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SPECIAL PROCEEDINGS/Rule 75 1 of 16

1. SECOND DIVISION jurisdiction over the subject matter and that she was denied
due process.
G.R. No. 160530 November 20, 2007
The appellate court dismissed the appeal, thus:
CYNTHIA V. NITTSCHER, petitioner, 

vs.
 WHEREFORE, the foregoing considered, the appeal
DR. WERNER KARL JOHANN NITTSCHER (Deceased), is hereby DISMISSED and the assailed Order
ATTY. ROGELIO P. NOGALES and THE REGIONAL TRIAL is AFFIRMED in toto. The court a quo is ordered to
COURT OF MAKATI (Branch 59), respondents. proceed with dispatch in the proceedings below.
DECISION SO ORDERED.6
QUISUMBING, J.: Petitioner’s motion for reconsideration of the aforequoted
decision was denied for lack of merit. Hence, the present
For review on certiorari are the Decision1 dated July 31, 2003
petition anchored on the following grounds:
and Resolution2 dated October 21, 2003 of the Court of
Appeals in CA-G.R. CV No. 55330, which affirmed the I.
Order3 dated September 29, 1995 of the Regional Trial Court
BOTH THE CA AND THE LOWER COURT ERRED IN
(RTC), Branch 59, Makati City, in SP Proc. No. M-2330 for the
NOT DISMISSING OUTRIGHT THE PETITION FOR
probate of a will.
LETTERS … TESTAMENTARY FILED BY ATTY.
The facts are as follows. NOGALES WHEN, OBVIOUSLY, IT WAS FILED IN
VIOLATION OF REVISED CIRCULAR NO. 28-91 AND
On January 31, 1990, Dr. Werner Karl Johann Nittscher filed
ADMINISTRATIVE CIRCULAR NO. 04-94 OF THIS
with the RTC of Makati City a petition for the probate of his
HONORABLE COURT.
holographic will and for the issuance of letters testamentary
to herein respondent Atty. Rogelio P. Nogales. II.
On September 19, 1991, after hearing and with due notice to THE CA ERRED IN NOT DECLARING THAT THE
the compulsory heirs, the probate court issued an order LOWER COURT [HAS] NO JURISDICTION OVER THE
allowing the said holographic will, thus: SUBJECT MATTER OF THE PRESENT SUIT.
WHEREFORE, premises considered, the Holographic III.
Will of the petitioner-testator Dr. Werner J. Nittscher
THE CA ERRED IN CONCLUDING THAT SUMMONS
executed pursuant to the provision of the second
WERE PROPERLY ISSUED TO THE PARTIES AND ALL
paragraph of Article 838 of the Civil Code of the
PERSONS INTERESTED IN THE PROBATE OF THE
Philippines on January 25, 1990 in Manila,
HOLOGRAPHIC WILL OF DR. NITTSCHER.
Philippines, and proved in accordance with the
provision of Rule 76 of the Revised Rules of Court is IV.
hereby allowed.
THE CA ERRED IN CONCLUDING THAT THE
SO ORDERED.4 PETITIONER WAS NOT DEPRIVED OF DUE PROCESS
OF LAW BY THE LOWER COURT.7
On September 26, 1994, Dr. Nittscher died. Hence, Atty.
Nogales filed a petition for letters testamentary for the Petitioner contends that respondent’s petition for the issuance
administration of the estate of the deceased. Dr. Nittscher’s of letters testamentary lacked a certification against forum-
surviving spouse, herein petitioner Cynthia V. Nittscher, shopping. She adds that the RTC has no jurisdiction over the
moved for the dismissal of the said petition. However, the subject matter of this case because Dr. Nittscher was
court in its September 29, 1995 Order denied petitioner’s allegedly not a resident of the Philippines; neither did he
motion to dismiss, and granted respondent’s petition for the leave real properties in the country. Petitioner claims that the
issuance of letters testamentary, to wit: properties listed for disposition in her husband’s will actually
belong to her. She insists she was denied due process of law
In view of all the foregoing, the motion to dismiss is
because she did not receive by personal service the notices of
DENIED. The petition for the issuance of Letters
the proceedings.
Testamentary, being in order, is GRANTED.
Respondent Atty. Nogales, however, counters that Dr.
Section 4, Rule 78 of the Revised Rules of Court,
Nittscher did reside and own real properties in Las Piñas,
provides "when a will has been proved and allowed,
Metro Manila. He stresses that petitioner was duly notified of
the court shall issue letters testamentary thereon to
the probate proceedings. Respondent points out that
the person named as executor therein, if he is
petitioner even appeared in court to oppose the petition for
competent, accepts the trust and gives a bond as
the issuance of letters testamentary and that she also filed a
required by these rules." In the case at bar,
motion to dismiss the said petition. Respondent maintains
petitioner Atty. Rogelio P. Nogales of the R.P. Nogales
that the petition for the issuance of letters testamentary need
Law Offices has been named executor under the
not contain a certification against forum-shopping as it is
Holographic Will of Dr. Werner J. Nittscher. As prayed
merely a continuation of the original proceeding for the
for, let Letters Testamentary be issued to Atty.
probate of the will.
Rogelio P. Nogales, the executor named in the Will,
without a bond. We resolve to deny the petition.
SO ORDERED.5 As to the first issue, Revised Circular No. 28-918 and
Administrative Circular No. 04-949 of the Court require a
Petitioner moved for reconsideration, but her motion was
certification against forum-shopping for all initiatory pleadings
denied for lack of merit. On May 9, 1996, Atty. Nogales was
filed in court. However, in this case, the petition for the
issued letters testamentary and was sworn in as executor.
issuance of letters testamentary is not an initiatory pleading,
Petitioner appealed to the Court of Appeals alleging that but a mere continuation of the original petition for the
respondent’s petition for the issuance of letters testamentary probate of Dr. Nittscher’s will. Hence, respondent’s failure to
should have been dismissed outright as the RTC had no include a certification against forum-shopping in his petition
SPECIAL PROCEEDINGS/Rule 75 2 of 16
for the issuance of letters testamentary is not a ground for G.R. No. L-57848 June 19, 1982
outright dismissal of the said petition.
RAFAEL E. MANINANG and SOLEDAD L.
Anent the second issue, Section 1, Rule 73 of the Rules of MANINANG, petitioners, 

Court provides: vs.

COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR.,
SECTION 1. Where estate of deceased persons
as Judge of the Court of First Instance of Rizal and
settled. – If the decedent is an inhabitant of the
BERNARDO S. ASENETA, respondents.
Philippines at the time of his death, whether a
citizen or an alien, his will shall be proved, or
letters of administration granted, and his
MELENCIO-HERRERA, J.:
estate settled, in the Court of First Instance
(now Regional Trial Court) in the province in A Petition to Review the Decision of April 28, 1981 of
which he resides at the time of his death, and if respondent Appellate Court in CA-G.R. No. 12032-R entitled
he is an inhabitant of a foreign country, the Court of "Rafael E. Maninang and Soledad L. Maninang vs. Hon.
First Instance (now Regional Trial Court) of any Ricardo Pronove, Judge of the Court of First Instance of Rizal,
province in which he had estate. … (Emphasis Pasig, Branch XI, and Bernardo S. Aseneta".
supplied.)
Pertinent to the controversy are the following antecedental
In this case, the RTC and the Court of Appeals are one in their facts:
finding that Dr. Nittscher was a resident of Las Piñas, Metro
On May 21, 1977, Clemencia Aseneta, single, died at the
Manila at the time of his death. Such factual finding, which we
Manila Sanitarium Hospital at age 81. She left a holographic
find supported by evidence on record, should no longer be
will, the pertinent portions of which are quoted hereunder:
disturbed. Time and again we have said that reviews on
certiorari are limited to errors of law. Unless there is a xxx xxx xxx
showing that the findings of the lower court are totally devoid
It is my will that all my real properties
of support or are glaringly erroneous, this Court will not
located in Manila, Makati, Quezon City,
analyze or weigh evidence all over again.10
Albay and Legaspi City and all my personal
Hence, applying the aforequoted rule, Dr. Nittscher correctly properties shagllbe inherited upon my death
filed in the RTC of Makati City, which then covered Las Piñas, by Dra. Soledad L. Maninang with whose
Metro Manila, the petition for the probate of his will and for family I have lived continuously for around
the issuance of letters testamentary to respondent. the last 30 years now. Dra. Maninang and
her husband Pamping have been kind to
Regarding the third and fourth issues, we note that Dr.
me. ... I have found peace and happiness
Nittscher asked for the allowance of his own will. In this
with them even during the time when my
connection, Section 4, Rule 76 of the Rules of Court states:
sisters were still alive and especially now
SEC. 4. Heirs, devisees, legatees, and executors to when I am now being troubled by my
be notified by mail or personally. – … nephew Bernardo and niece Salvacion. I am
not incompetent as Nonoy would like me to
If the testator asks for the allowance of his own will,
appear. I know what is right and wrong. I
notice shall be sent only to his compulsory heirs.
can decide for myself. I do not consider
In this case, records show that petitioner, with whom Dr. Nonoy as my adopted son. He has made me
Nittscher had no child, and Dr. Nittscher’s children from his do things against my will.
previous marriage were all duly notified, by registered mail,
xxx xxx xxx
of the probate proceedings. Petitioner even appeared in court
to oppose respondent’s petition for the issuance of letters On June 9, 1977, petitioner Soledad Maninang filed a Petition
testamentary and she also filed a motion to dismiss the said for probate of the Will of the decedent with the Court of First
petition. She likewise filed a motion for reconsideration of the Instance-Branch IV, Quezon City (Sp. Proc. No. Q-23304,
issuance of the letters testamentary and of the denial of her hereinafter referred to as the Testate Case).
motion to dismiss. We are convinced petitioner was accorded
On July 25, 1977, herein respondent Bernardo Aseneta, who,
every opportunity to defend her cause. Therefore, petitioner’s
as the adopted son, claims to be the sole heir of decedent
allegation that she was denied due process in the probate
Clemencia Aseneta, instituted intestate proceedings with the
proceedings is without basis.
Court of First Instance-Branch XI, Pasig, Rizal (Sp. Proc. No.
As a final word, petitioner should realize that the allowance of 8569, called hereinafter the Intestate Case" for brevity).
her husband’s will is conclusive only as to its due execution.
11 The authority of the probate court is limited to ascertaining
On December 23, 1977, the Testate and Intestate Cases were
ordered consolidated before Branch XI, presided by
whether the testator, being of sound mind, freely executed
respondent Judge.
the will in accordance with the formalities prescribed by law.
12 Thus, petitioner’s claim of title to the properties forming Respondent Bernardo then filed a Motion to Dismiss the
part of her husband’s estate should be settled in an ordinary Testate Case on the ground that the holographic will was null
action before the regular courts. and void because he, as the only compulsory heir, was
preterited and, therefore, intestacy should ensue. In support
WHEREFORE, the petition is DENIED for lack of merit. The
of said Motion to Dismiss, respondent Bernardo cited the
assailed Decision dated July 31, 2003 and Resolution dated
cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs. Nuguid (17
October 21, 2003 of the Court of Appeals in CA-G.R. CV No.
SCRA 449), and Ramos vs. Baldovino (2 CA Rep. 2nd, 878). 1
55330, which affirmed the Order dated September 29, 1995
of the Regional Trial Court, Branch 59, Makati City, in SP Proc. In her Opposition to said Motion to Dismiss, petitioner
No. M-2330 are AFFIRMED. Soledad averred that it is still the rule that in a case for
probate of a Will, the Court's area of inquiry is limited to an
No pronouncement as to costs.
examination of and resolution on the extrinsic validity of the
SO ORDERED. will; and that respondent Bernardo was effectively
disinherited by the decedent. 2
2. FIRST DIVISION
SPECIAL PROCEEDINGS/Rule 75 3 of 16
On September 8, 1980, the lower Court ordered the dismissal examination of, and resolution on, the
of the Testate Case in this wise: extrinsic validity of the will, the due
e x e c u t i o n t h e r e o f, t h e t e s t a t r i x ' s
For reasons stated in the motion to dismiss
testamentary capacity and the compliance
filed by petitioner Bernardo S. Aseneta
with the requisites or solemnities prescribed
which the Court finds meritorious, the
by law. The intrinsic validity of the will
petition for probate of will filed by Soledad
normally comes only after the court has
L. Maninang and which was docketed as Sp.
declared that the will has been duly
Proc. No. Q-23304 is DISMISSED, without
authenticated. However, where practical
pronouncement as to costs.
considerations demand that the intrinsic
On December 19, 1980, the lower Court denied validity of the will be passed upon, even
reconsideration for lack of merit and in the same Order before it is probated, the Court should meet
appointed Bernardo as the administrator of the intestate that issue. (Emphasis supplied)
estate of the deceased Clemencia Aseneta "considering that
Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:
he is a forced heir of said deceased while oppositor Soledad
Maninang is not, and considering further that Bernardo The trial court acted correctly in passing
Aseneta has not been shown to be unfit to perform the duties upon the will's intrinsic validity even before
of the trust. " its formal validity had been established. The
probate of a will might become an Idle
Petitioners Maninang resorted to a certiorari Petition before
ceremony if on its face it appears to be
respondent Court of Appeals alleging that the lower Court
intrinsically void. Where practical
exceeded its jurisdiction in issuing the Orders of dismissal of
considerations demand that the intrinsic
the Testate Case (September 8, 1980) and denial of
validity of the will be passed upon, even
reconsideration (December 19, 1980).
before it is probated, the court should meet
On April 28, 1981, respondent Court 3 denied certiorari and the issue.
ruled that the trial Judge's Order of dismissal was final in
The Nuguid and the Balanay cases provide the exception
nature as it finally disposed of the Testate Case and,
rather than the rule. The intrinsic validity of the Wills in those
therefore, appeal was the proper remedy, which petitioners
cases was passed upon even before probate because
failed to avail of. Continuing, it said that even granting that
"practical considerations" so demanded. Moreover, for the
the lower Court committed errors in issuing the questioned
parties in the Nuguid case, the "meat of the controversy" was
Orders, those are errors of judgment reviewable only by
the intrinsic validity of the Will; in fact, the parties in that
appeal and not by Certiorari. 'Thus, this Petition before us.
case "shunted aside the question of whether or not the Will
We find that the Court a quo a quo acted in excess of its should be allowed probate." Not so in the case before us now
jurisdiction when it dismissed the Testate Case. Generally, the where the probate of the Will is insisted on by petitioners and
probate of a Will is mandatory. a resolution on the extrinsic validity of the Will demanded.
No will shall pass either real or personal Moreover, in the Nuguid case, this Court ruled that the Will
property unless it is proved and allowed in was intrinsically invalid as it completely preterited the parents
accordance with the Rules of Court. 4 of the testator. In the instant case, a crucial issue that calls
for resolution is whether under the terms of the decedent's
The law enjoins the probate of the Will and public policy
Will, private respondent had been preterited or disinherited,
requires it, because unless the Will is probated and notice
and if the latter, whether it was a valid disinheritance.
thereof given to the whole world, the right of a person to
Preterition and disinheritance are two diverse concepts.
dispose of his property by Will may be rendered nugatory. 5
... Preterition "consists in the omission in
Normally, the probate of a Will does not look into its intrinsic
the testator's will of the forced heirs or
validity.
anyone of them, either because they are
... The authentication of a will decides no n o t m e n t i o n e d t h e r e i n , o r, t h o u g h
other question than such as touch upon the mentioned, they are neither instituted as
capacity of the testator and the compliance heirs nor are expressly disinherited." (Neri
with those requisites or solemnities which vs. Akutin, 72 Phil. 325). Disinheritance, in
the law prescribes for the validity of wills. It turn, "is a testamentary disposition
does not determine nor even by implication depriving any compulsory heirs of his share
prejudge the validity or efficiency (sic) of in the legitimate for a cause authorized by
the provisions, these may be impugned as law." (Justice J.B.L. Reyes and R.C. Puno,
being vicious or null, notwithstanding its "An Outline of Philippine Civil Law", 1956
authentication. The que0stions relating to e d ., Vo l . I I I , p . 8 , c i t i n g c a s e s )
these points remain entirely unaffected, and Disinheritance is always "voluntary",
may be raised even after the will has been preterition upon the other hand, is
authenticated .... 6 presumed to be "involuntary" (Sanchez
Roman, Estudios de Derecho Civil 2nd
Opposition to the intrinsic validity or legality
edition, Volume 2.o p. 1131). 10
of the provisions of the will cannot be
entertained in Probate proceeding because The effects of preterition and disinheritance are also totally
its only purpose is merely to determine if different.
the will has been executed in accordance
... The effects flowing from preterition are
with the requirements of the law. 7
totally different from those of
Respondent Bernardo, however, relies on the pronouncement disinheritance. Pretention under Article 854
in Nuguid vs. Nuguid 8, reading: of the New Civil Code shall annul the
institution of heir. This annulment is in toto,
In a proceeding for the probate of a will, the
unless in the wail there are, in addition,
Court's area of inquiry is limited to an
testamentary dispositions in the form of
SPECIAL PROCEEDINGS/Rule 75 4 of 16
devises or legacies. In ineffective the six lots which Matilde inherited from her husband Crispin.
disinheritance under Article 918 of the same The Deed of Donation provided:
Code, such disinheritance shall also "annul
That, for and in consideration of the love and affection of the
the institution of heirs", but only "insofar as
DONOR [Matilde] for the DONEE [Maria], the latter being
it may prejudice the person disinherited",
adopted and hav[ing] been brought up by the former the
which last phrase was omitted in the case of
DONOR, by these presents, transfer and convey, BY WAY OF
preterition (III Tolentino, Civil Code of the
DONATION, unto the DONEE the property above-described, to
Philippines, 1961 Edition, p. 172). Better
become effective upon the death of the DONOR, but in
stated yet, in disinheritance the nullity is
the event that the DONEE should die before the
limited to that portion of the estate of which
DONOR, the present donation shall be deemed
the disinherited heirs have been illegally
rescinded and [of] no further force and effect; Provided,
deprived. 11
however, that anytime during the lifetime of the DONOR or
By virtue of the dismissal of the Testate Case, the anyone of them who should survive, they could use[,]
determination of that controversial issue has not been encumber or even dispose of any or even all of the parcels of
thoroughly considered. We gather from the assailed Order of landherein donated.4 (Emphasis and underscoring supplied)
the trial Court that its conclusion was that respondent
On September 30, 1986, Original Certificates of Title over Lot
Bernardo has been preterited We are of opinion, however,
Nos. 674 and 676 were issued in Matilde’s name.
that from the face of the Will, that conclusion is not
indubitable. On August 26, 1991, Matilde sold Lot No. 676 to respondent
by a Deed of Absolute Sale of Real Property.5
As held in the case of Vda. de Precilla vs. Narciso 12

Subsequently or on January 14, 1992, Matilde executed a last


... it is as important a matter of public
will and testament,6 devising Lot Nos. 675, 677, 682, and 680
interest that a purported will is not denied
to Maria, and her "remaining properties" including Lot
legalization on dubious grounds. Otherwise,
No. 674 to respondent.
the very institution of testamentary
succession will be shaken to its Matilde died on January 25, 1994, while Maria died on
foundation, ... September 24 of the same year.7
Coming now to the procedural aspect, suffice it to state that On August 21, 1995, Maria’s heirs-herein petitioners filed
in view of our finding that respondent Judge had acted in before the Regional Trial Court (RTC) of Roxas City a
excess of his jurisdiction in dismissing the Testate Case, Complaint,8 for declaration and recovery of ownership and
certiorari is a proper remedy. An act done by a Probate Court possession of Lot Nos. 674 and 676, and damages against
in excess of its jurisdiction may be corrected respondent, alleging:
by Certiorari. 13 And even assuming the existence of the
That in 1978, plaintiff[s] possessed the two (2) parcels of
remedy of appeal, we harken to the rule that in the broader
land above-described until January 1991 when defendant
interests of justice, a petition for certiorari may be
entered and possessed the two (2) parcels of land claiming as
entertained, particularly where appeal would not afford
the adopted son of Crispin Aluad who refused to give back
speedy and adequate relief.
possession until Matilde Aluad died in [1994] and then
WHEREFORE, the Decision in question is set aside and the retained the possession thereof up to and until the present
Orders of the Court of First Instance-Branch XI, Rizal, dated time, thus, depriving the plaintiffs of the enjoyment of said
September 8, 1980 and December 19, 1980, are nullified. parcels of land x x x;
Special Proceeding No. Q-23304 is hereby remanded to said
That after the death of Matilde R. Aluad, the plaintiffs
Court of First Instance-Branch XI. Rizal, therein to be
succeeded by inheritance by right of representation from their
reinstated and consolidated with Special Proceeding No. 8569
deceased mother, Maria Aluad who is the sole and only
for further proceedings.
daughter of Matilde Aluad[.]9
No pronouncement as to costs.
To the complaint respondent alleged in his Answer.10
SO ORDERED.
That Lot 674 is owned by the defendant as this lot was
3. SECOND DIVISION adjudicated to him in the Last Will and Testament of Matilde
Aluad x x x while Lot 676 was purchased by him from Matilde
G.R. No. 176943 October 17, 2008
Aluad. These two lots are in his possession as true owners
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, thereof.11 (Underscoring supplied)
PROSPERO ALUAD, and CONNIE ALUAD, petitioners, 

Petitioners later filed a Motion for Leave to Amend Complaint
vs.

