Articles 804 to
809 of the Code.
(2) An examination of the last will and testament of
Mateo Caballero shows that it is comprised of three
sheets all of which have been numbered correlatively,
with the left margin of each page thereof bearing the
respective signatures of the testator and the three
attesting witnesses. The part of the will containing the
testamentary dispositions is expressed in the CebuanoVisayan dialect and is signed at the foot thereof by the
testator. The attestation clause in question, on the other
hand, is recited in the English language and is likewise
signed at the end thereof by the three attesting
witnesses thereto. Since it is the proverbial bone of
contention, we reproduce it again for facility of
reference:

We, the undersigned attesting Witnesses, whose

Residences and
postal addresses appear on the Opposite of our
respective names,
we do hereby certify that the Testament was read by
him and the testator, MATEO CABALLERO, has published
unto us the foregoing Will consisting of THREE PAGES,
including the Acknowledgment, each page numbered
correlatively in letters on the upper part of each page,
as his Last Will and Testament and he has signed the
same and every page thereof, on the spaces provided
for his signature and on the left hand margin, in the
presence of the said testator and in the presence of
each and all of us.
It will be noted that Article 805 requires that the
witnesses should both attest and subscribe to the will in
the presence of the testator and of one another.
Attestation and subscription differ in meaning.
Attestation is the act of the senses, while subscription is
the act of the hand. The former is mental, the latter
mechanical, and to attest a will is to know that it was
published as such, and to certify the facts required to
constitute an actual and legal publication but to
subscribe a paper published as a will is only to write on
the same paper the names of the witnesses, for the sole
purpose of identification.
It is contended by petitioners that the aforequoted
attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the
Civil Code for attestation clauses, fails to specifically
state the fact that the attesting witnesses witnessed the
testator sign the will and all its pages in their presence
and that they, the witnesses, likewise signed the will
and every page thereof in the presence of the testator
and of each other.

We agree.
What is fairly apparent upon a careful reading of the
attestation clause herein assailed is the fact that while it
recites that the testator indeed signed the will and all its
pages in the presence of the three attesting witnesses
and states as well the number of pages that were used,
the same does not expressly state therein the
circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the
testator and of each other.
The phrase and he has signed the same and every
page thereof, on the spaces provided for his signature
and on the left hand margin, obviously refers to the
testator and not the instrumental witnesses as it is
immediately preceded by the words as his Last Will and
Testament. On the other hand, although the words in
the presence of the testator and in the presence of each
and all of us may, at first blush, appear to likewise
signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in
the presence of the witnesses since said phrase
immediately follows the words he has signed the same
and every page thereof, on the spaces provided for his
signature and on the left hand margin. What is then
clearly lacking, in the final logical analysis, is the
statement that the witnesses signed the will and every
page thereof in the presence of the testator and of one
another.
It is our considered view that the absence of that
statement required by law is a fatal defect or
imperfection which must necessarily result in the
disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing
out that the aforestated defect in the attestation clause
obviously cannot be characterized as merely involving

the form of the will or the language used therein which

would warrant the application of the substantial
compliance rule, as contemplated in the pertinent
provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects
and imperfections in
the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial
compliance with all the requirements of article 805
(Italics supplied.)
While it may be true that the attestation clause is
indeed subscribed at the end thereof and at the left
margin of each page by the three attesting witnesses, it
certainly cannot be conclusively inferred therefrom that
the said witnesses affixed their respective signatures in
the presence of the testator and of each other since, as
petitioners correctly observed, the presence of said
signatures only establishes the fact that it was indeed
signed, but it does not prove that the attesting
witnesses did subscribe to the will in the presence of the
testator and of each other. The execution of a will is
supposed to be one act so that where the testator and
the witnesses sign on various days or occasions and in
various combinations, the will cannot be stamped with
the imprimatur of effectivity.
We believe that the following comment of former Justice
J.B.L. Reyes regarding Article 809, wherein he urged
caution in the application of the substantial compliance
rule therein, is correct and should be applied in the case
under consideration, as well as to future cases with
similar questions:

x x x The rule must be limited to disregarding those

defects that can be supplied by an examination of the
will itself: whether all the pages are consecutively
numbered whether the signatures appear in each and
every page whether the subscribing witnesses are
three or the will was notarized. All these are facts that
the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and
whether all persons required to sign did so in the
presence of each other must substantially appear in the
attestation clause, being the only check against perjury
in the probate proceedings. (Emphasis ours.)
(3) We stress once more that under Article 809, the
defects or imperfections must only be with respect to
the form of the attestation or the language employed
therein. Such defects or imperfections would not render
a will invalid should it be proved
that the will was really executed and attested in
compliance with Article 805. In this regard, however, the
manner of proving the due execution and attestation
has been held to be limited to merely an examination of
the will itself without resorting to evidence aliunde,
whether oral or written.
The foregoing considerations do not apply where the
attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the
will in the presence of the testator and each other.
In the case at bar, contrarily, proof of the acts required
to have been performed by the attesting witnesses can
be supplied only by extrinsic evidence thereof, since an
overall appreciation of the contents of the will yields no
basis whatsoever from which such facts may be
plausibly deduced. What private respondent insists on
are the testimonies of his witnesses alleging that they

saw the compliance with such requirements by the

instrumental witnesses, oblivious of the fact that he is
thereby resorting to extrinsic evidence to prove the
same and would accordingly be doing by indirection
what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30,
1950, there was a divergence of views as to which
manner of interpretation should be followed in resolving
issues centering on compliance with the legal
formalities required in the execution of wills. The formal
requirements were at that time embodied primarily in
Section 618 of Act No. 190, the Code of Civil Procedure.
Said decision was later amended by Act No. 2645, but
the provisions respecting said formalities found in Act
No. 190 and the amendment thereto were practically
reproduced and adopted in the Civil Code.
One view advanced the liberal or substantial compliance
rule. The other view which advocated the rule that
statutes which prescribe the formalities that should be
observed in the execution of wills are mandatory in
nature and are to be strictly construed.
The Code Commission, cognizant of such a conflicting
welter of views and of the undeniable inclination
towards a liberal construction, recommended the
codification of the substantial compliance rule, as it
believed this rule to be in accord with the modern
tendency to give a liberal approach to the interpretation
of wills. Said rule thus became what is now Article 809
of the Civil Code, with this explanation of the Code
Commission:
The present law provides for
executing a will, and that is, in
formalities prescribed by Section
Civil Procedure as amended by

only one form of

accordance with the
618 of the Code of
Act No. 2645. The

Supreme Court of the Philippines had previously upheld

the strict compliance with the legal formalities and had
even said that the provisions of Section 618 of the Code
of Civil Procedure, as amended regarding the contents
of the attestation clause were mandatory, and
noncompliance therewith invalidated the will (Uy Coque
vs. Sioca, 43 Phil. 405). These decisions necessarily
restrained the freedom of the testator in disposing of his
property.
However, in recent years the Supreme Court changed
its attitude and has become more liberal in the
interpretation of the formalities in the execution of wills.
The socalled liberal rule, the Court said in Gil vs.
Murciano, does not offer any puzzle or difficulty, nor
does it open the door to serious consequences. The
later decisions do tell us when and where to stop they
draw the dividing line with, precision. They do not allow
evidence aliunde to fill a void in any part of the
document or supply missing details that should appear
in the will itself. They only permit a probe into the will,
an exploration into its confines, to ascertain its meaning
or to determine the existence or absence of the
requisite formalities of law. This clear, sharp limitation
eliminates uncertainty and ought to banish any fear of
dire results.
It may thus be stated that the rule, as it now stands, is
that omission which can be supplied by an examination
of the will itself, without the need of resorting to
extrinsic
evidence,
will
not
be
fatal
and,
correspondingly, would not obstruct the allowance to
probate of the will being assailed.
However, those omissions which cannot be supplied
except by evidence aliunde would result in the

invalidation of the attestation clause and ultimately, of

the will itself.
Cruz vs Villasor
54 SCRA 31
Facts: Petition to review on certiorari the judgment of
the Court of First Instance of Cebu allowing the probate
of the last will and testament of the late Valente Z. Cruz.
Petitioner-appellant Agapita N. Cruz, the surviving
spouse of the said deceased, opposed the allowance of
the will (Exhibit E), alleging that the will was executed
through fraud, deceit, misrepresentation and undue
influence that the said instrument was executed
without the testator having been fully informed of the
contents thereof, particularly as to what properties he
was disposing and that the supposed last will and
testament was not executed in accordance with law.
Issue: Whether the supposed last will and testament of
Valente Z. Cruz (Exhibit E) was executed in
accordance with law, particularly Articles 805 and 806
of the new Civil Code, the first requiring at least three
credible witnesses to attest and subscribe to the will,
and the second requiring the testator and the witnesses
to acknowledge the will before a notary public.
Held: Of the three instrumental witnesses thereto,
namely, Deogracias T. Jamaoas, Jr., Dr. Francisco
Paares, and Atty. Angel H. Teves, Jr., one of them, the
last named, is at the same time the Notary Public before
whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question
was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each
other, considering that the three attesting witnesses
must appear before the notary public to acknowledge
the same. As the third witness is the notary public

himself, petitioner argues that the result is that only two

witnesses
appeared before the notary public to acknowledge the
will.
On the other hand, private respondent-appellee, Manuel
B. Lugay, who is the supposed executor of the will,
following the reasoning of the trial court, maintains that
there is substantial compliance with the legal
requirement of having at least three attesting witnesses
even if the notary public acted as one of them.
After weighing the merits of the conflicting claims of the
parties, We are inclined to sustain that of the appellant
that the last will and testament in question was not
executed in accordance with law. The notary public
before whom the will was acknowledged cannot be
considered as the third instrumental witness since he
cannot acknowledge before himself his having signed
the will.
Consequently, if the third witness were the notary public
himself, he would have to avow, assent, or admit his
having signed the will in front of himself. This cannot be
done because he cannot split his personality into two so
that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a
situation to obtain would be sanctioning a sheer
absurdity.
Furthermore, the function of a notary public is, among
others, to guard against any illegal or immoral
arrangements. That function would be defeated if the
notary public were one of the attesting or instrumental
witnesses. For them he would be interested in
sustaining the validity of the will as it directly involves
himself and the validity of his own act. It would place
him in an inconsistent position and the very purpose of

the acknowledgment, which is to minimize fraud would

be thwarted.

G.R. No. 189984

12 November 2012

Admittedly, there are American precedents holding that

a notary public may, in addition, act as a witness to the
execution of the document he has notarized.

Facts: On June 21, 1999, Enrique S. Lopez (Enrique)

died leaving his wife, Wendy B. Lopez, and their four
legitimate children, namely, petitioner Richard B. Lopez
(Richard) and the respondents Diana Jeanne Lopez
(Diana), Marybeth de Leon (Marybeth) and Victoria L.
Tuazon (Victoria) as compulsory heirs. Before Enriques
death, he executed a Last Will and Testament4 on
August 10, 1996 and constituted Richard as his executor
and administrator.

But these authorities do not serve the purpose of the

law in this jurisdiction or are not decisive of the issue
herein, because the notaries public and witnesses
referred to in the aforecited cases merely acted as
instrumental, subscribing or attesting witnesses, and
not as acknowledging witnesses. Here the notary public
acted not only as attesting witness but also as
acknowledging witness, a
situation not envisaged by Article 805 of the Civil Code
which reads:
ART. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of
the will or file another with the office of the Clerk of
Court.
To allow the notary public to act as third witness, or one
of the attesting and acknowledging witnesses, would
have the effect of having only two attesting witnesses to
the will which would be in contravention of the
provisions of Article 805 requiring at least three credible
witnesses to act as such and of Article 806 which
requires that the testator and the required number of
witnesses must appear before the notary public to
acknowledge the will. The result would be, as has been
said, that only two witnesses appeared before the
notary public for that purpose. In the circumstances, the
law would not be duly observed.
Lopez vs Lopez

On September 27, 1999, Richard filed a petition for the

probate of his fathers Last Will and Testament before
the RTC of Manila with prayer for the issuance of letters
testamentary in his favor. Marybeth opposed the
petition contending that the purported last will and
testament was not executed and attested as required by
law, and that it was procured by undue and improper
pressure and influence on the part of Richard. The said
opposition was also adopted by Victoria.
After submitting proofs of compliance with jurisdictional
requirements,
Richard
presented
the
attesting
witnesses, namely: Reynaldo Maneja Romulo Monteiro
Ana Maria Lourdes Manalo (Manalo) and the notary
public who notarized the will, Atty. Perfecto Nolasco
(Atty. Nolasco). The instrumental witnesses testified that
after the late Enrique read and signed the will on each
and every page, they also read and signed the same in
the latters presence and of one another. Photographs of
the incident were taken and presented during trial.
Manalo further testified that she was the one who
prepared the drafts and revisions from Enrique before
the final copy of the will was made.

Likewise, Atty. Nolasco claimed that Enrique had been

his client for more than 20 years. Prior to August 10,
1996, the latter consulted him in the preparation of the
subject will and furnished him the list of his properties
for distribution among his children. He prepared the will
in accordance with Enriques instruction and that before
the latter and the attesting witnesses signed it in the
presence of one another, he translated the will which
was written in English to Filipino and added that Enrique
was in good health and of sound mind at that time.
On the other hand, the oppositors presented its lone
witness, Gregorio B. Paraon (Paraon), Officer-in-Charge
of the Notarial Section, Office of the Clerk of Court, RTC,
Manila. His testimony centered mainly on their findings
that Atty. Nolasco was not a notary public for the City of
Manila in 1996, which on cross examination was
clarified after Paraon discovered that Atty. Nolasco was
commissioned as such for the years 1994 to 1997.
Issue: Whether the will is valid
Held: The provisions of the Civil Code on Forms of Wills,
particularly, Articles 805 and 809 of the Civil Code
provide:
ART. 805. Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself
or by the testators name written by some other person
in his presence, and by his express direction, and
attested and subscribed by three or more credible
witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages

shall be numbered correlatively in letters placed on the

upper part of each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the
testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the
testator and of one another. If the attestation clause is
in a language not known to the witnesses, it shall be
interpreted to them.
ART. 809. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if
it is proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of Article 805.
The law is clear that the attestation must state the
number of pages used upon which the will is written.
The purpose of the law is to safeguard against possible
interpolation or omission of one or some of its pages
and prevent any increase or decrease in the pages.
While Article 809 allows substantial compliance for
defects in the form of the attestation clause, Richard
likewise failed in this respect. The statement in the
Acknowledgment portion of the subject last will and
testament that it consists of 7 pages including the
page on which the ratification and acknowledgment are
written cannot be deemed substantial compliance. The
will actually consists of 8 pages including its
acknowledgment
which
discrepancy
cannot
be

explained by mere examination of the will itself but

through the presentation of evidence aliunde.

probate of the alleged holographic will of the late

Melecio Labrador.

On this score is the comment of Justice J.B.L. Reyes

regarding the application of Article 809, to wit:

Subsequently, on September 30, 1975, Jesus Labrador

(now deceased but substituted by his heirs), and
Gaudencio Labrador filed an opposition to the petition
on the ground that the will has been extinguished or
revoked by implication of law, alleging therein that on
September 30, 1971, that is, before Melecios death, for
the consideration of Six Thousand (P6,000) Pesos,
testator Melecio executed a Deed of Absolute Sale,
selling, transferring and conveying in favor of oppositors
Jesus and Gaudencio and that as a matter of fact, O.C.T.
had been cancelled by T.C.T. Earlier however, in 1973,
Jesus Labrador sold said parcel of land to Navat for only
Five Thousand (P5,000) Pesos.

x x x The rule must be limited to disregarding those

defects that can be supplied by an examination of the
will itself: whether all the pages are consecutively
numbered whether the signatures appear in each and
every page whether the subscribing witnesses are
three or the will was notarized. All these are facts that
the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and
whether all persons required to sign did so in the
presence of each other must substantially appear in the
attestation clause, being the only check against perjury
in the probate proceedings.
Hence, the CA properly sustained the disallowance of
the will.
Holographic Will
Labrador vs CA
184 SCRA 170
Facts: On June 10, 1972, Melecio Labrador died in the
Municipality of Iba, province of Zambales, where he was
residing, leaving behind a parcel of land under Original
Certificate of Title and the following heirs, namely:
Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina,
Juliana, Hilaria and Jovita, all surnamed Labrador, and a
holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but
substituted by his heirs), Enrica Labrador and Cristobal
Labrador, filed in the court a quo a petition for the

Sagrado thereupon filed, on November 28, 1975, against his

brothers, Gaudencio and Jesus, for the annulment of said
purported Deed of Absolute Sale over a parcel of land which
Sagrado allegedly had already acquired by devise from their
father Melecio Labrador under a holographic will executed on
March 17, 1968, the complaint for annulment being premised
on the fact that the aforesaid Deed of Absolute Sale is
fictitious.
After both parties had rested and submitted their respective
evidence, the trial court rendered a joint decision dated
February 28, 1985, allowing the probate of the holographic
will and declaring null and void the Deed of Absolute Sale.
Issue: Whether or not the alleged holographic will of
one Melecio Labrador is dated, as provided for in Article
8102 of the New Civil Code

Held: Yes. The petition, which principally alleges that

the holographic will is really dated, although the date is
not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator
himself in perfect compliance with Article 810. It is
worthy of note to quote the first paragraph of the
second page of the holographic will, viz:
And this is the day in which we agreed that we are
making the partitioning and assigning the respective
assignment of the said fishpond, and this being in the
month of March, 17th day, in the year 1968, and this
decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other
than MELECIO LABRADOR, their father.
The law does not specify a particular location where the
date should be placed in the will. The only requirements
are that the date be in the will itself and executed in the
hand of the testator. These requirements are present in
the subject will.
Respondents claim that the date 17 March 1968 in the
will was when the testator and his beneficiaries entered
into an agreement among themselves about the
partitioning and assigning the respective assignments of
the said fishpond, and was not the date of execution of
the holographic will hence, the will is more of an
agreement between the testator and the beneficiaries
thereof to the prejudice of other compulsory heirs like
the respondents. This was thus a failure to comply with
Article 783 which defines a will as an act whereby a
person is permitted, with the formalities prescribed by
law, to control to a certain degree the disposition of his
estate, to take effect after his death.
Respondents are in error. The intention to show 17
March 1968 as the date of the execution of the will is

plain from the tenor of the succeeding words of the

paragraph. As aptly put by petitioner, the will was not
an agreement but a unilateral act of Melecio Labrador
who plainly knew that what he was executing was a will.
The act of partitioning and the declaration that such
partitioning as the testators instruction or decision to
be followed reveal that Melecio Labrador was fully
aware of the nature of the estate property to be
disposed of and of the character of the testamentary act
as a means to control the disposition of his estate.
Ajero vs CA
236 SCRA 488
Facts: The instrument submitted for probate is the
holographic will of the late Annie Sand, who died on
November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S. Arong, Leah
Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and
Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. for
allowance of decedents holographic will. They alleged
that at the time of its execution, she was of sound and
disposing mind, not acting under duress, fraud or undue
influence, and was in every respect capacitated to
dispose of her estate by will.
Private respondent opposed the petition on the grounds
that: neither the testaments body nor the signature
therein was in decedents handwriting it contained
alterations and corrections which were not duly signed
by decedent and, the will was procured by petitioners
through improper pressure and undue influence. The
petition was likewise opposed by Dr. Jose Ajero. He

contested the disposition in the will of a house and lot

located in Cabadbaran, Agusan Del Norte. He claimed
that said property could not be conveyed by decedent in
its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court
admitted the decedents holographic will to probate.
RTC found that the will was valid however the Court of
Appeals found that, the holographic will fails to meet
the requirements for its validity.4 It held that the
decedent did not comply with Articles 813 and 814 of
the New Civil Code. It alluded to certain dispositions in
the will which were either unsigned and undated, or
signed but not dated. It also found that the erasures,
alterations and cancellations made thereon had not
been authenticated by decedent.
Issue: Whether the holographic will of Anne Sand was
not executed in accordance with the formalities
prescribed by law
Held: Section 9, Rule 76 of the Rules of Court provides
that wills shall be disallowed in any of the following
cases:
(1) If not executed and attested as required by law
(2) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution
(3) If it was executed under duress, or the influence of
fear, or threats
(4) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary, or of some
other person for his benefit
(5) If the signature of the testator was procured by fraud
or trick, and he did not intend that the instrument
should be his will at the time of fixing his signature
thereto.

