Wills and Succession Case Digests
1 - Ramirez vs. Ramirez
SECOND DIVISION
[G.R. No. L-27952. February 15, 1982.]
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA
PALACIOS, Administratrix, petitioner-appellee, vs. MARCELLE D. VDA.
DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO RAMIREZ,
Legatees, oppositors-appellants.
The main issue in this appeal is the manner of partitioning the testate
estate of Jose Eugenio Ramirez among the principal beneficiaries,
namely: his widow Marcelle Demoron de Ramirez; his two
grandnephews Roberto and Jorge Ramirez; and his companion Wanda
de Wrobleski.
The widow Marcelle is a French who lives in Paris, while the
companion Wanda is an Austrian who lives in Spain. Moreover, the
testator provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December
11, 1964, with only his widow as compulsory heir. His will was
admitted to probate by the Court of First Instance Maria Luisa Palacios
was appointed administratrix of the estate. In due time she submitted
an inventory of the estate.
On June 23, 1966, the administratrix submitted a project of partition
as follows, the property of the deceased is to be divided into two
parts:
1. One part shall go to the widow "en pleno dominio" in satisfaction of
her legitime;
2. the other part or "free portion" shall go to Jorge and Roberto
Ramirez "en nuda propriedad."
Furthermore, one third (1/3) of the free portion is charged with the
widow's usufruct and the remaining two-third (2/3) with a usufruct in
favor of Wanda.
Jorge and Roberto opposed the project of partition:
1. xxx
2. xxx
3. that the grant of a usufruct over real property in the
Philippines in favor of Wanda de Wrobleski, who is an alien, violates
the Constitution
4. xxx
Nonetheless, the lower court approved the project of partition. Hence,
this appeal.
WON the grant of a usufruct over real property in the Philippines in
favor of Wanda is violative of the Constitution.
Held: No, it is not violative of the Constitution.
The 1935 Constitution which is controlling provides as follows:
"SEC. 5. Save in cases of hereditary succession, no private agricultural
land shall be transferred or assigned except to individuals,
corporations, or associations qualified to acquire or hold lands of the
public domain in the Philippines." (Art. XIII.).
The court a quo upheld the validity of the usufruct given to Wanda on
the ground that the Constitution covers not only succession by
operation of law but also testamentary succession.
The Constitutional provision which enables aliens to acquire private
lands does not extend to testamentary succession for otherwise the
prohibition will be for naught and meaningless. Any alien would be
able to circumvent the prohibition by paying money to a Philippine
landowner in exchange for a devise of a piece of land.
This opinion notwithstanding, We uphold the usufruct in favor of
Wanda because a usufruct, albeit a real right, does not vest title to the
land in the usufructuary and it is the vesting of title to land in favor of
aliens which is proscribed by the Constitution.
Art. 728. Donations which are to take effect upon the death of the
donor partake of the nature of testamentary provisions, and shall be
governed by the rules established in the Title on Succession. (620)
2 - Cuevas vs Cuevas
G.R. No. L-8327 December 14, 1955
ANTONINA CUEVAS, plaintiff-appellant, vs. CRISPULO
CUEVAS,defendant-appellee.
FACTS: On September 18, 1950, Antonina Cuevas executed a
notarizedconveyance entitled “Donacion Mortis Causa”, ceding to her
nephew CrispuloCuevas the northern half of a parcel of unregistered
land.
Subsequently on May 26, 1952, the donor executed anothernotarial
instrument entitled “Revocacion de Donacion Mortis Causa”
purportingto set aside the conveyance. She brought an action in the
CFI to recover theland conveyed, on the ground (1) that the donation
being mortis causa, it hadbeen lawfully revoked by the donor; and (2)
even it if were a donation intervivos, the same was invalidated
because (a) it was not properly accepted; (b)because the donor did
not reserve sufficient property for her own maintenance,and (c)
because the donee was guilty of ingratitude, for having refused
tosupport the donor.
The crux of the controversy revolves around the followingprovisions of
the deed of donation:
Dapat maalaman niCrispulo Cuevas na samantalang ako ay
nabubuhay, and lupa na ipinagkakaloob kosa kaniya ay ako pa rin and
patuloy na mamomosecion, makapagparatrabaho,makikinabang at ang
iba pang karapatan sa pagmamayari ay sa akin pa rinhanggang hindo
ko binabawian ny buhay ng Maykapal at ito naman ay hindi ko ngaiya-
alis pagkat kung ako ay mamatay na ay inilalaan ko sa kaniya.
ISSUE: WON thedonation is a donation inter vivos YES
HELD: The decisive proof that the present donation is
operativeinter vivor lies in the final phrase to the effect that the donor
will notdispose or take away ("hindi ko nga iya-alis" in the original)
theland "because I am reserving it to him upon my death." By these
wordsthe donor expressly renounced the right to freely dispose of the
property infavor of another (a right essential to full ownership) and
manifested the irrevocability of the conveyance of the naked title to
the property in favor ofthe donee. As stated in our decision in Bonsato
vs. Court of Appeals, ante,such irrevocability is characteristic of
donations inter vivos, because it isincompatible with the idea of a
disposition post mortem.
It is apparent from the entire context of the deed ofdonation that the
donor intended that she should retain the entire beneficialownership
during her lifetime, but that the naked title should irrevocably passto
the donee. It is only thus that all the expressions heretofore discussed
canbe given full effect; and when the donor stated that she would
continue toretain the "possession, cultivation, harvesting and all other
rights andattributes of ownership," she meant only the dominium utile,
not the fullownership.
As the Court below correctly observed, the words "rightsand attributes
of ownership" should be construed ejusdem generis with thepreceding
rights of "possession, cultivation and harvesting"expressly enumerated
in the deed. Had the donor meant to retain full orabsolute ownership
she had no need to specify possession, cultivation andharvesting, since
all these rights are embodied in full or absolute ownership;nor would
she then have excluded the right of free disposition from the"rights
and attributes of ownership" that she reserved for herself. Hence, the
Court rightly concluded that the deed was a validdonation inter vivos.
3 - Jutic v CA August 27, 1987
CONSUELO SEVILLE JUTIC, JUAN JUTIC, CELESTINO SEVILLE,
TIBURCIO SEVILLE, RAVELLO SEVILLE, SONITA SEVILLE,
LUCY SEVILLE, EPIFANIA SEVILLE, NARACY SEVILLE,
EMMANUEL SEVILLE, ORLANDO MANICAN, and PACIFICO
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MANICAN, petitioners, vs. THE COURT OF APPEALS, MANILA,
VICENTE SULLAN, TRINIDAD SULLAN, TERESITA SULLAN,
ULYSSES SULLAN, ALEJANDRINO SULLAN, BUENAVENTURA
SEVILLE, and ZOILO SEVILLE, respondents.
The petitioners are the surviving heirs of Melquiades Seville.
Melquiades in turn is the brother of the deceased Arsenio Seville.
Arsenio died ahead. Melquiades died later and was survived by his
children (petitioners). During the lifetime of Arsenio Seville he
executed an affidavit which reads:
I, ARSENIO SEVILLE, of legal age, WIDOWER, Filipino, and a resident
of Anquibit, Cambanogoy, Saug, Davao, Philippines, after having been
duly sworn to in accordance with law do hereby depose and say, as
follows:
xxx
That I am a widower as indicated above and that I have no one to
inherit all my properties except my brother Melquiades Seville who
appears to be the only and rightful person upon whom I have the most
sympathy since I have no wife and children;
That it is my desire that in case I will die I will assign all my rights,
interest, share and participation over the above- mentioned property
and that he shall succeed to me in case of my death, however, as long
as I am alive I will be the one to possess, enjoy and benefit from the
produce of my said land and that whatever benefits it will give me in
the future I shall be the one to enjoy it;
xxx
The children of Melquiades are now claiming exclusive ownership of
the properties and improvements thereon on the basis of the affidavit
executed by Arsenio in favor of Melquiades, alleging that the affidavit
was a donation inter vivos.
Vicente Sullan and the other respondents filed a complaint against the
petitioners for partition and accounting of the properties of Arsenio,
alleging they are heirs of the decedent.
ISSUE: WON the affidavit was a donation inter vivos. No.
A close reading reveals that the affidavit is not a donation inter vivos
or mortis causa but a mere declaration of an intention and a desire.
Certainly, it is not a concrete and formal act of giving or donating. The
form and contents of said affidavit amply support this conclusion.
A discussion of the different kinds of donations and the requisites for
their effectivity is irrelevant in the case at bar. There clearly was no
intention to transfer ownership from Arsenio Seville to Melquiades
Seville at the time of the instrument's execution. It was a mere
intention or a desire on the part of Arsenio Seville that in the event of
his death at some future time, his properties should go to Melquiades
Seville.
It is quite apparent that Arsenio Seville was thinking of succession ("...
in case I win die, I will assign all my rights, share and participation
over the above-mentioned properties and that he shall succeed to me
in case of my death ..."). Donations which are to take effect upon the
death of the donor partake of the nature of testamentary provisions
and shall be governed by the rules established in the title on
succession (Art. 728, Civil Code).
The petitioners likewise contend that the document was a valid
donation as only donations are accepted by the donees. However, the
petitioners could not have accepted something, which by the terms of
the supposed "donation" was not given to them at the time. The
affidavit could not transmit ownership except in clear and express
terms.
4 - Maglasang v Cabatingan
G.R.No. 131953, June 5 2002
FACTS: Conchita Cabatingan executed in favor of her brother,
Nicolas Cabatingan, a "Deed of Conditional of Donation Inter Vivos for
House and Lot" covering one-half (½) portion of the former's house
and lot located in Mandaue, Cebu.
4 other deeds of donation were executed in favor of herein petitioners.
Such deeds contained the following provisions:
"That for and in consideration of the love and affection of the DONOR
for the DONEE, x x x the DONOR does hereby, by these presents,
transfer, convey, by way of donation, unto the DONEE the above-
described property, together with the buildings and all improvements
existing thereon, to become effective upon the death of the DONOR;
PROVIDED, HOWEVER, that in the event that the DONEE should die
before the DONOR, the present donation shall be deemed
automatically rescinded and of no further force and effect;
On May 9, 1995, Conchita Cabatingan died.
The respondents, heirs of Cabatingan filed an action for annulment
and/or declaration of nullity of deeds of donations and accounting.
They alleged that petitioners, through their sinister machinations and
strategies and taking advantage of Conchita Cabatingan's fragile
condition, caused the execution of the deeds of donation, and, that the
documents are void for failing to comply with the provisions of the Civil
Code regarding formalities of wills and testaments, considering that
these are donations mortis causa.
The trial Court rendered partial judgment in favor of respondents.
Petitioners instituted this present petition insisting that the donations
are inter vivos donations as these were made by the late Conchita
Cabatingan "in consideration of the love and affection of the donor" for
the donee, and there is nothing in the deeds which indicate that the
donations were made in consideration of Cabatingan's death. In
addition, petitioners contend that the stipulation on rescission in case
petitioners die ahead of Cabatingan is a resolutory condition that
confirms the nature of the donation as inter vivos.
ISSUE: Was the donation inter vivos or mortis causa? Mortis Causa
HELD: In a donation mortis causa, "the right of disposition is not
transferred to the donee while the donor is still alive."In determining
whether a donation is one of mortis causa, the following characteristics
must be taken into account:
(1) It conveys no title or ownership to the transferee before the death
of the transferor; or what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control of
the property while alive;
(2) That before his death, the transfer should be revocable by the
transferor at will, ad nutum; but revocability may be provided for
indirectly by means of a reserved power in the donor to dispose of the
properties conveyed;
And
(3) That the transfer should be void if the transferor should survive the
transferee.
In the present case, the nature of the donations as mortis causa is
confirmed by the fact that the donations do not contain any clear
provision that intends to pass proprietary rights to petitioners prior to
Cabatingan's death. The phrase "to become effective upon the death
of the DONOR" admits of no other interpretation but that Cabatingan
did not intend to transfer the ownership of the properties to petitioners
during her lifetime. Petitioners themselves expressly confirmed the
donations as mortis causa in the following Acceptance and Attestation
clauses, uniformly found in the subject deeds of donation, to wit:
"That the DONEE does hereby accept the foregoing donation mortis
causa under the terms and conditions set forth therein, and avail
herself of this occasion to express her profound gratitude for the
kindness and generosity of the DONOR."
x x x
"SIGNED by the above-named DONOR and DONEE at the foot of this
Deed of Donation mortis causa, which consists of two (2) pages x x x."
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Also, a transfer mortis causa can also be made "in consideration of the
love and affection of the donor” so the contention of the petitioner
does not stand.
This is similar to the case of National Treasurer of the Phils. v. Vda. de
Meimban which held that the donation is a mortis causa donation and
the formalities of a will should have been complied with under Article
728 of the Civil Code, otherwise, the donation is void and would
produce no effect. As we have held in Alejandro v. Geraldez (78 SCRA
245,253), "If the donation is made in contemplation of the donor's
death, meaning that the full or naked ownership of the donated
properties will pass to the donee because of the donor's death, then it
is at that time that the donation takes effect, and it is a donation
mortis causa which should be embodied in a last will and testament.
(Citing Bonsato v. Court of Appeals, 95 Phil. 481)."
In the present case, subject deeds expressly provide that the donation
shall be rescinded in case petitioners predecease Conchita Cabatingan.
As stated in Reyes v. Mosqueda, one of the decisive characteristics of
a donation mortis causa is that the transfer should be considered void
if the donor should survive the donee. This is exactly what Cabatingan
provided for in her donations. If she really intended that the donation
should take effect during her lifetime and that the ownership of the
properties donated be transferred to the donee or independently of,
and not by reason of her death, she would have not expressed such
proviso in the subject deeds.
Considering that the disputed donations are donations mortis causa,
the same partake of the nature of testamentary provisions and as
such, said deeds must be executed in accordance with the requisites
on solemnities of wills and testaments under Articles 805 and 806 of
the Civil Code, to wit:
"ART. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon which the
will is written , and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them. (n)
ART. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the office of the Clerk
of Court. (n)"
The deeds in question although acknowledged before a notary public
of the donor and the donee, the documents were not executed in the
manner provided for under the above-quoted provisions of law.