Already Filed to Conform to Evidence12 to which it annexed an
ZENAIDO ALUAD, respondent.
Amended Complaint13 which cited the donation of the six lots
DECISION via Deed of Donation in favor of their mother Maria. Branch
15 of the RTC granted the motion and admitted the Amended
CARPIO MORALES, J.:
Complaint.14
Petitioners’ mother, Maria Aluad (Maria), and respondent
Respondent filed an Amended Answer15 contending, inter alia,
Zenaido Aluad were raised by the childless spouses Matilde
that the Deed of Donation is forged and falsified and
Aluad (Matilde) and Crispin Aluad (Crispin).
petitioners’ change of theory showed that "said document was
Crispin was the owner of six lots identified as Lot Nos. 674, not existing at the time they filed their complaint and was
675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz. concocted by them after realizing that their false claim that
After Crispin died, his wife Matilde adjudicated the lots to their mother was the only daughter of Matild[e] Aluad cannot
herself.1 in anyway be established by them";16 and that if ever said
document does exist, the same was already revoked by
On November 14, 1981, Matilde executed a document entitled
Matilde "when [she] exercised all acts of dominion over said
"Deed of Donation of Real Property Inter Vivos"2(Deed of
properties until she sold Lot 676 to defendant and until her
Donation) in favor of petitioners’ mother Maria3 covering all
SPECIAL PROCEEDINGS/Rule 75 5 of 16
death with respect to the other lots without any opposition WHEREFORE, finding the instant petition worthy of merit,
from Maria Aluad."17 the same is hereby GRANTED and the Decision of the
Regional Trial Court of Roxas City, Branch 15, dated 20
The trial court, by Decision18 of September 20, 1996, held
September 1996, in Civil Case No. V-6686 for declaration of
that Matilde could not have transmitted any right over Lot
ownership, recovery of ownership and possession, and
Nos. 674 and 676 to respondent, she having previously
damages is REVERSED and SET ASIDE.
alienated them to Maria via the Deed of Donation. Thus it
disposed: A new one is entered in its stead declaring defendant-
appellant as the lawful owner of Lot [No.] 676 of the Pilar
WHEREFORE, in view of the foregoing, judgment is hereby
Cadastre. Accordingly, plaintiffs-appellees are directed to
rendered:
return the possession of the said lot to the defendant-
1. Declaring the plaintiffs as the rightful owners of the subject appellant.
Lots Nos. 674 and 676, Pilar Cadastre;
Moreover, plaintiffs-appellees are ordered to pay P40,000.00
2. Ordering the defendant to deliver the possession of the to defendant-appellant as attorney’s fees and litigation
subject lots to the plaintiffs; expenses.
3. Ordering the defendant to pay the plaintiffs: Costs against plaintiffs-appellees.
a. Thirty thousand pesos (P30,000.00) as attorney’s fees; SO ORDERED.22 (Emphasis in the original; underscoring
supplied)
b. Twenty thousand pesos (P20,000.00), representing the
income from subject Lot 676, a year from 1991 up to the time Their Motion for Reconsideration23 having been denied,
said lot is delivered to the plaintiffs, together with the interest 24 petitioners filed the present Petition for Review,

thereof at the legal rate until fully paid; 25contending that the Court of Appeals erred

c. Ten thousand pesos (P10,000.00), representing the income I


from the subject Lot No. 674, a year from 1991 up to the
X X X WHEN IT REVERSED THE DECISION OF THE COURT
time said lot is delivered to the plaintiffs, plus legal interest
BELOW (RTC, Branch 15, Roxas City) HOLDING THAT THE
thereof at the legal rate until fully paid; and
D E E D O F D O N AT I O N I N T E R V I V O S I N FAV O R O F
d. The costs of the suit. PETITIONERS’ MOTHER IS IN FACT A DONATION MORTIS
CAUSA.
Defendant’s counterclaim is ordered dismissed for lack of
merit. II
SO ORDERED.19 X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL
OWNER OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A
On petitioners’ motion, the trial court directed the issuance of
DEED OF SALE EXECUTED BY THE DONOR WHO HAD NO
a writ of execution pending appeal.20 Possession of the
MORE RIGHT TO SELL THE SAME.
subject lots appears to have in fact been taken by petitioners.
III
By Decision21 of August 10, 2006, the Court of Appeals
reversed the trial court’s decision, it holding that the Deed of X X X WHEN IT FAILED TO DECLARE PETITIONERS THE
Donation was actually a donation mortis causa, not inter RIGHTFUL OWNER OF LOT NO. 674 AFTER HAVING RULED
vivos, and as such it had to, but did not, comply with the WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED
formalities of a will. Thus, it found that the Deed of Donation OWNER THEREOF.
was witnessed by only two witnesses and had no attestation
IV
clause which is not in accordance with Article 805 of the Civil
Code, reading: X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF
EXECUTION PENDING APPEAL IS IN VIOLATION OF
Art. 805. Every will, other than a holographic will, must be
PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF
subscribed at the end thereof by the testator himself or by
COURT (AND ORDERING PETITIONERS TO RETURN
the testator’s name written by some other person in his
POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING
presence, and by his express direction, and attested and
PETITIONERS TO PAY ATTORNEY’S FEES AND COST[S] OF
subscribed by three or more credible witnesses in the
SUIT.26
presence of the testator and of one another.
As did the appellate court, the Court finds the donation to
The testator or the person requested by him to write his
petitioners’ mother one of mortis causa, it having the
name and the instrumental witnesses of the will shall, also
following characteristics:
sign, as aforesaid, each and every page thereof, except the
last on the left margin and all the pages shall be numbered (1) It conveys no title or ownership to the
correlatively in letters placed on the upper part of each page. transferee before the death of the transferor; or what
amounts to the same thing, that the transferor should retain
The attestation shall state the number of pages used upon
the ownership (full or naked) and control of the property
which the will is written, and the fact that that testator signed
while alive;
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the (2) That before the death of the transferor, the transfer
presence of the instrumental witnesses, and that the latter should be revocable by the transferor at will, ad nutum; but
witnessed and signed the will and all the pages thereof in the revocability may be provided for indirectly by means of a
presence of the testator, and of one another. reserved power in the donor to dispose of the properties
conveyed; and
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (3) That the transfer should be void if the transferor should
survive the transferee. 27 (Emphasis and underscoring
While the appellate court declared respondent as the rightful
supplied)
owner of Lot No. 676, it did not so declare with respect to Lot
No. 674, as Matilde’s last will and testament had not yet been The phrase in the earlier-quoted Deed of Donation "to become
probated. Thus the Court of Appeals disposed: effective upon the death of the DONOR" admits of no other
SPECIAL PROCEEDINGS/Rule 75 6 of 16
interpretation than to mean that Matilde did not intend to As the Court of Appeals observed, "x x x [t]hat the donation
transfer the ownership of the six lots to petitioners’ mother is mortis causa is fortified by Matilde’s acts of possession as
during her (Matilde’s) lifetime.28 she continued to pay the taxes for the said properties which
remained under her name; appropriated the produce; and
The statement in the Deed of Donation reading "anytime
applied for free patents for which OCTs were issued under her
during the lifetime of the DONOR or anyone of them who
name."35
should survive, they could use, encumber or even dispose
of any or even all the parcels of land herein The donation being then mortis causa, the formalities of a will
donated"29 means that Matilde retained ownership of the lots should have been observed36 but they were not, as it was
and reserved in her the right to dispose them. For the right to witnessed by only two, not three or more witnesses following
dispose of a thing without other limitations than those Article 805 of the Civil Code.37
established by law is an attribute of ownership.30 The phrase
Further, the witnesses did not even sign the attestation
in the Deed of Donation "or anyone of them who should
c l a u s e38 t h e e x e c u t i o n o f w h i c h c l a u s e i s a
survive" is of course out of sync. For the Deed of Donation
requirement separate from the subscription of the will and the
clearly stated that it would take effect upon the death of the
affixing of signatures on the left-hand margins of the pages of
donor, hence, said phrase could only have referred to the
the will. So the Court has emphasized:
donor Matilde. Petitioners themselves concede that such
phrase does not refer to the donee, thus: x x x Article 805 particularly segregates the requirement that
the instrumental witnesses sign each page of the will from the
x x x [I]t is well to point out that the last provision (sentence)
requisite that the will be "attested and subscribed by [the
in the disputed paragraph should only refer to Matilde Aluad,
instrumental witnesses]. The respective intents behind these
the donor, because she was the only surviving spouse at the
two classes of signature[s] are distinct from each other. The
time the donation was executed on 14 November 1981, as
signatures on the left-hand corner of every page signify,
her husband – Crispin Aluad [–] had long been dead as early
among others, that the witnesses are aware that the page
as 1975.31
they are signing forms part of the will. On the other hand, the
The trial court, in holding that the donation was inter vivos, signatures to the attestation clause establish that
reasoned: the witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is
x x x The donation in question is subject to a resolutory term
separate and apart from the disposition of the will. An
or period when the donor provides in the aforequoted
unsigned attestation clause results in an unattested
provisions, "but in the event that the DONEE should die
will. Even if the instrumental witnesses signed the left-hand
before the DONOR, the present donation shall be deemed
margin of the page containing the unsigned attestation
rescinded and [of] no further force and effect". When the
clause, such signatures cannot demonstrate these witnesses’
donor provides that should the "DONEE" xxx die before the
undertakings in the clause, since the signatures that do
DONOR, the present donation shall be deemed rescinded and
appear on the page were directed towards a wholly different
[of] no further force and effect" the logical construction
avowal.
thereof is that after the execution of the subject donation, the
same became effective immediately and shall be "deemed x x x It is the witnesses, and not the testator, who are
rescinded and [of] no further force and effect" upon the required under Article 805 to state the number of pages used
arrival of a resolutory term or period, i.e., the death of the upon which the will is written; the fact that the testator had
donee which shall occur before that of the donor. signed the will and every page thereof; and that they
Understandably, the arrival of this resolutory term or period witnessed and signed the will and all the pages thereof in the
cannot rescind and render of no further force and effect a presence of the testator and of one another. The only proof in
donation which has never become effective, because, the will that the witnesses have stated these elemental facts
certainly what donation is there to be rescinded and rendered would be their signatures on the attestation clause.
of no further force and effect upon the arrival of said 39 (Emphasis and underscoring supplied)