In the same vein, Article 839 of the New Civil Code

reads:
Article 839: The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not been
complied with (2) If the testator was insane, or
otherwise mentally incapable of making a will, at the
time of its execution
(3) If it was executed through force or under duress, or
the influence of fear, or threats
(4) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary or of some
other person
(5) If the signature of the testator was procured by
fraud
(6) If the testator acted by mistake or did not intend
that the instrument he signed should be his will at the
time of affixing his signature thereto.
These lists are exclusive no other grounds can serve to
disallow a will. Thus, in a petition to admit a holographic
will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the
decedents last will and testament (2) whether said will
was executed in accordance with the formalities
prescribed by law (3) whether the decedent had the
necessary testamentary capacity at the time the will
was executed and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedent.
In the case at bench, respondent court held that
the holographic will of Anne Sand was not
executed in accordance with the formalities
prescribed by law. It held that Articles 813 and
814 of the New Civil Code, ante, were not

complied with, hence, it disallowed the probate of

said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40
Phil. 476, 479 (1919), that: The object of the
solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testators
last will, must be disregarded.
For purposes of probating nonholographic wills, these
formal solemnities include the subscription, attestation,
and acknowledgment requirements under Articles 805
and 806 of the New Civil Code. In the case of
holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed.
Failure to strictly observe other formalities will not result
in the disallowance of a holographic will that is
unquestionably handwritten by the testator. A reading of
Article 813 of the New Civil Code shows that its

requirement affects the validity of the dispositions

contained in the holographic will, but not its probate. If
the testator fails to sign and date some of the
dispositions, the result is that these dispositions cannot
be effectuated. Such failure, however, does not render
the whole testament void. Likewise, a holographic will
can still be admitted to probate, notwithstanding noncompliance with the provisions of Article 814.
In the case of Kalaw vs. Relova, 132 SCRA 237, 242
(1984), this Court held: Ordinarily, when a number of
erasures, corrections, and interlineations made by the
testator in a holographic Will have not been noted under
his signature, x x x the Will is not thereby invalidated as
a whole, but at most only as respects the particular
words erased, corrected or interlined. Manresa gave an
identical commentary when he said la omision de la
salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril
de 1895.
Thus,
unless
the
unauthenticated
alterations,
cancellations or insertions were made on the date of the
holographic will or on testators signature,9 their
presence does not invalidate the will itself.10 The lack of
authentication will only result in disallowance of such
changes.
It is also proper to note that the requirements of
authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary
conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and
688 of the Spanish Civil Code, from which the present
provisions covering holographic wills are taken.
They read as follows:

Article 678: A will is called holographic when the

testator writes it himself in the form and with the
requisites required in Article 688.
Article 688: Holographic wills may be executed only by
persons of full age. In order that the will be valid it
must be drawn on stamped paper corresponding to the
year of its execution, written in its entirety by the
testator and signed by him, and must contain a
statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined
words, the testator must identify them over his
signature. Foreigners may execute holographic wills in
their own language.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810
of the New Civil Codeand not those found in Articles
813 and 814 of the same Codeare essential to the
probate of a holographic will. The Court of Appeals
further held that decedent Annie Sand could not validly
dispose of the house and lot located in Cabadbaran,
Agusan del Norte, in its entirety. This is correct and must
be affirmed.
As a general rule, courts in probate proceedings are
limited to pass only upon the extrinsic validity of the will
sought to be probated. However, in exceptional
instances, courts are not powerless to do what the
situation constrains them to do, and pass upon certain
provisions of the will. In the case at bench, decedent
herself indubitably stated in her holographic will that
the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero
to question her conveyance of the same in its entirety).
Thus, as correctly held by respondent court, she cannot

validly dispose of the whole property, which she shares

with her fathers other heirs.
Kalaw vs Relova
132 SCRA 237
Facts: On September 1, 1971, private respondent
GREGORIO K. KALAW, claiming to be the sole heir of his
deceased sister, Natividad K. Kalaw, filed a petition for
the probate of her holographic Will executed on
December 24, 1968.
The holographic Will, as first written, named ROSA K.
Kalaw, a sister of the testatrix as her sole heir. Hence,
on November 10, 1971, petitioner ROSA K. Kalaw
opposed probate alleging, in substance, that the
holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full
signature of the testatrix as required by Article 814 of
the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure
or alteration in a holographic will, the testator must
authenticate the same by his full signature.
ROSAs position was that the holographic Will, as first
written, should be given effect and probated so that she
could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order,
dated September 3, 1973, reading in part:
The document Exhibit C was submitted to the
National Bureau of Investigation for examination. The
NBI reported that the handwriting, the signature, the
insertions and/or additions and the initial were made by
one and the same person. Consequently, Exhibit C was

the handwriting of the decedent, Natividad K. Kalaw. x x

x
The Court finds, therefore, that the provision of Article
814 of the Civil Code is applicable to Exhibit C. Finding
the insertions, alterations and/or additions in Exhibit C
not to be authenticated by the full signature of the
testatrix Natividad K. Kalaw, the Court will deny the
admission to probate of Exhibit C.
Issue: Whether the will, Exhibit C, should be admitted
to probate although the alterations and/or insertions or
additions abovementioned were not authenticated by
the full signature of the testatrix pursuant to Art. 814 of
the Civil Code
Held: Ordinarily, when a number of erasures,
corrections, and interlineations made by the testator in
a holographic Will have not been noted under his
signature, x x x the Will is not thereby invalidated as a
whole, but at most only as respects the particular words
erased, corrected or interlined.1 Manresa gave an
identical commentary when he said la omision de la
salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril
de 1895.
However, when as in this case, the holographic Will in
dispute had only one substantial provision, which was
altered by substituting the original heir with another,
but which alteration did not carry the requisite of full
authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked
for the simple reason that nothing remains in the Will
after that which could remain valid. To state that the Will
as first written should be given efficacy is to disregard
the seeming change of mind of the testatrix. But that
change of mind can neither be given effect because she

failed to authenticate it in the manner required by law

by affixing her full signature.
The ruling in Velasco, supra, must be held confined to
such insertions, cancellations, erasures or alterations in
a holographic Will, which affect only the efficacy of the
altered words themselves but not the essence and
validity of the Will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix
herein, her real intention cannot be determined with
certitude.
Perez vs Tolete
232 SCRA 722
Facts: Dr. Jose F. Cunanan and his wife, Dr. Evelyn
PerezCunanan,
who
became
American
citizens,
established a successful medical practice in New York,
U.S.A. The Cunanans lived at with their children, Jocelyn,
18 Jacqueline, 16 and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will
and testament, bequeathing to his wife all the
remainder of his real and personal property at the time
of his death wheresoever situated. In the event he
would survive his wife, he bequeathed all his property to
his children and grandchildren with Dr. Rafael G.
Cunanan, Jr. as trustee. He appointed his wife as
executrix of his last will and testament and Dr. Rafael G.
Cunanan, Jr. as substitute executor. Article VIII of his will
states:
If my wife, EVELYN PEREZCUNANAN, and I shall die
under such circumstances that there is not sufficient
evidence to determine the order of our deaths, then it
shall be presumed that I predeceased her, and my
estate shall be administered and distributed, in all
respects, in accordance with such presumption

Four days later, on August 27, Dr. Evelyn P. Cunanan

executed her own last will and testament containing the
same provisions as that of the will of her husband.
Article VIII of her will states:

Company be directed to deliver the proceeds in the

amount of P50,000.00 of the life insurance policy taken
by Dr. Jose F. Cunanan with Dr. Evelyn PerezCunanan
and their daughter Jocelyn as beneficiaries.

If my husband, JOSE F. CUNANAN, and I shall die under

such circumstances that there is not sufficient evidence
to determine the order of our deaths, then it shall be
presumed that he predeceased me, and my estate shall
be administered and distributed in all respects, in
accordance with such presumption

Counsel for the Philippine American Life Insurance

Company then filed a manifestation, stating that said
company had delivered to petitioner the amount of
P49,765.85, representing the proceeds of the life
insurance policy of Dr. Jose F. Cunanan.

On January 9, 1982, Dr. Cunanan and his entire family

perished when they were trapped by fire that gutted
their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as
trustee and substitute executor of the two wills, filed
separate proceedings for the probate thereof with the
Surrogate Court of the County of Onondaga, New York.
On April 7, these two wills were admitted to probate and
letters testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother
of Dr. Evelyn P. Cunanan, and petitioner herein, filed
with the Regional Trial Court, Malolos, Bulacan a petition
for the reprobate of the two wills ancillary to the probate
proceedings in New York. She also asked that she be
appointed the special administratrix of the estate of the
deceased couple consisting primarily of a farm land in
San Miguel, Bulacan.
On March 9, the Regional Trial Court issued an order,
directing
the
issuance
of
letters
of
special
administration in favor of petitioner upon her filing of a
P10,000.00 bond. The following day, petitioner posted
the bond and took her oath as special administratrix.
As her first act of administration, petitioner filed a
motion, praying that the Philippine Life Insurance

In a motion dated May 19, 1983, petitioner asked that

Dr. Rafael Cunanan, Sr. be ordered to deliver to her a
Philippine Trust Company passbook with P25,594.00 in
savings deposit, and the Family Savings Bank time
deposit certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of
appearance as counsel for the heirs of Dr. Jose F.
Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla
Cunanan
Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and
Loreto Cunanan Concepcion (Cunanan heirs). He also
manifested that before receiving petitioners motion of
May 19, 1983, his clients were unaware of the filing of
the testate estate case and therefore, in the interest of
simple fair play, they should be notified of the
proceedings.
Petitioner then filed a counter manifestation dated June
13, 1983, asserting: (1) that the Cunanan collaterals
are neither heirs nor creditors of the late Dr. Jose F.
Cunanan and therefore, they had no legal or
proprietary interests to protect and no right to
intervene (2) that the wills of Dr. Jose F. Cunanan and
Dr. Evelyn PerezCunanan, being American citizens, were
executed in accordance with the solemnities and
formalities of New York laws, and produced effects in

this jurisdiction in accordance with Art. 16 in relation to

Art. 816 of the Civil Code (3) that under Article VIII of
the two wills, it was presumed that the husband
predeceased the wife and (4) that the Cunanan
collaterals are neither distributees, legatees or
beneficiaries, much less, heirs as heirship is only by
institution under a will or by operation of the law of
New York.
On June 23, the probate court granted petitioners
motion of May 19, 1983. However, on July 21, the
Cunanan heirs filed a motion to nullify the proceedings
and to set aside the appointment of, or to disqualify,
petitioner as special administratrix of the estates of Dr.
Jose F. Cunanan and Dr. Evelyn Perez- Cunanan. The
motion stated: (1) that being the brothers and sisters
and the legal and surviving heirs of Dr. Jose F. Cunanan,
they had been deliberately excluded in the petition for
the probate of the separate wills of the Cunanan
spouses thereby misleading the Bulacan court to believe
that petitioner was the sole heir of the spouses that
such misrepresentation deprived them of their right to
due process in violation of Section 4, Rule 76 of the
Revised Rules of Court (2) that Dr. Rafael G. Cunanan,
Jr., the executor of the estate of the Cunanan spouses,
was likewise not notified of the hearings in the Bulacan
court (3) that the misrepresentation and concealment
committed by petitioner rendered her unfit to be a
special administratrix (4) that Dr. Rafael G. Cunanan, Jr.
had, by virtue of a verified power of attorney,
authorized his father, Dr. Rafael Cunanan, Sr., to be his
attorneyinfact and (5) that Dr. Rafael Cunanan, Sr. is
qualified to be a regular administrator as practically all
of the subject estate in the Philippines belongs to their
brother, Dr. Jose F. Cunanan. Hence, they prayed: (1)
that the proceedings in the case be declared null and
void (2) that the appointment of petitioner as special
administratrix be set aside and (3) that Dr. Rafael

Cunanan, Sr. be appointed the regular administrator of

the estate of the deceased spouses.
On February 21, 1984, Judge de la Llana issued an
order, disallowing the reprobate of the two wills,
recalling the appointment of petitioner as special
administratrix, requiring the submission of petitioner of
an inventory of the property received by her as special
administratrix and declaring all pending incidents moot
and academic. Judge de la Llana reasoned out that
petitioner failed to prove the law of New York on
procedure and allowance of wills and the court had no
way of telling whether the wills were executed in
accordance with the law of New York. In the absence of
such evidence, the presumption is that the law of
succession of the foreign country is the same as the law
of the Philippines. However, he noted, that there were
only two witnesses to the wills of the Cunanan spouses
and the Philippine law requires three witnesses and that
the wills were not signed on each and every page, a
requirement of the Philippine law.
Issue:
Held: The respective wills of the Cunanan spouses, who
were American citizens, will only be effective in this
country upon compliance with the following provision of
the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces
effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides,
or according to the formalities observed in his country,
or in conformity with those which this Code prescribes.
Thus, proof that both wills conform with the formalities
prescribed by New York laws or by Philippine laws is
imperative.

The evidence necessary for the reprobate or allowance

of wills which have been probated outside of the
Philippines are as follows: (1) the due execution of the
will in accordance with the foreign laws (2) the testator
has his domicile in the foreign country and not in the
Philippines (3) the will has been admitted to probate in
such country (4) the fact that the foreign tribunal is a
probate court, and (5) the laws of a foreign country on
procedure and allowance of wills. Except for the first
and last requirements, the petitioner submitted all the
needed evidence.
The necessity of presenting evidence on the foreign
laws upon which the probate in the foreign country is
based is impelled by the fact that our courts cannot take
judicial notice of them.
Petitioner must have perceived this omission as in fact
she moved for more time to submit the pertinent
procedural and substantive New York laws but which
request respondent Judge just glossed over. While the
probate pf a will is a special proceeding wherein courts
should relax the rules on evidence, the goal is to receive
the best evidence of which the matter is susceptible
before a purported will is probated or denied probate.
There is merit in petitioners insistence that the
separate wills of the Cunanan spouses should be
probated jointly. Respondent Judges view that the Rules
on allowance of wills is couched in singular terms and
therefore should be interpreted to mean that there
should be separate probate proceedings for the wills of
the Cunanan spouses is too literal and simplistic an
approach. Such view overlooks the provisions of Section
2, Rule 1 of the Revised Rules of Court, which advise
that the rules shall be liberally construed in order to
promote their object and to assist the parties in

obtaining just, speedy, and inexpensive determination

of every action and proceeding.
A literal application of the Rules should be avoided if
they would only result in the delay in the administration
of justice.
What the law expressly prohibits is the making of joint
wills either for the testators reciprocal benefit or for the
benefit of a third person (Civil Code of the Philippines,
Article 818). In the case at bench, the Cunanan spouses
executed separate wills. Since the two wills contain
essentially the same provisions and pertain to property
which in all probability are conjugal in nature, practical
considerations dictate their joint probate. As this Court
has held a number of times, it will always strive to settle
the entire controversy in a single proceeding leaving no
root or branch to bear the seeds of future litigation.
This petition cannot be completely resolved without
touching on a very glaring factpetitioner has always
considered herself the sole heir of Dr. Evelyn Perez
Cunanan and because she does not consider herself an
heir of Dr. Jose F. Cunanan, she noticeably failed to
notify his heirs of the filing of the proceedings. Thus,
even in the instant petition, she only impleaded
respondent Judge, forgetting that a judge whose order is
being assailed is merely a nominal or formal party.
The rule that the court having jurisdiction over the
reprobate of a will shall cause notice thereof to be
given as in case of an original will presented for
allowance (Revised Rules of Court, Rule 27, Section 2)
means that with regard to notices, the will probated
abroad should be treated as if it were an original will
or a will that is presented for probate for the first time.
Accordingly, compliance with Sections 3 and 4 of Rule
76, which require publication and notice by mail or

personally to the known heirs, legatees, and devisees

of the testator resident in the Philippines and to the
executor, if he is not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary
to petitioners claim, are entitled to notices of the time
and place for proving the wills. Under Section 4 of Rule
76 of the Revised Rules of Court, the court shall also
cause copies of the notice of the time and place fixed
for proving the will to be addressed to the designated or
other known heirs, legatees, and devisees of the
testator, xxx.
Revocation
Testate Estate of Maloto
158 SCRA 451
Facts: On October 20, 1963, Adriana Maloto died
leaving as heirs her niece and nephews, the petitioners
Aldina MalotoCasiano and Constancio Maloto, and the
private respondents Panfilo Maloto and Felino Maloto.
Believing that the deceased did not leave behind a last
will and testament, these four heirs commenced on
November 4, 1963 an intestate proceeding for the
settlement of their aunt's estate. The case was
instituted in the then Court of First Instance of Iloilo and
was docketed as Special Proceeding. However, while the
case was still in progress, or to be exact on February 1,
1964, the parties Aldina, Constancio, Panfilo, and
Felinoexecuted
an
agreement
of
extrajudicial
settlement of Adriana's estate. The agreement provided
for the division of the estate into four equal parts
among the parties. The Malotos then presented the
extrajudicial settlement agreement to the trial court for
approval which the court did on March 21, 1964. That
should have signalled the end of the controversy, but,
unfortunately, it had not.

Three years later, or sometime in March 1967, Atty.