5 - GANUELAS VS CAWED
[G. R. No. 123968. April 24, 2003]
Facts: • On April 11, 1958, Celestina Ganuelas Vda. de Valin
(Celestina) executed a Deed of Donation of Real Property (7 parcels of
land) in favor of her niece Ursulina Ganuelas (Ursulina.
The pertinent provision of the deed of donation reads, quoted
verbatim:
xxx
That, for and in consideration of the love and affection which the
DONOR has for the DONEE, and of the faithful services the latter has
rendered in the past to the former, the said DONOR does by these
presents transfer and convey, by way of DONATION, unto the DONEE
the property above, described, to become effective upon the death of
the DONOR; but in the event that the DONEE should die before the
DONOR, the present donation shall be deemed rescinded and of no
further force and effect. xxx
• On June 10, 1967, Celestina executed a document denominated as
Revocation of Donation purporting to set aside the deed of donation.
More than a month later or on August 18, 1967, Celestina died without
issue and any surviving ascendants and siblings.
• In 1982, or twenty-four years after the execution of the Deed of
Donation, Ursulina secured the corresponding tax declarations, in her
name, over the donated properties and since then, she refused to give
private respondents (other nieces of Clestina) any share in the produce
of the properties despite repeated demands.
• Private respondents filed a complaint against Ursulina et al. The
complaint alleged that the Deed of Donation executed by Celestina in
favor of Ursulina was void for lack of acknowledgment by the attesting
witnesses thereto before notary public Atty. Henry Valmonte, and the
donation was a disposition mortis causa which failed to comply with
the provisions of the Civil Code regarding formalities of wills and
testaments, hence, it was void. The plaintiffs-herein private
respondents thus prayed that judgment be rendered ordering Ursulina
to return to them as intestate heirs the possession and ownership of
the properties.
• Ursulina et al argue that the donation contained in the deed is inter
vivos as the main consideration for its execution was the donor’s
affection for the donee rather than the donor’s death; that the
provision on the effectivity of the donation—after the donor’s death—
simply meant that absolute ownership would pertain to the donee on
the donor’s death; and that since the donation is inter vivos, it may be
revoked only for the reasons provided in Articles 760, 764[ and 765 of
the Civil Code.
ISSUE: Whether the donation was mortis causa or inter vivos? MORTIS
CAUSA
HELD: Crucial in the resolution of the issue is the determination of
whether the donor intended to transfer the ownership over the
properties upon the execution of the deed.
Donation inter vivos differs from donation mortis causa in that in the
former, the act is immediately operative even if the actual execution
may be deferred until the death of the donor, while in the latter,
nothing is conveyed to or acquired by the donee until the death of the
donor-testator.
The following ruling of this Court in Alejandro v. Geraldez is
illuminating:
If the donation is made in contemplation of the donor’s death,
meaning that the full or naked ownership of the donated properties
will pass to the donee only because of the donor’s death, then it is at
that time that the donation takes effect, and it is a donation mortis
causa which should be embodied in a last will and testament.
But if the donation takes effect during the donor’s lifetime or
independently of the donor’s death, meaning that the full or naked
ownership (nuda proprietas) of the donated properties passes to the
donee during the donor’s lifetime, not by reason of his death but
because of the deed of donation, then the donation is inter vivos.
The distinction between a transfer inter vivos and mortis causa is
important as the validity or revocation of the donation depends upon
its nature. If the donation is inter vivos, it must be executed and
accepted with the formalities prescribed by Articles 748 and 749 of the
Civil Code, except when it is onerous in which case the rules on
contracts will apply. If it is mortis causa, the donation must be in the
form of a will, with all the formalities for the validity of wills, otherwise
it is void and cannot transfer ownership.
The distinguishing characteristics of a donation mortis causa are the
following:
1. It conveys no title or ownership to the transferee before the death
of the transferor; or, what amounts to the same thing, that the
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transferor should retain the ownership (full or naked) and control of
the property while alive;
2. That before his death, the transfer should be revocable by the
transferor at will, ad nutum; but revocability may be provided for
indirectly by means of a reserved power in the donor to dispose of the
properties conveyed;
3. That the transfer should be void if the transferor should survive the
transferee.
In the donation subject of the present case, there is nothing therein
which indicates that any right, title or interest in the donated
properties was to be transferred to Ursulina prior to the death of
Celestina.
The phrase “to become effective upon the death of the DONOR”
admits of no other interpretation but that Celestina intended to
transfer the ownership of the properties to Ursulina on her death, not
during her lifetime.
More importantly, the provision in the deed stating that if the donee
should die before the donor, the donation shall be deemed rescinded
and of no further force and effect shows that the donation is a
postmortem disposition.
As stated in a long line of cases, one of the decisive characteristics of a
donation mortis causa is that the transfer should be considered void if
the donor should survive the donee.
More. The deed contains an attestation clause expressly confirming the
donation as mortis causa:
SIGNED by the above-named donor, Celestina Ganuelas, at the foot of
this deed of donation mortis causa, consisting of two (2) pages and on
the left margin of each and every page thereof in the joint presence of
all of us who at her request and in her presence and that of each other
have in like manner subscribed our names as witnesses. (Emphasis
supplied)
To classify the donation as inter vivos simply because it is founded on
considerations of love and affection is erroneous. That the donation
was prompted by the affection of the donor for the donee and the
services rendered by the latter is of no particular significance in
determining whether the deed constitutes a transfer inter vivos or not,
because a legacy may have an identical motivation. In other words,
love and affection may also underline transfers mortis causa.
In the case of Maglasang v. Heirs of Cabatingan, this Court held that
the donations were mortis causa, for the above-quoted provision
conclusively establishes the donor’s intention to transfer the ownership
and possession of the donated property to the donee only after the
former’s death. Like in the present case, the deeds therein did not
contain any clear provision that purports to pass proprietary rights to
the donee prior to the donor’s death.
As the subject deed then is in the nature of a mortis causa disposition,
the formalities of a will under Article 728 of the Civil Code should have
been complied with, failing which the donation is void and produces no
effect.
As noted by the trial court, the attesting witnesses failed to
acknowledge the deed before the notary public, thus violating Article
806 of the Civil Code.
Art. 774. Succession is a mode of acquisition by virtue of which the
property, rights and obligations to the extent of the value of the
inheritance, of a person are transmitted through his death to another
or others either by his will or by operation of law. (n)
6 - G.R. No. 103577 October 7, 1996
ROMULO A. CORONEL, ALARICO A. CORONEL, ANNETTE A.
CORONEL, ANNABELLE C. GONZALES (for herself and on
behalf of Florida C. Tupper, as attorney-in-fact), CIELITO A.
CORONEL, FLORAIDA A. ALMONTE, and CATALINA BALAIS
MABANAG, petitioners,
vs.
THE COURT OF APPEALS, CONCEPCION D. ALCARAZ, and
RAMONA PATRICIA ALCARAZ, assisted by GLORIA F. NOEL as
attorney-in-fact, respondents.
MELO, J.:p
The petition before us has its roots in a complaint for specific
performance to compel herein petitioners (except the last named,
Catalina Balais Mabanag) to consummate the sale of a parcel of land
with its improvements located along Roosevelt Avenue in Quezon City
entered into by the parties sometime in January 1985 for the price of
P1,240,000.00.
FACTS: On January 19, 1985, defendants-appellants Romulo
Coronel, et al. executed a document entitled "Receipt of Down
Payment" in favor of plaintiff Ramona Patricia Alcaraz which is
reproduced hereunder:
RECEIPT OF DOWN PAYMENT
P1,240,000.00 — Total amount
50,000 — Down payment
———————————
P1,190,000.00 — Balance
Received from Miss Ramona Patricia Alcaraz of 146 Timog,
Quezon City, the sum of Fifty Thousand Pesos purchase
price of our inherited house and lot, covered by TCT No.
119627 of the Registry of Deeds of Quezon City, in the total
amount of P1,240,000.00.
We bind ourselves to effect the transfer in our names from
our deceased father, Constancio P. Coronel, the transfer
certificate of title immediately upon receipt of the down
payment above-stated.
On our presentation of the TCT already in or name, We will
immediately execute the deed of absolute sale of said
property and Miss Ramona Patricia Alcaraz shall immediately
pay the balance of the P1,190,000.00.
Clearly, the conditions appurtenant to the sale are the
following:
1. Ramona will make a down payment of Fifty Thousand
(P50,000.00) Pesos upon execution of the document
aforestated;
2. The Coronels will cause the transfer in their names of the
title of the property registered in the name of their deceased
father upon receipt of the Fifty Thousand (P50,000.00)
Pesos down payment;
3. Upon the transfer in their names of the subject property,
the Coronels will execute the deed of absolute sale in favor
of Ramona and the latter will pay the former the whole
balance of One Million One Hundred Ninety Thousand
(P1,190,000.00) Pesos.
On the same date, plaintiff-appellee Concepcion D. Alcaraz (hereinafter
referred to as Concepcion), mother of Ramona, paid the down
payment of P50,000.00. On February 6, 1985, the property originally
registered in the name of the Coronels' father was transferred in their
names under TCT No. 327043.
On February 18, 1985, the Coronels sold the property covered by TCT
No. 327043 to intervenor-appellant Catalina B. Mabanag
P1,580,000.00 after the latter has paid P300,000.00. For this reason,
Coronels canceled and rescinded the contract with Ramona by
depositing the down payment paid by Concepcion in the bank in trust
for Ramona Patricia Alcaraz.
On February 22, 1985, Concepcion, et al., filed a complaint for specific
performance against the Coronels and caused the annotation of a
notice of lis pendens at the back of TCT No. 327403.
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On April 2, 1985, Catalina caused the annotation of a notice of adverse
claim covering the same property with the Registry of Deeds of
Quezon City. On April 25, 1985, the Coronels executed a Deed of
Absolute Sale over the subject property in favor of Catalina. On June
5, 1985, a new title over the subject property was issued in the name
of Catalina under TCT No. 351582.
In the course of the proceedings before the trial court the parties
agreed to submit the case for decision solely on the basis of
documentary exhibits. The judgment is in favor of the plaintiffs. MFR
was denied. concepcion and ramona -
Petitioners thereupon interposed an appeal, but on December 16,
1991, the Court of Appeals rendered its decision fully agreeing with the
trial court.
Petitioners also argue there could been no perfected contract
on January 19, 1985 because they were then not yet the
absolute owners of the inherited property.
We cannot sustain this argument.
RULING: Article 774 of the Civil Code defines Succession as a mode of
transferring ownership as follows:
Art. 774. Succession is a mode of acquisition by
virtue of which the property, rights and obligations
to be extent and value of the inheritance of a
person are transmitted through his death to
another or others by his will or by operation of
law.
Petitioners-sellers in the case at bar being the sons and
daughters of the decedent Constancio P. Coronel are
compulsory heirs who were called to succession by operation
of law. Thus, at the point their father drew his last
breath, petitioners stepped into his shoes insofar as
the subject property is concerned, such that any
rights or obligations pertaining thereto became
binding and enforceable upon them. It is expressly
provided that rights to the succession are
transmitted from the moment of death of the
decedent (Article 777, Civil Code; Cuison vs. Villanueva, 90
Phil. 850 [1952]).
Be it also noted that petitioners' claim that succession may not be
declared unless the creditors have been paid is rendered moot by the
fact that they were able to effect the transfer of the title to the
property from the decedent's name to their names on February 6,
1985.
Aside from this, petitioners are precluded from raising their supposed
lack of capacity to enter into an agreement at that time and they
cannot be allowed to now take a posture contrary to that which they
took when they entered into the agreement with private respondent
Ramona P. Alcaraz. The Civil Code expressly states that:
Art. 1431. Through estoppel an admission or
representation is rendered conclusive upon the
person making it, and cannot be denied or
disproved as against the person relying thereon.
Having represented themselves as the true owners of the subject
property at the time of sale, petitioners cannot claim now that they
were not yet the absolute owners thereof at that time.
Art. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death. (659)
7 - FRANK N. LIU, deceased, substituted by his surviving
spouse Diana Liu, and children, namely: Walter, Milton, Frank,
Jr., Henry and Jockson, all surnamed Liu, Rebecca Liu Shui
and Pearl Liu Rodriguez, petitioners, vs. ALFREDO LOY, JR.,
TERESITA A. LOY and ESTATE OF JOSE VAÑO, [G.R. No.
145982. September 13, 2004]
FACTS: The Loys seek a reconsideration of the Decision dated 3 July
2003 of this Court declaring void the deeds of sale of Lot Nos. 5 and 6
executed by Teodoro Vaño in favor of Alfredo Loy, Jr. and Teresita
Loy.
The Loys insist that the transaction between Teodoro Vaño and Benito
Liu, the predecessor-in-interest of Frank Liu, is a
contract to sell. In contrast, the transactions between Teodoro Vaño
and Alfredo Loy, Jr. and Teresita A. Loy were contracts of sale.
According to the Loys, the contract to sell did not transfer ownership
of Lot Nos. 5 and 6 to Benito Liu or Frank Liu because it was only a
promise to sell subject to the full payment of the consideration. On the
other hand, the contracts of sale in favor of the Loys transferred
ownership, as the conveyances were absolute.
The Loys reiterate their contention that Teodoro Vaño, as
administrator and sole heir to the properties, can sell the lots to them
since the rights of an heir are transmitted from the moment of death
of the testator. Although a property under estate proceedings cannot
be sold without judicial approval, the Loys allege that in their case, the
probate court later approved the sales to them, thereby ratifying the
sales.
ISSUE: W/N there was a valid sale byTeodoro to the Loys. None
HELD: The orders of the probate court dated 19 and 23 March 1976
approving the contracts of the Loys are void. The orders did not ratify
the sales because there was already a prior order of the probate court
dated 24 February 1976 approving the sale of Lot Nos. 5 and 6 to
Frank Liu. Hence, the probate court had already lost jurisdiction over
Lot Nos. 5 and 6 since the lots no longer formed part of the Estate of
Jose Vaño. In fact, the administratrix of the estate filed a motion for
reconsideration of the orders of the probate court approving the
contracts of the Loys because she already executed a deed of sale
covering Lot Nos. 5 and 6 in favor of Frank Liu.