resolutory term or period if there was no donation which was


Furthermore, the witnesses did not acknowledge the will
already effective at the time when the donee died?
32 (Underscoring supplied)
before the notary public,40 which is not in accordance with the
requirement of Article 806 of the Civil Code that every will
A similar ratio in a case had been brushed aside by this Court, must be acknowledged before a notary public by the testator
however, thus: and the witnesses.
x x x [P]etitioners contend that the stipulation on rescission in More. The requirement that all the pages of the will must be
case petitioners [donee] die ahead of [donor] Cabatingan is a numbered correlatively in letters placed on the upper part of
resolutory condition that confirms the nature of the donation each page was not also followed.41
as inter vivos.
The Deed of Donation which is, as already discussed, one of
Petitioners’ arguments are bereft of merit.33 mortis causa, not having followed the formalities of a will, it is
void and transmitted no right to petitioners’ mother. But even
xxxx
assuming arguendo that the formalities were observed, since
x x x The herein subject deeds expressly provide that the it was not probated, no right to Lot Nos. 674 and 676 was
donation shall be rescinded in case [donees] the petitioners transmitted to Maria.42 Matilde thus validly disposed of Lot
predecease [the donor] Conchita Cabatingan. As stated No. 674 to respondent by her last will and testament, subject
in Reyes v. Mosqueda, one of the decisive characteristics of a of course to the qualification that her (Matilde’s) will must be
donation mortis causa is that the transfer should be probated. With respect to Lot No. 676, the same had, as
considered void if the donor should survive the donee. This is mentioned earlier, been sold by Matilde to respondent on
exactly what Cabatingan provided for in her donations. If she August 26, 1991.
really intended that the donation should take effect during her
Petitioners nevertheless argue that assuming that the
lifetime and that the ownership of the properties donated to
donation of Lot No. 674 in favor of their mother is
the donee or independently of, and not by reason of her
indeed mortis causa, hence, Matilde could devise it to
death, she would not have expressed such proviso in the
respondent, the lot should nevertheless have been awarded
subject deeds.34 (Underscoring supplied)
to them because they had acquired it by acquisitive
SPECIAL PROCEEDINGS/Rule 75 7 of 16
prescription, they having been in continuous, uninterrupted, the division of the latter's estate, and thereupon converted
adverse, open, and public possession of it in good faith and in the testate proceedings into one of intestacy.
the concept of an owner since 1978.43
Meanwhile, the brothers agreed to compromise in the
Petitioners failed to raise the issue of acquisitive prescription partition case (Civil Case No. 2023). On December 18, 1967,
before the lower courts, however, they having laid their claim they entered into a project of partition whereby sixty-three
on the basis of inheritance from their mother. As a general parcels of land, apparently forming the estate of their
rule, points of law, theories, and issues not brought to the deceased mother, Paz Escarella, were amicably divided
attention of the trial court cannot be raised for the first time between the two of them. This project of partition was
on appeal.44 For a contrary rule would be unfair to the approved on December 19,1967 by Judge Ezekiel Grageda.
adverse party who would have no opportunity to present
Eleven years later, or on February 28, 1978, Joaquin
further evidence material to the new theory, which it could
Chancoco, brother-in- law of the petitioner (Pablo) filed a
have done had it been aware of it at the time of the hearing
petition, docketed as Special Proceedings No. 1106, for the
before the trial court.45
probate of the same will of Rosendo Ralla on the ground that
WHEREFORE, the petition is DENIED. the decedent owed him P5,000.00. Pablo Ralla then filed a
manifestation stating that he had no objections to the
SO ORDERED.
probate; thereafter, he filed a "Motion to Intervene as
4. SECOND DIVISION Petitioner for the Probate of the Will." This motion was
heard ex parte and granted despite the written opposition of
G.R. Nos. L-63253-54 April 27, 1989
the heirs of Pedro Ralla. Likewise, the petition for probate was
PABLO RALLA, petitioner, 
 granted; Teodorico Almine, son-in-law of the petitioner, was
vs.
 appointed special administrator, over and above the objection
HON. ROMULO P. UNTALAN, HON. DOMINGO CORONEL of the heirs of Pedro Ralla. However, in taking possession of
REYES, AND LEONIE RALLA, PETER RALLA AND the properties belonging to the estate of Rosendo Ralla,
MARINELLA RALLA, respondents. Teodorico Almine also took possession of the sixty-three
parcels of land covered by the project of partition mentioned
Rafael Triunfante for the Heirs of Pablo Ralla.
earlier. Consequently, the heirs of Pedro Ralla (the private
Ruben R. Basa for respondents. respondents herein) moved to exclude from the estate of
Rosendo Ralla the aforesaid parcels of land.
SARMIENTO, J.:
In an Omnibus order dated August 3, 1979, 4 respondent
This petition seeks the nullification of the Order of respondent
Judge Romulo P. Untalan ruled, inter alia, that the sixty-three
Judge Romulo P. Untalan, 1 dated July 16,1981, excluding
parcels of land should be included in the proceedings for the
from the probate proceedings sixty-three parcels of land, as
settlement of the estate of Rosendo Ralla and that said
well as the Orders issued by respondent Judge Domingo
proceedings (both Special Proceedings No. 564 and Special
Coronel Reyes, 2 denying the petitioner's motions for
Proceedings No. 1106, which were ordered consolidated by
reconsideration of the same Order of Judge Untalan dated
this Court) should proceed as probate proceedings.
July 16, 1981.
About two years later, or on June 11, 1981, the private
The petition's beginnings are traced to January 27, 1959,
respondents filed a "Petition To Submit Anew For
when Rosendo Ralla, a widower, filed a petition for the
Consideration Of The Court The Exclusion Of 67 (sic) Parcels
probate of his own will in the then Court of First Instance
of Land Subject Of The Project Of Partition In Civil Case No.
(now Regional Trial Court) of Albay, which was docketed as
2023." 5 In his Order of July 16,1981, Judge Untalan
Special Proceedings No. 564. In his will he left his entire
reconsidered his earlier Order, to wit:
estate to his son, Pablo (the petitioner herein who, upon his
death during the pendency of this petition, was substituted by Premises considered, Order is hereby issued
his heirs), leaving nothing to his other son, Pedro. reconsidering the Omnibus Order of this
Court dated August 3,1979, more
In the same year, Pedro Ralla filed an action for the partition
particularly paragraph 3 of the dispositive
of the estate of their mother, Paz Escarella; this was docketed
portion thereof. The Project of Partition
as Civil Case No. 2023.
should, therefore, be respected and upheld.
In the course of the hearing of the probate case (Special Hence, the sixty-three (63) parcels referred
Proceedings No. 564), Pablo Ralla filed a motion to dismiss to therein should be excluded from the
the petition for probate on the ground that he was no longer probate proceedings and, likewise from the
interested in the allowance of the will of his late father, administration of Special Administrator
Rosendo Ralla, for its probate would no longer be beneficial Teodorico Almine, Jr.
and advantageous to him. This motion was denied, and the
SO ORDERED. 6
denial was denied by the Court of Appeals. (The latter court
agreed with the lower court's conclusion that, indeed, the Thereafter, the petitioner filed a motion for reconsideration of
petitioner stood to gain if the testate proceedings were to be the foregoing order but the same was denied 7 by respondent
dismissed because then he would not be compelled to submit Judge Domingo Coronel Reyes, to whose sala Special
for inclusion in the inventory of the estate of Rosendo Ralla Proceedings No. 564 and No. 1 1 06 were apparently
149 parcels of land from which he alone had been collecting transferred. Still, a second motion for reconsideration was
rentals and receiving income, to the exclusion and prejudice filed; the same, however, was also denied. 8
of his brother, Pedro Ralla, who was being deprived of his
In assailing the aforesaid Order of July 16, 1981, the
successional rights over the said properties.) The denial of
following arguments are raised in the present special civil
this motion to dismiss was likewise affirmed by this Court (in
action for certiorari.
G.R. No. L-26253). 3 On the scheduled hearing on November
3, 1966, the petitioner reiterated his lack of interest in the The first argument is stated as follows:
probate of the subject will. Consequently, the court, through
... The extrajudicial partition of the 63
Judge Perfecto Quicho, declared Pedro and Pablo Ralla the
parcels made after the filing of the petition
only heirs of Rosendo Ralla who should share equally upon
for the probate of the Will, and before said
Will was probated, is a NULLITY, considering
SPECIAL PROCEEDINGS/Rule 75 8 of 16
that as already decided by this Court in the partition, respondent Judge Untalan acted well within his
case of Ernesto M. Guevara, vs. Rosario jurisdiction and without grave abuse of discretion.
Guevara et al., Vol. 74 Phil. Reports, there
There is, however, a more important reason why we do not
can be no valid partition among the heirs till
find any grave abuse of discretion in the issuance of the
after the Will had been probated. ... 9
questioned Order dated July 16,1981. Consider the following
The above argument is obviously flawed and misleading for undisputed facts: the properties involved in the present
the simple reason that the aforementioned partition was petition were the subject of the project of partition signed by
made in the civil case for partition of the estate of Paz both the petitioner, Pablo Ralla, and Pedro Ralla in Civil Case
Escarella, which is distinct from, and independent of, the No. 2023; the lower court approved the said project of
special proceedings for the probate of the will of Rosendo partition on December 19, 1967; subsequently, Pablo and
Ralla. Pedro Ralla jointly manifested that they had already received
"the ownership and possession of the respective parcels of
Verily, the rule is that there can be no valid partition among
land adjudicated to them in the said project of
the heirs till after the will has been probated. This, of course,
partition," 16 and upon their motion Judge Ezekiel Grageda
presupposes that the properties to be partitioned are the
declared the partition case closed and terminated in its Order
same properties embraced in the win. Thus the rule invoked is
of December 29, 1967; there was no appeal made from this
inapplicable in this instance where there are two separate
decision within the reglementary period to do so,
cases (Civil Case No. 2023 for partition, and Special
consequently, it attained finality.
Proceedings No. 564 originally for the probate of a will), each
involving the estate of a different person (Paz Escarella and Furthermore, the Court had occasion to rule that
Rosendo Ralla, respectively) comprising dissimilar properties.
Where a partition had not only been
In his second and third arguments, 10 the petitioner claims approved and thus become a judgment of
that the Order of August 3, 1979 mentioned earlier could no the court, but distribution of the estate in
longer be validly reversed by the court two years after it was pursuance of such partition had fully been
issued. Thus, it is alleged that by flip-flopping, Judge Untalan carried out, and the heirs had received the
committed a grave abuse of discretion. property assigned to them, they are
precluded from subsequently attacking its
An examination of the August 3, 1979 Order would reveal
validity or any part of it. 17
that the same resolved a number of divergent issues (ten as
enumerated) 11 springing from four separate special Likewise:
proceedings,12 all of which were pending in Branch I of the
Where a piece of land has been included in
then Court of First Instance of Albay; accordingly, there are at
a partition, and there is no allegation that
least nine 13 specific directives contained therein. However, a
the inclusion was effected through improper
distinction must be made between those directives that
means or without the petitioners'
partake of final orders and the other directives that are in the
knowledge, the partition barred any further
nature of inter-locutory orders.
litigation on said title and operated to bring
Two closely related orders are the following quoted portions of the property under the control and
the said August 3, 1979 Order of respondent Judge Untalan: jurisdiction of the court for proper
disposition according to the tenor of the
xxx xxx xxx
partition . . . They can not attack the
2. The 149 parcels referred to in our partition collaterally, as they are trying to
elucidation on issue No. 2 as well as the 63 do in this case. 18 (Emphasis supplied.)
lots also mentioned therein all of which may
Based on the foregoing pronouncements, the Order of August
be summed up to 212 parcels, except those
3, 1979 setting aside the project of Partition was clearly
already validly disposed, conveyed, or
erroneous. Realizing this and the fact that it was not yet too
transferred to third persons, should be
late for him to correct his mistake, respondent Judge Untalan
submitted, at least provisionally, to the
issued the questioned Order of July 16, 1981.
probate or testate proceedings. Hence, the
Motion to exclusion the 149 parcels filed on In fine, the partition in Civil Case No. 2023 is valid and
June 2, 1979, by petitioner intervenor Pablo binding upon the petitioner and Pedro Ralla, as well as upon
Ralla thru counsel in Special Proceeding their heirs, especially as this was accompanied by delivery of
1106 and the motion for exclusion filed by possession to them of their respective shares in the
the heirs of Pedro Ralla thru counsel in inheritance from their mother, the late Paz Escarella. They are
Special Proceedings 564 and 1106 are duty bound to respect the division agreed upon by them and
hereby Denied; (Emphasis supplied.) embodied in the document of partition.
3. The Project of partition, for purposes of Thus, the petitioner could no longer question the exclusion of
these proceedings, is hereby stripped of its the lands subject of the partition from the proceedings for the
judicial recognition; 14 settlement of the estate of Rosendo Ralla. Could it be that the
petitioner's keen interest in including these lands in the estate
xxx xxx xxx
proceedings is directly related to the fact that his son-in-law
As regards the abovequoted paragraph 2, this Court finds that is the administrator of the said estate of Rosendo Ralla?
the same is interlocutory in character because it did not
WHEREFORE, the petition is hereby DISMISSED.
decide the action with finality and left substantial proceedings
still to be had.15 The foregoing order of inclusion of the Costs against the petitioner.
subject parcels of land was a mere incident that arose in the
SO ORDERED.
settlement of the estate of Rosendo Ralla. It is elementary
that interlocutory orders, prior to the rendition of the final 5. EN BANC
judgment, are, at any time, subject to such corrections or
G.R. No. L-23638 October 12, 1967
amendments as the court may deem proper. Thus, in issuing
the questioned Order dated July 16,1981, which reversed the DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA
aforementioned interlocutory order and upheld the project of REYES, petitioners, 