Sulpicio Palma, a former associate of Adriana's counsel,
the late Atty. Eliseo Hervas, discovered a document
entitled "KATAPUSAN NGA PAGBULUTAN (Testamento),"
dated January 3, 1940, and purporting to be the last will
and testament of Adriana. Atty. Palma claimed to have
found the testament, the original copy, while he was
going through some materials inside the cabinet drawer
formerly used by Atty. Hervas. The document was
submitted to the office of the clerk of the Court of First
Instance of Iloilo on April 1, 1967. Incidentally, while
Panfilo and Felino are still named as heirs in the said
will, Aldina and Constancio are bequeathed much bigger
and more valuable shares in the estate of Adriana than
what they received by virtue of the agreement of
extrajudicial settlement they had earlier signed. The will
likewise gives devises and legacies to other parties,
among them being the petitioners Asilo de Molo, the
Roman Catholic Church of Molo, and Purificacion
Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by
the other devisees and legatees named in the will, filed
in Special Proceeding a motion for reconsideration and
annulment of the proceedings therein and for the
allowance of the will.
Significantly, the appellate court while finding as
inconclusive the matter on whether or not the document
or papers allegedly burned by the househelp of Adriana,
Guadalupe Maloto Vda, de Coral, upon instructions of
the testatrix, was indeed the will, contradicted itself and
found that the will had been revoked. The respondent
court stated that the presence of animus revocandi in
the destruction of the will had, nevertheless, been
sufficiently proven. The appellate court based its finding
on the facts that the document was not in the two safes

in Adriana's residence, by the testatrix going to the

residence of Atty. Hervas to retrieve a copy of the will
left in the latter's possession, and, her seeking the
services of Atty. Palma in order to have a new will drawn
up. For reasons shortly to be explained, we do not view
such facts, even considered collecti vely, as sufficient
bases for the conclusion that Adriana Maloto's will had
been effectively revoked.
Issue: Whether or not the will was revoked by Adriana.
Held: The provisions of the new Civil Code pertinent to
the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following
cases:
(1) By implication of law
(2) or By some will, codicil, or other writing executed as
provided in case of wills
(3) or By burning, tearing, cancelling, or obliterating the
will with the intention of revoking it, by the testator
himself, or by some other person in his presence, and
by his express direction. If burned, torn, cancelled, or
obliterated by some other person, without the express
direction of the testator, the will may still be
established, and the estate distributed in accordance
therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of
Court.
It is clear that the physical act of destruction of a will,
like burning in this case, does not per se constitute an
effective revocation, unless the destruction is coupled
with animus revocandi on the part of the testator. It is
not imperative that the physical destruction be done by
the testator himself. It may be performed by another

person but under the express direction and in the

presence of the testator. Of course, it goes without
saying that the document destroyed must be the will
itself.
In this case, while animus revocandi, or the intention to
revoke, may be conceded, for that is a state of mind,
yet that requisite alone would not suffice, "Animus
revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The
intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by
another person in his presence and under his express
direction. There is paucity of evidence to show
compliance with these requirements. For one, the
document or papers burned by Adriana's maid,
Guadalupe, was not satisfactorily established to be a
will at all, much less the will of Adriana Maloto. For
another, the burning was not proven to have been done
under the express direction of Adriana. And then, the
burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they
were the only ones present at the place where the stove
(presumably in the kitchen) was located in which the
papers proffered as a will were burned.
The respondent appellate court in assessing the
evidence presented by the private respondents as
oppositors in the trial court, concluded that the
testimony of the two witnesses who testified in favor of
the will's revocation appear "inconclusive." We share the
same view. Nowhere in the records before us does it
appear that the two witnesses, Guadalupe Vda. de
Corral and Eladio Itchon, both illiterates, were
unequivocably positive that the document burned was
indeed Adriana's will. Guadalupe, we think, believed
that the papers she destroyed was the will only

because, according to her, Adriana told her so. Eladio,

on the other hand, obtained his information that the
burned document was the will because Guadalupe told
him so, thus, his testimony on this point is double
hearsay.
At this juncture, we reiterate that "(it) is an important
matter of public interest that a purported will is not
denied legalization on dubious grounds. Otherwise, the
very institution of testamentary succession will be
shaken to its very foundations x x x."
One last note. The private respondents point out that
revocation could be inferred from the fact that "(a)
major and substantial bulk of the properties mentioned
in the will had been disposed of: while an insignificant
portion of the properties remained at the time of death
(of the testatrix) and, furthermore, more valuable
properties have been acquired after the execution of the
will on January 3, 1940."7 Suffice it to state here that as
these additional matters raised by the private
respondents are extraneous to this special proceeding,
they could only be appropriately taken up after the will
has been duly probated and a certificate of its allowance
issued.
Molo vs Molo
90 Phil 37
Facts: Mariano Molo y Legaspi died on January 24,
1941, in the municipality of Pasay, province of Rizal,
without leaving any forced heir either in the descending
or ascending line. He was survived, however, by his
wife, the herein petitioner Juana Juan Vda. de Molo, and
by his nieces and nephew, the oppositorsappellants,
Luz, Gliceria and Cornelio, all surnamed Molo, who were
the legitimate children of Candido Molo y Legaspi,
deceased brother of the testator. Mariano Molo y

Legaspi left two wills, one executed on August 17, 1918,

and another executed on June 20, 1939. The latter will
contains a clause which expressly revokes the will
executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo filed in
the Court of First Instance of Rizal a petition, which was
docketed as special proceeding, seeking the probate of
the will executed by the deceased on June 20, 1939.
There being no opposition, the will was probated.
However, upon petition filed by the herein oppositors,
the order of the court admitting the will to probate was
set aside and the case was reopened. After hearing, at
which both parties presented their evidence, the court
rendered decision denying the probate of said will on
the ground that the petitioner failed to prove that the
same was executed in accordance with law.
In view of the disallowance of the will executed on June
20, 1939, the widow on February 24, 1944, filed another
petition f or the probate of the will executed by the
deceased on August 17, 1918, which was docketed as
special proceeding No. 56, in the same court. Again, the
same oppositors filed an opposition to the petition
based on three grounds: (1) that petitioner is now
estopped from seeking the probate of the will of 1918
(2) that said will has not been executed in the manner
required by law and (3) that the will has been
subsequently revoked. But before the second petition
could be heard, the battle for liberation came and the
records of the case were destroyed. Consequently, a
petition for reconstitution was filed, but the same was
found to be impossible because neither petitioner nor
oppositors could produce the copies required for its
reconstitution.
Issue:

Held: The next contention of appellants refers to the

revocatory clause contained in the 1939 will of the
deceased which was denied probate. They contend that,
notwithstanding the disallowance of said will, the
revocatory clause is valid and still has the effect of
nullifying the prior will of 1918. Counsel for petitioner
meets this argument by invoking the doctrine laid down
in the case of Samson vs. Naval, (41 Phil., 838). He
contends that the facts involved in that case are on all
fours with the facts of this case. Hence, the doctrine in
that case is here controlling.
There is merit in this contention. We have carefully read
the facts involved in the Samson case and we are
indeed impressed by their striking similarity with the
facts of this case. We do not need to recite here what
those facts are it is enough to point out that they
contain many points and circumstances in common. No
reason, therefore, is seen why the doctrine laid down in
that case (which we quote hereunder) should not apply
and control the present case.
"A subsequent will, containing a clause revoking a
previous will, having been disallowed, for the reason
that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure
as to the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said revocatory
clause is
void."
But the impression we gathered from a review and
study of the pertinent authorities is that the doctrine
laid down in the Samson case is still a good law. On
page 328 of the American Jurisprudence, Vol. 57, which
is a revision published in 1948, we found the following
passages which in our opinion truly reflect the present

trend of American jurisprudence on this matter affecting

the revocation of prior wills:
"SEC. 471. Observance of Formalities in Execution of
Instrument. Ordinarily, statutes which permit the
revocation of a will by another writing provide that to be
effective as a revocation, the writing must be executed
with the same formalities which are required to be
observed in the execution of a will. Accordingly, where,
under the statutes, attestation is necessary to the
making of a valid will, an unattested nontestamentary
writing is not effective to revoke a prior will. It has been
held that a writing fails as a revoking instrument where
it is not executed with the formalities requisite for the
execution of a will, even though it is inscribed on the will
itself, although it may effect a revocation by
cancellation or obliteration of the words of the will. A
testator cannot reserve to himself the power to modify a
will by a written instrument subsequently prepared but
not executed in the manner required for a will.
"SEC. 472. Subsequent Unexecuted, Invalid, or
Ineffective Will or Codicil.A will which is invalid
because of the incapacity of the testator or of undue
influence can have no effect whatever as a revoking
will. Moreover, a will is not revoked by the unexecuted
draft of a later one. Nor is a will revoked by a defectively
executed will or codicil, even though the latter contains
a clause expressly revoking the former will, in a
jurisdiction where it is provided by a controlling statute
that no writing other than a testamentary instrument is
sufficient to revoke a will, for the simple reason that
there is no revoking will. Similarly where the statute
provides that a will may be revoked by a subsequent
will or other writing executed with the same formalities
as are required in the execution of wills, a defectively
executed will does not revoke a prior will, since it cannot
be said that there is a writing which complies with the

statute. Moreover, a will or codicil which, on account of

the manner in which it is executed, is sufficient to pass
only personally does not affect dispositions of real
estate made by a former will, even though it may
expressly purport to do so. The intent of the testator to
revoke is immaterial, if he has not complied with the
statute."
We find the same opinion in the American Law Reports,
Annotated, edited in 1939. On page 1400, Volume 123,
there appear many authorities on the "application of
rules where second will is invalid", among which a
typical one is the following: "It is universally agreed that
where the second will is invalid on account of not being
executed in accordance with the provisions of the
statute, or where the testator has not sufficient mental
capacity to make a will or the will is procured through
undue influence, or the such, in other words, where the
second will is really no will, it does not revoke the first
will or affect it in any manner."
These treaties cannot be mistaken. They uphold the
view on which the ruling in the Samson case is
predicated. They reflect the opinion that this ruling is
sound and good and for this reason we see no
justification for abandoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of
Civil Procedure) provides that a will may be revoked "by
some will, codicil, or other writing executed as provided
in case of wills" but it cannot be said that the 1939 will
should be regarded, not as a will within the meaning of
said word, but as "other writing executed as provided in
the case of wills", simply because it was denied probate.
And even if it be regarded as any other writing within
the meaning of said clause, there is authority for

holding that unless said writing is admitted to probate,

it cannot have the effect of revocation.
But counsel for oppositors contend that, regardless of
said revocatory clause, said will of 1918 cannot still be
given effect because of the presumption that it was
deliberately revoked by the testator himself. The
oppositors contend that the testator, after executing the
1939 will, and with full knowledge of the revocatory
clause contained in said will, himself deliberately
destroyed the original of the 1918 will, and that for this
reason the will submitted by petitioner for probate in
these proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that
the testator deliberately destroyed the original of the
1918 will because of his knowledge of the revocatory
clause contained in the will he executed in 1939. The
only evidence we have is that when the first will was
executed in 1918, Juan Salcedo, who prepared it, gave
the original and copies to the testator himself and
apparently they remained in his possession until he
executed his second will in 1939. And when the 1939
will was denied probate on November 29, 1943, and
petitioner was asked by her attorney to look for another
will, she found the duplicate copy among the papers or
files of the testator. She did not find the original.
If it can be inferred that the testator deliberately
destroyed the 1918 will because of his knowledge of the
revocatory clause of the 1939 will, and it is true that he
gave a duplicate copy thereof to his wife, the herein
petitioner, the most logical step for the testator to take
is to recall said duplicate copy in order that it may
likewise be destroyed. But this was not done as shown
by the fact that said duplicate copy remained in the
possession of petitioner. It is possible that because of
the long lapse of twentyone (21) years since the first

will was executed, the original of the will had been

misplaced or lost, and forgetting that there was a copy,
the testator deemed it wise to execute another will
containing exactly the same testamentary dispositions.
Whatever may be the conclusion we may draw from this
chain of circumstances, the stubborn fact is that there is
no direct evidence of voluntary or deliberate destruction
of the first will by the testator. This matter cannot be left
to mere inference or conjecture.
Granting for the sake of argument that the earlier will
was voluntarily destroyed by the testator after the
execution of the second will, which revoked the first,
could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest
belief that it was no longer necessary because he had
expressly revoked it in his will of 1939? In other words,
can we not say that the destruction of the earlier will
was but the necessary consequence of the testator's
belief that the revocatory clause contained in the
subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the
earlier will can still be admitted to probate under the
principle of "dependent relative revocation".
"This doctrine is known as that of dependent relative
revocation, and is usually applied where the testator
cancels or destroys a will or executes an instrument
intended to revoke a will with a present intention to
make a new testamentary disposition as a substitute for
the old, and the new disposition is not made or, if made,
fails of effect for some reason. The doctrine is not
limited to the existence of some other document,
however, and has been applied where a will was
destroyed as a consequence of a mistake of law * * *."
"The rule is established that where the act of
destruction is connected with the making of another will

so as fairly to raise the inference that the testator

meant the revocation of the old to depend upon the
efficacy of the new disposition intended to be
substituted, the revocation will be conditional and
dependent upon the efficacy of the new disposition and
if, for any reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and the
original will remains in full force."
"This is the doctrine of dependent relative revocation.
The failure of the new testamentary disposition, upon
whose validity the revocation depends, is equivalent to
the nonfulfillment of a suspensive condition, and hence
prevents the revocation of the original will. But a mere
intent to make at some time a will in place of that
destroyed will not render the destruction conditional. It
must appear that the revocation is dependent upon the
valid execution of a new will.
We hold, therefore, that even in the supposition that the
destruction of the original will by the testator could be
presumed from the failure of the petitioner to produce it
in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that
it is founded on the mistaken belief that the will of 1939
has been validly executed and would be given due
effect. The theory on which this principle is predicated is
that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills
on. two different occasions and instituted his wife as his
universal heir. There can therefore be no mistake as to
his intention of dying testate.
Probate
Tolentino vs Francisco
57 Phil 749

Facts: This petition was filed in the Court of First

Instance of Manila by Adelaida Tolentino de Concepcion,
for the purpose of procuring probate of the will of
Gregorio Tolentino, deceased, who died at the 'hand of
an assassin, in his home. In the inception of the
proceedings Eugene de Mitkiewiez was appointed
special co-administrator, and he joined as co-plaintiff in
the petition. Opposition was made to the probate of the
will by Ciriaco Francisco, Natalia Francisco, and Gervasia
Francisco, all cousins of the deceased and residents of
the City of Manila.
At the time of his death on November 9, 1930, Gregorio
Tolentino was 66 years of age. During the more vigorous
years of his life he had been married to Benita
Francisco, but she predeceased him years ago. By their
industry and frugality the two had accumulated a very
considerable estate which does not appear to have
suffered any material diminution in the years of
Tolentino's widowhood. The pair had no children, and
the generous instincts of the survivor prompted him to
gather around him in his comfortable and commodious
home a number of his wife's kin and by him various
younger members of the connection were supported
and educated. At one time Tolentino contemplated
leaving his property mainly to these kin of his wife, of
the surname Francisco and for several years prior to his
death, he had kept a will indicating this desire.
However, in October, 1930, strained relations, resulting
from grave disagreements, developed between
Tolentino and the Francisco relations and he determined
to make a new will in which, apart from certain legacies
in favor of a few individuals, the bulk of his estate,
worth probably about P150,000, should be given to
Adelaida Tolentino de Conception, as his universal heir.
To this end, on October 17, 1930, Tolentino went to the
office of Eduardo Gutierrez Repide, an attorney, and

informed him that he wanted to make a new will and

desired Repide to draft it for him. After the necessary
preliminary inquiries had been made, the attorney
suggested to Tolentino to return later, bringing a copy of
the will previously made. Accordingly, on the second
day thereafter, Tolentino again appeared in Repide's
office with the prior will and the attorney proceeded to
reduce the new will to proper form. As the instrument
was taking shape Tolentino stated that he wanted the
will to be signed in Repide's office, with Repide himself
as one of the attesting witnesses. For the other two
witnesses Tolentino requested that two attorneys
attached to the office, namely, Leoncio B. Monzon and
Ramon L. Sunico, should serve.
When the instrument had been reduced to proper form
it was placed in the hands of Tolentino, the testator, in
order that he might take it home to reflect over its
provisions and consider whether it conformed in all
respects to his wishes. On the morning of October 21 he
again appeared in Repide's office and returned to him
the draft of the will with certain corrections. Among the
changes thus made was the suppression of the names
of Monzon, Sunico, and Repide as attesting witnesses,
these names being substituted by the names of Jose
Syyap, Agustin Vergel de Dios, and Vicente Legarda. The
explanation given by the testator for desiring this
change was that he had met Jose Syyap on the Escolta,
the day before, and had committed the indiscretion of
communicating the fact that he (Tolentino) was having a
new will made in which Monzon, Sunico, and Repide
would appear as the attesting witnesses. Now Syyap
had been the draftsman of the former will of Tolentino,
and in this same will the name of Syyap appeared as
one of the attesting witnesses, the other two being
Vicente Legarda and Vergel de Dios. When, therefore,
Syyap learned that a new will was being drawn up
without his intervention, he showed profound

disappointment, saying to Tolentino that he considered

it a gross offense that he, Legarda, and Vergel de Dios
should be eliminated as witnesses to the new will. Upon
this manifestation of feeling by Syyap, Tolentino decided
to avail himself of Syyap, Legarda, and Vergel de Dios
as witnesses to this will also, and he therefore
requested Repide to change the names of the attesting
witnesses. After this point had been settled Tolentino
stated that he would request Syyap, Legarda, and
Vergel de Dios to appear at the office of Repide for the
purpose of signing the will. To this end Tolentino went
away but returned later saying that he had spoken to
Syyap about it and that the latter strenuously objected,
observing that the will should be signed at a chopsuey
restaurant (panciteria). Tolentino further stated to his
attorney in this conversation that he had arranged with
Syyap and the other two intending witnesses to meet at
five o'clock in the afternoon of the next day, which was
October 22, for the purpose of executing the will.
Pursuant to these instructions Repide made the desired
changes in the will and just before twelve o'clock noon
of the next day Tolentino returned to Repide's office and
received from him the original document, with a carbon
copy thereof. Repide advised the testator that the
carbon copy should be executed with the same
formality as the original in order that the intention of
the testator should not be frustrated by the possible
loss or destruction of the original.
It is a custom in the office of Repide not to number the
consecutive pages of a will, on the typewriting machine,
the duty of numbering the pages being left to the
testator himself. This precaution appears to have been
born of experience, and has been adopted by Repide to
prevent the possible destruction of a will by the mere
erasure of the figures or letters indicating the
pagination,a disaster which, in Repide's experience,

had occurred in at least one case. Accordingly, upon

delivering the completed will and carbon copy to the
testator, Repide took particular pains to instruct the
testator to write the consecutive paging of both original
and duplicate before signing the instrument.
At this interview the testator suggested to Repide that
the latter should also go to the place where the will was
to be executed, so that he might be present at the
formality. The attorney replied that it was impossible for
him to do so as he had another engagement for the
hour indicated, which would prevent his attendance.
At about 4.30 p. m. on the same day, which was
October 22, Tolentino started in his car to pick up Syyap
and Vergel de Dios at their respective homes on
Antipolo and Benavides streets. He then caused his
chauffeur to drive with the three to La Previsora Filipina,
where Vicente Legarda, the third intending witness was
to be found. Arriving at this place, the three entered the
office of Legarda, who was manager of the
establishment, and they were invited to take seats,
which they did. Tolentino then suggested that the three
should go as his guests to a panciteria, where they
could take refreshments and the will could be executed.
Legarda replied that he must decline the invitation for
he had an engagement to go to the Cosmos Club the
same afternoon. Upon this Tolentino asked Legarda to
permit the will to be signed in his office, and to this
request Legarda acceded.
Tolentino thereupon drew two documents from his
pocket saying that it was his last will and testament,
done in duplicate, and he proceeded to read the original
to the witnesses. After this had been completed,
Legarda himself took the will in hand and read it himself.
He then returned it to Tolentino, who thereupon
proceeded, with pen and ink, to number the pages of

the will thus, "Pagina Primera", "Pagina Segunda", etc.