As we held in our Decision, a prior contract to sell made by the
decedent during his lifetime prevails over a subsequent contract of sale
made by the administrator without probate court approval. It is
immaterial if the prior contract is a mere contract to sell and does not
immediately convey ownership. Frank Liu’s contract to sell became
valid and effective upon its execution and bound the estate to convey
the property upon full payment of the consideration.
It is apparent from Teodoro Vaño’s letter dated 16 October 1954 that
the reason why Frank Liu stopped further payments on the lots,
leaving a balance of P1,000, was because Teodoro Vaño could not yet
transfer the titles to Benito Liu, the predecessor-in-interest of Frank
Liu. It would appear that Frank Liu and Teodoro Vaño lost contact with
each other thereafter and it was only on 25 January 1964 that Frank
Liu wrote Teodoro Vaño informing the latter that he was ready to pay
the balance of the purchase price of the lots. Teodoro Vaño did not
reply to Frank Liu’s letter. On 22 April 1966, Benito Liu sold to Frank
Liu the lots, including Lot Nos. 5 and 6, which Benito Liu purchased
from Teodoro Vaño on 13 January 1950. Frank Liu sent three letters
dated 21 March 1968, 7 June 1968 and 29 July 1968 to Teodoro Vaño
reiterating his request for the execution of the deed of sale covering
the lots in his favor but to no avail. On 19 August 1968, Teodoro Vaño
sold Lot No. 6 to Teresita Loy and on 16 December 1969, he sold Lot
No. 5 to Alfredo Loy, Jr. The sales to the Loys were made after Frank
Liu offered to pay the balance of the purchase price of the lots and
after he repeatedly requested for the execution of the deeds of sale in
his favor.
The sale of the lots by Teodoro Vaño to Benito Liu was valid. The sale
was made by Teodoro Vaño on 13 January 1950 in his capacity as
attorney-in-fact of Jose Vaño. The sale to Benito Liu was made during
the lifetime of Jose Vaño, not after the death of Jose Vaño who died
on 28 January 1950.The power of attorney executed by Jose Vaño in
favor of Teodoro Vaño remained valid during the lifetime of Jose Vaño.
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In his letter dated 16 October 1954, Teodoro Vaño stated that on 30
June 1954, the Supreme Court allowed the probate of the will of Jose
Vaño. Teodoro Vaño likewise mentioned in the letter that in July 1954,
the Supreme Court held that all the sales made by Teodoro Vaño of
the properties of his father were legal.[6] Thus, Benito Liu’s deed of
sale in favor of Frank Liu covering the lots sold to him by Teodoro
Vaño constitutes a valid charge or claim against the estate of Jose
Vaño.
8 - CONDE vs. ABAYA
G. R. No. 4275
March 23, 1909
Casiano Abaya died on April 6, 1899. Paula Conde, as the mother of
the natural children Jose and Teopista Conde [both deceased], whom
she states she had by Casiano Abaya claimed succession to the
hereditary rights of her children with respect to the inheritance of their
deceased father Jose and Teopista were unacknowledge natural
children.
Roman Abaya, Casiano’s brother, opposed Paula’s claim, saying that
he is the nearest relative of the deceased and should therefore be
declared his sole heir.
W/N after the death of a person claimed to be an unacknowledged
natural child, the mother of such presumed natural child, as heir to the
latter, may bring an action to enforce acknowledgment of her
deceased child.
NO. The right of action pertaining to the child to claim his legitimacy is
in all respects superior to that of the child who claims
acknowledgement as a natural child. And it is evident that the right of
action to claim his legitimacy is not one of those rights which the
legitimate child may transmit by inheritance to his heirs; it forms no
part of those rights which the legitimate child may transmit by
inheritance to his heirs; it forms no part of the component rights of his
inheritance. If it were so, there would have been no necessity to
establish its transmissibility to heirs as an exception in the terms and
conditions of Article 118 [now Article 268] of the Civil Code. So that, in
order that it may constitute a portion of the child’s inheritance, it is
necessary that the conditions and the terms contained in Article 118
[now Article 268] shall be present since without them, the right that
the child held during his lifetime, being personal and exclusive in
principle and therefore as a general rule not susceptible of
transmission would and should have been extinguished by his death.
Therefore where no express provision like that of Article 118 [now
268] exists, the right of action for the acknowledment of a natural
child is, in principle and without exception, extinguished by his death,
and can not be transmitted as a portion of the inheritance of the
deceased child.
9 - LAO HU NIU v. THE INSULAR COLLECTOR OF CUSTOMS
FACTS: This case involves the exclusion from the Philippine Islands of
a Chinese woman and her minor children. She claims to be the wife of
a former resident Chinese merchant who, prior to the attempt of the
appellant to enter, died in the Philippine Islands owning property
therein and leaving as his only heirs at law and next of kin his widow,
the appellant herein, and her minor children.
The board of special inquiry refused them permission to enter and that
refusal was affirmed by the CFI of Manila. This appeal is from the
action taken by the CFI.
Counsel for appellant says in his brief that: "The question involved
here is a double one: First, as to the right of the widow and the
legitimate minor children of a deceased resident Chinese merchant to
enter the Philippine Islands as such widow and children; and, second,
the right of such widow, as a merchant and the successor to her
husband, to enter the said Islands and to bring her children with her."
Counsel then says: "It would appear that the first part of the foregoing
questions has been resolved by this honorable tribunal against such
right of entrance."
ISSUE: W/N the widow and the legitimate minor children of a
deceased resident Chinese merchant have the right to enter the
Philippine Islands.
RULING: We have held in the case of Ng Hian vs. Collector of
Customs that the widow and minor children of a deceased Chinese
merchant resident and doing business in the Philippine Islands at the
time of his death are not entitled to enter the Philippine Islands solely
by reason of such relationship. Counsel for the appellant asks us to
overrule that decision and admit the applicants in this case, setting
forth with ability arguments to that end. We must say, however, that,
after a careful consideration of such arguments, we are unable to see
our way clear to overrule the former decision and accordingly decline
to do so.
With regard to the second question, it may be said that it does not
appear in the record of this case that the applicant is a merchant. It
appears simply that her husband was, at the time of his death, a
resident Chinese merchant doing business in the Philippine Islands,
and that he died leaving property including a mercantile business. The
assumption of the appellant is that the mere fact of the death of a
merchant makes his wife and children also merchants, as it leaves to
them as heirs and next of kin a mercantile business as a part of their
inheritance. We do not believe that this necessarily follows. But if it
does, the fact remains that she is not a resident merchant. She is still
outside of the Philippine Islands and has never held the status of
a resident merchant. She must, therefore, establish her right to enter
as a merchant in the first instance. This she did not do. She did not
present the section six certificate which is the only evidence upon
which her right to enter can be based.
From these observations it necessarily follows that the applicant is not
entitled to enter the Philippine Islands upon the status of her deceased
husband; and that when she seeks to enter upon her own personal
status she must produce the evidence which the law requires to
establish that status. Not having done this her application to enter was
properly denied.
10 - GREAT PACIFIC LIFE ASSURANCE vs. CA
FACTS: A contract of group life insurance was executed between Great
Pacific Life Assurance Corporation (Grepalife) and Development Bank
of the Philippines (DBP)) where Grepalife agreed to insure the lives of
eligible housing loan mortgagors of DBP.
In 1983, Dr. Wilfredo Leuterio, a physician and a housing debtor of DB
P applied for membership in the group life insurance plan where he de
clared himself as physically healthy.
Grepalife issued Certificate No. B18558, as insurance coverage of Dr. L
euterio, to the extent of his DBP mortgage indebtedness of 86,200.00.
In 1984, Dr. Leuterio died due to "massive cerebral hemorrhage." Cons
equently, DBP submitted a death claim to Grepalife.
Grepalife denied the claim alleging that Dr. Leuterio’s non-
disclosure that he had been suffering from hypertension
(which caused his death) constituted concealment that justified the de
nial of the claim.
In1986, the widow of the late Dr. Leuterio, Medarda Leuterio,
filed a complaint with the RTC against Grepalife for specific
performance with damages.
Grepalife alleges, among other things, that the complaint was institute
d by the widow of Dr. Leuterio, not the real party in
interest, hence the trial court acquired no jurisdiction over the case.
(While the case was pending before the SC, DBP collected the debt fro
m the mortgagor and took the necessary action of foreclosure on the r
esidential lot of the Leuterios.)
ISSUE: WON the widow of the decedent Dr. Leuterio may file the suit
against the insurer, Grepalife. YES.
RULING:
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 Wills and Succession Case Digests
A policy of insurance upon life or health may pass by
transfer, will or succession to any person, whether he
has an insurable interest or not, and such person may
recover it whatever the insured might have recovered. The wid
ow of the decedent Dr. Leuterio may therefore file the suit against the
insurer, Grepalife.
The rationale of a group insurance policy of mortgagors,
otherwise known as the "mortgage redemption insurance," is
device for the protection of both the mortgagee and the
mortgagor. On the part of the mortgagee (DBP herein), it has
to enter into such form of contract so that in the event of the
unexpected demise of the mortgagor (Dr. Leuterio herein)
during the subsistence of the mortgage contract, the proceeds from su
ch insurance will be applied to the payment of the
mortgage debt, thereby relieving the heirs of the mortgagor
from paying the obligation. In a similar vein, ample protection
is given to the mortgagor under such a concept so that in the event of
death; the mortgage obligation will be extinguished
by the application of the insurance proceeds to the mortgage
indebtedness.
Grepalife failed to clearly and satisfactorily establish that there was con
cealment made by the insured, hence, it cannot refuse
payment of the claim. However, the SC noted that while the
case was pending before it, DBP foreclosed the residential lot
of the Leuterios, in satisfaction of Dr. Leuterio’s outstanding
loan. Considering this supervening event, the insurance
proceeds shall inure to the benefit of the heirs of the deceased
person or his beneficiaries. Equity dictates that DBP should notunjustly
enrich itself at the expense of another. Hence, it
cannot collect the insurance proceeds, after it already
foreclosed on the mortgage. The proceeds now rightly belong
to Dr. Leuterio's heirs represented by his widow, Medarda Leuterio.
11 - ERNESTO ROBLES, petitioner,
vs.
HON. DELFIN FL. BATACAN, HON. CONRADO M. VASQUEZ,
HON. JOSE B. JIMENEZ. ATANACIO GERONIMO and
BENEDICTO GERONIMO, respondents.
FACTS: Severino Geronimo worked in the petitioner’s land for twenty
years until 1969. Following Severino’s death, an ejectment suit was
filed by petitioner, Robles, against Severino’s two sons – Benedicto and
Atanacio.
Benedicto did not choose to answer and was declared in default.
Atanacio, however, averred that he was entitled to succeed his father,
as Robles’ agricultural tenant, in accordance with R.A. No. 1199 and
Sec. 9 of R.A. No. 3844 which provides that he could remain in Robles’
land under the same terms and conditions of the original tenancy
share arrangement entered into between his father and Robles.
Robles, for his part, insists that Severino was never an agricultural
tenant but worked merely as a watcher in his land.
Court of Agrarian Relations (CAR) rendered judgment in favor of
Atanacio. CA affirmed the decision of CAR.
ISSUE: WON Atanacio has the right to succeed his father as an
agricultural tenant. YES
HELD: As the son of Severino Geronimo, Atanacio had the right to
take over as agricultural tenant in the petitioner’s land in accordance
with R.A. No. 1199 and R.A. No. 3844.
Obviously, Atanacio was the only heir interested in succeeding his
father as his brother, Benedicto, had not seen fit to claim his right and
in fact defaulted in resisting the petitioner’s claims in the ejectment
suit. Significantly, when in his prayer the petitioner asks for authority
to appoint the said Benedicto to succeed his father, it is presumably as
his watcher only and not as agricultural tenant. The petitioner’s
consistent claim, it should be noted, is that Severino Geronimo was not
his tenant but only his watcher.
12 - San Agustin vs CA, 371 SCRA 346, December 4, 2001
FACTS:
-GSIS sold to a certain Macaria Vda. de Caiquep a parcel of residential
land of the GSIS low cost Housing Project. This was evidenced by a
Deed of Absolute Sale.
-An encumbrance was annotated at the back of the title, not to sell,
convey, lease or sublease, or otherwise encumber the property within
5 years from the time that the final and absolute ownership thereof
becomes vested in the vendee.
- A day after the issuance of TCT in favor of Macaria, she sold the
subject lot to private respondent, Maximo Menez, Jr., as evidenced by
a Deed of Absolute Sale.
-GSIS prohibited him from registering it since it was prohibited but he
was able to get a TCT later. The said TCT was lost, but private
respondent subsequently obtained a duplicate after judicial
proceedings.
-Petitioner San Agustin, nephew of Macaria, who was the present
occupant and heir of Macaria, claimed that he was not notified and so
he file a motion to reopen a Reconstitution Proceedings. Both RTC and
CA ruled in favor of private respondent.
ISSUE:
Whether or not the Deed of Sale between Macaria Vda. de Caiquep
and private respondent is valid upon San Agustin being an heir of
Macaria. YES
RULING:
-The said contract of sale is binding upon the heirs of Macaria Vda. de
Caiquep, including petitioner who alleges to be one of her heirs, in line
with the rule that heirs are bound by contracts entered into by their
predecessors-in-interest. The general rule is that a party’s contractual
rights and obligations are transmissible to the successors. Moreover,
obligations arising from sale is transmissible.
- San Agustin is said to be not entitled to a notice having no interest in
the property based on the memorandum annotated at the back of the
TCT.
-The contract of sale remains valid between the parties, unless and
until annulled in the proper suit filed by the rightful party, the GSIS. In
this case, the GSIS, the proper party, has not filed any action for the
annulment of Deed of Sale between them and Macaria Vda. de
Caiquep, nor for the forfeiture of the lot in question.
-Since, both were aware of the existence of the stipulated condition in
favor of the original seller, GSIS, yet both entered into an agreement
violating said condition and nullifying its effects, said parties should be
held in estoppel to assail and annul their own deliberate acts.