SPECIAL PROCEEDINGS/Rule 75 9 of 16
vs.
 o p p o r t u n e a p p e a l ; t h a t t h e s a m e wa s a p p e a l a b l e
ISMAELA DIMAGIBA, respondent. independently of the issue of implied revocation; that
contrary to the claim of oppositors-appellants, there had been
----------------------------------------
no legal revocation by the execution of the 1943 and 1944
G.R. No. L-23662 October 12, 1967 deeds of sale, because the latter had been made in favor of
the legatee herself, and affirmed the decision of the Court of
MARIANO REYES, CESAR REYES, LEONOR REYES and
First Instance.
PACIENCIA REYES, petitioners, 

vs.
 Oppositors then appealed to this Court.
ISMAELA DIMAGIBA, respondent.
In this instance, both sets of oppositors-appellants pose three
Jose D. Villena for petitioners.
 main issues: (a) whether or not the decree of the Court of
Antonio Barredo and Exequiel M. Zaballero for respondent. First Instance allowing the will to probate had become final
for lack of appeal; (b) whether or not the order of the Court
REYES, J.B.L., Actg. C.J.:
of origin dated July 27, 1959, overruling the estoppel invoked
The heirs intestate of the late Benedicta de los Reyes have by oppositors-appellants had likewise become final; and (c)
petitioned for a review of the decision of the Court of Appeals whether or not the 1930 will of Benedicta de los Reyes had
(in CA-G. R. No. 31221-R) affirming that of the Court of First been impliedly revoked by her execution of deeds of
Instance of Bulacan, in Special Proceeding No. 831 of said conveyance in favor of the proponent on March 26, 1943 and
Court, admitting to probate the alleged last will and April 3, 1944.
testament of the deceased, and overruling the opposition to
As to the first point, oppositors-appellants contend that the
the probate.
order allowing the will to probate should be considered
It appears from the record that on January 19, 1955, Ismaela interlocutory, because it fails to resolve the issues of estoppel
Dimagiba, now respondent, submitted to the Court of First and revocation propounded in their opposition. We agree with
Instance a petition for the probate of the purported will of the the Court of Appeals that the appellant's stand is untenable.
late Benedicta de los Reyes, executed on October 22, 1930, It is elementary that a probate decree finally and definitively
and annexed to the petition. The will instituted the petitioner settles all questions concerning capacity of the testator and
as the sole heir of the estate of the deceased. The petition the proper execution and witnessing of his last will and
was set for hearing, and in due time, Dionisio Fernandez, testament, irrespective of whether its provisions are valid and
Eusebio Reyes and Luisa Reyes and one month later, Mariano, enforceable or otherwise. (Montañano vs. Suesa, 14 Phil.
Cesar, Leonor and Paciencia, all surnamed Reyes, all claiming 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs.
to be heirs intestate of the decedent, filed oppositions to the Crisostomo, 89 Phil. 710). As such, the probate order is final
probate asked. Grounds advanced for the opposition were and appealable; and it is so recognized by express provisions
forgery, vices of consent of the testatrix, estoppel by laches of of Section 1 of Rule 109, that specifically prescribes that "any
the proponent and revocation of the will by two deeds of interested person may appeal in special proceedings from an
conveyance of the major portion of the estate made by the order or judgment . . . where such order or judgment: (a)
testatrix in favor of the proponent in 1943 and 1944, but allows or disallows a will."
which conveyances were finally set aside by this Supreme
Appellants argue that they were entitled to await the trial
Court in a decision promulgated on August 3, 1954, in cases
Court's resolution on the other grounds of their opposition
G.R. Nos. L-5618 and L-5620 (unpublished).
before taking an appeal, as otherwise there would be a
After trial on the formulated issues, the Court of First multiplicity of recourses to the higher Courts. This contention
Instance, by decision of June 20, 1958, found that the will is without weight, since Rule 109, section 1, expressly
was genuine and properly executed; but deferred resolution enumerates six different instances when appeal may be taken
on the questions of estoppel and revocation "until such time in special proceedings.
when we shall pass upon the intrinsic validity of the
There being no controversy that the probate decree of the
provisions of the will or when the question of adjudication of
Court below was not appealed on time, the same had become
the properties is opportunely presented."
final and conclusive. Hence, the appellate courts may no
Oppositors Fernandez and Reyes petitioned for longer revoke said decree nor review the evidence upon which
reconsideration, and/or new trial, insisting that the issues of it is made to rest. Thus, the appeal belatedly lodged against
estoppel and revocation be considered and resolved; the decree was correctly dismissed.
whereupon, on July 27, 1959, the Court overruled the claim
The alleged revocation implied from the execution of the
that proponent was in estoppel to ask for the probate of the
deeds of conveyance in favor of the testamentary heir is
will, but "reserving unto the parties the right to raise the
plainly irrelevant to and separate from the question of
issue of implied revocation at the opportune time."
whether the testament was duly executed. For one, if the will
On January 11, 1960, the Court of First Instance appointed is not entitled to probate, or its probate is denied, all
Ricardo Cruz as administrator for the sole purpose of questions of revocation become superfluous in law, there is
submitting an inventory of the estate, and this was done on no such will and hence there would be nothing to revoke.
February 9, 1960. Then, again, the revocation invoked by the oppositors-
appellants is not an express one, but merely implied from
On February 27, 1962, after receiving further evidence on the
subsequent acts of the testatrix allegedly evidencing an
issue whether the execution by the testatrix of deeds of sale
abandonment of the original intention to bequeath or devise
of the larger portion of her estate in favor of the testamentary
the properties concerned. As such, the revocation would not
heir, made in 1943 and 1944, subsequent to the execution of
affect the will itself, but merely the particular devise or
her 1930 testament, had revoked the latter under Article
legacy. Only the total and absolute revocation can preclude
957(2) of the 1950 Civil Code (Art. 869 of the Civil Code of
p r o b a t e o f t h e r e v o k e d t e s t a m e n t ( Tr i l l a n a v s .
1889), the trial Court resolved against the oppositors and
Crisostomo, supra.).
held the will of the late Benedicta de los Reyes "unaffected
and unrevoked by the deeds of sale." Whereupon, the As to the issue of estoppel, we have already ruled in Guevara
oppositors elevated the case to the Court of Appeals. vs. Guevara, 98 Phil. 249, that the presentation and probate
of a will are requirements of public policy, being primarily
The appellate Court held that the decree of June 20, 1958,
designed to protect the testator's, expressed wishes, which
admitting the will to probate, had become final for lack of
SPECIAL PROCEEDINGS/Rule 75 10 of 16
are entitled to respect as a consequence of the decedent's made in the decision decreeing the annulment of the
ownership and right of disposition within legal limits. Evidence subsequent 1943 and 1944 deeds of sale were also that
of it is the duty imposed on a custodian of a will to deliver the
it was the moral influence, originating from their
same to the Court, and the fine and imprisonment prescribed
confidential relationship, which was the only cause
for its violation (Revised Rule 75). It would be a non
for the execution of Exhs. A and B (the 1943 and
sequitur to allow public policy to be evaded on the pretext of
1944 conveyances). (Decision, L-5618 and L-5620).
estoppel. Whether or not the order overruling the allegation
of estoppel is still appealable or not, the defense is patently If the annulment was due to undue influence, as the quoted
unmeritorious and the Court of Appeals correctly so ruled. passage implies, then the transferor was not expressing her
own free will and intent in making the conveyances. Hence, it
The last issue, that of revocation, is predicated on paragraph
can not be concluded, either, that such conveyances
2 of Article 957 of the Civil Code of 1950 (Art. 869 of the
established a decision on her part to abandon the original
Code of 1889), which recites:
legacy.
Art. 957. The legacy or devise shall be without
True it is that the legal provision quoted prescribes that the
effect:
recovery of the alienated property "even if it be by reason of
(1) . . . . the nullity of the contract" does not revive the legacy; but as
pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp.
(2) If the testator by any title or for any cause
324-325) the "nullity of the contract" can not be taken in an
alienates the thing bequeathed or any part thereof, it
absolute sense.2 Certainly, it could not be maintained, for
being understood that in the latter case the legacy or
example, that if a testator's subsequent alienation were
devise shall be without effect only with respect to the
avoided because the testator was mentally deranged at the
part thus alienated. If after the alienation the thing
time, the revocatory effect ordained by the article should still
should again belong to the testator, even if it be by
ensue. And the same thing could be said if the alienation
reason of nullity of the contract, the legacy or devise
(posterior to the will) were avoided on account of physical or
shall not thereafter be valid, unless the reacquisition
mental duress. Yet, an alienation through undue influence in
shall have been effected by virtue of the exercise of
no way differs from one made through violence or
the right of repurchase;
intimidation. In either case, the transferor is not expressing
xxx xxx xxx his real intent,3 and it can not be held that there was in fact
an alienation that could produce a revocation of the anterior
It is well to note that, unlike in the French and Italian Codes,
bequest.
the basis of the quoted provision is a presumed change of
intention on the part of the testator. As pointed out by In view of the foregoing considerations, the appealed decision
Manresa in his Commentaries on Article 869 of the Civil Code of the Court of Appeals is hereby affirmed. Costs against
(Vol. 6, 7th Ed., p. 743) — appellants Reyes and Fernandez. So ordered.
Este caso se funda en la presunta voluntad del 6. EN BANC
testador. Si este, despues de legar, se desprende de
G.R. No. L-23445 June 23, 1966
la cosa por titulo lucrativo u oneroso, hace
desaparecer su derecho sobra ella, dando lugar a la REMEDIOS NUGUID, petitioner and appellant, 