He then paged the duplicate copy of the will in the same
way. He next proceeded to sign the original will and
each of its pages by writing his name "G. Tolentino" in
the proper places. Following this, each of the three
witnesses signed their own respective names at the end
of the will, at the end of the attesting clause, and in the
left margin of each page of the instrument. During this
ceremony all of the persons concerned in the act of
attestation were present together, and all fully
advertent to the solemnity that engaged their attention.
After the original of the will had been executed in the
manner just stated, the testator expressed his desire
that the duplicate should be executed in the same
manner. To this Syyap objected, on the ground that it
was unnecessary and in this view he was supported by
Vergel de Dios, with the result that the wishes of the
testator on this point could not be carried out. As the
party was about to break up Tolentino used these words:
"For God's sake, as a favor, I request you not to let
anyone know thecontents of this will." The meeting then
broke up and Tolentino returned Syyap and Vergel de
Dios to their homes in his car. He then proceeded to the
law office of Repide, arriving about 6.15 p. m. After
preliminary explanations had been made, Tolentino
requested Repide to keep the will overnight in his safe,
as it was already too late to place it in the compartment
which Tolentino was then renting in the Oriental Safe
Deposit, in the Kneedler Building. In this connection the
testator stated that he did not wish to take the will to
his home, as he knew that his relatives were watching
him and would take advantage of any carelessness on
his part to pry into his papers. Also, in this conversation
Tolentino informed Repide of the refusal of Syvap to
execute the duplicate of the will.

After a good part of an hour had thus been spent at

Repide's office by the testator and after the original of
the will had been deposited in Repide's safe, Tolentino
took the attorney to the latter's residence in Ermita, and
then returned to his own home, where he remained
without again going out that night. But promptly at nine
o'clock the next morning Tolentino presented himself at
Repide's office for the purpose of securing the will.
Repide happened to be out and Tolentino went away,
but again returned the next day and received the will.
With the instrument thus in his possession he proceeded
at once to the. Oriental Safe Deposit and there left the
instrument in his private compartment, No. 333, in
which place it remained until withdrawn some two
weeks later by order of the court.
On the morning of November 9, 1930, Gregorio
Tolentino was found dead in his bed, having perished by
the hands of an assassin.
Issue: Can the will be admitted to probate?
Held: The peculiarity of this case is that, upon the trial
of this proceeding for the probate of the will of the
decedent, two of the attesting witnesses, Jose Syyap
and Vergel de Dios, repudiated their participation in the
execution of the will at the time and place stated and
while admitting the genuineness of their signatures to
the will, pretended that they had severally signed the
instrument, at the request of the testator, at different
places. Thus, Syyap, testifying as a witness, claimed
that the testator brought the will to Syyap's house on
the afternoon of October 21a time, be it remembered,
when the will had not yet left the hands of the
draftsmanand upon learning that Syyap could not be
present at the time and place then being arranged for
the execution of the will, he requested Syyap, as a mere
matter of complaisance, to sign the will then, which

Syyap did. Vergel de Dios has another story to tell of

isolated action, claiming that he signed the will in the
evening of October 22 at the Hospital of San Juan de
Dios in Intramuros.
We are unable to give any credence to the testimony of
these two witnesses on this point, the same being an
evident fabrication designed for the purpose of
defeating the will. In the first place, the affirmative proof
showing that the will was properly executed is
adequate, consistent, and convincing, consisting of the
testimony of the third attesting witness, Vicente
Legarda, corroborated by Miguel Legarda and Urbana
Rivera, two disinterested individuals, employees of La
Previsora Filipina, who were present in Legarda's office
when the will was executed and who lent a discerning
attention to what was being done. In the second place,
each of the seven signatures affixed to this will by
Syyap appear to the natural eye to 'have been made by
using the same pen and ink that was used by Legarda in
signing the will. The same is also probably true of the
seven signatures made by Vergel de Dios. This could
hardly have happened if the signatures of Syyap and
Vergel de Dios had been affixed, as they now pretend,
at different times and places. In the third place, both
Syyap and Vergel de Dios are impeached by proof of
contradictory statements made by them on different
occasions prior to their appearance as witnesses in this
case. In this connection we note that, after the murder
of Gregorio Tolentino, and while the police authorities
were investigating his death, Nemesio Alferez, a
detective, sent for Syyap and questioned him
concerning his relations with the deceased. Upon this
occasion Syyap stated that Gregorio Tolentino had lately
made a will, that it had been executed at the office of La
Previsora Filipina under the circumstances already
related, and that he himself had served as one of the
attesting witnesses.

These circumstances and other incidents revealed in the

proof leave no room for doubt in our mind that Syyap
and Vergel de Dios have entered into a conspiracy
between themselves, and in concert with the
opponents, to defeat the will of Gregorio Tolentino
although they are well aware that said will was in all
respects properly executed and the trial court, in our
opinion, committed no errror in admitting the will to
probate.
When a will is contested it is the duty of the proponent
to call all of the attesting witnesses, if available, but the
validity of the will in no wise depends upon the united
support of the will by all of those witnesses. A will may
be admitted to probate notwithstanding the fact that
one or more of the subscribing witnesses do not unite
with the other, or others, in proving all the facts upon
which the validity of the will rests. It is sufficient if the
court is satisfied from all the proof that the will was
executed and attested in the manner required by law. In
this case we feel well assured that the contested will
was properly executed and the order admitting it to
probate was entirely proper.
Mercado vs Santos
66 Phil 215
Facts: Petitioner herein filed in the CFI of Pampanga a
petition for the probate of the will of his deceased wife,
Ines Basa without any opposition, and upon the
testimony of Benigno F. Gabino, one of the attesting
witnesses, the probate court, on June 27, 1931,
admitted the will to probate. Almost three years later,
on April 11, 1934 the five intervenors herein moved ex
parte to reopen the proceedings, alleging lack of
jurisdiction of the court to probate the will and to close
the proceedings.

It appears that on October 27, 1932, i. e., sixteen

months after the probate of the will of Ines Basa,
intervenor Rosario Basa de Leon filed with the justice of
the peace court of San fernando, Pampanga, a
complaint against the petitioner herein, or falsification
or forgery of the will probated us above indicated. The
petitioner was arrested. He put up a bond in the sum of
P4,000 and engaged the services of an attorney to
undertake his defense. Preliminary investigation of the
case was continued twice upon petition of the
complainant. The complaint was finally dismissed, at the
instance of the complainant herself. Three months later,
or on March 2, 1933, the same intervenor charged the
petitioner for the second time with the same offense,
presenting the complaint this time in the justice of the
peace court of Mexico, Pampanga. The petitioner was
again arrested, again put up a bond in the sum of
P4,000, and engaged the services of counsel to defend
him. This second complaint, after investigation, was also
dismissed, again at the instance of the complainant
herself who alleged that the petitioner was in poor
health. Some nine months later, on February 2, 1934, to
be exact, the same intervenor accused the same
petitioner for the third time of the same offense. The
information was filed by the provincial fiscal of
Pampanga in the justice of the peace court of Mexico.
The petitioner was again arrested, again put up a bond
of P4,000, and engaged the services of defense counsel.
The case was dismissed on April 24, 1934, after due
investigation, on the ground that the will alleged to
have been falsified had already been probated and
there was no evidence that the petitioner had forged
the signature of the testatrix appearing thereon, but
that on the contrary, the evidence satisfactorily
established the authenticity of the signature aforesaid.

Issue: Whether the probate of the will of his deceased

wife is a bar to his criminal prosecution for the alleged
forgery of the said will
Held: Section 306 of our Code of Civil Procedure
provides as to the effect of judgments:
"SEC. 306. Effect of judgment.The effect of a
judgment or final order in an action or special
proceeding before a court or judge of the Philippine
Islands or of the United States, or of any State or
Territory of the United States, having jurisdiction to
pronounce the judgment or order, may be as follows:
"1. In case of a judgment or order against a specific
thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or
relation of a particular person, the judgment or order is
conclusive upon the title of the thing, the will or
administration, or the condition or relation of the
person: Provided, That the probate of a will or granting
of letters of administration shall only be prima facie
evidence of the death of the testator or intestate.
Section 625 of the same Code is more explicit as to the
conclusiveness of the due execution of a probated will.
It says:
"SEC. 625. Allowance Necessary, and Conclusive as to
Execution.
No will shall pass either the real or personal estate,
unless it is proved and allowed in the Court of First
instance, or by appeal to the Supreme Court and the
allowance of the court of a will of real and personal
estate shall be conclusive as to its due execution."
In Manahan vs. Manahan (58 Phil., 448, 451), we held:

"The decree of probate is conclusive with respect to the

due execution thereof and it cannot be impugned on
any of the grounds authorized by law, except that of
fraud, in any separate or independent action or
proceeding.
In 28 R. C. L., p. 377, section 378, it is said:
"The probate of a will by the probate court having
jurisdiction thereof is usually considered as conclusive
as to its due execution and validity, and is also
conclusive that the testator was of sound and disposing
mind at the time when he executed the will, and was
not acting under duress, menace, fraud, or undue
influence, and that the will is genuine and not a
forgery."
As our law on wills, particularly section 625 of our Code
of Civil Procedure aforequoted, was taken almost bodily
from the Statutes of Vermont, the decisions of the
Supreme Court of that State relative to the effect of the
probate of a will are persuasive authority in this
jurisdiction.
The Vermont statute as to the conclusiveness of the due
execution of a probated will reads as follows:
"SEC. 2356. No will shall pass either real or personal
estate unless it is proved and allowed in the probate
court, or by appeal in the county or supreme court and
the probate of a will of real or personal estate shall be
conclusive as to its due execution."
The probate of a will in this jurisdiction is a proceeding
in rem. The provision of notice by publication as a
prerequisite to the allowance of a will is constructive
notice to the whole world, and when probate is granted,

the judgment of the court is binding upon everybody,

even against the State.
Section 333, paragraph 4, of the Code of Civil Procedure
establishes an incontrovertible presumption in favor of
judgments declared by it to be conclusive:
"SEC. 333. Conclusive Presumptions.The following
presumptions or deductions, which the law expressly
directs to be made from particular facts, are deemed
conclusive: '*
"4. The judgment or order of a court, when declared by
this code to be conclusive."
Conclusive presumptions are inferences which the law
makes so peremptory that it will not allow them to be
overturned by any contrary proof however strong. The
will in question having been probated by a competent
court, the law will not admit any proof to overthrow the
legal presumption that it is genuine and not a forgery.
Although in the foregoing case the information filed by
the State was to set aside the decree of probate on the
ground that the will was forged, we see no difference in
principle between that case and the case at bar. 'A
subtle distinction could perhaps be drawn between
setting aside a decree of probate, and declaring a
probated will to be a forgery. It is clear, however, that a
duly probated will cannot be declared to be a forgery
without disturbing in a way the decree allowing said will
to probate. It is at least anomalous that a will should be
regarded as genuine for one purpose and spurious for
another.
The American and English cases show a conflict of
authorities on the question as to whether or not the
probate of a will bars criminal prosecution of the alleged

forger of the probated will. We have examined some

important cases and have come to the conclusion that
no fixed standard may be adopted or drawn therefrom,
in view of the conflict no less than of diversity of
statutory provisions obtaining in different jurisdictions. It
behooves us, therefore, as the court of last resort, to
choose that rule most consistent with our statutory law,
having in view the needed stability of property rights
and the public interest in general. To be sure, we have
seriously reflected upon the dangers of evasion from
punishment of culprits deserving of the severity of the
law in cases where, as here, forgery is discovered after
the probate of the will and the prosecution is had before
the prescription of the offense. By and large, however,
the balance seems inclined in favor of the view that we
have taken. Not only does the law surround the
execution of the will with the necessary formalities and
require probate to be made after an elaborate judicial
proceeding, but section 113, not to speak of section
513, of our Code of Civil Procedure provides for an
adequate remedy to any party who might have been
adversely affected by the probate of a forged will, much
in the same way as other parties against whom a
judgment is rendered under the same or similar
circumstances.
The aggrieved party may file an
application for relief with the proper court within a
reasonable time, but in no case exceeding six months
after said court has rendered the judgment probate, on
the ground of mistake, inadvertence, surprise or
excusable neglect. An appeal lies to review the action of
a court of first instance when that court refuses to grant
relief. After a judgment allowing a will to be probated
has become final and unappealable, and after the
period fixed by section 113 of the (Code of Civil
Procedure has expired, the law as an expression of the
legislative wisdom goes no further and the case ends
there.

We hold, therefore, that in view of the provisions of

sections 306, 333 and 625 of our Code of Civil
Procedure, criminal action will not lie in this jurisdiction
against the forger of a will which had been duly
admitted to probate by a court of competent
jurisdiction.
Nuguid vs Nuguid
17 SCRA 449
Facts: Rosario Nuguid, a resident of Quezon City, died
on December 30, 1962, single, without descendants,
legitimate or illegitimate. Surviving her were her
legitimate parents, Felix Nuguid and Paz Salonga
Nuguid, and six (6) brothers and sisters, namely:
Alfredo, Federico, Remedios, Conrado, Lourdes and
Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in
the Court of First Instance of Rizal a holographic will
allegedly executed by Rosario Nuguid on November 17,
1951, some 11 years before her demise. Petitioner
prayed that said will be admitted to probate and that
letters of administration with the will annexed be issued
to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the
deceased Rosario Nuguid, entered their opposition to
the probate of her will. Ground therefor, inter alia, is
that by the institution of petitioner Remedios Nuguid as
universal heir of the deceased, oppositorswho are
compulsory heirs of the deceased in the direct
ascending linewere illegally preterited and that in
consequence the institution is void.
Issue: Whether or not the will should be allowed
probate

Held: Reproduced hereunder is the will:

Nov. 17,
1951
I, ROSARIO NUGUID, being of sound and disposing mind
and memory, having amassed a certain amount of
property, do hereby give, devise, and bequeath all of
the property which I may have when I die to my beloved
sister Remedios Nuguid, age 34, residing with me at 38B
Iriga, Q.C. In witness whereof, I have signed my name
this seventh day of November, nineteen hundred and
fifty-one.
(Sgd.)
Illegible
T/ ROSARIO
NUGUID
The statute we are called upon to apply in Article 854 of
the Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born
after the death of the testator, shall annul the institution
of heir but the devises and legacies shall be valid
insofar as they are not inofficious. x x x
Except for inconsequential variation in terms, the
foregoing is a reproduction of Article 814 of the Civil
Code of Spain of 1889, which is similarly herein copied,
thus
Art. 814. The preterition of one or all of the forced heirs
in the direct line, whether living at the time of the
execution of the will or born after the death of the
testator, shall void the institution of heir but the

legacies and betterments shall be valid, in so far as they

are not inofficious. x x x
A comprehensive understanding of the term preterition
employed in the law becomes a necessity.
It may now appear trite but nonetheless helpful in
giving us a clear perspective of the problem before us,
to have on hand a clearcut definition of the word annul:
To annul means to abrogate, to make void
And now, back to the facts and the law. The deceased
Rosario Nuguid left no descendants, legitimate or
illegitimate. But she left forced heirs in the direct
ascending lineher parents, now oppositors Felix
Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received
nothing by the testament tacitly, they were deprived of
their legitime neither were they expressly disinherited.
This is a clear case of preterition, Such preterition in the
words of Manresa anulara siempre la institucion de
heredero,
dando
character
absoluto
a
este
ordenamiento, referring to the mandate of Article 814,
now 854 of the Civil Code. The one sentence will here
institutes petitioner as the sole, universal heirnothing
more. No specific legacies or bequests are therein
provided for. It is in this posture that we say that the
nullity is complete. Perforce, Rosario Nuguid died
intestate.
Really, as we analyze the word annul employed in the
statute, there is no escaping the conclusion that the
universal institution of petitioner to the entire
inheritance results in totally abrogating the will.
Because, the nullification of such institution of universal
heirwithout any other testamentary disposition in the
willamounts to a declaration that nothing at all was

written. Carefully worded and in clear terms, Article 854

offers no leeway for inferential interpretation. Giving it
an expansive meaning will tear up by the roots the
fabric of the statute.
We should not be led astray by the statement in Article
854 that, annullment notwithstanding, the devises and
legacies shall be valid insofar as they are not
inofficious. Legacies and devises merit consideration
only when they are so expressly given as such in a will.
Nothing in Article 854 suggests that the mere institution
of a universal heir in a willvoid because of preterition
would give the heir so instituted a share in the
inheritance. As to him, the will is inexistent. There must
be, in addition to such institution, a testamentary
disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. Article
814, now 854, states that preterition annuls the
institution of the heir totalmente por la pretericion
but added (in reference to legacies and bequests), pero
subsistiendo, x x x todas aquellas otras disposiciones
que no se refieren a la nsti tucion de heredero x x x". As
Manresa puts it, annulment throws open to intestate
succession the entire inheritance including la porcion
libre (que) no hubiese dispuesto en virtud de legado,
mejora o donacion.
As aforesaid, there is no other provision in the will
before us except the institution of petitioner as
universal heir. That institution, by itself, is null and void.
And, intestate succession ensues.
Petitioners mainstay is that the present is a case of
ineffective disinheritance rather than one of preterition.
From this, petitioner draws the conclusion that Article
854 does not apply to the case at bar. This argument
fails to appreciate the distinction between preterition
and disinheritance.