13 - JOHNNY S. RABADILLA, petitioner, vs. COURT OF APPEALS
AND MARIA MARLENA COSCOLUELLA Y BELLEZA
VILLACARLOS, respondents.
[G.R. No. 113725. June 29, 2000]
FACTS: In a Codicil appended to the Last Will and Testament
of testatrix Aleja Belleza, Dr. Jorge Rabadilla, (predecessor-in-
interest of Johnny S. Rabadilla) was instituted as a devisee of 511,
855 square meters of that parcel of land surveyed as Lot No. 1392 of
the Bacolod Cadastre. The said Codicil was duly probated and
admitted. The relevant provision of the said Codicil which is put to
issue is:
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the
event that the one to whom I have left and bequeathed, and his heir
shall later sell, lease, mortgage this said Lot, the buyer, lessee,
mortgagee, shall have also the obligation to respect and deliver yearly
ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y
Belleza, on each month of December, SEVENTY FIVE (75) piculs of
Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina
shall die, lastly should the buyer, lessee or the mortgagee of this lot,
not have respected my command in this my addition (Codicil), Maria
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 Wills and Succession Case Digests
Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392
from my heir and the latter's heirs, and shall turn it over to my near
desendants, (sic) and the latter shall then have the obligation to give
the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I
further command in this my addition (Codicil) that my heir and his
heirs of this Lot No. 1392, that they will obey and follow that should
they decide to sell, lease, mortgage, they cannot negotiate with others
than my near descendants and my sister.
Pursuant to the same Codicil, the lot in dispute was
transferred to Dr. Jorge Rabanilla (deceased) who was survived by his
wife Rufina and children,Johnny, Aurora, Ofelia and Zenaida.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos
brought a complaint against the heirs of Dr. Jorge Rabadilla, to enforce
the provisions of subject Codicil. The plaintiff then prayed that
judgment be rendered ordering defendant-heirs to reconvey/return-Lot
No. 1392 to the surviving heirs of the late Aleja Belleza, the
cancellation of TCT in the name of the deceased, Dr. Jorge Rabadilla,
and the issuance of a new certificate of title in the names of the
surviving heirs of the late Aleja Belleza.
On November 15, 1998, an amicable settlement was entered into a
Memorandum of Agreement on the obligation to deliver one hundred
piculs of sugar to Maria. However, there was no compliance with the
aforesaid Memorandum of Agreement except for a partial delivery of
50.80 piculs of sugar corresponding to sugar crop year 1988 -1989.
ISSUE: Whether or not the rights and obligations of Dr. Jorge
Rabadilla were transferred/transmitted to his heirs upon his death.
HELD: YES. It is a general rule under the law on succession
that successional rights are transmitted from the moment of
death of the decedent and compulsory heirs are called to
succeed by operation of law. The legitimate children and
descendants, in relation to their legitimate parents, and the
widow or widower, are compulsory heirs. Thus, the petitioner,
his mother and sisters, as compulsory heirs of the instituted heir, Dr.
Jorge Rabadilla, succeeded the latter by operation of law, without need
of further proceedings, and the successional rights were transmitted to
them from the moment of death of the decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all
the property, rights and obligations of a person, not
extinguished by his death. Conformably, whatever rights Dr. Jorge
Rabadilla had by virtue of subject Codicil were transmitted to his
forced heirs, at the time of his death. And since obligations not
extinguished by death also form part of the estate of the decedent;
corollarily, the obligations imposed by the Codicil on the deceased Dr.
Jorge Rabadilla, were likewise transmitted to his compulsory heirs
upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr.
Jorge Rabadilla, subject to the condition that the usufruct thereof
would be delivered to the herein private respondent every year. Upon
the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his
rights and title over the said property, and they also assumed his
(decedent's) obligation to deliver the fruits of the lot involved to herein
private respondent. Such obligation of the instituted heir reciprocally
corresponds to the right of private respondent over the usufruct, the
fulfillment or performance of which is now being demanded by the
latter through the institution of the case at bar. Therefore, private
respondent has a cause of action against petitioner and the trial court
erred in dismissing the complaint below.
14 - ALVAREZ vs. IAC and YANES
GR No. L-68053 May 7, 1990
FACTS:
In 1917, two parcels of land, Lot 773-A and Lot 773-B,
originally known as Lot 773, were registered in the name of
the heirs of AnicetoYanes.
Aniceto died and was survived by his children, Rufino, Felipe
and Teodora, who inherited said lots.
Record, however, showed that Fortunato Santiago was
issued a TCT covering Lot 773 and that he,
MonicoFuentebella and Rosendo Alvarez were in possession
of the same.
Subsequently, the lots were sold by Santiago to
MonicoFuentebella.
When Fuentebella died, his administratix sold the lots to
Rosendo Alvarez.
In 1960, the Yanes heirs filed a complaint before the CFI
against Santiago, Fuentebella and Alvarez for the return of
the ownership and possession of the lots.
During the pendency of the case, Alvarez sold the lots to
Rodolfo Siason, and a TCT was issued in Sison’s name.
CFI ruled in favor of Yanes heirs. However, the decision
could not be executed because Siason was in possession and
had a TCT over the lots issued in his name. The CFI had to
nullify its previous order.
In 1968, the Yanes heirs filed another action for the
recovery of the lots with damages. They prayed that the TCT
issued to Siason be cancelled for being null and void.
The lower court dismissed the case against Siason for being
a buyer in good faith. However, Alvarez, who sold the land
to Siason, was adjudged to pay the Yanes heirs P20,000 for
the value of the lots with damages.
Rosendo Alvarez died and was succeeded by his heirs.
According to the Alvarez heirs, the liability incurred by the
deceased Rosendo Alvarez and his obligation to pay the
Yanes heirs should be his sole liability alone or of his estate,
after his death and that such obligations are not
transmissible to his heirs.
ISSUE:
WON the liability of Rosendo Alvarez to pay the
Yanes heirs as adjudged by the court is transmissible
by operation of law to his legal heirs? – YES.
HELD:
YES. The liability or obligation of Rosendo Alvarez to pay the
Yanes heirs as adjudged by the court is transmissible by
operation of law to his legal heirs.
The following are the bases for the ruling:
Art. 774. Succession is a mode of acquisition by virtue
of which the property, rights and obligations to the
extent of the value of the inheritance, of a person are
transmitted through his death to another or others
either by his will or by operation of law.
Art. 776. The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death.
Art. 1311. Contracts take effect only between the
parties, their assigns and heirs except in case where
the rights and obligations arising from the contract are
not transmissible by their nature, or by stipulation or by
provision of law. The heir is not liable beyond the value
of the property received from the decedent.
The general rule is that a party's contractual rights and
obligations are transmissible to the successors.
The binding effect of contracts upon the heirs of the
deceased party is not altered by the provision of Rule 89 of
8
 Wills and Succession Case Digests
the Rules of Court that money debts of a deceased must be
liquidated and paid from his estate before the residue is
distributed among said heirs.
The reason is that whatever payment is made from the
estate is ultimately a payment by the heirs, since the
amount of the paid claim in fact diminishes or reduces the
shares that the heirs would have been entitled to receive.
The rule is a consequence of the progressive
"depersonalization" of patrimonial rights and duties that, as
observed by VictorioPolacco, has characterized the history of
these institutions. From the Roman concept of a relation
from person to person, the obligation has evolved into a
relation from patrimony to patrimony with the persons
occupying only a representative position, barring those rare
cases where the obligation is strictly personal, in
consideration of its performance by a specific person and by
no other.
Petitioners, being the heirs of the late Rosendo Alvarez,
cannot escape the legal consequences of their father's
transaction, which gave rise to the present claim for
damages. It is of no moment that petitioners did not inherit
the property herein because,by legal fiction, the monetary
equivalent thereof became their father's hereditary estate,
We have ruled that the hereditary assets are always liable in
their totality for the payment of debts of the estate.
It must, however, be made clear that petitioners are liable only to the
extent of the value of their inheritance.
15 - PAMPLONA V MORETO
FACTS: Flaviano Moreto and Monica Maniega werehusband and wife.
During their marriage, they acquired adjacent lots Nos. 1495,4545,
and 1496 situated in Calamba, Laguna. They begot 6 children during
theirmarriage.
On May 6, 1946, Monica Maniega died intestatein Calamba, Laguna.
On July 30, 1952, Flaviano Moreto, withoutthe consent of the heirs of
his Monica, and before any liquidation of theconjugal partnership could
be effected, executed in favor of GeminianoPamplona, married to
defendant Apolonia Onte, a deed of absolute sale coveringlot No. 1495
for P900.00. As a result of the sale, a new transfer certificateof title
was issued in the name of Geminiano Pamplona married to Apolonia
Onte.
After the execution of the deed of sale, thePamplona and Onte as well
as their son, Rafael Pamplona, constructed theirhouse on the eastern
part of lot 1496 as Flaviano Moreto, at the time of thesale, pointed to
it as the land which he sold to Geminiano Pamplona.
On August 12, 1956, Flaviano Moreto diedintestate.
In 1961, the plaintiffs demandedon the defendants to vacate the
premises where they had their house and piggeryon the ground that
Flaviano Moreto had no right to sell the lot which he soldto Geminiano
Pamplona as the same belongs to the conjugal partnership ofFlaviano
and his deceased wife and the latter was already dead when the
salewas executed without the consent of the plaintiffs who are the
heirs of Monica.
Pamplona and Onte refused tovacate the premises occupied by them
and hence, this suit was instituted by theheirs of Monica Maniega
seeking for the declaration of thenullity of the deed of sale as regards
one-half of the property subject matter of said deed and among
others.
RTC ruled in favor of plaintiffs. CA affirmed.
ISSUE: WON PLAINTIFFS AS MONICA'S HEIRSARE OBLIGED
TO DELIVER THE PROPERTY TO PAMPLONA; YES
We have ruled that at the time of the sale in 1952, the conjugal
partnership was already dissolved six years before (upon death of
Monica) and therefore, the estate became a co-
ownership between Flaviano Moreto, the surviving husband, and the
heirs of his deceased wife, Monica Maniega.
At the time of the sale, the co-ownership constituted or covered
these three lots adjacent to each other. And since Flaviano
Moreto was entitled to one-half pro-indiviso of the entire land area or
1,173 sq. meters as his share, he had a perfect legal and lawful right
to dispose of 781 sq.meters of his share to the Pamplona spouses.
Indeed, there was still a remainder of some 392 sq. meters belonging
to him at the time of the sale.
Under Article 776, New Civil Code, the inheritance which
private respondents received from their deceased parents
and/or predecessors-in-interest included all the property
rights and obligations which were not extinguished by their
parents' death. And under Art. 1311, paragraph1, New Civil
Code, the contract of sale executed by the deceased
FlavianoMoreto took effect between the parties, their assigns
and heirs, who are the private respondents
herein. Accordingly, to the private respondents is transmitted
the obligation to deliver in full ownership the whole area of
781sq. meters to the petitioners (which was the original
obligation of their predecessor Flaviano Moreto) and not only
one-half thereof. Private respondents must comply with said
obligation.
16 - G.R. No. L-44837 November 23, 1938
SOCORRO LEDESMA and ANA QUITCO LEDESMA, plaintiffs-
appellees,
vs.
CONCHITA MCLACHLIN, ET AL., defendants-appellants
Facts: In the year 1916, the plaintiff Socorro Ledesma lived
maritally with Lorenzo M. Quitco. Out of the cohabitation, a child was
born, plaintiff Ana Quitco Ledesma, who was acknowledged by Lorenzo
as his natural daughter. Subsequently, Lorenzo issued in favor of
Socorro a promissory note amounting to P2000.00 which remained
unpaid.
Lorenzo died in 1930 without any property, leaving defendant
Mclachlin and her children as her compulsory heirs. Two years later,
Lorenzo's father Eusebio died, and because Eusebio left some personal
and real properties without a will, an intestate proceeding was
instituted.
Upon the institution of the intestate of the deceased Eusebio Quitco
and the appointment of the committee on claims and appraisal,
Socorro Ledesma filed for the payment of the promissory note before
the Committee. Subsequently, the court issued an order of declaration
of heirs in the intestate of the deceased Eusebio Quitco but however,
Ana Quitco Ledesma was not included among the declared heirs.
Plaintiffs now sought recovery of the sum out of the properties
inherited by the defendants from their deceased grandfather by
representation which were subject to the payment of debts and
obligations of their deceased father, who died without leaving any
property.
Issue: WON the plaintiffs may recover from the defendants the debt
contracted by Lorenzo.
Held: While it is true that under the provisions of articles 924 to
927 of the Civil Code, a child presents his father or mother who died
before him in the properties of his grandfather or grandmother, this
right of representation does not make the said child answerable for the
obligations contracted by his deceased father or mother, because, as
may be seen from the provisions of the Code of Civil Procedure
referring to partition of inheritances, the inheritance is received with
the benefit of inventory, that is to say, the heirs only answer with the
properties received from their predecessor.
The herein defendants, as heirs of Eusebio Quitco, in representation of
their father Lorenzo M. Quitco, are not bound to pay the indebtedness
of their said father from whom they did not inherit anything.
Therefore, the claim for the payment of an indebtedness contracted by
a deceased person cannot be filed for its collection before the
committee on claims and appraisal, appointed in the intestate of his
9
 Wills and Succession Case Digests
father, and the properties inherited from the latter by the children of
said deceased do not answer for the payment of the indebtedness
contracted during the lifetime of said person.
Art. 777. The rights to the succession are transmitted from the
moment of the death of the decedent. (657a)
17 - RIOFERIO vs CA
FACTS: On May 13, 1995, Alfonso P. Orfinada, Jr. died without a will.
He also left a widow, respondent Esperanza P. Orfinada, and 7 children
(respondents). Apart from the respondents, he has a paramour
Teodora Riofero, and co-petitioners Veronica, Alberto and Rowena.
Respondents discovered that on June 29, 1995, petitioners executed
anExtrajudicial Settlement of Estate of a Deceased Person with
Quitclaim involving the properties of the estate of the decedent and
that accordingly, the Registry of Deeds in Dagupan issued Certificates
of Titles in favor of petitioners Teodora. Petitioners were able to obtain
a loan of P700,000.00 from the Rural Bank of Mangaldan Inc. by
executing a Real Estate Mortgage over the properties subject of the
extra-judicial settlement.