presuncion de que ha cambiado de voluntad, y no vs.

quiere que el legado se cumpla. Mas para que pueda FELIX NUGUID and PAZ SALONGA NUGUID, oppositors
presumirse esa voluntad, es necesario que medien and appellees.
actos del testador que la indiquen. Si la perdida del
Custodio O. Partade for petitioner and appellant.

derecho sobre la cosa ha sido independiente de la
Beltran, Beltran and Beltran for oppositors and appellees.
voluntad del testador, el legado podraquedar sin
efecto, mas no en virtud del numero 2 del articulo SANCHEZ, J.:
869, que exige siempre actos voluntarios de
Rosario Nuguid, a resident of Quezon City, died on December
enajenacion por parte del mismo testador.
30, 1962, single, without descendants, legitimate or
As observed by the Court of Appeals, the existence of any illegitimate. Surviving her were her legitimate parents, Felix
such change or departure from the original intent of the Nuguid and Paz Salonga Nuguid, and six (6) brothers and
testatrix, expressed in her 1930 testament, is rendered sisters, namely: Alfredo, Federico, Remedios, Conrado,
doubtful by the circumstance that the subsequent alienations Lourdes and Alberto, all surnamed Nuguid.
in 1943 and 1944 were executed in favor of the legatee
On May 18, 1963, petitioner Remedios Nuguid filed in the
herself, appellee Dimagiba. In fact, as found by the Court of
Court of First Instance of Rizal a holographic will allegedly
Appeals in its decision annulling these conveyances (affirmed
executed by Rosario Nuguid on November 17, 1951, some 11
in that point by this Supreme Court in Reyes vs. Court of
years before her demise. Petitioner prayed that said will be
Appeals and Dimagiba, L-5618 and L-5620, promulgated on
admitted to probate and that letters of administration with
July 31, 1954), "no consideration whatever was paid by
the will annexed be issued to her.
respondent Dimagiba" on account of the transfers, thereby
rendering it even more doubtful whether in conveying the On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
property to her legatee, the testatrix merely intended to concededly the legitimate father and mother of the deceased
comply in advance with what she had ordained in her Rosario Nuguid, entered their opposition to the probate of her
testament, rather than an alteration or departure therefrom. will. Ground therefor, inter alia, is that by the institution of
1 Revocation being an exception, we believe, with the Courts petitioner Remedios Nuguid as universal heir of the deceased,
below, that in the circumstances of the particular case, Article oppositors — who are compulsory heirs of the deceased in the
957 of the Civil Code of the Philippines, does not apply to the direct ascending line — were illegally preterited and that in
case at bar. consequence the institution is void.
Not only that, but even if it were applicable, the annulment of On August 29, 1963, before a hearing was had on the petition
the conveyances would not necessarily result in the for probate and objection thereto, oppositors moved to
revocation of the legacies, if we bear in mind that the findings dismiss on the ground of absolute preterition.
SPECIAL PROCEEDINGS/Rule 75 11 of 16
On September 6, 1963, petitioner registered her opposition to Art. 814. The preterition of one or all of the forced
the motion to dismiss.1äwphï1.ñët heirs in the direct line, whether living at the time of
the execution of the will or born after the death of
The court's order of November 8, 1963, held that "the will in
the testator, shall void the institution of heir; but the
question is a complete nullity and will perforce create
legacies and betterments4 shall be valid, in so far as
intestacy of the estate of the deceased Rosario Nuguid" and
they are not inofficious. ...
dismissed the petition without costs.
A comprehensive understanding of the
A motion to reconsider having been thwarted below,
term preterition employed in the law becomes a necessity. On
petitioner came to this Court on appeal.
this point Manresa comments:
1. Right at the outset, a procedural aspect has engaged our
La pretericion consiste en omitar al heredero en el
attention. The case is for the probate of a will. The court's
testamento. O no se le nombra siquiera o aun
area of inquiry is limited — to an examination of, and
nombrandole como padre, hijo, etc., no se le
resolution on, the extrinsic validity of the will. The due
instituya heredero ni se le deshereda expresamente
execution thereof, the testatrix's testamentary capacity, and
ni se le asigna parte alguna de los bienes, resultando
the compliance with the requisites or solemnities by law
privado de un modo tacito de su derecho a legitima.
prescribed, are the questions solely to be presented, and to
be acted upon, by the court. Said court at this stage of the Para que exista pretericion, con arreglo al articulo
proceedings — is not called upon to rule on 814, basta que en el testamento omita el testador a
the intrinsic validity or efficacy of the provisions of the will, uno cualquiera de aquellos a quienes por su muerte
the legality of any devise or legacy therein.1 corresponda la herencia forzosa.
A peculiar situation is here thrust upon us. The parties Se necesita, pues, a) Que la omision se refiera a un
shunted aside the question of whether or not the will should heredero forzoso. b) Que la omision sea completa;
be allowed probate. For them, the meat of the case is the que el heredero forzoso nada reciba en el
intrinsic validity of the will. Normally, this comes only after testamento.
the court has declared that the will has been duly
It may now appear trite bat nonetheless helpful in giving us a
authenticated.2 But petitioner and oppositors, in the court
clear perspective of the problem before us, to have on hand a
below and here on appeal, travelled on the issue of law, to
clear-cut definition of the word annul:
wit: Is the will intrinsically a nullity?
To "annul" means to abrogate, to make void ... In
We pause to reflect. If the case were to be remanded for
re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6
probate of the will, nothing will be gained. On the contrary,
this litigation will be protracted. And for aught that appears in The word "annul" as used in statute requiring court
the record, in the event of probate or if the court rejects the to annul alimony provisions of divorce decree upon
will, probability exists that the case will come up once again wife's remarriage means to reduce to nothing; to
before us on the same issue of the intrinsic validity or nullity annihilate; obliterate; blot out; to make void or of no
of the will. Result: waste of time, effort, expense, plus added effect; to nullify; to abolish. N.J.S.A. 2:50 — 38 (now
anxiety. These are the practical considerations that induce us N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611,
to a belief that we might as well meet head-on the issue of 614, 136 N..J Eq. 132.7
the validity of the provisions of the will in question.3 After all,
ANNUL. To reduce to nothing; annihilate; obliterate;
there exists a justiciable controversy crying for solution.
to make void or of no effect; to nullify; to abolish; to
2. Petitioner's sole assignment of error challenges the do away with. Ex parte Mitchell, 123 W. Va. 283, 14
correctness of the conclusion below that the will is a complete S.E. 2d. 771, 774.8
nullity. This exacts from us a study of the disputed will and
And now, back to the facts and the law. The deceased Rosario
the applicable statute.
Nuguid left no descendants, legitimate or illegitimate. But she
Reproduced hereunder is the will: left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
Nov. 17, 1951
completely omits both of them: They thus received nothing by
I, ROSARIO NUGUID, being of sound and disposing mind and the testament; tacitly, they were deprived of their legitime;
memory, having amassed a certain amount of property, do neither were they expressly disinherited. This is a clear case
hereby give, devise, and bequeath all of the property which I of preterition. Such preterition in the words of Manresa
may have when I die to my beloved sister Remedios Nuguid, "anulara siempre la institucion de heredero, dando caracter
age 34, residing with me at 38-B Iriga, Q.C. In witness absoluto a este ordenamiento referring to the mandate of
whereof, I have signed my name this seventh day of Article 814, now 854 of the Civil Code.9 The one-sentence will
November, nineteen hundred and fifty-one. here institutes petitioner as the sole, universal heir — nothing
more. No specific legacies or bequests are therein provided
(Sgd.) Illegible
for. It is in this posture that we say that the nullity is
T/ ROSARIO NUGUID complete. Perforce, Rosario Nuguid died intestate. Says
Manresa:
The statute we are called upon to apply in Article 854 of the
Civil Code which, in part, provides: En cuanto a la institucion de heredero, se anula. Lo
que se anula deja de existir, en todo o en parte? No
ART. 854. The preterition or omission of one, some,
se añade limitacion alguna, como en el articulo 851,
or all of the compulsory heirs in the direct line,
en el que se expresa que se anulara la institucion de
whether living at the time of the execution of the will
heredero en cuanto prejudique a la legitima del
or born after the death of the testator, shall annul
deseheredado Debe, pues, entenderse que la
the institution of heir; but the devises and legacies
anulacion es completa o total, y que este articulo
shall be valid insofar as they are not inofficious. ...
como especial en el caso que le motiva rige con
Except for inconsequential variation in terms, the foregoing is preferencia al 817. 10
a reproduction of Article 814 of the Civil Code of Spain of
The same view is expressed by Sanchez Roman: —
1889, which is similarly herein copied, thus —
SPECIAL PROCEEDINGS/Rule 75 12 of 16
La consecuencia de la anulacion o nulidad de la legacies and bequests) "pero subsistiendo ... todas aquellas
institucion de heredero por pretericion de uno, varios otras disposiciones que no se refieren a la institucion de
o todos los forzosos en linea recta, es la apertura de heredero ... . 13 As Manresa puts it, annulment throws open
la sucesion intestada total o parcial. Sera total, to intestate succession the entire inheritance including "la
cuando el testador que comete la pretericion, porcion libre (que) no hubiese dispuesto en virtud de legado,
hubiese dispuesto de todos los bienes por titulo mejora o donacion. 14
universal de herencia en favor de los herederos
As aforesaid, there is no other provision in the will before us
instituidos, cuya institucion se anula, porque asi lo
except the institution of petitioner as universal heir. That
exige la generalidad del precepto legal del art. 814,
institution, by itself, is null and void. And, intestate succession
al determinar, como efecto de la pretericion, el de
ensues.
que "anulara la institucion de heredero." ... 11
4. Petitioner's mainstay is that the present is "a case of
Really, as we analyze the word annul employed in the statute,
ineffective disinheritance rather than one of
there is no escaping the conclusion that the universal
preterition". 15From this, petitioner draws the conclusion that
institution of petitioner to the entire inheritance results
Article 854 "does not apply to the case at bar". This argument
in totally abrogating the will. Because, the nullification of such
fails to appreciate the distinction between pretention and
institution of universal heir — without any other testamentary
disinheritance.
disposition in the will — amounts to a declaration that nothing