Preterition consists in the omission in the testators will

of the forced heirs or anyone of them, either because
they are not mentioned therein, or, though mentioned,
they are neither instituted as heirs nor are expressly
disinherited." Disinheritance, in turn, is a testamentary
disposition depriving any compulsory heir of his share in
the legitime for a cause authorized by law." In Manresas
own words: La privacion expresa de la legitima
constituye la desheredacion. La privacion tacita de la
misma se denomina pretericion." Sanchez Roman
emphasizes the distinction by stating that disinheritance
es siempre voluntaria preterition, upon the other
hand, is presumed to be involuntaria".19 Express as
disinheritance should be, the same must be supported
by a legal cause specified in the will itself.
The will here does not explicitly disinherit the testatrixs
parents, the forced heirs. It simply omits their names
altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced
heirs suffer from preterition.
On top of this is the fact that the effects flowing from
preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil
Code, we repeat, shall annul the institution of heir.
This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under
Article 918 of the same Code, such disinheritance shall
also annul the institution of heirs, put only insofar as
it may prejudice the person disinherited, which last
phrase was omitted in the case of preterition. Better
stated yet, in disinheritance the nullity is limited to that
portion of the estate of which the disinherited heirs
have been illegally deprived. Manresas expressive
language, in commenting on the rights of the preterited

heirs in the case of preterition on the one hand and

legal disinheritance on the other, runs thus: Preteridos,
adquiren el derecho a todo desheredados solo les
corresponde un tercio o dos tercios, el caso.
Petitioner insists that the compulsory heirs ineffectively
disinherited are entitled to receive their legitimes, but
that the institution of heir is not invalidated, although
the inheritance of the heir so instituted is reduced to the
extent of said legitimes.
This is best answered by a reference to the opinion of
Mr. Chief Justice Moran in the Neri case heretofore cited,
viz:
But the theory is advanced that the bequest made by
universal title in favor of the children by the second
marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely
reduced. This theory, if adopted, will result in a
complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made
to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of
the institution, would be absolutely meaningless and will
never have any application at all. And the remaining
provisions contained in said article concerning the
reduction of inofficious legacies or betterments would
be a surplusage because they would be absorbed by
Article 817. Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is
due mainly to a failure to distinguish institution of heirs
from legacies and betterments, and a general from a
special provision. With reference to article 814, which is
the only provision material to the disposition of this

case, it must be observed that the institution of heirs is

therein dealt with as a thing separate and distinct from
legacies or betterments. And they are separate and
distinct not only because they are distinctly and
separately treated in said article but because they are in
themselves different. Institution of heirs is a bequest by
universal title of property that is undetermined. Legacy
refers to specific property bequeathed by a particular or
special title. x x x But again an institution of heirs
cannot be taken as a legacy.
The disputed order, we observe, declares the will in
question a complete nullity. Article 854 of the Civil
Code in turn merely nullifies the institution of heir.
Considering, however, that the will before us solely
provides for the institution of petitioner as universal
heir, and nothing more, the result is the same. The
entire will is null.
Caniza vs CA
268 SCRA 641
Facts: On November 20, 1989, being then 94 years of
age, Carmen Caiza, a spinster, a retired pharmacist,
and former professor of the College of Chemistry and
Pharmacy of the University of the Philippines, was
declared incompetent by judgment in a guardianship
proceeding instituted by her niece, Amparo A.
Evangelista. She was so adjudged because of her
advanced age and physical infirmities which included
cataracts in both eyes and senile dementia. Amparo A.
Evangelista was appointed legal guardian of her person
and estate. Caiza was the owner of a house and lot. On
September 17, 1990, her guardian Amparo Evangelista
commenced a suit to eject the spouses Pedro and
Leonora Estrada from said premises. The complaint was
later amended to identify the incompetent Caiza as

plaintiff, suing through her legal guardian, Amparo

Evangelista.
The amended Complaint5 pertinently alleged that
plaintiff Caiza was the absolute owner of the property
in question; that out of kindness, she had allowed the
Estrada Spouses, their children, grandchildren and sonsin-law to temporarily reside in her house, rent-free that
Caiza already had urgent need of the house on account
of her advanced age and failing health, so funds could
be raised to meet her expenses for support,
maintenance and medical treatment that through her
guardian, Caiza had asked the Estradas verbally and in
writing to vacate the house but they had refused to do
so and that by the defendants act of unlawfully
depriving plaintiff of the possession of the house in
question, they ** (were) enriching themselves at the
expense of the incompetent, because, while they **
(were) saving money by not paying any rent for the
house, the incompetent ** (was) losing much money as
her house could not be rented by others. Also alleged
was that the complaint was filed within one (1) year
from the date of first letter of demand dated February 3,
1990.
In their Answer with Counterclaim, the defendants
declared that they had been living in Caizas house
since the 1960s that in consideration of their faithful
service they had been considered by Caiza as her own
family, and the latter had in fact executed a holographic
will on September 4, 1988 by which she bequeathed
to the Estradas the house and lot in question.
MeTC: Judgement in favor of Caniza, the Estradas being
ordered to vacate the premises and pay Caiza
P5,000.00 by way of attorneys fees.

RTC: Held that the action by which the issue of

defendants possession should be resolved is accion
publiciana, the obtaining factual and legal situation **
demanding adjudication by such plenary action for
recovery of possession cognizable in the first instance
by the Regional Trial Court.
CA: Affirmed the RTCs judgment in toto. It ruled that (a)
the proper remedy for Caiza was indeed an accion
publiciana in the RTC, not an accion interdictal in the
MetroTC, since the defendants have not been in the
subject premises as mere tenants or occupants by
tolerance, they have been there as a sort of adopted
family of Carmen Caiza, as evidenced by what
purports to be the holographic will of the plaintiff and
(b) while said will, unless and until it has passed
probate by the proper court, could not be the basis of
defendants claim to the property, ** it is indicative of
intent and desire on the part of Carmen Caiza that
defendants are to remain and are to continue in their
occupancy and possession, so much so that Caizas
supervening incompetency cannot be said to have
vested in her guardian the right or authority to drive the
defendants out.
Carmen Caiza died on March 19, 1994, and her heirs
the aforementioned guardian, Amparo Evangelista, and
Ramon C. Nevado, her niece and nephew, respectively
were by this Courts leave, substituted for her.
Issue: (a) whether or not an ejectment action is the
appropriate judicial remedy for recovery of possession
of the property in dispute
(b) assuming desahucio to be proper, whether or not
Evangelista, as Caizas legal guardian had authority to
bring said action and (c) assuming an affirmative
answer to both questions, whether or not Evangelista

may continue to represent Caiza after the latters

death
Held: (a) Undoubtedly, a cause of action for desahucio
has been adequately set out. It is settled that in an
action for unlawful detainer, it suffices that the
defendant is unlawfully withholding possession from the
plaintiff is deemed sufficient, and a complaint for
unlawful detainer is sufficient if it alleges that the
withholding of possession or the refusal to vacate is
unlawful without necessarily employing the terminology
of the law.
Caizas act of allowing the Estradas to occupy her
house, rentfree, did not create a permanent and
indefeasible right of possession in the latters favor.
Common sense, and the most rudimentary sense of
fairness clearly require that that act of liberality be
implicitly, but no less certainly, accompanied by the
necessary burden on the Estradas of returning the
house to Caiza upon her demand. More than once has
this Court adjudged that a person who occupies the land
of another at the latters tolerance or permission
without any contract between them is necessarily bound
by an implied promise that he will vacate upon demand,
failing which a summary action for ejectment is the
proper remedy against him.
The Estradas possession of the house stemmed from
the owners express permission. That permission was
subsequently withdrawn by the owner, as was her right
and it is immaterial that the withdrawal was made
through her judicial guardian, the latter being
indisputably clothed with authority to do so. Nor is it of
any consequence that Carmen Caiza had executed a
will bequeathing the disputed property to the Estradas
that circumstance did not give them the right to stay in
the premises after demand to vacate on the theory that

they might in the future become owners thereof, that

right of ownership being at best inchoate, no transfer of
ownership being possible unless and until the will is duly
probated.
Thus, at the time of the institution of the action of
desahucio, the Estradas had no legal right to the
property, whether as possessors by tolerance or
sufferance, or as owners. They could not claim the right
of possession by sufferance that had been legally
ended. They could not assert any right of possession
flowing from their ownership of the house their status
as owners is dependent on the probate of the
holographic will by which the property had allegedly
been bequeathed to theman event which still has to
take place in other words, prior to the probate of the
will, any assertion of possession by them would be
premature and inefficacious.
(b) A will is essentially ambulatory at any time prior to
the testators death, it may be changed or revoked29
and until admitted to probate, it has no effect whatever
and no right can be claimed thereunder, the law being
quite explicit: No will shall pass either real or personal
property unless it is proved and allowed in accordance
with the Rules of Court (ART. 838, id.). An owners
intention to confer title in the future to persons
possessing property by his tolerance, is not inconsistent
with the formers taking back possession in the
meantime for any reason deemed sufficient. And that in
this case there was sufficient cause for the owners
resumption of possession is apparent: she needed to
generate income from the house on account of the
physical infirmities afflicting her, arising from her
extreme age.
Amparo Evangelista was appointed by a competent
court the general guardian of both the person and the

estate of her aunt, Carmen Caiza. Her Letters of

Guardianship dated December 19, 1989 clearly installed
her as the guardian over the person and properties of
the incompetent CARMEN CAIZA with full authority to
take possession of the property of said incompetent in
any province or provinces in which it may be situated
and to perform all other acts necessary for the
management of her properties **. By that
appointment, it became Evangelistas duty to care for
her aunts person, to attend to her physical and spiritual
needs, to assure her wellbeing, with right to custody of
her person in preference to relatives and friends. It also
became her right and duty to get possession of, and
exercise control over, Caizas property, both real and
personal, it being recognized principle that the ward has
no right to possession or control of his property during
her incompetency. That right to manage the wards
estate carries with it the right to take possession thereof
and recover it from anyone who retains it, and bring and
defend such actions as may be needful for this purpose.
Actually, in bringing the action of desahucio, Evangelista
was merely discharging the duty to attend to the
comfortable and suitable maintenance of the ward
explicitly imposed on her by Section 4, Rule 96 of the
Rules of Court.
(c) While it is indeed wellestablished rule that the
relationship of guardian and ward is necessarily
terminated by the death of either the guardian or the
ward, the rule affords no advantage to the Estradas.
Amparo Evangelista, as niece of Carmen Caiza, is one
of the latters only two (2) surviving heirs, the other
being Caizas nephew, Ramon C. Nevado. On their
motion and by Resolution of this Court39 of June 20,
1994, they were in fact substituted as parties in the
appeal at bar in place of the deceased, in accordance
with Section 17, Rule 3 of the Rules of Court.

Preterition
Pecson vs Coronel
45 Phil 216
Facts: On November 28, 1922, the Court of First
Instance of Pampanga probated as the last will and
testament of Dolores Coronel, the document Exhibit A,
which translated is as follows:
"In the name of God, Amen:
"I, Dolores Coronel, resident of Betis, Guagua,
Pampanga, Philippine Islands, in the full exercise of my
mental faculties, do hereby make my last will and
testament, and revoke all former wills by me executed.
"I direct and order that my body be buried in conformity
with my social standing.
"That having no forced heirs, I will all my properties,
both movable and immovable, to my nephew, Lorenzo
Pecson, who is married to my niece Angela Coronel, in
consideration of the good services which he has
rendered, and is rendering to me with good will and
disinterestedness and to my full satisfaction.
"I name and appoint my aforesaid nephew, Lorenzo
Pecson, executor of all that is willed and ordained in this
my will, without bond. Should he not be able to
discharge his duties as such executor for any reason
whatsoever, I name and appoint as substitute executor
my grandson Victor Pecson, a native and resident of the
town of Betis, without requiring him to give bond.

"All my real and paraphernal property as well as my

credits, for I declare that I have no debts, are specified
in an inventory.

Coronel, M. Vergara, Pablo Bartolome, Sotero Dumaual,

Damian Crisostomo, Marcos de la, Cruz, Marcos de los
Santos."

"In testimony whereof and as I do not know how to write

my name, I have requested Vicente J. Francisco to write
my name at the foot hereof and on the left margin of
each of its sheets before me and all the undersigned
witnesses this July 1, 1918.

The petitioner for the probate of the will is Lorenzo

Pecson, husband of Angela Coronel, who is a niece of
the deceased Dolores Coronel.

"VICENTE J. FRANCISCO
"For the testatrix Dolores
Coronel
"The foregoing document was executed and declared by
Dolores Coronel to be her last will and testament in our
presence, and as the testatrix does not know how to
write her name, she requested Vicente J. Francisco to
sign her name under her express direction in our
presence, at the f oot, and on the left t margin of each
and every sheet, hereof. In testimony whereof, each of
us signed these presents in the presence of others and
of the testatrix at the foot hereof and on the margin of
each and everyone of the two sheets of which this
document is composed, which are numbered "one" and
"two" on the upper part of the face thereof.
(Sgd.) "MAXIMO VERGARA
SOTERO DUMAUAL
MARCOS DE LOS SANTOS
MARIANO L. CRISOSTOMO
PABLO BARTOLOME
MARCOS DE LA CRUZ
DAMIAN CRISOSTOMO
"On. the left margin of the two sheets of the will the
following signatures also appear: ''Mariano L.
Crisostomo, Vicente J. Francisco for the testatrix Dolores

The opponents are: Eriberto Coronel, Tito Coronel, Julian

Gozum, Cirila Santiago, widow of the deceased Ma cario
Gozum, in her own behalf and that of her three minor
children, Hilarion Coronel, Geronimo Coronel, Maria
Coronel and her husband Eladio Gongco, Juana Bituin,
widow of the deceased Hipolito Coronel, in her own
behalf and that of her three children, Generosa, Maria,
and Jose, all minors, Rosario Coronel, Agustin Coronel,
Filomeno Coronel, Casimiro Coronel, Alejo Coronel, Maria
Coronel, Severina Coronel, Serapia Coronel, Maria Juana
de Ocampo, widow of the deceased Manuel Coronel,
Dionisia Coronel, and her husband Pantaleon Gunlao.
Issues: (a) That the proof does not show that the
document Exhibit A above copied contains the last will
of Dolores Coronel, and
(b) that the attestation clause is not in accordance with
the provisions of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645.
Held: (a) The opponents contend that it was not, nor
could it be, the will of the testatrix, because it is not
natural nor usual that she should completely exclude
her blood relatives from her vast estate, in order to will
the same to one who is only a relative by affinity, there
appearing no sufficient motive for such exclusion,
inasmuch as until the death of Dolores Coronel, she
maintained very cordial relations with the aforesaid
relatives who had helped her in the management and
direction of her lands. It appears, however, from the

testimony of Attorney Francisco (page 71, transcript of

the stenographic notes) that Dolores Coronel revealed
to him her suspicion against some of her nephews as
having been accomplices in a robbery of which she had
been a victim.
As to whether or not Lorenzo Pecson rendered services
to Dolores Coronel, the opponents admit that he
rendered them at least from the year 1914, although
there is proof showing that he rendered such services
long before that time.
The appellants emphasize the fact that family ties in
this country are very strongly knit and that the
exclusion of relative from one's estate is an exceptional
case. It is true that the ties of relationship in the
Philippines are very strong, but we understand that
cases of preterition of relatives from the inheritance are
not rare. The liberty to dispose of one's estate by will
when there are no forced heirs is rendered sacred by
the Civil Code in force in the Philippines since 1889. It is
so provided in the first paragraph of article 763 in the
following terms:
"Any person who has no forced heirs may dispose by
will of all his property or any part of it in favor of any
person qualified to acquire it."
Even ignoring the precedents of this legal precept, the
Code embodying it has been in force in the Philippines
for more than a quarter of a century, and for this reason
it is not tenable to say that the exercise of the liberty
thereby granted is necessarily exceptional, where it is
not shown that the inhabitants of this country whose
customs must have been taken into consideration by
the legislator in adopting this legal precept, are averse
to such a liberty.

As to the preference given to Lorenzo Pecson, it is not

purely arbitrary, nor a caprice or a whim of the
'moment. The proof adduced by this appellee, although
contradicted, shows by a preponderance of evidence
that besides the services which the opponents admit
had been rendered by him to Dolores Coronel since the
year 1914, he had also rendered services prior to that
time and was the administrator and manager of the
affairs of said Dolores in the last years of her life. And
that this was not a whim of the moment is shown by the
fact that six years before the execution of the will in
question, said Lorenzo Pecson was named and
appointed by Dolores Coronel as her sole heir in the
document.
The appellants find in the testament Exhibit B
something to support their contention that the intention
of Dolores Coronel was to institute the said Pecson not
as sole beneficiary, but simply as executor and
distributor of all her estate among her heirs, for while
Lorenzo Pecson's contention that he was appointed sole
beneficiary is based on the fact that he enjoyed the
confidence of Dolores Coronel in 1918 and administered
all her property, he did not exclusively have this
confidence and administration in the year 1912.
Although such administration and confidence were
enjoyed by Pecson always jointly with others and never
exclusively, this fact does not show that the will of the
testatrix was to appoint Pecson only as executor and
distributor of her estate among the heirs, nor does it
prevent her, the testatrix, from instituting him in 1912
or 1918 as sole beneficiary nor does it constitute,
lastly, a test for determining whether or not such
institution in favor of Pecson was the true will of the
testatrix.
We find, therefore, nothing strange in the preterition
made by Dolores Coronel of her blood relatives, nor in

the designation of Lorenzo Pecson as her sole

beneficiary. Furthermore, although the institution of the
beneficiary here would not seem the most usual and
customary, still this would not be null per se.
"In the absence of any statutory restriction every person
possesses absolute dominion over his property, and
may bestow it upon whomsoever he pleases without
regard to natural or legal claim upon his bounty. If the
testator possesses the requisite capacity to make a will,
and the disposition of his property is not affected by
fraud or undue influence, the will is not rendered invalid
by the fact that it is unnatural, unreasonable, or unjust.
Nothing can prevent the testator from making a will as
eccentric, as injudicious, or as unjust as caprice,
frivolity, or revenge can dictate. However, as has
already been shown, the unreasonableness or injustice
of a will may be considered on the question of
testamentary capacity."
(b) About the year 1916 or 1917, Dolores Coronel
showed the document Exhibit B to Attorney Francisco
who was then her legal adviser and who, considering
that in order to make the expression of her last will
more legally valid, thought it necessary that the
testament be prepared in conformity with the laws in
force at the time of the death of the testatrix, and
observing that the will Exhibit B lacked the extrinsic
formalities required by Act No. 2645 enacted after its
execution, advised Dolores Coronel that the will be
remade. She followed the advice, and Attorney
Francisco, after receiving her instructions, drew the will
Exhibit A in accordance therewith, and brought it to the
house of Dolores Coronel for its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her
presence and that of the witnesses and asked her
whether the will was in accordance with her wishes.