Respondent Alfonso “Clyde” P. Orfinada III filed a Petition for Letters
of Administration before the RTC of Angeles City, praying that letters
of administration be issued to him. Respondents filed a Complaint for
the Annulment/Rescission of Extra Judicial Settlement of Estate of a
Deceased Person with Quitclaim, Real Estate Mortgage and
Cancellation of Transfer Certificate of Titles with and Other Related
Documents with Damages against petitioners, the Rural Bank of
Mangaldan, Inc. and the Register of Deeds of Dagupan City before the
Regional Trial Court.
PETITIONERS contend that the property pertained to the properties
originally belonging to the parents of Teodora Riofero and that the
titles thereof were delivered to her as an advance inheritance but the
decedent had managed to register them in his name. They contend
that the respondents are not the real parties-in-interest but rather the
Estate of Alfonso O. Orfinada, Jr. in view of the pendency of the
administration proceedings
TC: court denied the motion saying that respondents, as heirs, are the
real parties-in-interest especially in the absence of an administrator
who is yet to be appointed in S.P. Case No. 5118.
CA: affirmed the decision.
ISSUE: WON the heirs may bring suit to recover property of the
estate pending the appointment of an administrator? YES
HELD: Pending the filing of administration proceedings, the heirs
without doubt have legal personality to bring suit in behalf of the
estate of the decedent in accordance with the provision of Article 777
of the New Civil Code “that (t)he rights to succession are
transmitted from the moment of the death of the
decedent.” The provision in turn is the foundation of the principle
that the property, rights and obligations to the extent and value of the
inheritance of a person are transmitted through his death to another
or others by his will or by operation of law
Even if administration proceedings have already been commenced, the
heirs may still bring the suit if an administrator has not yet been
appointed. This is the proper modality despite the total lack of
advertence to the heirs in the rules on party representation, namely
Section 3, Rule 3 and Section 2, Rule 8] of the Rules of Court.
Gochan v. Young this Court recognized the legal standing of the heirs
to represent the rights and properties of the decedent under
administration pending the appointment of an administrator. Thus:
These rules are easily applicable to cases in which an
administrator has already been appointed. But no rule
categorically addresses the situation in which special
proceedings for the settlement of an estate have already been
instituted, yet no administrator has been appointed.
In such instances, the heirs cannot be expected to wait for the
appointment of an administrator; then wait further to see if the
administrator appointed would care enough to file a suit to protect the
rights and the interests of the deceased; and in the meantime do
nothing while the rights and the properties of the decedent are
violated or dissipated.
Even if there is an appointed administrator, jurisprudence recognizes
two exceptions, viz: (1) if the executor or administrator is unwilling or
refuses to bring suit and (2) when the administrator is alleged to have
participated in the act complained of and he is made a party
defendant. Evidently, the necessity for the heirs to seek judicial relief
to recover property of the estate is as compelling when there is no
appointed administrator, if not more, as where there is an appointed
administrator but he is either disinclined to bring suit or is one of the
guilty parties himself.
All told, therefore, the rule that the heirs have no legal standing to sue
for the recovery of property of the estate during the pendency of
administration proceedings has three exceptions, the third being when
there is no appointed administrator such as in this case.
18 - HEIRS OF CALPATURA, SR vs. PRADO
January 20, 2004
FACTS: Spouses Patricio Prado Sr. and Narcisa Prado owned a
residential land. Subsequently, Patricio died. Narcisa subsequently
married Bonifacio Calpatura. In order to support her minor children
with her first husband, Narcisa sold to her brother-in-law, Tomas
Calpatura, Sr., the northern half portion of the said property.
On April 8, 1991, respondents, Prado, et al, filed a complaint for
declaration of nullity of sale and delivery of possession of the northern
half portion of the subject property against petitioners Calpatura, et al.
Respondents alleged among others that Narcisa, as natural guardian of
her children, had no authority to sell the northern half portion of the
property which she and her children co-owned.
ISSUE: WON the sale of Narcisa’s conjugal share is valid.
RULING: YES. The property being conjugal, upon the death of Patricio
Prado, Sr., one-half of the subject property was automatically reserved
to the surviving spouse, Narcisa, as her share in the conjugal
partnership. Patricio’s rights to the other half, in turn, were transmitted
upon his death to his heirs, which includes his widow Narcisa, who is
entitled to the same share as that of each of the legitimate children.
Inasmuch as Narcisa inherited one-seventh (1/7) of her husband's
conjugal share in the said property and is the owner of one-half (1/2)
thereof as her conjugal share, she owns a total of 9/14 of the subject
property. Hence, Narcisa could validly convey her total undivided share
in the entire property to Tomas. Narcisa and her children are deemed
co-owners of the subject property.
While Narcisa could validly sell one half of the subject property, her
share being 9/14 of the same, she could not have particularly
conveyed the northern portion thereof before the partition, the terms
of which was still to be determined by the parties before the trial
court.
19 - EDUARDO FELIPE, HERMOGENA V. FELIPE AND VICENTE
V. FELIPE, petitioners,
vs.
HEIRS OF MAXIMO ALDON, NAMELY: GIMENA ALMOSARA,
SOFIA ALDON, SALVADOR ALDON, AND THE HONORABLE
COURT OF APPEALS, respondents.
FACTS: Maximo Aldon married Gimena Almosara in 1936. The spouses
bought several pieces of land in Masbate. In 1951, Gimena Almosara
sold the THREE lots to the spouses Eduardo Felipe and Hermogena V.
Felipe. The sale was made without the consent of her husband,
Maximo.
On 1976, the heirs of Aldon filed a complaint against the Felipes to
recover the said properties alleging that were the owners of the lots
that they had orally mortgaged the same to the defendants and an
offer to redeem the mortgage had been refused.
The RTC ruled in favor of the Felipes however, this was reversed by
the CA ruling that the plaintiffs are entitled to recover the ownership of
the lots in question. Concerning the sale made in 1951 of the disputed
lots, it is not a forgery. The fact is that the sale made by Gimena
10
 Wills and Succession Case Digests
Almosara is "invalid" having been executed without the needed
consent of her husband, the lots being conjugal.
ISSUE 1: What is the nature of the contract
HELD: VOIDABLE . According to Article 166 of the CC, subject to
certain exceptions, the husband cannot alienate or encumber any real
property of the conjugal partnership without the wife's consent. In this
case, Gimena,the wife, sold lands belonging to the conjugal
partnership without the consent of the husband and the sale is not
covered by the phrase "except in cases provided by law."
ISSUE 2: Can the heirs of Aldon ask for the annulment said voidable
contract?
HELD: NO. The voidable contract of Gimena was subject to annulment
by her husband only during the marriage because he was the victim
who had an interest in the contract. Gimena, who was the party
responsible for the defect, could not ask for its annulment.
Their children could not likewise seek the annulment of the contract
while the marriage subsisted because they merely had an inchoate
right to the lands sold.
The case of Sofia and Salvador Aldon is DIFFERENT. After the death of
Maximo they acquired the right to question the defective contract
insofar as it deprived them of their hereditary rights in their father's
share in the lands. The children's cause of action accrued from the
death of their father in 1959 and they had thirty (30) years to institute
it (Art. 1141, Civil Code.) They filed action in 1976 which is well within
the period.
20 - G.R. No. L-60101 August 31, 1983
EASTERN SHIPPING LINES, INC
vs.
JOSEPHINE LUCERO
Facts: On October 31, 1979, Capt. Julio J. Lucero, Jr. was appointed
by petitioner Eastern Shipping Lines, Inc, as master/captain to its
vessel M/V Eastern Minicon plying the Hongkong – Manila route. Under
the contract, his employment was good for one (1) round trip only,
i.e., the contract would automatically terminate upon arrival of the
vessel at the Port of Manila, unless renewed. It was further agreed
that part of the captain's salary, while abroad, should be paid to Mrs.
Josephine Lucero, his wife, in Manila.
On February 16, 1980, while the vessel was enroute from Hongkong to
Manila where it was expected to arrive on February 18, 1980, Capt.
Lucero sent three (3) messages to the Company's Manila office. The
last message was:
FEBRUARY 16/80 2150 HRS
PHILIPPINE COAST GUARD
NEED IMMEDIATE ASSISTANCE POSITION 19-35 N 116-40 E
SEAWATER ENTERING INSIDE HATCH VESSEL INCLINING 15 TO 20
DEGREES PORT IF POSSIBLE SEND IMMEDIATE ASSISTANCE VESSEL
IN DANGER PREPARING TO ABANDON ANYTIME
MASTER
On July 16, 1980, Mrs. Lucero filed a complaint with the National
Seamen Board, for payment of her accrued monthly allotment and for
continued payment of said allotments until the M/V Minicon shall have
returned to the port of Manila. She contended that the contract of
employment entered into by her husband with the Company was on a
voyage-to-voyage basis, and that the same was to terminate only
upon the vessel's arrival in Manila.
On May 19, 1981, the Board rendered judgment in favor of Mrs.
Josephine Lucero and against petitioner Company. The Board held that
the presumption of death could not be applied because the four-year
period provided for by Article 391(l) of the Civil Code had not yet
expired.
National Labor Relations Commission affirmed the said decision. It held
that the person to be presumed dead should first "not been heard of
for four years since the loss of the vessel" before he can be presumed
dead for all purposes. Applied to Capt. LUCERO, it is evidently
premature to presume him dead as four years has not yet expired.
Indeed, by the terms of the appointment of Capt. LUCERO, his
engagement terminates upon the return of the vessel at the Port of
Manila. He is considered to be still working entitling his spouse to
allotment until the vessel returns or until it is officially declared totally
lost, or until the presumption of his death becomes effective in which
case the burden of proving that he is alive is shifted to his wife for
purposes of continuing her allotment.
Article 391 of the Civil Code provides that:
Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs: (1) A person on
board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has not been heard of for four years since the loss of the
vessel or aeroplane.
Issue: Whether or not presumption of death under Article 391 (1)
would apply. NO
Held: It is undisputed that on February 16, 1980, the Company
received three (3) radio messages from Capt. Lucero on board the M/V
Eastern Minicon the last of which, received at 9:50 p.m. of that day,
was a call for immediate assistance in view of the existing "danger":
"sea water was entering the hatch"; the vessel "was listing 50 to 60
degrees port," and they were "preparing to abandon the ship any
time.' After this message, nothing more has been heard from the
vessel or its crew until the present time.
There is thus enough evidence to show the circumstances attending
the loss and disappearance of the M/V Eastern Minicon and its
crew. The foregoing facts, quite logically, are sufficient to lead
us to a moral certainty that the vessel had sunk and that the
persons aboard had perished with it. Upon this premise, the rule
on presumption of death under Article 391 (1) of the Civil Code must
yield to the rule of preponderance of evidence. As this Court said
in Joaquin vs. Navarro". Where there are facts, known or knowable,
from which a rational conclusion can be made, the presumption does
not step in, and the rule of preponderance of evidence controls."
21 - EMILIO EMNACE, petitioner, vs. COURT OF APPEALS,
ESTATE OF VICENTE TABANAO, SHERWIN TABANAO, VICENTE
WILLIAM TABANAO, JANETTE TABANAO DEPOSOY, VICENTA
MAY TABANAO VARELA, ROSELA TABANAO and VINCENT
TABANAO, respondents.[G.R. No. 126334. November 23,
2001]
Topic: Article 777. The rights to the succession are transmitted from
the moment of the death of the decedent.
Facts:
Petitioner Emilio Emnace, Vicente Tabanao and
JacintoDivinagracia were partners in a business, the Ma. Nelma
Fishing Industry.
In 1986, they decided to dissolve their partnership and executed an
agreement of partition and distribution of the partnership properties
among them, consequent to Divinagracia’s withdrawal from the
partnership.
Assets to be distributed: 5 fishing boats, 6 vehicles, 2 parcels of land
and cash deposits in BPI and Prudential Bank.
Throughout the existence of the partnership, and even after Tabanao’s
untimely demise in 1994, Emnace failed to submit to Tabanao’s heirs
any statement of assets and liabilities of the partnership, and to render
an accounting of the partnership’s finances. Emnace also reneged on
his promise to turn over to Tabanao’s heirs the deceased’s 1/3 share in
the total assets of the partnership, amounting to P30M or the sum of
P10M.
Tabanao’s heirs, respondents herein, filed against Emnace an action
for accounting, payment of shares, division of assets and damages. In
11
 Wills and Succession Case Digests
the amended complaint, the respondents are asking for Emnace to be
ordered to “sell all (the partnership’s) assets and thereafter
pay/remit/deliver/surrender/yield to the plaintiffs” their corresponding
share in the proceeds thereof.
Emanace’s defense in relation to Art 777: Lack of capacity of the
estate of Tabanao to sue. Emnace asserts that the surviving spouse of
Vicente Tabanao has no legal capacity to sue since she was never
appointed as administratrix or executrix of his estate.
Issue: W/N the heirs have legal capacity to sue -- YES
Ruling:
Petitioner The surviving spouse does not need to be appointed as
executrix or administratrix of the estate before she can file the
action. She and her children are complainants in their own right as
successors of Vicente Tabanao.
From the very moment of Vicente Tabanao’s death, his rights insofar
as the partnership was concerned were transmitted to his heirs, for
rights to the succession are transmitted from the moment of death of
the decedent.
Whatever claims and rights Vicente Tabanao had against the
partnership and petitioner were transmitted to respondents by
operation of law, more particularly by succession, which is a mode of
acquisition by virtue of which the property, rights and obligations to
the extent of the value of the inheritance of a person are transmitted.
Moreover, respondents became owners of their respective hereditary
shares from the moment Vicente Tabanao died. A prior settlement of
the estate, or even the appointment of Salvacion Tabanao as executrix
or administratrix, is not necessary for any of the heirs to acquire legal
capacity to sue. As successors who stepped into the shoes of their
decedent upon his death, they can commence any action originally
pertaining to the decedent. From the moment of his death, his rights
as a partner and to demand fulfillment of petitioner’s obligations as
outlined in their dissolution agreement were transmitted to
respondents.
They, therefore, had the capacity to sue and seek the court’s
intervention to compel petitioner to fulfill his obligations.