at all was written. Carefully worded and in clear terms, Article Preterition "consists in the omission in the testator's will of
854 offers no leeway for inferential interpretation. Giving it an the forced heirs or anyone of them, either because they are
expansive meaning will tear up by the roots the fabric of the not mentioned therein, or, though mentioned, they are
statute. On this point, Sanchez Roman cites the "Memoria neither instituted as heirs nor are expressly
annual del Tribunal Supreme, correspondiente a 1908", which d i s i n h e r i t e d . " 16 D i s i n h e r i t a n c e , i n t u r n , " i s
in our opinion expresses the rule of interpretation, viz: a testamentary disposition depriving any compulsory heir of
his share in the legitime for a cause authorized by law. " 17 In
... El art. 814, que preceptua en tales casos de
Manresa's own words: "La privacion expresa de la legitima
pretericion la nulidad de la institucion de heredero,
constituye la desheredacion. La privacion tacita de la misma
no consiente interpretacion alguna favorable a la
se denomina pretericion." 18 Sanchez Roman emphasizes the
persona instituida en el sentido antes expuesto aun
distinction by stating that disinheritance "es
cuando parezca, y en algun caso pudiera ser, mas o
siempre voluntaria"; preterition, upon the other hand, is
menos equitativa, porque una nulidad no significa en
presumed to be "involuntaria". 19 Express as disinheritance
Derecho sino la suposicion de que el hecho o el acto
should be, the same must be supported by a legal cause
no se ha realizado, debiendo por lo tanto procederse
specified in the will itself. 20
sobre tal base o supuesto, y consiguientemente, en
un testamento donde falte la institucion, es obligado The will here does not explicitly disinherit the testatrix's
llamar a los herederos forzosos en todo caso, como parents, the forced heirs. It simply omits their names
habria que llamar a los de otra clase, cuando el altogether. Said will rather than be labeled ineffective
testador no hubiese distribudo todos sus bienes en disinheritance is clearly one in which the said forced heirs
legados, siendo tanto mas obligada esta suffer from preterition.
consecuencia legal cuanto que, en materia de
On top of this is the fact that the effects flowing from
testamentos, sabido es, segun tiene declarado la
preterition are totally different from those of disinheritance.
jurisprudencia, con repeticion, que no basta que sea
Preterition under Article 854 of the Civil Code, we repeat,
conocida la voluntad de quien testa si esta voluntad
"shall annul the institution of heir". This annulment is in toto,
no aparece en la forma y en las condiciones que la
unless in the will there are, in addition, testamentary
ley ha exigido para que sea valido y eficaz, por lo
dispositions in the form of devises or legacies. In ineffective
que constituiria una interpretacion arbitraria, dentro
disinheritance under Article 918 of the same Code, such
del derecho positivo, reputar como legatario a un
disinheritance shall also "annul the institution of heirs", put
heredero cuya institucion fuese anulada con pretexto
only "insofar as it may prejudice the person disinherited",
de que esto se acomodaba mejor a la voluntad del
which last phrase was omitted in the case of
testador, pues aun cuando asi fuese, sera esto razon
preterition. 21 Better stated yet, in disinheritance the nullity
para modificar la ley, pero no autoriza a una
is limited to that portion of the estate of which the
interpretacion contraria a sus terminos y a los
disinherited heirs have been illegally deprived. Manresa's
principios que informan la testamentifaccion, pues no
expressive language, in commenting on the rights of the
porque parezca mejor una cosa en el terreno del
preterited heirs in the case of preterition on the one hand and
Derecho constituyente, hay razon para convereste
l e g a l d i s i n h e r i t a n c e o n t h e o t h e r, r u n s t h u s :
juicio en regla de interpretacion, desvirtuando y
"Preteridos, adquiren el derecho a todo; desheredados, solo
anulando por este procedimiento lo que el legislador
les corresponde un tercio o dos tercios, 22 el caso. 23
quiere establecer. 12
5. Petitioner insists that the compulsory heirs ineffectively
3. We should not be led astray by the statement in Article 854
disinherited are entitled to receive their legitimes, but that
that, annullment notwithstanding, "the devises and legacies
the institution of heir "is not invalidated," although the
shall be valid insofar as they are not inofficious". Legacies and
inheritance of the heir so instituted is reduced to the extent of
devises merit consideration only when they are so expressly
said legitimes. 24
given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will — void This is best answered by a reference to the opinion of Mr.
because of preterition — would give the heir so instituted a Chief Justice Moran in the Neri case heretofore cited, viz:
share in the inheritance. As to him, the will is inexistent.
But the theory is advanced that the bequest made by
There must be, in addition to such institution, a testamentary
universal title in favor of the children by the second
disposition granting him bequests or legacies apart and
marriage should be treated
separate from the nullified institution of heir. Sanchez Roman,
as legado and mejora and, accordingly, it must not
speaking of the two component parts of Article 814, now 854,
be entirely annulled but merely reduced. This theory,
states that preterition annuls the institution of the heir
if adopted, will result in a complete abrogation of
"totalmente por la pretericion"; but added (in reference to
SPECIAL PROCEEDINGS/Rule 75 13 of 16
Articles 814 and 851 of the Civil Code. If every case On January 20, 1983, petitioners instituted Sp. Proc. No.
of institution of heirs may be made to fall into the Q-37171, for allowance of decedent's holographic will. They
concept of legacies and betterments reducing the alleged that at the time of its execution, she was of sound
bequest accordingly, then the provisions of Articles and disposing mind, not acting under duress, fraud or undue
814 and 851 regarding total or partial nullity of the influence, and was in every respect capacitated to dispose of
institution, would. be absolutely meaningless and will her estate by will.
never have any application at all. And the remaining
Private respondent opposed the petition on the grounds that:
provisions contained in said article concerning the
neither the testament's body nor the signature therein was in
reduction of inofficious legacies or betterments would
decedent's handwriting; it contained alterations and
be a surplusage because they would be absorbed by
corrections which were not duly signed by decedent; and, the
Article 817. Thus, instead of construing, we would be
will was procured by petitioners through improper pressure
destroying integral provisions of the Civil Code.
and undue influence. The petition was likewise opposed by Dr.
The destructive effect of the theory thus advanced is Jose Ajero. He contested the disposition in the will of a house
due mainly to a failure to distinguish institution of and lot located in Cabadbaran, Agusan Del Norte. He claimed
heirs from legacies and betterments, and a general that said property could not be conveyed by decedent in its
from a special provision. With reference to article entirety, as she was not its sole owner.
814, which is the only provision material to the
Notwithstanding the oppositions, the trial court admitted the
disposition of this case, it must be observed that the
decedent's holographic will to probate. It found, inter alia:
institution of heirs is therein dealt with as a thing
separate and distinct from legacies or betterments. Considering then that the probate
And they are separate and distinct not only because proceedings herein must decide only the
they are distinctly and separately treated in said question of identity of the will, its due
article but because they are in themselves different. execution and the testamentary capacity of
Institution of heirs is a bequest by universal title of the testatrix, this probate court finds no
property that is undetermined. Legacy refers to reason at all for the disallowance of the will
specific property bequeathed by a particular or for its failure to comply with the formalities
special title. ... But again an institution of heirs prescribed by law nor for lack of
cannot be taken as a legacy. 25 testamentary capacity of the testatrix.
The disputed order, we observe, declares the will in question For one, no evidence was presented to show
"a complete nullity". Article 854 of the Civil Code in turn that the will in question is different from the
merely nullifies "the institution of heir". Considering, however, will actually executed by the testatrix. The
that the will before us solely provides for the institution of only objections raised by the oppositors . . .
petitioner as universal heir, and nothing more, the result is are that the will was not written in the
the same. The entire will is null. handwriting of the testatrix which properly
refers to the question of its due execution,
Upon the view we take of this case, the order of November 8,
and not to the question of identity of will.
1963 under review is hereby affirmed. No costs allowed. So
No other will was alleged to have been
ordered.
executed by the testatrix other than the will
7. SECOND DIVISION herein presented. Hence, in the light of the
evidence adduced, the identity of the will
G.R. No. 106720 September 15, 1994
presented for probate must be
SPOUSES ROBERTO AND THELMA AJERO, petitioners, 
 accepted, i.e., the will submitted in Court
vs.
 must be deemed to be the will actually
THE COURT OF APPEALS AND CLEMENTE executed by the testatrix.
SAND, respondents.
xxx xxx xxx
Miguel D. Larida for petitioners.
While the fact that it was entirely written,
Montilla Law Office for private respondent. dated and signed in the handwriting of the
testatrix has been disputed, the petitioners,
PUNO, J.:
however, have satisfactorily shown in Court
This is an appeal by certiorari from the Decision of the Court that the holographic will in question was
of 
 indeed written entirely, dated and signed in
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the handwriting of the testatrix. Three (3)
the dispositive portion of which reads; witnesses who have convincingly shown
knowledge of the handwriting of the
PREMISES CONSIDERED, the questioned
testatrix have been presented and have
decision of November 19, 1988 of the trial
explicitly and categorically identified the
court is hereby REVERSED and SET ASIDE,
handwriting with which the holographic will
and the petition for probate is hereby
in question was written to be the genuine
DISMISSED. No costs.
handwriting and signature of the testatrix.
The earlier Decision was rendered by the RTC of Given then the aforesaid evidence, the
Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, requirement of the law that the holographic
and the instrument submitted for probate is the will be entirely written, dated and signed in
holographic will of the late Annie Sand, who died on the handwriting of the testatrix has been
November 25, 1982. complied with.
In the will, decedent named as devisees, the following: xxx xxx xxx
petitioners Roberto and Thelma Ajero, private respondent
As to the question of the testamentary
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
capacity of the testratix, (private
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