Dolores Coronel answered that it was, and requested

her attorney, Mr. Francisco, to sign the will for her,
which the attorney accordingly did in the presence of
the witnesses, who in turn signed it before the testatrix
and in the presence of each other.
While it is true that the petitioner was bound to present
Pablo Bartolome, being one of the witnesses who signed
the will, at the second hearing when the probate was
controverted, yet we cannot consider this point against
the appellee for this was not raised in any of the
assignments of error made by the appellants. (Art. 20,
Rules of the Supreme Court.)
On the other hand, it was incumbent upon the
opponents to present Pablo Bartolome to prove before
the court the statement made by him in his affidavit,
since it was their duty to prove what they alleged, which
was that Dolores Coronel had not understood the true
contents of the will Exhibit A. Having suppressed,
without explanation, the testimony of Pablo Bartolome,
the presumption is against the opponents and that is,
that such a testimony would have been adverse had it
been produced at the hearing of the case before the
court.
(c) The opponents call our attention to the fourth clause
of the document which says: "I name and appoint my
aforesaid nephew, Lorenzo Pecson, executor of all that
is willed and ordained in this my will, without bond.
Should he not be able to discharge his duties as such
executor for any reason whatsoever, I name and appoint
as a substitute executor my grandson Victor Pecson,
resident of the town of Betis, without requiring him to
give bond," and contend that this clause is repugnant to
the institution of Lorenzo Pecson as sole beneficiary of
all her estate, for if such was the intention of the
testatrix, there would have been no necessity of
appointing an executor, nor any reason for designating

a substitute in case that the first one should not be able

to discharge his duties, and they perceived in this
clause the idea which, according to them, was not
expressed in the document, and which was that Pecson
was simply to be a mere executor entrusted with the
distribution of the estate among the relatives of the
testatrix, and that should he not be able to do so, this
duty would devolve upon his substitute.
But it is not the sole duty of an executor to distribute
the estate, which in testate succession, such as the
instant case, has to be distributed with the intervention
of the court. An executor has, besides, other duties and
general and special powers intended for the
preservation, defense, and liquidation of the estate so
long as the same has not reached, by order of the court,
the hands of those entitled thereto.
The fact that Dolores Coronel foresaw the necessity of
an executor does not imply a negation of her desire to
will all her estate to Lorenzo Pecson. It is to be noted,
furthermore, that in the will, it was ordered that her
body be given a burial in accordance with her social
standing and she had a perfect right to designate a
person who should see to it that this order was complied
with. One of the functions of an executor is the
fulfillment of what is ordained in the will.
It is argued that the will of the testatrix was to will her
estate to her blood relatives, for such was the promise
made to Maria Coronel, whom Rosario Coronel tends to
corroborate. We do not find such a promise to have
been sufficiently proven, and much less to have been
seriously made and coupled with a positive intention on
the part of Dolores Coronel to fulfill the same. In the
absence of sufficient proof of fraud, or undue influence,
we cannot take such a promise into account, for even if
such a promise was in fact made, Dolores Coronel could

retract or forget it afterwards and dispose of her estate

as she pleased. Wills themselves, which contain more
than mere promises, are essentially revocable.
The disputed phrase "in order that the latter might
dispose of the estate in the most appropriate manner"
was used by the witness Reyes while sick in a hospital
and testifying in the course of the taking of his
deposition.
The appellants interpret the expression "dispose in the
most appropriate manner" as meaning to say "distribute
it among the heirs." Limiting ourselves to its meaning,
the expression is a broad one, for the disposition may
be effected in several and various ways, which may not
necessarily be a "distribution among the heirs," and still
be a "disposition in the most appropriate manner." "To
dispose" is not the same as "to distribute."
To judge correctly the import of this phrase, the
circumstances under which it was used must be taken
into account in this particular instance. The witness
Reyes, the author of the phrase, was not expressing his
own original ideas when he used it, but was translating
into Spanish what Dolores Coronel had told him.
According to the facts, the said witness is not a
Spaniard, that is to say, the Spanish language is not his
native tongue, but, perhaps, the Pampango dialect. It is
an admitted fact based on reason and experience that
when a person translates from one language to another,
it is easier for him to express with precision and
accuracy when the version is from a foreign language to
a native one than viceversa. The witness Reyes
translated from the Pampango dialect, which must be
more familiar to him, to the Spanish language which is
not his own tongue. And judging from the language
used by him during his testimony in this case, it cannot
be said that this witness masters the Spanish language.

Thus is explained the f act that when asked to give the

reason f or the appointment of an executor in the will,
he should say at the morning session that "Dolores
Coronel did appoint Don Lorenzo Pecson and in his
default, Victor Pecson, to act during her lifetime, but not
after her death," which was explained at the afternoon
session by saying "that Dolores Coronel did appoint Don
Lorenzo Pecson executor of all her estate during his
lifetime and that in his default, either through death or
incapacity, Mr. Victor Pecson was appointed executor."
Taking into account all the circumstances of this
witness, there is ground to attribute his inaccuracy as to
the discharge of the duties of an executor, not to
ignorance of the elementary rule of law on the matter,
for the practice of which he was qualified, but to a nonmastery of the Spanish language. We find in this detail
of translation made by the witness Reyes no sufficient
reason to believe that the will expressed by Dolores
Coronel at the said interview with Attorney Francisco
was to appoint Lorenzo Pecson executor and mere
distributor of her estate among her heirs.
(d) As to whether or not the burden of proof was on the
petitioner to establish that he was the sole legatee to
the exclusion of the relatives of Dolores Coronel, we
understand that it was not his duty to show the reasons
which the testatrix may have had for excluding her
relatives from her estate, giving preference to him. His
duty was to prove that the will was voluntary and
authentic and he, who alleges that the estate was willed
to another, has the burden of proving his allegation.
Attorney Francisco is charged with having employed
improper means for making Lorenzo Pecson appear in
the will as sole beneficiary. However, after an
examination of all the proceedings had, we cannot find
anything in the behavior of this lawyer, relative to the
preparation and execution of the will, that would justify

an unfavorable conclusion as to his personal and

professional conduct, nor that he should harbor any
wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising
Dolores Coronel to make a new will other than the last
one, Exhibit B (in the drawing of which he does not
appear to have intervened), so that the instrument
might be executed with all the new formalities required
by the laws then in force nor in the preparation of the
new will substantially in accordance with the old one
nor in the selection of attesting witnesses who were
persons other than the relatives of Dolores Coronel.
(e) Appellants remark that it is not stated in this clause
that the will was signed by the witnesses in the
presence of the testatrix and of each other, as required
by section 618 of the Code of Civil Procedure, as
amended, which on this particular point provides the
following:
"The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact
that the testator signed the will and every page thereof,
or caused some other person to write his name, under
his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will
and all pages thereof in the presence of the testator and
of each other."
Stress is laid on the phrase used in the attestation
clause above copied, to wit:
"each of us signed in the presence of others."
We believe it to be more reasonable to construe the
disputed phrase "of others" as meaning "of the other
witnesses" and that a grammatical or clerical error was

committed consisting in the omission of the article

"the." Grammatical or clerical errors are not usually
considered of vital importance when the intention is
manifest in the will.
"The court may correct clerical mistakes in writing, and
disregard technical rules of grammar as to the
construction of the language of the will when it becomes
necessary for it to do so in order to effectuate the
testator's manifest intention as ascertained from the
context of the will. But unless a different construction is
so required the ordinary rules of grammar should be
adhered to in construing the will."
And we understand that in the present case the
interpretation we adopt is imperative, being the most
adequate and reasonable.
The evidence leads us to the conclusion that the two
witnesses aforementioned were present at the
execution and signing of the will. Such is also the
conclusion of the trial judge who, in this respect, states
the following, in his decision:
"As to the question of whether or not the testatrix and
the witnesses signed the document Exhibit A in
accordance with the provisions of law on the matter,
that is, whether or not the testatrix signed the will, or
caused it to be signed, in the presence of the witnesses,
and the latter in turn signed in her presence and that of
each other, the court, after observing the demeanor of
the witnesses for both parties, is of the opinion that
those for the petitioner spoke the truth. It is neither
probable nor likely that a man versed in the law, such as
Attorney Francisco, who was present at the execution of
the will in question, and to whose conscientiousness in
the matter of compliance with all the extrinsic f
ormalities of the execution of a will, and to nothing else,

was due the fact that the testatrix had canceled her
former will (Exhibit B) and had a new one (Exhibit A)
prepared and executed, should have consented the
omission of a formality compliance with which would
have required little or no effort namely, that of seeing
to it that the testatrix and the attesting witnesses were
all present when their respective signatures were affixed
to the will." And the record does not furnish us sufficient
ground for deviating from the line of reasoning and
findings of the trial judge.
Acain vs IAC
155 SCRA 101
Facts: On May 29, 1984 petitioner Constantino Acain
filed a petition for the probate of the will of the late
Nemesio Acain and for the issuance to the same
petitioner of letters testamentary, on the premise that
Nemesio Acain died leaving a will in which petitioner
and his brothers Antonio, Flores and Jose and his sisters
Anita, Concepcion, Quirina and Laura were instituted as
heirs. The will allegedly executed by Nemesio Acain on
February 17, 1960 was written in Bisaya with a
translation in English submitted by petitioner without
objection raised by private respondents. The will
contained provisions on burial rites, payment of debts,
and the appointment of a certain Atty. Ignacio G.
Villagonzalo as the executor of the testament. On the
disposition of the testators property, the will provided:
THIRD: All my shares that I may receive from our
properties, house, lands and money which I earned
jointly with my wife Rosa Diongson shall all be given by
me to my brother SEGUNDO ACAIN, Filipino, widower, of
legal age and presently residing at 357C Sanciangko
Street, Cebu City. In case my brother Segundo Acain
predeceases me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which

constitute my share shall be given by me to his children,

namely: Anita, Constantino, Concepcion, Quirina, Laura,
Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo predeceased Nemesio. Thus, it is
the children of Segundo who are claiming to be heirs,
with Constantino.
Issue: Whether or not private respondents have been
preterited
Held: Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born
after the death of the testator, shall annul the institution
of heir but the devisees and legacies shall be valid
insofar as they are not inofficious. If the omitted
compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the
right of representation.
Preterition consists in the omission in the testators will
of the forced heirs or anyone of them either because
they are not mentioned therein, or, though mentioned,
they are neither instituted as heirs nor are expressly
disinherited. Insofar as the widow is concerned, Article
854 of the Civil Code may not apply as she does not
ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even
if she is omitted from the inheritance, for she is not in
the direct line. (Art. 854, Civil Code) However, the same
thing cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has not
been questioned by petitioner. Under Article 39 of P.D.

No. 603, known as the Child and Youth Welfare Code,

adoption gives to the adopted person the same rights
and duties as if he were a legitimate child of the adopter
and makes the adopted person a legal heir of the
adopter. It cannot be denied that she was totally
omitted and preterited in the will of the testator and
that both adopted child and the widow were deprived of
at least their legitime. Neither can it be denied that they
were not expressly disinherited. Hence, this is a clear
case of preterition of the legally adopted child.
Preterition annuls the institution of an heir and
annulment throws open to intestate succession the
entire inheritance including la portion libre (que) no
hubiese dispuesto en virtual de legado, mejora o
donation. The only provisions which do not result in
intestacy are the legacies and devises made in the will
for they should stand valid and respected, except
insofar as the legitimes are concerned.
The universal institution of petitioner together with his
brothers and sisters to the entire inheritance of the
testator results in totally abrogating the will because the
nullification of such institution of universal heirs
without any other testamentary disposition in the will
amounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 of the
Civil Code offers no leeway for inferential interpretation.
No legacies nor devises having been provided in the will
the whole property of the deceased has been left by
universal title to petitioner and his brothers and sisters.
The effect of annulling the institution of heirs will be,
necessarily, the opening of a total intestacy except that
proper legacies and devises must, as already stated
above, be respected.
(b) In order that a person may be allowed to intervene
in a probate proceeding he must have an interest in the

estate, or in the will, or in the property to be affected by

it either as executor or as a claimant of the estate and
an interested party is one who would be benefited by
the estate such as an heir or one who has a claim
against the estate like a creditor. Petitioner is not the
appointed executor, neither a devisee or a legatee there
being no mention in the testamentary disposition of any
gift of an individual item of personal or real property he
is called upon to receive. At the outset, he appears to
have an interest in the will as an heir, defined under
Article 782 of the Civil Code as a person called to the
succession either by the provision of a will or by
operation of law. However, intestacy having resulted
from the preterition of respondent adopted child and the
universal institution of heirs, petitioner is in effect not
an heir of the testator. He has no legal standing to
petition for the probate of the will left by the deceased
and Special Proceedings must be dismissed.

grounds: (1) petitioner has no legal capacity to institute

the proceedings (2) he is merely a universal heir and
(3) the widow and the adopted daughter have been
preterited.

As stated by respondent Court, the general rule is that

the probate courts authority is limited only to the
extrinsic validity of the will, the due execution thereof,
the
testators
testamentary
capacity
and
the
compliance with the requisites or solemnities prescribed
by law. The intrinsic validity of the will normally comes
only after the Court has declared that the will has been
duly authenticated. Said court at this stage of the
proceedings is not called upon to rule on the intrinsic
validity or efficacy of the provisions of the will.

Neri vs Akutin
74 Phil 185

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

exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do
and pass upon certain provisions of the will.
In the instant case private respondents filed a motion to
dismiss the petition in Sp. Proceedings No. 591CEB of
the Regional Trial Court of Cebu on the following

For private respondents to have tolerated the probate of

the will and allowed the case to progress when on its
face the will appears to be intrinsically void as petitioner
and his brothers and sisters were instituted as universal
heirs coupled with the obvious fact that one of the
private respondents had been preterited would have
been an exercise in futility. It would have meant a waste
of time, effort, expense, plus added futility. The trial
court could have denied its probate outright or could
have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will
was resolved. The remedies of certiorari and prohibition
were properly availed of by private respondents.

Facts: This is the case where the testator in his will left
all his property by universal title to the children by his
second marriage, the herein respondents, with
preterition of the children by his first marriage, the
herein petitioners. This Court annulled the institution of
heirs and declared a total intestacy.
A motion for reconsideration has been filed by the
respondents on the ground (1) that there is no
preterition as to the children of the first marriage who
have receive their shares in the property left by the
testator, and (2) that, even assuming that there has
been a preterition, the effect would not be the
annulment of the institution of heirs but simply the
reduction of the bequest made to them.

The findings of the trial court and those of the Court of

Appeals are contrary to respondents' first contention. Th
e children of
the first marriage are Eleuterio, Agripino, Agapita, Getuli
a (who
died a little less than eight years before the death of her
father
Agripino Neri, leaving seven children), Rosario and Celer
ina.
As to Eleuterio, the trial court said that "it is not, therefo
re, clear
that Eleuterio has received his share out of the propertie
s left by his father." It is true that Eleuterio appears to
have received, as a donation from his father, parcel of
land No. 4, but the question of whether there has been
a donation or not is apparently left for decision in an
independent action, and to that effect Ignacia Akutin
has been appointed special administratrix for the
purpose of instituting such action.
With respect to Agripino and Agapita, the parcels of land
which they have occupied, according to the trial Court,
"are a part of public land which had been occupied by
Agripino Neri Chaves, and, therefore, were not a part of
the estate of the latter."
Concerning Getulia who did about eight years before the
death of her father Agripino Neri, the trial Court found
that "neither Getulia nor her heirs received any share of
the properties."
And with respect to Rosario and Celerina, the trial Court
said that "it does not appear clear, therefore, that
Celerina and Rosario received their shares in the estate
left by their father Agripino Neri Chaves.

This is connection with the property, real or personal,

left by the deceased. As to money advances, the trial
Court found:
"It is contended, furthermore, that the children of
Agripino Neri Chaves in his first marriage received
money from their father. It appears that Nemesio
Chaves is indebted in the amount of P1,000 Agripino, in
the amount of P500 Getulia, in the amount of P155
Celerina in the amount of P120"
From these findings of the trial Court it is clear that
Agapita, Rosario and the children of Getulia had
received from the testator no property whatsoever,
personal, real or in cash.
But clause 8 of the will is invoked wherein the testator
made the statement that the children by his first
marriage had already received their shares in his
property excluding what he had given them as aid
during their financial trouble and the money they had
borrowed from him which he condoned in the will.
Issue:
Held: (a) We can rely only upon the findings of fact
made by the latter Court, which are as follows:
"Since all the parcels that corresponded to Agripino Neri
y Chaves are now in the administrator's possession, as
appears in the inventory filed in court, it is clear that the
property of the deceased has remained intact and that
no portion thereof has been given to the children of the
first marriage.
"Its is stated by the court and practically admitted by
the appellants that a child of the first marriage named
Getulia, or her heirs after her death, did not receive any

share of the property of her father." It is true that in the

decision of the Court of Appeals there is also the
following paragraph:
"As regards that large parcel of land adjoining parcel No.
1, it is contended that after the court had denied the
registration thereof, Agapino Neri y Chaves abandoned
the said land and that later on some of the children of
the first marriage possessed it, thereby acquiring title
and interest therein by virtue of occupation and not
through inheritance. It is not true that this parcel
containing 182.6373 hectares is now assessed in the
name of some of the children of the first marriage, for
as shown on Tax Declaration No. 9395, Exhibit 11g, the
owners of the property are Agapita Neri de Chavez y
Hermanos. Apparently, the said land is still claimed to
be the property not only of the children of the first
marriage but also of those of the second marriage."
This paragraph is but a corroboration of the finding
made by the Court of Appeals that no property has ever
been advanced by the testator to the children by his
first marriage. The large parcel of land adjoining parcel
No. 1 was alleged by the children of the second
marriage to have been advanced by the testator to the
children by his first marriage but the Court of Appeals
belied this claim. "It is not true," says that Court, " that
this parcel containing 182.6373 hectares is now
assessed in the names of some of the children of the
first marriage, for as shown on Tax Declaration No.
9395, Exhibit 11g, the owners of the property are
Agapita Neri de Chaves y Hermanos," that is, the
children of both marriages. And the Court of Appeals
added that "apparently, the said land is still claimed to
be the property not only of the children of the first
marriage but alsso of those of the second marriage,"
which is another way of stating that the property could
not have been advanced by the testator to the children

by the first marriage, for otherwise the children by the

second marriage would not lay a claim on it.
We conclude, therefore, that according to the findings of
fact made by the court of appeals, the testator left all
his property by universal title to the children by his
second
marriage,
and
that
without
expressly
disinheriting the children by his first marriage, he left
nothing to them or, at least, some of them. this is,
accordingly a case of preterition governed by article 814
of the Civil Code, which provides that the institution of
heirs shall be annulled and intestate succession should
be declared open.
(b)
Upon the second question propounded in the motion for
reconsideration, respondents seems to agree that article
814 of the
Civil Code is the law applicable but, in their discussion a
s to the
effect of preterition, they confuse article 814 with article
817 and
851 and other articles of the Civil Code. These three arti
cles read:
"ART. 814.The preterition of one or of all of the forced
heirs in the direct line, wether living at the execution of
the will or born after the death of the testator, shall
annul the institution of heirs but the legacies and
betterments shall be valid in so far as they are not
inofficious.
"The preterrition of the widower or widow does not
annul the institution but the person omitted shall retain
all the rights granted to him by article 834, 835, 836,
and 837 of this Code.