NO 2nd Set
3rd Set
ARTICLE 788
Dizon Rivera vs Dizon
MARINA DIZON-RIVERA, executrix-appellee, vs. ESTELA DIZON,
TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON, ANGELINA
DIZON and LILIA DIZON, oppositors-appellants.
FACTS: On January 28, 1961, the testatrix, Agripina J. Valdez. a
widow, died in Angeles, Pampanga, and was survived by seven
compulsory heirs, to wit, six legitimate children named Estela Dizon,
Tomas V. Dizon, Bernardita Dizon, Marina Dizon (herein executrix-
appellee), Angelina Dizon and Josefina Dizon, and a legitimate grand-
daughter named Lilia Dizon, who is the only legitimate child and heir of
Ramon Dizon, a pre-deceased legitimate son of the said decedent
Six of these seven compulsory heirs (except Marina Dizon, the
executrix-appellee) are the oppositors-appellants.
The deceased testatrix left a last will executed on February 2, I960 and
written in the Pampango dialect. Named beneficiaries in her will were
the above-named compulsory heirs, together with seven other
legitimate grandchildren, namely Pablo Rivera, Jr., Gilbert D. Garcia,
Cayetano Dizon, Francisco Rivera, Agripina Ayson, Jolly Jimenez and
Laureano Tiambon
In her will, the testatrix divided, distributed and disposed of all her
properties appraised at P1,801,960.00 (except, two small parcels of
land appraised at P5,849.60, household furniture valued at P2,500.00,
a bank deposit in the sum of P409.95 and ten shares of Pampanga
Sugar Development Company valued at P350.00) among her
abovenamed heirs.
The real and personal properties of the testatrix at the time of her
death thus had a total appraised value of P1,811,695.60, and the
legitime of each of the seven compulsory heirs amounted to
P129,362.11. 3 (1/7 of the half of the estate reserved for the legitime
of legitimate children and descendants).
In her will, the testatrix "commanded that her property be divided" in
accordance with her testamentary disposition, whereby
she devised and bequeathed specific real properties comprising
practically the entire bulk of her estate among her six children and
eight grandchildren.
Marina as executrix filed a project partition adjudicating the estate of
the deceased. This was opposed by the other 6 of the 7
abovementioned.
ISSUE: WON the persons named in the will are considered as heirs or
as devisees or legatees because the repetition of the phrase “I
bequeath”
Held: As heirs.
Articles 788 and 791 of the NCC provide:
"(I)f a testamentary disposition admits of different interpretations, in
case of doubt, that interpretation by which the disposition is to be
operative shall be preferred" and "(T)he words of a will are to receive
an interpretation which will give to every expression some effect,
rather than one which will render any of .the expressions inoperative;
and of two modes of interpreting a will, that is to be preferred which
will prevent intestacy."
In Villanueva vs. Juico 6 for violation of these rules of interpretation
as well as of Rule 123, section 59 of the old Rules of Court, 7 the
Court, speaking through Mr. Justice J.B.L. Reyes, overturned the lower
court's decision and stressed that "the intention and wishes of the
testator, when clearly expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial, relative to its
execution and fulfillment, must be settled in accordance therewith,
following the plain and literal meaning of the testator's words, unless it
clearly appears that his intention was otherwise."
The testator's wishes and intention constitute the first and principal
law in the matter of testaments, and to paraphrase an early decision of
the Supreme Court of Spain. 9 when expressed clearly and precisely in
his last will amount to the only law whose mandate must imperatively
be faithfully obeyed and complied with by his executors, heirs and
devisees and legatees, and neither these interested parties nor the
courts may substitute their own criterion for the testator's will. Guided
and restricted by these fundamental premises, the Court finds for the
appellee.
Decisive of the issues at bar is the fact that the testatrix'
testamentary disposition was in the nature of a partition of
her estate by will. Thus, in the third paragraph of her will after
commanding that upon her death all her obligations as well as the
expenses of her last illness and funeral and the expenses for probate
of her last will and for the administration of her property in accordance
with law, be paid, she expressly provided that "it is my wish and I
12
 Wills and Succession Case Digests
command that my property be divided" in accordance with the
dispositions immediately thereafter following, whereby she specified
each real property in her estate and designated the particular heir
among her seven compulsory heirs and seven other grandchildren to
whom she bequeathed the same. This was a valid partition 10 of her
estate, as contemplated and authorized in the first paragraph of Article
1080 of the Civil Code, providing that "(S)hould a person make a
partition of his estate by an act inter vivos or by will, such partition
shall be respected, insofar as it does not prejudice the legitime of the
compulsory heirs." This right of a testator to partition his estate is
subject only to the right of compulsory heirs to their legitime
The repeated use of the words — "I bequeath'' in the testamentary
dispositions acquire no legal significance, such as to convert the same
into devises to be taken solely from the free one-half disposable
portion of the estate, where it clearly appears from the whole context
of the will and the disposition by the testatrix of her whole estate that
her clear intention was to partition her whole estate through her will.
The testatrix intent that her testamentary dispositions were by way of
adjudications to her beneficiaries as heirs and not as devisees, and
that said dispositions are on account of the respective legitime of the
compulsory heirs is expressly borne out in the testamentary
adjudications which state that "in case any of those I name as my
heirs in this testament any of them shall die before I do, his forced
heirs under the law enforced at the time of my death shall inherit the
properties I bequeath to said deceased
Vda. De Villanueva vs Juico
G.R. No. L-15737 February 28, 1962
LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-appellant,
vs.DELFIN N. JUICO, in his capacity as Judicial Administrator
of the testate estate of FAUSTA NEPOMUCENO,defendant-
appellee.
FACTS: On October 9, 1908, Don Nicolas Villaflor, a wealthy man of
Castillejos, Zambales, executed a will in Spanish in his own
handwriting, devising and bequeathing in favor of his wife, Dona
Fausta Nepomuceno, one-half of all his real and personal properties,
giving the other half to his brother Don Fausto Villaflor.
The 12th clause of the will provided, however, that Clauses 6th and
7th thereof would be deemed annulled from the moment he bore any
child with Doña Fausta Nepomuceno.
Don Nicolas Villaflor died on March 3, 1922, without begetting any
child with his wife Doña Fausta Nepomuceno. The latter, already a
widow, thereupon instituted Special Proceeding No. 203 of the Court of
First Instance of Zambales, for the settlement of her husband's estate
and in that proceeding, she was appointed judicial administratrix. In
due course of administration, she submitted a project of partition, In
the order of November 24, 1924, the probate court approved the
project of partition and declared the proceeding closed. As the project
of partition now shows Doña Fausta Nepomuceno received by virtue
thereof the ownership and possession of a considerable amount of real
and personal estate. By virtue also of the said project of partition, she
received the use and possession of all the real and personal properties
mentioned and referred to in Clause 7th of the will. The order
approving the project of partition, however, expressly provided that
approval thereof was "sin perjuicio de lo dispuesto en la clausula 8.o
del testamento de Nicolas Villaflor." .
On May 1, 1956, Doña Fausta Nepomuceno died without having
contracted a second marriage, and without having begotten any child
with the deceased Nicolas Villaflor. Her estate is now being settled in
Special Proceeding No. Q-1563 in the lower court, with the defendant
Delfin N. Juico as the duly appointed and qualified judicial
administrator.
The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to be the
same Leonor Villaflor mentioned by Don Nicolas Villaflor in his will as
his "sobrina nieta Leonor Villaflor".
Plaintiff Leonor Villaflor instituted the present action against the
administrator of the estate of the widow Fausta Nepomuceno, on
February 8, 1958, contending that upon the widow's death, said
plaintiff became vested with the ownership of the real and personal
properties bequeathed by the late Nicolas Villaflor to clause 7 of his
will, pursuant to its eight (8th) clause. Defendant's position, adopted
by the trial court, is that the title to the properties aforesaid became
absolutely vested in the widow upon her death, on account of the fact
that she never remarried.
ISSUE: W/N the subject properties became absolutely vested in the
widow upon her death. NO.
RULING: We agree with appellant that the plain desire and intent of
the testator, as manifested in clause 8 of his testament, was to invest
his widow with only a usufruct or life tenure in the properties
described in the seventh clause, subject to the further condition
(admitted by the appellee) that if the widow remarried, her rights
would thereupon cease, even during her own lifetime. That the widow
was meant to have no more than a life interest in those properties,
even if she did not remarry at all, is evident from the expressions used
by the deceased "uso y posesion mientras viva" (use and possession
while alive) in which the first half of the phrase "uso y posesion"
instead of "dominio" or "propiedad") reinforces the second ("mientras
viva"). The testator plainly did not give his widow the full ownership of
these particular properties, but only the right to their possession and
use (or enjoyment) during her lifetime. This is in contrast with the
remainder of the estate in which she was instituted universal heir
together with the testator's brother (clause 6).
The court below, in holding that the appellant Leonor Villaflor, as
reversionary legatee, could succeed to the properties bequeathed by
clause 7 of the testament only in the event that the widow remarried,
has unwarrantedly discarded the expression "mientras viva," and
considered the words "uso y posesion" as equivalent to "dominio"
(ownership). In so doing, the trial court violated Article 791 of the Civil
Code of the Philippines.
Speculation as to the motives of the testator in imposing the conditions
contained in clause 7 of his testament should not be allowed to
obscure the clear and unambiguous meaning of his plain words, which
are over the primary source in ascertaining his intent. It is well to note
that if the testator had intended to impose as sole condition the non-
remarriage of his widow, the words "uso y posesion mientras viva"
would have been unnecessary, since the widow could only remarry
during her own lifetime.
Technical words in a will are to be taken in their technical sense,
unless the context clearly indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn solely by the testator,
and that he was unacquainted with such technical sense.
The Supreme Court has laid the doctrine in In re Estate of Calderon,
26 Phil., 233, that the intention and wishes of the testator, when
clearly expressed in his will, constitute the fixed law of interpretation,
and all questions raised at the trial, relative to its execution and
fulfillment, must be settled in accordance therewith, following the plain
and literal meaning of the testator's words, unless it clearly appears
that his intention was otherwise.
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 Wills and Succession Case Digests
As already shown, the testament of Don Nicolas Villaflor clearly and
unmistakably provided that his widow should have the possession and
use of the legacies while alive and did not remarry. It necessarily
follows that by the express provisions of the 8th clause of his will, the
legacies should pass to the testator's "sobrinanieta", appellant herein,
upon the widow's death, even if the widow never remarried in her
lifetime. Consequently, the widow had no right to retain or dispose of
the aforesaid properties, and her estate is accountable to the
reversionary legatee for their return, unless they had been lost due to
fortuitous event, or for their value should rights of innocent third
parties have intervened.
Del Rosario vs Del Rosario
RAMON DEL ROSARIO, plaintiff-appellee, vs. CLEMENTE DEL
ROSARIO, defendant-appellant.
WILLARD, J.:
FACTS: Don Nicolas del Rosario died in this city on July 14, 1897,
leaving a last will, the eighth, ninth, eleventh, and eighteenth clauses
of which are as follows:
 Eight. The testator declares that the 5,000 pesos which he brought to
his marriage he hereby bequeathes to his nephew Enrique Gloria y
Rosario and Ramon del Rosario, natural children of his brother
Clemente del Rosario, notwithstanding the fact that they purport to be
the issue of the marriage of Escolastico Gloria and Rosendo del
Rosario, successively.
 Ninth. The testator declares that the said sum of 5,000 pesos is to be
divided, 3,000 pesos for the first named and 2,000 pesos for the
second named, the delivery of the said sums to be effected by the wife
of the testator, provided that these young men behave themselves as
they have done up to the present time, and do not cease to study until
taking the degree of bachelor of arts, and then take a business course,
if their health will permit, their support to be paid out of the
testamentary estate and they to live in the house of the widow.
 Eleventh. The testator declares that in a case the said young men
should be still engaged in study at the time of the death of the
testator's wife, they shall continue to be supported at the expense of
the testamentary estate, without deducting such expenses from their
legacies, if they should desire to continue the same studies.
 Eighteenth. The testator further states that although his wife is at the
present time fifty-five years of age, and consequently is not likely to
marry again, as she herself says, nevertheless it is impossible that the
opposite of what she asserts might occur, and, if so, then it is to be
regarded as sufficient reason to authorize the young men Ramon and
Enrique, so often referred to, separate from their aunt, in which event
they are to be supported by the testamentary estate on a small
allowance of twenty-five pesos per month, provided that they continue
their studies or should be in poor health, this without in any respect
reducing the amount of their shares.
Don Ramon del Rosario, one of the persons mentioned in these
clauses, brought this action in 1902 against Don Clemente del Rosario,
the then executor, asking, among other things, that the said executor
pay him an allowance from the death of the widow of the testator at
the rate of 75 pesos a month, and that the executor allow him to live
in the house in which the widow was living at that time.
The widow of the testator, Doña Honorata Valdez, died on July 7,
1900.
The court below ordered judgment in respect to this allowance, and
the right to live in the house as prayed for by the plaintiff.
Don Ramon del Rosario claims in this action that he is now entitled, by
virtue of both wills, to a certain part of the share of the estates left to
said Doña Luisa during her life, and he asks that the defendant be
directed to render accounts and to proceed to the partition of the said
estates.
The controversy between the parties upon this branch of the case is as
follows:
The defendant claims that the plaintiff is entitled to nothing under the
wills, because the gift to him was conditional, the condition being that
he should be the natural son of Don Clemente, recognized by the latter
as such in one of the ways pointed out by the Civil Code; that he can
not prove such recognition, the parol evidence presented at the trial
being prohibited by said Code, and that he has therefore not complied
with the condition.
The plaintiff claims that such evidence was proper, that both wills state
that Don Ramon del Rosario is the natural son of Don Clemente, and
that in any event the bequests are made to the plaintiff by name.
RULING: The court below, holding the parol evidence immaterial,
ordered judgment for the plaintiff as prayed for.