respondent) Clemente Sand himself has
and their children.
testified in Court that the testatrix was
SPECIAL PROCEEDINGS/Rule 75 14 of 16
completely in her sound mind when he Appeals found that, "the holographic will fails to meet the
visited her during her birthday celebration requirements for its validity." 4 It held that the decedent did
in 1981, at or around which time the not comply with Articles 813 and 814 of the New Civil Code,
holographic will in question was executed by which read, as follows:
the testatrix. To be of sound mind, it is
Art. 813: When a number of dispositions
sufficient that the testatrix, at the time of
appearing in a holographic will are signed
making the will, knew the value of the
without being dated, and the last disposition
e s t at e t o b e d i s p o s e d o f, t h e
has a signature and date, such date
p r o p e r o b j e c t o f h e r b o u n t y, a n d
validates the dispositions preceding it,
the characterof the testamentary act . . .
whatever be the time of prior dispositions.
The will itself shows that the testatrix even
had detailed knowledge of the nature of her Art. 814: In case of insertion, cancellation,
estate. She even identified the lot number erasure or alteration in a holographic will,
and square meters of the lots she had the testator must authenticate the same by
conveyed by will. The objects of her bounty his full signature.
were likewise identified explicitly. And
It alluded to certain dispositions in the will which were either
considering that she had even written a
unsigned and undated, or signed but not dated. It also found
nursing book which contained the law and
that the erasures, alterations and cancellations made thereon
jurisprudence on will and succession, there
had not been authenticated by decedent.
is more than sufficient showing that she
knows the character of the testamentary Thus, this appeal which is impressed with merit.
act.
Section 9, Rule 76 of the Rules of Court provides that will
In this wise, the question of identity of the shall be disallowed in any of the following cases:
will, its due execution and the testamentary
(a) If not executed and attested as required
capacity of the testatrix has to be resolved
by law;
in favor of the allowance of probate of the
will submitted herein. (b) If the testator was insane, or otherwise
mentally incapable to make a will, at the
Likewise, no evidence was presented to
time of its execution;
show sufficient reason for the disallowance
of herein holographic will. While it was (c) If it was executed under duress, or the
alleged that the said will was procured by influence of fear, or threats;
undue and improper pressure and influence
(d) If it was procured by undue and
on the part of the beneficiary or of some
improper pressure and influence, on the
other person, the evidence adduced have
part of the beneficiary, or of some other
not shown any instance where improper
person for his benefit;
pressure or influence was exerted on the
testatrix. (Private respondent) Clemente (e) If the signature of the testator was
Sand has testified that the testatrix was still procured by fraud or trick, and he did not
alert at the time of the execution of the intend that the instrument should be his will
will, i.e., at or around the time of her birth at the time of fixing his signature thereto.
anniversary celebration in 1981. It was also
In the same vein, Article 839 of the New Civil Code
established that she is a very intelligent
reads:
person and has a mind of her own. Her
independence of character and to some Art. 839: The will shall be disallowed in any
extent, her sense of superiority, which has of the following cases;
been testified to in Court, all show the
(1) If the formalities
unlikelihood of her being unduly influenced
required by law have not
or improperly pressured to make the
been complied with;
aforesaid will. It must be noted that the
undue influence or improper pressure in (2) If the testator was
question herein only refer to the making of insane, or otherwise
a will and not as to the specific mentally incapable of
testamentary provisions therein which is the making a will, at the time
proper subject of another proceeding. of its execution;
Hence, under the circumstances, this Court
(3) If it was executed
cannot find convincing reason for the
through force or under
disallowance of the will herein.
duress, or the influence of
Considering then that it is a well-established fear, or threats;
doctrine in the law on succession that in
(4) If it was procured by
case of doubt, testate succession should be
undue and improper
preferred over intestate succession, and the
pressure and influence, on
fact that no convincing grounds were
the part of the beneficiary
presented and proven for the disallowance
or of some other person;
of the holographic will of the late Annie
Sand, the aforesaid will submitted herein (5) If the signature of the
must be admitted to probate. 3 (Citations testator was procured by
omitted.) fraud;
On appeal, said Decision was reversed, and the petition for (6) If the testator acted
probate of decedent's will was dismissed. The Court of by mistake or did not
SPECIAL PROCEEDINGS/Rule 75 15 of 16
intend that the instrument 814. In the case of Kalaw vs. Relova 132 SCRA 237
he signed should be his 242 (1984), this Court held:
will at the time of affixing
Ordinarily, when a number of erasures,
his signature thereto.
corrections, and interlineations made by the
These lists are exclusive; no other grounds can serve to testator in a holographic Will have not been
disallow a will. 5 Thus, in a petition to admit a holographic will noted under his signature, . . . the Will is
to probate, the only issues to be resolved are: (1) whether not thereby invalidated as a whole, but at
the instrument submitted is, indeed, the decedent's last will most only as respects the particular words
and testament; (2) whether said will was executed in erased, corrected or interlined. Manresa
accordance with the formalities prescribed by law; (3) gave an identical commentary when he said
whether the decedent had the necessary testamentary "la omission de la salvedad no anula el
capacity at the time the will was executed; and, (4) whether testamento, segun la regla de
the execution of the will and its signing were the voluntary jurisprudencia establecida en la sentencia
acts of the decedent. 6 de 4 de Abril de 1985." 8 (Citations
omitted.)
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in accordance Thus, unless the unauthenticated alterations, cancellations or
with the formalities prescribed by law. It held that Articles insertions were made on the date of the holographic will or on
813 and 814 of the New Civil Code, ante, were not complied testator's signature, 9 their presence does not invalidate the
with, hence, it disallowed the probate of said will. This is will itself. 10 The lack of authentication will only result in
erroneous. disallowance of such changes.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. It is also proper to note that the requirements of
476, 479 (1919), that: authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814)
The object of the solemnities surrounding
separate from that which provides for the necessary
the execution of wills is to close the door
conditions for the validity of the holographic will (Article 810).
against bad faith and fraud, to avoid
The distinction can be traced to Articles 678 and 688 of the
substitution of wills and testaments and to
Spanish Civil Code, from which the present provisions
guaranty their truth and authenticity.
covering holographic wills are taken. They read as follows:
Therefore, the laws on this subject should
be interpreted in such a way as to attain Art. 678: A will is called holographic when
these primordial ends. But, on the other the testator writes it himself in the form and
hand, also one must not lose sight of the with the requisites required in Article 688.
fact that it is not the object of the law to
Art. 688: Holographic wills may be executed
restrain and curtail the exercise of the right
only by persons of full age.
to make a will. So when an interpretation
already given assures such ends, any other In order that the will be valid it must be
interpretation whatsoever, that adds nothing drawn on stamped paper corresponding to
but demands more requisites entirely the year of its execution, written in its
unnecessary, useless and frustrative of the entirety by the testator and signed by him,
testator's last will, must be disregarded. and must contain a statement of the year,
month and day of its execution.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and If it should contain any erased, corrected, or
acknowledgment requirements under Articles 805 and 806 of interlined words, the testator must identify
the New Civil Code. them over his signature.
In the case of holographic wills, on the other hand, what Foreigners may execute holographic wills in
assures authenticity is the requirement that they be totally their own language.
autographic or handwritten by the testator himself, 7 as
This separation and distinction adds support to the
provided under Article 810 of the New Civil Code, thus:
interpretation that only the requirements of Article 810 of the
A person may execute a holographic will New Civil Code — and not those found in Articles 813 and 814
which must be entirely written, dated, and of the same Code — are essential to the probate of a
signed by the hand of the testator holographic will.
himself. It is subject to no other form, and
The Court of Appeals further held that decedent Annie Sand
may be made in or out of the Philippines,
could not validly dispose of the house and lot located in
and need not be witnessed. (Emphasis
Cabadbaran, Agusan del Norte, in its entirety. This is correct
supplied.)
and must be affirmed.
Failure to strictly observe other formalities will not
As a general rule, courts in probate proceedings are limited to
result in the disallowance of a holographic will that is
pass only upon the extrinsic validity of the will sought to be
unquestionably handwritten by the testator.
probated. However, in exceptional instances, courts are not
A reading of Article 813 of the New Civil Code shows that its powerless to do what the situation constrains them to do, and
requirement affects the validity of the dispositions contained pass upon certain provisions of the will. 11 In the case at
in the holographic will, but not its probate. If the testator fails bench, decedent herself indubitably stated in her holographic
to sign and date some of the dispositions, the result is that will that the Cabadbaran property is in the name of her late
these dispositions cannot be effectuated. Such failure, father, John H. Sand (which led oppositor Dr. Jose Ajero to
however, does not render the whole testament void. question her conveyance of the same in its entirety). Thus, as
correctly held by respondent court, she cannot validly dispose
Likewise, a holographic will can still be admitted to probate,
of the whole property, which she shares with her father's
notwithstanding non-compliance with the provisions of Article
other heirs.
SPECIAL PROCEEDINGS/Rule 75 16 of 16
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE, except
with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision
of the Regional Trial Court of Quezon City, Branch 94 in Sp.
Proc. No. Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is
hereby REINSTATED, with the above qualification as regards
the Cabadbaran property. No costs.
SO ORDERED.

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