"If the forced heirs omitted die before the testator, the
institution shall become operatives."
"ART. 817.Testamentary disposition which diminish the
legitime of the forced heirs shall be reduced on petition
of the same in so far as they are inofficious or
excessive."
"ART. 851.Disinheritance made without a statement of
the cause, or for a cause the truth of which, if
contested, is not shown or which is not one of those
stated in the four following articles shall anul the
institution of heirs in so far as it is prejudicial to the
disinherited persons but the legacies, betterments, and
other testamentary dispositions shall be valid in so far
as they are not prejudicial to said legitime."
Article 817 is merely a general rule inapplicable to
specific cases provided by law, such as that of
preterition or disinheritance.
Manresa, for instance, starts expounding the meaning of
the law with an illustration. He says that in case of
pretention (article 814), the nullity of the institution of
heirs is total, whereas in case of disinheritance (article
851), the nullity is partial, that is, in so far as the
institution affects the le gitime of the disinherited heirs.
"Prete ridos, adquieren derecho a todo desheredados,
slo les corresponde un tercio o dos tercios, segn el
caso." He then proceeds to comment upon the wisdom
of the dis tinction made by law, giving two views
thereon. He first lays the view contrary to the distinction
made by law, then the arguments in support of the
distinction, and lastly a possible defense against said
arguments. And after stating that the Spanish
jurisprudence has not as yet de cided squarely the
question, with an allu sion to two resolutions of the
Spanish Administrative Direction, one in favor of article

814 and another evasive, he con cludes that the

construction which may rightly be given to article 814 is
that in case of preterition, the institution of heirs is null
in toto whereas in case of disin heritance the nullity is
limited to that portion of the legitime of which the disin
herited heirs have been illegally deprived. He further
makes it clear that in cases of preterition, the property
bequeathed by universal title to the instituted heirs
should not be merely reduced according to article 817,
but instead, intestate suc cession should be opened in
connection therewith under article 814, the reason
being that article 814, "como especial en el caso que le
motiva, rige con preferencia al 817." Sanchez Roman is
of the same opinion.
Of course, the annulment of the institution of heirs in
cases of preterition does not always carry with it the
ineffective ness of the whole will. Neither Manresa nor
Sanchez Roman nor this Court has ever said so. If, aside
from the institution of heirs, there are in the will
provisions leaving to the heirs so instituted or to other
persons some specific properties in the form of legacies
or mejoras, such testamentary provisions shall be
effective and the legacies and mejoras shall be
respected in so far as they are not inofficious or
excessive, according to article 814. In the instant case,
however, no legacies or mejoras are provided in the will,
the whole property of the deceased having been left by
universal title to the children of the second marriage.
The effect, therefore of annulling the institution of heirs
will be necessarily the opening of a total intestacy.
Provisions of articles 814 and 851 regarding total or
partial nullity of the institution, would be absolutely
meaningless and will never have any application at all.
And the remaining provisions contained in said article
concerning the reduction of in officious legacies or
betterments would be a surplusage because they would

be absorbed by article 817. Thus, instead of construing,

we would be destroying integral provisions of the Civil
Code.
The destructive effect of the theory thus advanced is
due mainly to a failure to distinguish institution of heirs
from legacies and betterments, and a general from a
special provision. With reference to article 814, which is
the only provision material to the disposition of this
case, it must be observed that the institution of heirs is
therein dealt with as a thing separate and distinct from
legacies or betterment. And they are separate and
distinct not only because they are distinctly and
separately treated in said article but because they are in
themselves different. Institution of heirs is a bequest by
universal title of property that is undetermined. Legacy
refers to specific property bequeathed by a particular or
special title. The first is also different from a betterment
which should be made expressly as such (article 828).
The only instance of implied betterment recognized by
law is where legacies are made which cannot be
included in the free portion (article 828). But again an
institution of heirs cannot be taken as a legacy.
It is clear, therefore, that article 814 refers to two
different things which are the two different objects of its
two dif ferent provisions. One of these objects cannot be
made to merge in the other without mutilating the
whole article with all its multifarious connections with a
great number of provisions spread throughout the Civil
Code on the matter of succession. It should be borne in
mind, further, that although article 814 contains two
different provisions, its spe cial purpose is to establish a
specific rule concerning a specific testamentary provi
sion. namely, the institution of heirs in a case of
preterition. Its other provision regarding the validity of
legacies and bet terments if not inofficious is a mere
reiter ation of the general rule contained in other

provisions (articles 815 and 817) and sig nifies merely

that it also applies in cases of preterition. As regards
testamentary dis positions in general, the general rule is
that all "testamentary dispositions which diminish the
legitime of the forced heirs shall be reduced on petition
of the same in so far as they are inofficious or exces
sive" (article 817). But this general rule does not apply
to the specific instance of a testamentary disposition
containing an institution of heirs in a case of preterition,
which is made the main and specific sub ject of article
814. In such instance, according to article 814, the
testamentary disposition containing the institution of
heirs should be not only reduced, but an nulled in its
entirety and all the forced heirs, including the omitted
ones, are entitled to inherit in accordance with the law
of intestate succession. It is thus evident that, if, in
construing article 814, the institution of heirs therein
dealt with is to be treated as legacies or betterments,
the special object of said article would be destroyed, its
specific purpose completely defeated, and in that wise
the special rule therein established would be rendered
nu gatory. And this is contrary to the most elementary
rule of statutory construction. In construing several
provisions of a par ticular statute, such construction
shall be adopted as will give effect to all, and when
general and particular provisions are inconsistent, the
latter shall prevail over the former.
The question herein propounded has been squarely
decided by the Supreme Court of Spain in a case
wherein a bequest by universal title was made with
preterition of heirs and the theory was advanced that
the instituted heirs should be treated as legatarios.
It is maintained that the word "heredero" under the Civil
Code, is not synonymous with the term "heir" under the
Code of Civil Procedure, and that the "heir" under the
latter Code is no longer personally liable for the debts of

the de ceased as was the "heredero" under the Civil

Code, should his acceptance be pure and simple, and
from all these the conclusion is drawn that the
provisions of article 814 of the Civil Code regarding the
total nullity of the institution of heirs has become
obsolete. This conclusion is erroneous. It confuses form
with sub stance. It must be observed, in this connection,
that in construing and applying a provision of the Civil
Code, such meaning of its words and phrases as has
been intended by the framers thereof shall be adopted.
If thus construed it is inconsistent with the provisions of
the Code of Civil Procedure, then it shall be deemed
repealed otherwise it is in force. Repeals by implication
are not favored by the courts and when there are two
acts upon the same subject, effect should be given to
both' if possible.
The word "heir" as used in article 814 of the Civil Code
may not have the meaning that it has under the Code of
Civil Pro cedure, but this in no wise can prevent a
bequest from being made by universal title as is in
substance the subjectmatter of article 814 of the Civil
Code. Again, it may also be true that heirs under the
Code of Civil Procedure may receive the bequest only
after payment of debts left by the deceased and not
before as under the Civil Code, but this may have a bear
ing only upon the question as to when succession
becomes effective and can in no way destroy the fact
that succession may still be by universal or special title.
Since a bequest may still be made by uni versal title
and with preterition of forced heirs, its nullity as
provided in article 814 still applies there being nothing
inconsist ent with it in the Code of Civil Procedure. What
is important and is the basis for its nullity is the nature
and effect of the bequest and not its possible name nor
the moment of its effectiveness under the Code of Civil
Procedure.

Furthermore, there were in the Code of Civil Procedure

sections Nos. 755 and 756 which read:
"Sec. 755.Share of child born after making will.When
a child of a testator is born after the making of a will,
and no provision is there in made for him, such child
shall have the same share in the estate of the testator
as if he had died intestate and the share of such child
shall be assigned to him as in cases of intestate estates,
unless it is apparent from the will that it was the
intention of the testator that no provision should be
made for such child."
"Sec 756.Share of child or issue of child omitted from
will.When a testator omits to provide in his will for any
of his children, or for issue of a deceased child, and it
appears that such omission was made by mistake, or
accident, such child, or the issue of such child, shall
have the same share in the estate of the testator as if
he had died intestate, to be assigned to him as m the
case of intestate estates."
It is these provisions of the Code of Civil Procedure that
have affected substantially articles 814 and 851 of the
Civil Code, but they have been expressly re pealed by
Act No. 2141, section 1 of which reads as follows:
"Sections seven hundred and fiftyfive, seven hundred
and fiftysix, seven hundred and fiftyseven, seven
hundred and fifty-eight, and seven hundred and sixty of
Act Numbered One hundred and ninety, entitled 'An Act
providing a Code of Procedure in Civil Actions and
Special Proceedings in the Philippine Islands are here by
repealed and such provisions of the Civil Code as may
have been amended or repealed by said sections are
hereby restored to full force and effect."

Among the provisions of the Civil Code which are thus

expressly restored to full force are undoubtedly articles
814 and 851. There can be no possible doubt, therefore,
that those two articles are in force.
Article 1080 of the Civil Code that is also invoked
deserves no consideration except for the observation
that it has no relevancy in the instant case.
Our attention is directed to the case of Escuin vs.
Escuin. We have never lost sight of the ruling laid down
in that case which has been reiterated in Eleazar vs.
Eleazar. In the Escuin case, the deceased left all his
property to his natural father (not a forced heir) and his
wife with total preterition of an acknowledged natural
child and, in the Eleazar case the deceased left all his
property to a friend with total preterition of his father
and wife. Without reconsidering the correctness of the
ruling laid down in these two cases, we will note that
the doctrine stands on facts which are different from the
facts in the present case. There is certainly a difference
between a case of preterition in which the whole
property is left to a mere friend and a case of preterition
in which the whole property is left to one or some forced
heirs. If the testamentary disposition be annulled totally
in the first case, the effect would be a total deprivation
of the friend of his share in the inheritance. And this is
contrary to the manifest intention of the testator. It may
fairly be presumed that, under such circumstances, the
testator would at least give his friend the portion of free
disposal. In the second case, the total nullity of the
testamentary disposition would have the effect, not of
depriving totally the instituted heir of his share in the
inheritance, but of placing him and the other forced
heirs upon the basis of equality. This is also in
consonance with the presumptive intention of the
testator. Preterition, generally speaking, is due merely

to mistake or inadvertence without which the testator

may be presumed to treat alike all his children.
And specially is this true in the instant case where the
testator omitted the children by his first marriage upon
the erroneous belief that he had given them already
more shares in his property than those given to the
children by his second marriage. It was, therefore, the
thought of the testator that the children by his first
marriage should not receive less than the children by
his second marriage, and to that effect is the decision of
this Court sought to be reconsidered. Motion for
reconsideration is hereby denied.
Viado Non vs Court of Appeals
325 SCRA 652
Facts: During their lifetime, the spouses Julian C. Viado
and Virginia P. Viado owned several pieces of property,
among them a house and lot. Virginia P. Viado died on
20 October 1982. Julian C. Viado died three years later
on 15 November 1985. Surviving them were their
childrenNilo Viado, Leah Viado Jacobs, and herein
petitioners Rebecca Viado, married to Jose Non, and
Delia Viado. Nilo Viado and Leah Viado Jacobs both died
on 22 April 1987. Nilo Viado left behind as his own sole
heirs herein respondentshis wife Alicia Viado and their
two children Cherri Viado and Fe Fides Viado.
Petitioners and respondents shared, since 1977, a
common residence at the Isarog property. Soon,
however, tension would appear to have escalated
between petitioner Rebecca Viado and respondent Alicia
Viado after the former had asked that the property be
equally divided between the two families to make room
for the growing children. Respondents, forthwith,
claimed absolute ownership over the entire property
and demanded that petitioners vacate the portion

occupied by the latter. On 01 February 1988,

petitioners, asserting coownership over the property in
question, filed a case for partition before the Quezon
City RTC.
Respondents predicated their claim of absolute
ownership over the subject property on two documents
a deed of donation executed by the late Julian Viado
covering his onehalf conjugal share of the Isarog
property in favor of Nilo Viado and a deed of
extrajudicial settlement in which Julian Viado, Leah
Viado Jacobs (through a power of attorney in favor of
Nilo Viado) and petitioner Rebecca Viado waived in favor
of Nilo Viado their rights and interests over their share
of the property inherited from Virginia Viado. Both
instruments were executed on 26 August 1983 and
registered on 07 January 1988 by virtue of which
Transfer Certificate of Title No. 42682 was cancelled and
new Transfer Certificate of Title No. 373646 was issued
to the heirs of Nilo Viado.
Petitioners, in their action for partition, attacked the
validity of the foregoing instruments, contending that
the late Nilo Viado employed forgery and undue
influence to coerce Julian Viado to execute the deed of
donation. Petitioner Rebecca Viado, in her particular
case, averred that her brother Nilo Viado employed
fraud to procure her signature to the deed of
extrajudicial settlement. She added that the exclusion of
her retardate sister, Delia Viado, in the extrajudicial
settlement, resulted in the latters preterition that
should warrant its annulment. Finally, petitioners
asseverated that the assailed instruments, although
executed on 23 August 1983, were registered only five
years later, on 07 January 1988, when the three parties
thereto, namely, Julian Viado, Nilo Viado and Leah Viado
Jacobs had already died.

TC: Found for respondents and adjudged Alicia Viado

and her children as being the true owners of the
disputed property.
CA: Affirmed the decision of the trial court with
modification by ordering the remand of the records of
the case to the court a quo for further proceedings to
determine the value of the property and the amount
respondents should pay to petitioner Delia Viado for
having been preterited in the deed of extrajudicial
settlement.
Issue: Whether the exclusion of petitioner Delia Viado,
alleged to be a retardate, from the deed of extrajudicial
settlement verily has had the effect of preterition
Held: When Virginia P. Viado died intestate in 1982, her
part of the conjugal property, the Isarog property in
question included, was transmitted to her heirsher
husband Julian and their children Nilo Viado, Rebecca
Viado, Leah Viado and Delia Viado. The inheritance,
which vested from the moment of death of the
decedent,1 remained under a coownership regime
among the heirs until partition. Every act intended to
put an end to indivision among coheirs and legatees or
devisees would be a partition although it would purport
to be a sale, an exchange, a compromise, a donation or
an extrajudicial settlement.
In debunking the continued existence of a coownership
among the parties hereto, respondents rely on the deed
of donation and deed of extrajudicial settlement which
consolidated the title solely to Nilo Viado. Petitioners
assail the due execution of the documents on the
grounds heretofore expressed.
The Court pf Appeals, in sustaining the court a quo, has
found the evidence submitted by petitioners to be

utterly wanting, consisting of, by and large, selfserving

testimonies. While asserting that Nilo Viado employed
fraud, forgery and undue influence in procuring the
signatures of the parties to the deeds of donation and of
extrajudicial
settlement,
petitioners
are
vague,
however, on how and in what manner those supposed
vices occurred. Neither have petitioners shown proof
why Julian Viado should be held incapable of exercising
sufficient judgment in ceding his rights and interest over
the property to Nilo Viado. The asseveration of
petitioner Rebecca Viado that she has signed the deed
of extrajudicial settlement on the mistaken belief that
the instrument merely pertained to the administration
of the property is too tenuous to accept. It is also quite
difficult to believe that Rebecca Viado, a teacher by
profession, could have misunderstood the tenor of the
assailed document.
The fact alone that the two deeds were registered five
years after the date of their execution did not adversely
affect their validity nor would such circumstance alone
be indicative of fraud. The registration of the documents
was a ministerial act5 and merely created a
constructive notice of its contents against all third
persons. Among the parties, the instruments remained
completely valid and binding.
The exclusion of petitioner Delia Viado, alleged to
be a retardate, from the deed of extrajudicial
settlement verily has had the effect of
preterition. This kind of preterition, however, in the
absence of proof of fraud and bad faith, does not justify
a collateral attack on Transfer Certificate of Title No.
373646. The relief, as so correctly pointed out by the
Court of Appeals, instead rests on Article 1104 of the
Civil Code to the effect that where the preterition is not
attended by bad faith and fraud, the partition shall not
be rescinded but the preterited heir shall be paid the

value of the share pertaining to her. Again, the appellate

court has thus acted properly in ordering the remand of
the case for further proceedings to make the proper
valuation of the Isarog property and ascertainment of
the amount due petitioner Delia Viado.
Fideicommissary Substitution
Perez vs Garchitorena
54 Phil 431
Facts: The amount of P21,428.58 is on deposit in the
plaintiff's name with the association known as La
Urbana in Manila, as the final payment of the liquidated
credit of Ana Maria Alcantara, deceased, whose heiress
is said plaintiff, against Andres Garchitorena, also
deceased, represented by his son, the defendant
Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment for
P7,872.23 against Joaquin Perez Alcantara, husband of
the plaintiff, Carmen G. de Perez, the sheriff pursuant to
the writ of execution issued in said judgment, levied an
attachment on said amount deposited with La Urbana.
The plaintiff, alleging that said deposit belongs to the
fideicommissary heirs of the decedent Ana Maria
Alcantara, secured a preliminary injunction restraining
the execution of said judgment on the sum so attached.
The defendants contend that the plaintiff is the
decedent's universal heiress, and pray for the
dissolution of the injunction.
The court below held that said La Urbana deposit
belongs to the plaintiff's children as fideicommissary
heirs of Ana Maria Alcantara, and granted a final writ of
injunction.