(1) So far as the disposition of that part of the inheritance left in the
aunt's will to Doña Luisa for life is concerned, the question is free from
doubt. It is distinctly declared that Ramon del Rosario and Enrique
Gloria shall take certain parts of it after 1,000 pesos have been
deducted. They are pointed out by name as the legatees. It is true
that they are called the natural sons of Don Clemente. But this is
merely a further description of persons already well identified, and, if
false, can be rejected in accordance with the provision of article 773 of
the Civil Code, which by article 789 is applicable to legatees.
Balanay vs Martinez
G.R. No. L-39247 June 27, 1975
petitioner, vs. HON. ANTONIO M. MARTINEZ, Judge of the
Court of First Instance of Davao, Branch VI; AVELINA B.
ANTONIO and DELIA B. LANABAN, respondents.
Facts:
Leodegaria Julian was survived by her husband, Felix Balanay, Sr., and
by their six legitimate children named Felix Balanay, Jr., Avelina B.
Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban
and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed a petition for the probate of his mother's
notarial will dated September 5, 1970 which is written in English. In
that will Leodegaria Julian declared (a) that she was the owner of the
"southern half of nine conjugal lots; (b) that she was the absolute
owner of two parcels of land which she inherited from her father, and
(c) that it was her desire that her properties should not be divided
among her heirs during her husband's lifetime and that their legitimes
should be satisfied out of the fruits of her properties. Then, in
paragraph V of the will she stated that after her husband's death her
paraphernal lands and all the conjugal lands (which she described as
"my properties") should be divided and distributed in the manner set
forth in that part of her will. She devised and partitioned the conjugal
lands as if they were all owned by her. She disposed of in the will her
husband's one half share of the conjugal assets.
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the
will. Felix Balanay, Jr., in his reply attached thereto an affidavit of Felix
Balanay, Sr. wherein he withdrew his opposition to the probate of the
will and signed an instrument captioned "Conformation (sic) of Division
and Renunciation of Hereditary Rights" wherein he manifested that he
"waived and renounced' his hereditary rights in her estate in favor of
their six children. In that same instrument he confirmed the
agreement, which he and his wife had perfected before her death, that
their conjugal properties would be partitioned in the manner indicated
in her will.
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 Wills and Succession Case Digests
Avelina B. Antonio contended that the affidavit and "conformation" of
Felix Balanay, Sr. were void. The lower court "denied" the opposition
and reset for hearing the probate of the will. It gave effect to the
affidavit and conformity of Felix Balanay, Sr. Mrs. Antonio moved for
the reconsideration of the lower court's order on the grounds (a) that
the testatrix illegally claimed that she was the owner of the southern
half of the conjugal lots and (b) that she could not partition the
conjugal estate by allocating portions of the nine lots to her children.
In the meanwhile, David O. Montaña, Sr., claiming to be the lawyer of
petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros),
filed a motion to withdraw probate of alleged will of Leodegaria Julian
and requesting authority to proceed by intestate estate proceeding."
The lower court, acting on the motions of Atty. Montaña, adopted the
view of Attys. Montaña and Guyo that the will was void. So, it
dismissed the petition for the probate, converted the testate
proceeding into an intestate proceeding, ordered the issuance of a
notice to creditors and set the intestate proceeding for hearing. The
lower court did not abrogate its prior orders of June 18 and October
15, 1973.
Felix Balanay, Jr.,asked for the reconsideration on the ground that
Atty. Montaña had no authority to withdraw the petition for the
allowance of the will. Avelina B. Antonio and Delia B. Lanaban opposed
the motion for reconsideration. The lower court denied the motion.
Issue:
Whether the probate court erred in passing upon the intrinsic validity
of the will, before ruling on its allowance or formal validity. NO
Whether the probate court erred in declaring the will void.
YES (Article 792)
Held:
The trial court acted correctly in passing upon the will's intrinsic
validity even before its formal validity had been established. The
probate of a will might become an idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand
that the intrinsic validity of the will be passed upon, even before it is
probated, the court should meet the issue.
But the probate court erred in declaring that the will was void and in
converting the testate proceeding into an intestate proceeding
notwithstanding the fact that in its order of June 18, 1973 , it gave
effect to the surviving husband's conformity to the will and to his
renunciation of his hereditary rights which presumably included his
one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained
in a will does not result in the invalidity of the other dispositions,
unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been
made" (Art. 792, Civil Code). "Where some of the provisions of a
will are valid and others invalid, the valid parts will be upheld if they
can be separated from the invalid without defeating the intention of
the testator or interfering with the general testamentary scheme, or
doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern
half of the conjugal lands is contrary to law because, although
she was a co-owner thereof, her share was inchoate
and proindiviso (Art. 143, Civil Code). But that illegal
declaration does not nullify the entire will. It may be
disregarded.
The provision of the will that the properties of the testatrix should not
be divided among her heirs during her husband's lifetime but should
be kept intact and that the legitimes should be paid in cash is contrary
to article 1080 of the Civil Code which reads:
ART. 1080. Should a person make a partition of his estate by an
act inter vivos, or by will, such partition shall be respected, insofar as it
does not prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, to keep any
agricultural, industrial, or manufacturing enterprise intact, may avail
himself of the right granted him in this article, by ordering that the
legitime of the other children to whom the property is not assigned be
paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate
among her six children (her husband had renounced his hereditary
rights and his one-half conjugal share). She did not assign the whole
estate to one or more children as envisaged in article 1080. Hence, she
had no right to require that the legitimes be paid in cash. On the other
hand, her estate may remain undivided only for a period of twenty
years. So, the provision that the estate should not be divided during
her husband's lifetime would at most be effective only for twenty years
from the date of her death unless there are compelling reasons for
terminating the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his
one-half share of the conjugal partnership (Arts. 179[1] and 1041, Civil
Code) but insofar as said renunciation partakes of a donation of his
hereditary rights and his one-half share in the conjugal estate (Art.
1060[1] Civil Code), it should be subject to the limitations prescribed in
articles 750 and 752 of the Civil Code. A portion of the estate should
be adjudicated to the widower for his support and maintenance. Or at
least his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the
will is intrinsically valid and the partition therein may be given effect if
it does not prejudice the creditors and impair the legitimes. The
distribution and partition would become effective upon the death of
Felix Balanay, Sr. In the meantime, the net income should be equitably
divided among the children and the surviving spouse.
It should be stressed that by reason of the surviving husband's
conformity to his wife's will and his renunciation of his hereditary
rights, his one-half conjugal share became a part of his deceased
wife's estate. His conformity had the effect of validating the partition
made in paragraph V of the will without prejudice, of course, to the
rights of the creditors and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the
making of a will shall only pass thereby, as if the testator had it at the
time of making the will, should it expressly appear by the will that such
was his intention". Under article 930 of the Civil Code "the legacy or
devise of a thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if the thing
bequeathed, though not belonging to the testator when he made the
will, afterwards becomes his, by whatever title, the disposition shall
take effect."
In the instant case there is no doubt that the testatrix and her
husband intended to partition the conjugal estate in the manner set
forth in paragraph V of her will. It is true that she could dispose of by
will only her half of the conjugal estate (Art. 170, Civil Code) but since
the husband, after the dissolution of the conjugal partnership, had
assented to her testamentary partition of the conjugal estate, such
partition has become valid, assuming that the will may be probated.
In the instant case, the preterited heir was the surviving spouse. His
preterition did not produce intestacy. Moreover, he signified his
conformity to his wife's will and renounced his hereditary rights. .
It results that the lower court erred in not proceeding with the probate
of the will as contemplated in its uncancelled order of June 18, 1973.
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 Wills and Succession Case Digests
ARTICLE 789
Estate of Rigor vs Rigor
ESTATE OF RIGOR VS RIGOR
G.R. No. L-22036 April 30, 1979
FACTS: Father Rigor, the parish priest of Pulilan, Bulacan, died on
August 9, 1935, leaving a will executed on October 29, 1933 which
was probated by the CFI in its order of December 5, 1935
This case is about the efficaciousness or enforceability of a devise of
ricelands located at Guimba, Nueva Ecija, with a total area of around
forty- four hectares That devise was made in the will of the late Father
Pascual Rigor, in favor of his nearest male relative who would study for
the priesthood.
on February 19, 1954, the parish priest of Victoria filed in the pending
testate proceeding a petition praying for the appointment of a new
administrator (succeeding the deceased administration Florencia
Rigor), who should deliver to the church the said ricelands, and further
praying that the possessors thereof be ordered to render an
accounting of the fruits.
The intestate heirs of Father Rigor countered with a petition dated
March 25, 1957 praying that the bequest be declared inoperative and
that they be adjudged as the persons entitled to the said ricelands
since, as admitted by the parish priest of Victoria, "no nearest male
relative of" the testator "has ever studied for the priesthood"
ISSUE: WON the will executed was operative? NO
HELD: The will of the testator is the first and principal law in the
matter of testaments. When his intention is clearly and precisely
expressed, any interpretation must be in accord with the plain and
literal meaning of his words, except when it may certainly appear that
his intention was different from that literally expressed.
From the foregoing testamentary provisions, it may be deduced that
the testator intended to devise the ricelands to his nearest male
relative who would become a priest, who was forbidden to sell the
ricelands, who would lose the devise if he discontinued his studies for
the priesthood, or having been ordained a priest, he was
excommunicated, and who would be obligated to say annually twenty
masses with prayers for the repose of the souls of the testator and his
parents.
On the other hand, it is clear that the parish priest of Victoria would
administer the ricelands only in two situations: one, during the interval
of time that no nearest male relative of the testator was studying for
the priesthood and two, in case the testator's nephew became a priest
and he was excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no haya
legatario acondicionado", or how long after the testator's death would
it be determined that he had a nephew who would pursue an
ecclesiastical vocation. It is that patent ambiguity that has brought
about the controversy between the parish priest of Victoria and the
testator's legal heirs.
SC held that the said bequest refers to the testator's nearest male
relative living at the time of his death and not to any indefinite time
thereafter. "In order to be capacitated to inherit, the heir, devisee or
legatee must be living at the moment the succession opens, except in
case of representation, when it is proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or reasonably
construed. To construe them as referring to the testator's nearest male
relative at anytime after his death would render the provisions difficult
to apply and create uncertainty as to the disposition of his estate. That
could not have been his intention.
In 1935, when the testator died, his nearest leagal heirs were his three
sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and
Mrs. Quiambao. Obviously, when the testator specified his nearest
male relative, he must have had in mind his nephew or a son of his
sister, who would be his third-degree relative, or possibly a
grandnephew. But since he could not prognosticate the exact date of
his death or state with certitude what category of nearest male relative
would be living at the time of his death, he could not specify that his
nearest male relative would be his nephew or grandnephews (the son
of his nephew or niece) and so he had to use the term "nearest male
relative".
It is contended by the legal heirs that the said devise was in reality
intended for Ramon Quiambao, the testator's nephew and godchild,
who was the son of his sister, Mrs. Quiambao. To prove that
contention, the legal heirs presented in the lower court the affidavit of
Beatriz Gamalinda, the maternal grandmother of Edgardo Cunanan,
who deposed that after Father Rigor's death her own son, Valentin
Gamalinda, Jr., did not claim the devise, although he was studying for
the priesthood at the San Carlos Seminary, because she (Beatriz) knew
that Father Rigor had intended that devise for his nearest male relative
beloning to the Rigor family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G.
Cunanan, was not the one contemplated in Father Rigor's will and that
Edgardo's father told her that he was not consulted by the parish
priest of Victoria before the latter filed his second motion for
reconsideration which was based on the ground that the testator's
grandnephew, Edgardo, was studying for the priesthood at the San
Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo
ceased to be a seminarian in 1961. For that reason, the legal heirs
apprised the Court of Appeals that the probate court's order
adjudicating the ricelands to the parish priest of Victoria had no more
leg to stand on (p. 84, Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence
aliunde as to the testator's intention and which is hearsay, has no
probative value. Our opinion that the said bequest refers to the
testator's nephew who was living at the time of his death, when his
succession was opened and the successional rights to his estate
became vested, rests on a judicious and unbiased reading of the terms
of the will.
Had the testator intended that the "cualquier pariente mio varon mas
cercano que estudie la camera eclesiatica" would include indefinitely
anyone of his nearest male relatives born after his death, he could
have so specified in his will He must have known that such a broad
provision would suspend for an unlimited period of time the
efficaciousness of his bequest.
What then did the testator mean by "el intervalo de tiempo que no
haya legatario acondicionado"? The reasonable view is that he was
referring to a situation whereby his nephew living at the time of his
death, who would like to become a priest, was still in grade school or
in high school or was not yet in the seminary. In that case, the parish
priest of Victoria would administer the ricelands before the nephew
entered the seminary. But the moment the testator's nephew entered
the seminary, then he would be entitled to enjoy and administer the
ricelands and receive the fruits thereof. In that event, the trusteeship
would be terminated.
Following that interpretation of the will the inquiry would be whether
at the time Father Rigor died in 1935 he had a nephew who was
studying for the priesthood or who had manifested his desire to follow
the ecclesiastical career. That query is categorically answered in
paragraph 4 of appellant priest's petitions of February 19, 1954 and
January 31, 1957. He unequivocally alleged therein that "not male
relative of the late (Father) Pascual Rigor has ever studied for the
priesthood" (pp. 25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who
became a priest, the unavoidable conclusion is that the bequest in
question was ineffectual or inoperative. Therefore, the administration
of the ricelands by the parish priest of Victoria, as envisaged in the wilt
was likewise inoperative.
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 Wills and Succession Case Digests
The appellant in contending that a public charitable trust was
constituted by the testator in is favor assumes that he was a trustee or
a substitute devisee That contention is untenable. A reading of the
testamentary provisions regarding the disputed bequest not support
the view that the parish priest of Victoria was a trustee or a substitute
devisee in the event that the testator was not survived by a nephew
who became a priest.
It should be understood that the parish priest of Victoria could become
a trustee only when the testator's nephew living at the time of his
death, who desired to become a priest, had not yet entered the
seminary or, having been ordained a priest, he was excommunicated.
Those two contingencies did not arise, and could not have arisen in
this case because no nephew of the testator manifested any intention
to enter the seminary or ever became a priest.