Issue:
Held: The clauses of said will relevant to the points in
dispute, between the parties are the ninth, tenth, and
eleventh, quoted below:
"Ninth. Being single and without any forced heir, to
show my gratitude to my nieceinlaw, Carmen
Garchitorena, of age, married to my nephew, Joaquin
Perez Alcantara, and living in this same house with me, I
institute her as my sole and universal heiress to the
remainder of my estate after the payment of my debts
and legacies, so that upon my death and after probate
of this will, and after the report of the committee on
claims and appraisal has been rendered and approved,
she will receive from my executrix the properties
composing my hereditary estate, that she may enjoy
them with God's blessing and my own.
"Tenth. Should my heiress Carmen Garchitorena die, I
order that my whole estate shall pass unimpaired to her
surviving children and should any of these die, his
share shall serve to increase the portions of his
surviving brothers (and sisters) by accretion, in such
wise that my estate shall never pass out of the hands of
my heiress or her children in so far as it is legally
possible.
"Eleventh. Should my aforesaid heiress, Carmen
Garchitorena, die after me while her children are still in
their minority, I order that my estate be administered by
my executrix, Mrs. Josefa Laplana, and in her default, by
Attorney Ramon Salinas and in his default, by his son
Ramon Salinas but the direction herein given must not
be considered as an indication of lack of confidence in
my nephew Joaquin Perez Alcantara, whom I relieve
from the duties of administering my estate, because I

recognize that his character is

management and administration."

not

adapted

to

The appellants contend that in these clauses the

testatrix has ordered a simple substitution, while the
appellee contends that it is a fideicommissary
substitution.
This will certainly provide for a substitution of heirs. and
of the three cases that might give rise to a simple
substitution (art. 774, Civil Code), only the death of the
instituted heiress before the testatrix would in the
instant case give place to such substitution, inasmuch
as nothing is said of the waiver of inheritance, or
incapacity to accept it. As a matter of fact, however,
clause XI provides for the administration of the estate in
case the heiress instituted should die after the testatrix
and while the substitute heirs are still under age. And it
is evident that, considering the nature of simple
substitution by the heir's death before the testator, and
the fact that by clause XI in connection with clause X,
the substitution is ordered where the heiress instituted
dies after the testatrix, this cannot be a case of simple
substitution.
The existence of a substitution in the will is not and
cannot be denied, and since it cannot be a simple
substitution in the light of the considerations above
stated, let us now see whether the instant case is a
fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein
her sole and universal heiress, and provides that upon
her death (the testatrix's) and after probate of the will
and approval of the report of the committee on claims
and appraisal, said heiress shall receive and enjoy the
whole hereditary estate. Although this clause provides
nothing explicit about substitution, it does not contain

anything in conflict with the idea of fideicommissary

substitution. The fact that the plaintiff was instituted the
sole and universal heiress does not prevent her children
from receiving, upon her death and in conformity with
the express desire of the testatrix, the latter's
hereditary estate, as provided in the following (above
quoted) clauses. which cannot be disregarded if we are
to give a correct interpretation of the will. The word sole
does not necessarily exclude the idea of substitute
heirs and taking these three clauses together, such
word means that the plaintiff is the sole heiress
instituted in the first instance.
The disposition contained in clause IX, that said heiress
shall receive and enjoy the estate, is not incompatible
with a fideicommissary substitution (it certainly is
incompatible with the idea of simple substitution, where
the heiress instituted does not receive the inheritance).
In fact the enjoyment of the inheritance is in conformity
with the idea of fideicommissary substitution, by virtue
of which the heir instituted receives the inheritance and
enjoys it, although at the same time he preserves it in
order to pass it on to the second heir. On this point the
illustrious Manresa, in his Civil Code says:
"Or, what amounts to the same thing, the
fideicommissary substitution, as held in the Resolutions
of June 25, 1895, February 10, 1899, and July 19, 1909,
requires three things:
(1) A first heir called primarily to the enjoyment of the
estate.
(2) An obligation clearly imposed upon him to preserve
and transmit to a third person the whole or a part of the
estate.
(3) A second heir.

"To these requisites, the decision of November 18, 1918

adds another, namely that the fideicommissarius be
entitled to the estate f rom the time the testator dies,
since he is to inherit from the latter and not from the
fiduciary."
It appears from this quotation that the heir instituted or
the fiduciary, as referred to in article 783 of the Civil
Code, is entitled to enjoy the inheritance. And it might
here be observed, as a timely remark, that the
fideicommissum arising from a fideicommissary
substitution, which is of Roman origin, is not exactly
equivalent to, nor may it be confused with, the English
"trust."
It should also be noted that said clause IX vests in the
heiress only the right to enjoy but not the right to
dispose of the estate. It says, she may enjoy it, but does
not say she may dispose of it. This is an indication of the
usufruct inherent in fideicommissary substitution.
Clause X expressly provides for the substitution. It is
true that it does not say whether the death of the
heiress herein referred to is before or after that of the
testatrix but from the whole context it appears that in
making the provisions contained in this clause X, the
testatrix had in mind a fideicommissary substitution,
since she limits the transmission of her estate to the
children of the heiress by this provision, "in such wise
that my estate shall never pass out of the hands of my
heiress or her children in so far as it is legally possible."
Here it clearly appears that the testatrix tried to avoid
the possibility that the substitution might later be
legally declared null for transcending the limits fixed by
article 781 of the Civil Code which prescribes that
fideicommissary substitutions shall be valid "provided
they do not go beyond the second degree."

Another
clear
and
outstanding
indication
of
fideicommissary substitution in clause X is the provision
that the whole estate shall pass unimpaired to the
heiress's children, that is to say the heiress is required
to preserve the whole estate, without diminution, in
order to pass it on in due time to the fideicommissary
heirs. This provision complies with another of the
requisites of fideicommissary substitution according to
our quotation from Manresa inserted above.
Lastly, clause XI more clearly indicates the idea of
fideicommissary substitution, when a provision is
therein made in the event the heiress should die after
the testatrix. That is, said clause anticipates the case
where the instituted heiress should die after the
testatrix and after receiving and enjoying the
inheritance.
The foregoing leads us to the conclusion that all the
requisites of a fideicommissary substitution, according
to the quotation from Manresa above inserted, are
present in the case of substitution now under
consideration, to wit:
(1) A first heir primarily called to the enjoyment of the
estate. In this case the plaintiff was instituted an
heiress, called to the enjoyment of the estate, according
to clause IX of the will.
(2) An obligation clearly imposed upon the heir to
preserve and transmit to a third person the whole or a
part of the estate. Such an obligation is imposed in
clause X which provides that the "whole estate shall
pass unimpaired to her (heiress's) surviving children"
thus, instead of leaving the heiress at liberty to dispose
of the estate by will, or of leaving the law to take its
course in case she dies intestate, said clause not only
disposes of the estate in f avor of the heiress instituted,

but also provides for the disposition thereof in case she

should die after the testatrix.
(3) A second heir. Such are the children of the heiress
instituted, who are referred to as such second heirs both
in clause X and in clause XI
Finally, the requisite added by the decision of November
18, 1918, to wit, that the fideicommissarius or second
heir should be entitled to the estate from the time of the
testator's death, which in the instant case, is, rather
than a requisite, a necessary consequence derived from
the nature of the fideicommissary substitution, in which
the second heir does not inherit from the heir first
instituted, but from the testator.
By virtue of this consequence, the inheritance in
question does not belong to the heiress instituted, the
plaintiff herein, as her absolute property, but to her
children, from the moment of the death of the testatrix,
Ana Maria Alcantara.
Therefore, said inheritance, of which the amount
referred to at the beginning, which is on deposit with
the association known as La Urbana in the plaintiff's
name, is a part, does not belong to her nor can it be
subject to the execution of the judgment against Joaquin
Perez, who is not one of the fideicommissary heirs.
Rabadilla vs CA
334 SCRA 522
Facts: In a Codicil appended to the Last Will and
Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla,
predecessorininterest of the herein petitioner, Johnny S.
Rabadilla, was instituted as a devisee of 511,855 square
meters of that parcel of land of the Bacolod Cadastre.
The said Codicil, which was duly probated and admitted

in Special
provisions:

Proceedings

contained

the

following

specified in the Fourth paragraph of his testament, to

Maria Marlina Coscolluela y Belleza on the month of
December of each year.

FIRST
SIXTH
I give, leave and bequeath the following property owned
by me to Dr. Jorge Rabadilla resident of 141 P.
Villanueva, Pasay City: Lot No. 1392 of the Bacolod
Cadastre, covered by Transfer Certificate of Title No. RT4002 (10942), which is registered in my name according
to the records of the Register of Deeds of Negros
Occidental.
(b) That should Jorge Rabadilla die ahead of me, the
aforementioned property and the rights which I shall set
forth hereinbelow, shall be inherited and acknowledged
by the children and spouse of Jorge Rabadilla.
FOURTH
(a) It is also my command, in this my addition (Codicil),
that should I die and Jorge Rabadilla shall have already
received the ownership of the said Lot No. 1392 of the
Bacolod Cadastre, covered by Transfer Certificate of
Title No. RT4002 (10942), and also at the time that the
lease of Balbinito G. Guanzon of the said lot shall expire,
Jorge Rabadilla shall have the obligation until he dies,
every year to give to Maria Marlina Coscolluela y
Belleza, Seventy (75) (sic) piculs of Export sugar and
Twenty Five (25) piculs of Domestic sugar, until the said
Maria Marlina Coscolluela y Belleza dies.

I command, in this my addition (Codicil) that the Lot No.

1392, in the event that the one to whom I have left and
bequeathed, and his heir shall later sell, lease,
mortgage this said Lot, the buyer, lessee, mortgagee,
shall have also the obligation to respect and deliver
yearly ONE HUNDRED (100) piculs of sugar to Maria
Marlina Coscolluela y Belleza, on each month of
December, SEVENTY FIVE (75) piculs of Export and
TWENTY FIVE (25) piculs of Domestic, until Maria
Marlina shall die, lastly should the buyer, lessee or the
mortgagee of this lot, not have respected my command
in this my addition (Codicil), Maria Marlina Coscolluela y
Belleza, shall immediately seize this Lot No. 1392 from
my heir and the latters heirs, and shall turn it over to
my near desendants, (sic) and the latter shall then have
the obligation to give the ONE HUNDRED (100) piculs of
sugar until Maria Marlina shall die. I further command in
this my addition (Codicil) that my heir and his heirs of
this Lot No. 1392, that they will obey and follow that
should they decide to sell, lease, mortgage, they cannot
negotiate with others than my near descendants and
my sister.
Pursuant to the same Codicil, Lot No. 1392 was
transferred to the deceased, Dr. Jorge Rabadilla, and
TCT thereto issued in his name.

FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall
give Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT4002 (10492), shall
have the obligation to still give yearly, the sugar as

Dr. Jorge Rabadilla died in 1983 and was survived by his

wife Rufina and children Johnny (petitioner), Aurora,
Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y

Belleza Villacarlos brought a complaint against the
abovementioned heirs of Dr. Jorge Rabadilla, to enforce
the provisions of subject Codicil.
Issue:
Held: The petitioner theorizes further that there can be
no valid substitution for the reason that the substituted
heirs are not definite, as the substituted heirs are
merely referred to as near descendants without a
definite identity or reference as to who are the near
descendants and therefore, under Articles 8438 and
8459 of the New Civil Code, the substitution should be
deemed as not written.
The contentions of petitioner are untenable. Contrary to
his supposition that the Court of Appeals deviated from
the issue posed before it, which was the propriety of the
dismissal of the complaint on the ground of prematurity
of cause of action, there was no such deviation. The
Court of Appeals found that the private respondent had
a cause of action against the petitioner. The disquisition
made on modal institution was, precisely, to stress that
the private respondent had a legally demandable right
against the petitioner pursuant to subject Codicil on
which issue the Court of Appeals ruled in accordance
with law.
It is a general rule under the law on succession that
successional rights are transmitted from the moment of
death of the decedent10 and compulsory heirs are
called to succeed by operation of law. The legitimate
children and descendants, in relation to their legitimate
parents, and the widow or widower, are compulsory
heirs.11 Thus, the petitioner, his mother and sisters, as
compulsory heirs of the instituted heir, Dr. Jorge
Rabadilla, succeeded the latter by operation of law,
without need of further proceedings, and the

successional rights were transmitted to them from the

moment of death of the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance
includes all the property, rights and obligations of a
person, not extinguished by his death. Conformably,
whatever rights Dr. Jorge Rabadilla had by virtue of
subject Codicil were transmitted to his forced heirs, at
the time of his death. And since obligations not
extinguished by death also form part of the estate of
the decedent corollarily, the obligations imposed by the
Codicil on the deceased Dr. Jorge Rabadilla, were
likewise transmitted to his compulsory heirs upon his
death.
In the said Codicil, testatrix Aleja Belleza devised Lot
No. 1392 to Dr. Jorge Rabadilla, subject to the condition
that the usufruct thereof would be delivered to the
herein private respondent every year. Upon the death of
Dr. Jorge Rabadilla, his compulsory heirs succeeded to
his rights and title over the said property, and they also
assumed his (decedents) obligation to deliver the fruits
of the lot involved to herein private respondent. Such
obligation of the instituted heir reciprocally corresponds
to the right of private respondent over the usufruct, the
fulfillment or performance of which is now being
demanded by the latter through the institution of the
case at bar. Therefore, private respondent has a cause
of action against petitioner and the trial court erred in
dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil
Code on modal institutions is not applicable because
what the testatrix intended was a substitutionDr. Jorge
Rabadilla was to be substituted by the testatrixs near
descendants should there be noncompliance with the
obligation to deliver the piculs of sugar to private
respondent.

Again, the contention is without merit. Substitution is

the designation by the testator of a person or persons to
take the place of the heir or heirs first instituted. Under
substitutions in general, the testator may either (1)
provide for the designation of another heir to whom the
property shall pass in case the original heir should die
before him/her, renounce the inheritance or be
incapacitated to inherit, as in a simple substitution, or
(2) leave his/her property to one person with the
express charge that it be transmitted subsequently to
another or others, as in a fideicommissary substitution.
The Codicil sued upon contemplates neither of the two.
In simple substitutions, the second heir takes the
inheritance in default of the first heir by reason of
incapacity, predecease or renunciation.14 In the case
under consideration, the provisions of subject Codicil do
not provide that should Dr. Jorge Rabadilla default due
to predecease, incapacity or renunciation, the testatrixs
near descendants would substitute him. What the
Codicil provides is that, should Dr. Jorge Rabadilla or his
heirs not fulfill the conditions imposed in the Codicil, the
property referred to shall be seized and turned over to
the testatrixs near descendants.
Neither is there a fideicommissary substitution here and
on this point, petitioner is correct. In a fideicommissary
substitution, the first heir is strictly mandated to
preserve the property and to transmit the same later to
the second heir.15 In the case under consideration, the
instituted heir is in fact allowed under the Codicil to
alienate the property provided the negotiation is with
the near descendants or the sister of the testatrix. Thus,
a very important element of a fideicommissary
substitution is lacking the obligation clearly imposing
upon the first heir the preservation of the property and
its transmission to the second heir. Without this

obligation to preserve clearly imposed by the testator in

his will, there is no fideicommissary substitution.16
Also, the near descendants right to inherit from the
testatrix is not definite. The property will only pass to
them should Dr. Jorge Rabadilla or his heirs not fulfill the
obligation to deliver part of the usufruct to private
respondent.
Another important element of a fideicommissary
substitution is also missing here. Under Article 863, the
second heir or the fideicommissary to whom the
property is transmitted must not be beyond one degree
from the first heir or the fiduciary. A fideicommissary
substitution is therefore, void if the first heir is not
related by first degree to the second heir.17 In the case
under scrutiny, the near descendants are not at all
related to the instituted heir, Dr. Jorge Rabadilla.
Conditional Institution
Morente vs Dela Santa
9 Phil 387
Facts: The will of Consuelo Morente contains the
following clauses:
"1. I hereby order that all real estate which may belong
to me shall pass to my husband, Gumersindo de la
Santa.
"2. That my said husband shall not leave my brothers
after my death, and that he shall not marry anyone
should my said husband have children by anyone, he
shall not convey any portion of the property left by me,
except the onethird part thereof and the two remaining
thirds shall be and remain for my brother Vicente or his
children should he have any.

"3. After my death I direct my husband to dwell in the

camarin in which the bakery is located, which is one of
the properties belonging to me."
Her husband, Gumersindo de la Santa, married again
within four months of the death of the testatrix. Elena
Morente, a sister of the deceased, filed a petition in the
proceeding relating to the probate of the will of
Consuelo Morente pending in the CFI in which she
alleged the second mar riage of Gumersindo de la Santa
and asked that the legacy to him above mentioned be
annulled. Objection was made in the court below by the
husband to the procedure followed by the petitioner.
Issue: Did the testatrix intend to impose a condition
upon the absolute gift which is contained in the first
clauses of the will?
Held: Article 790 of the Civil Code provides that
testamentary provisions may be made conditional and
article 793 provides that a prohibition against another
marriage may in certain cases be validly imposed upon
the widow or widower.
It is to be 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 building. It is provided in the second
clause that he shall not marry again. To no one of these
orders is attached the condition that if he fails to comply
with them he shall lose the legacy given to him by the
first clause of the will. It is nowhere expressly said that if
he does leave the testatrix's sisters, or does not
continue to dwell in the building mentioned in the will
he shall forfeit the property given him in the first clause
nor is it anywhere expressly said that if he marries again
he shall incur such a loss. But it is expressly provided
that if one event does happen the disposition of the

property contained in the first clause of the will shall be

changed. It is said that if he has children by anyone,
two- thirds of that property shall pass to Vicente, the
brother of the testatrix.
We are bound to construe the will with reference to all
the clauses contained therein, and with reference to
such surrounding circumstances as duly appear in the
case, and after such consideration we cannot say that it
was the intention of the testatrix that if her husband
married again he should forfeit the legacy above
mentioned. In other words, there being no express
condition attached to that legacy in reference to the
second marriage, we cannot say that any condition can
be implied from the context of the will. In the case of
Oliiong JoeSoy vs. Jaime Vano we held that the legacy
contained in the will therein mentioned was not
conditional. It is true that that case arose under article
797 of the Civil Code, which perhaps is not strictly
applicable to this case, but we think that it may be
argued from what is said in article 797 that, in order to
make a testamentary provision conditional, such
condition must fairly appear from the language used in
the will.
Compulsory Heirs/Legitimes
Rosales vs Rosales
148 SCRA 69
Francisco vs Alfonso
GR No. 138774
March 8, 2001
Tumbokun vs Magtanum
GR No. 153736
August 12, 2010

Reserva Troncal
Held:
Nieva vs Alcala
41 Phil 915
Florentino vs Florentino
40 Phil 480
Solivio vs CA
182 SCRA 119
Sumaya vs IAC
201 SCRA 178
De Papa vs Camacho
144 SCRA 281
Mendoza vs Policarpio
GR No. 176422
March 20, 2013
Disinheritance
Pecson vs Mediavillo
28 Phil 81
Ching vs Rodriguez
GR No. 192828
November 28, 2011
Intestate Succession
Dorotheo vs CA
320 SCRA 12

Heirs of Uriarte vs CA
284 SCRA 511
Sayson vs CA
205 SCRA 321
Bagunu vs Piedad
347 SCRA 571
Diaz vs IAC
182 SCRA 427
Dela Puerta vs CA
181 SCRA 861
Pascual vs Bautista
207 SCRA 561
Manuel vs Ferrer
247 SCRA 476
Verdad vs CA
256 SCRA 593
Cacho vs Udan
13 SCRA 693
Sarita vs Candia
23 Phil 443
Abellana de Bacayo vs Borromeo
14 SCRA 986

Facts:
Issue:

Bicomong vs Almanza
80 SCRA 421

199 SCRA 778

City of Manila vs Archbishop
36 Phil 815
Torres vs Lopez
49 Phil 504
Nepomuceno vs IAC
139 SCRA 206
Pastor vs CA
122 SCRA 885
Sanchez vs CA
279 SCRA 647
Nazareno vs CA
343 SCRA 637
Mendoza vs CA

Aznar Brothers Realty vs CA

327 SCRA 359
Ralla vs Untalan
172 SCRA 858
Balanay vs Martinez
64 SCRA 452
Plan vs IAC
135 SCRA 270