The Court of Appeals correctly ruled that this case is covered by article
888 of the old Civil Code, now article 956, which provides that if "the
bequest for any reason should be inoperative, it shall be merged into
the estate, except in cases of substitution and those in which the right
of accretion exists"
This case is also covered by article 912(2) of the old Civil Code, now
article 960 (2), which provides that legal succession takes place when
the will "does not dispose of all that belongs to the testator." There
being no substitution nor accretion as to the said ricelands the same
should be distributed among the testator's legal heirs. The effect is as
if the testator had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate and
partly intestate, or that there may be mixed succession. The old rule
as to the indivisibility of the testator's win is no longer valid. Thus, if a
conditional legacy does not take effect, there will be intestate
succession as to the property recovered by the said legacy (Macrohon
Ong Ham vs. Saavedra, 51 Phil. 267).
Del Rosario vs Del Rosario
Facts:
1. Don Nicolas del Rosario died in this city on July 14, 1897, leaving a
last will. The ninth clause of the will states:
Ninth. The testator declares that the said sum of 5,000 pesos is to be
divided, 3,000 pesos Ramon del Rosario and 2,000 pesos to Clemente
del Rosario, the delivery of the said sums to be effected by the wife of
the testator, provided that these young men behave themselves as
they have done up to the present time, and do not cease to study until
taking the degree of bachelor of arts, and then take a business course,
if their health will permit, their support to be paid out of the
testamentary estate and they to live in the house of the widow.
2. Don Ramon del Rosario, one of the persons mentioned in these
clauses, brought this action in 1902 against Don Clemente del Rosario,
the then executor, asking, among other things, that the said executor
pay him an allowance from the death of the widow of the testator at
the rate of 75 pesos a month, and that the executor allow him to live
in the house in which the widow was living at that time.
3. Likewise, Ramon del Rosario further claimed that he is entitled to a
certain share in the estate left to Dona Luisa, sister of Don Nicolas. In
his will, Don Nicolas bequeathed to Dona Luisa the usufruct of the
revenue of certain property and that upon her death, P 1,000 shall be
given to her male children while the remainder will be paid to Enrique
and Ramon.
4. Respondent, Clemente del Rosario argues that Ramon is not entitled
to any estate because the gifts to him were conditional, that Ramon
del Rosario should be natural child of Don Nicolas, recognized by the
latter as such based on the Civil Code However, Ramon del Rosario
cannot prove the same.
Issue:
W/N Ramon is entitled to the allowance and the right to live in the
widow’s house.
W/N Ramon is entitled to his claim over the estate left to Dona Luisa
by Don Nicolas.
Holding:
1. No. While by the eight clause the support of the plaintiff and of Don
Enrique Gloria is charged against the estate, yet the eleventh clause
makes it plain that this unconditional right was to last only during the
lifetime of the widow. After her death the right to this allowance is
made to depend on the continuance of their studies. That this is the
correct construction of the will is made more plain by the eighteenth
clause above quoted. In the case of their separation from their aunt by
her remarriage, they were entitled to the specified allowance of 25
pesos a month only on condition that they were pursuing their studies
or were in poor health. The court did not find that the plaintiff was still
pursuing his studies. On the contrary, he found that the plaintiff had
fulfilled the condition by obtaining the degree of Bachelor of Arts in
1898. The right to live in the house of the widow terminated at her
death.
2. Yes. So far as the disposition of that part of the inheritance left in
the aunt's will to Doña Luisa for life is concerned, the question is free
from doubt. It is distinctly declared that Ramon del Rosario and
Enrique Gloria shall take certain parts of it after 1,000 pesos have been
deducted. They are pointed out by name as the legatees. It is true
that they are called the natural sons of Don Clemente. But this is
merely a further description of persons already well identified, and, if
false, can be rejected in accordance with the provision of article 773 of
the Civil Code, which by article 789 is applicable to legatees.
Rabadilla vs CA
Note: This is the same case under Article 776.
Art. 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of this estate, to take effect after his death. (667a)
FACTS:
In a Codicil appended to the Last Will and Testament of testatrix Aleja
Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of Johnny S.
Rabadilla) was instituted as a devisee of a parcel of land with specific
obligation (deliver 100 piculs of sugar) which on the event of latter's
death is to be performed by his heirs.
Maria Marlena Coscolluela y Belleza Villacarlos (private respondent)
brought complaint against heir of Dr. Jorge Rabadilla to enforce
provisions of codicil. It was alleged that they violated the conditions
when the land was mortgaged to Republic Planter's bank and upon
failure to comply with the specific obligation.
Thereafter, petitioner entered into amicable settlement and MOA on
the obligation to deliver 100 piculs of sugar. However, there was no
compliance with MOA except for partial delivery.
Before SC, Petitioner contends that the private respondent has only a
right of usufruct but not the right to seize the property itself from the
instituted heir because the right to seize was expressly limited to
violations by the buyer, lessee or mortgagee.
ISSUE: WON Maria may seize the property; YES
HELD: In the interpretation of Wills, when an uncertainty arises on the
face of the Will, as to the application of any of its provisions, the
testator's intention is to be ascertained from the words of the Will,
taking into consideration the circumstances under which it was made.
Such construction as will sustain and uphold the Will in all its parts
must be adopted.
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Subject Codicil provides that the instituted heir is under obligation to
deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza
Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge
Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they
sell, lease, mortgage or otherwise negotiate the property involved. The
Codicil further provides that in the event that the obligation to deliver
the sugar is not respected, Marlena Belleza Coscuella shall seize the
property and turn it over to the testatrix's near descendants. The non-
performance of the said obligation is thus with the sanction of seizure
of the property and reversion thereof to the testatrix's near
descendants. Since the said obligation is clearly imposed by the
testatrix, not only on the instituted heir but also on his successors-in-
interest, the sanction imposed by the testatrix in case of non-
fulfillment of said obligation should equally apply to the instituted heir
and his successors-in-interest.
ISSUE 2: WON the will may be subject to compromise agreement; NO
Similarly unsustainable is petitioner's submission that by virtue of the
amicable settlement, the said obligation imposed by the Codicil has
been assumed by the lessee, and whatever obligation petitioner had
become the obligation of the lessee; that petitioner is deemed to have
made a substantial and constructive compliance of his obligation
through the consummated settlement between the lessee and the
private respondent, and having consummated a settlement with the
petitioner, the recourse of the private respondent is the fulfillment of
the obligation under the amicable settlement and not the seizure of
subject property.
Suffice it to state that a Will is a personal, solemn, revocable and free
act by which a person disposes of his property, to take effect after his
death. Since the Will expresses the manner in which a person intends
how his properties be disposed, the wishes and desires of the testator
must be strictly followed. Thus, a Will cannot be the subject of a
compromise agreement which would thereby defeat the very purpose
of making a Will.
ARTICLE 791
Dizon Rivera vs Dizon
FACTS: Agripina J. Valdez's testamentary disposition was in the nature
of a partition of her estate by will. Thus, in the third paragraph of her
will, after commanding that upon her death all her obligations as well
as the expenses of her last illness and funeral and the expenses for
probate of her last will and for the administration of her property in
accordance with law, be paid, she expressly provided that "it is my
wish and I command that my property be divided" in accordance with
the dispositions immediately thereafter following, whereby she
specified each real property in her estate and designated the particular
heir among her seven compulsory heirs and seven other grandchildren
to whom she bequeathed the same.
In her will, the testatrix "commanded that her property be divided" in
accordance with her testamentary disposition, whereby she devised
and bequeathed specific real properties comprising practically the
entire bulk of her estate among her six children and eight
grandchildren.
It clearly appears from the whole context of the will and the
disposition by the testatrix of her whole estate (save for some small
properties of little value already noted at the beginning of this opinion)
that her clear intention was to partition her whole estate through her
will. The repeated use of the words "I bequeath" in her testamentary
dispositions acquire no legal significance, such as to convert the same
into devises to be taken solely from the free one-half disposable
portion of the estate.
Vda De Villaflor vs Juico
LEONOR VILLAFLOR VDA. DE VILLANUEVA, plaintiff-appellant,
vs. DELFIN N. JUICO, in his capacity as Judicial Administrator
of the testate estate of FAUSTA NEPOMUCENO,defendant-
appellee.
FACTS: On October 9, 1908, Don Nicolas Villaflor, a wealthy man of
Castillejos, Zambales, executed a will in Spanish in his own
handwriting, devising and bequeathing in favor of his wife, Dona
Fausta Nepomuceno, one-half of all his real and personal properties,
giving the other half to his brother Don Fausto Villaflor.
The 12th clause of the will provided, however, that Clauses 6th and
7th thereof would be deemed annulled from the moment he bore any
child with Doña Fausta Nepomuceno.
Don Nicolas Villaflor died on March 3, 1922, without begetting any
child with his wife Doña Fausta Nepomuceno. The latter, already a
widow, thereupon instituted Special Proceeding No. 203 of the Court of
First Instance of Zambales, for the settlement of her husband's estate
and in that proceeding, she was appointed judicial administratrix. In
due course of administration, she submitted a project of partition, In
the order of November 24, 1924, the probate court approved the
project of partition and declared the proceeding closed. As the project
of partition now shows Doña Fausta Nepomuceno received by virtue
thereof the ownership and possession of a considerable amount of real
and personal estate. By virtue also of the said project of partition, she
received the use and possession of all the real and personal properties
mentioned and referred to in Clause 7th of the will. The order
approving the project of partition, however, expressly provided that
approval thereof was "sin perjuicio de lo dispuesto en la clausula 8.o
del testamento de Nicolas Villaflor." .
On May 1, 1956, Doña Fausta Nepomuceno died without having
contracted a second marriage, and without having begotten any child
with the deceased Nicolas Villaflor. Her estate is now being settled in
Special Proceeding No. Q-1563 in the lower court, with the defendant
Delfin N. Juico as the duly appointed and qualified judicial
administrator.
The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to be the
same Leonor Villaflor mentioned by Don Nicolas Villaflor in his will as
his "sobrina nieta Leonor Villaflor".
Plaintiff Leonor Villaflor instituted the present action against the
administrator of the estate of the widow Fausta Nepomuceno, on
February 8, 1958, contending that upon the widow's death, said
plaintiff became vested with the ownership of the real and personal
properties bequeathed by the late Nicolas Villaflor to clause 7 of his
will, pursuant to its eight (8th) clause. Defendant's position, adopted
by the trial court, is that the title to the properties aforesaid became
absolutely vested in the widow upon her death, on account of the fact
that she never remarried.
ISSUE: W/N the subject properties became absolutely vested in the
widow upon her death. NO.
RULING: We agree with appellant that the plain desire and intent of
the testator, as manifested in clause 8 of his testament, was to invest
his widow with only a usufruct or life tenure in the properties
described in the seventh clause, subject to the further condition
(admitted by the appellee) that if the widow remarried, her rights
would thereupon cease, even during her own lifetime. That the widow
was meant to have no more than a life interest in those properties,
even if she did not remarry at all, is evident from the expressions used
by the deceased "uso y posesion mientras viva" (use and possession
while alive) in which the first half of the phrase "uso y posesion"
instead of "dominio" or "propiedad") reinforces the second ("mientras
viva"). The testator plainly did not give his widow the full ownership of
these particular properties, but only the right to their possession and
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use (or enjoyment) during her lifetime. This is in contrast with the
remainder of the estate in which she was instituted universal heir
together with the testator's brother (clause 6).
The court below, in holding that the appellant Leonor Villaflor, as
reversionary legatee, could succeed to the properties bequeathed by
clause 7 of the testament only in the event that the widow remarried,
has unwarrantedly discarded the expression "mientras viva," and
considered the words "uso y posesion" as equivalent to "dominio"
(ownership). In so doing, the trial court violated Article 791 of the Civil
Code of the Philippines.
Speculation as to the motives of the testator in imposing the conditions
contained in clause 7 of his testament should not be allowed to
obscure the clear and unambiguous meaning of his plain words, which
are over the primary source in ascertaining his intent. It is well to note
that if the testator had intended to impose as sole condition the non-
remarriage of his widow, the words "uso y posesion mientras viva"
would have been unnecessary, since the widow could only remarry
during her own lifetime.
Technical words in a will are to be taken in their technical sense,
unless the context clearly indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn solely by the testator,
and that he was unacquainted with such technical sense.
The Supreme Court has laid the doctrine in In re Estate of Calderon,
26 Phil., 233, that the intention and wishes of the testator, when
clearly expressed in his will, constitute the fixed law of interpretation,
and all questions raised at the trial, relative to its execution and
fulfillment, must be settled in accordance therewith, following the plain
and literal meaning of the testator's words, unless it clearly appears
that his intention was otherwise.
As already shown, the testament of Don Nicolas Villaflor clearly and
unmistakably provided that his widow should have the possession and
use of the legacies while alive and did not remarry. It necessarily
follows that by the express provisions of the 8th clause of his will, the
legacies should pass to the testator's "sobrinanieta", appellant herein,
upon the widow's death, even if the widow never remarried in her
lifetime. Consequently, the widow had no right to retain or dispose of
the aforesaid properties, and her estate is accountable to the
reversionary legatee for their return, unless they had been lost due to
fortuitous event, or for their value should rights of innocent third
parties have intervened.
Yambao vs Gonzales
FACTS:
Delfin Yambao brought the present action to have the Court order
Angelina Gonzales and Maria Pablo to appoint him as tenant on the
parcels of land inherited by them from Maria Gonzales.
The basis of Yambao in the present action is the following provisions of
Maria Gonzales’ will:
Dapat din naman malaman ng dalawa kong tagapagmana na sila
MARIA PABLO at ANGELINA GONZALES na sila ay may dapat
TUNGKULIN O GANGPANAN GAYA ng mga sumusunod:
x x x x x x x x x because of the disposition where the mother declared that she owned
(2) Pahihintulutan nila na si Delfin Yambao ang makapagtrabajo ng
bukid habang panahon, at ang nasabing bukid ay isasailalim ng
pamamahala ng Albasea samantalang ang bukid ay nasa usapin at
may utang pa.
Defendants averred that the provisions of the will relied upon by
plaintiff is not mandatory; that the determination of who should be the
tenant of the land is vested in a special court.
The Court held that the defendants are not legally compelled to follow
such provisions invoking Art. 797 of the Civil Code.
ISSUE: WON the Trial Court erred in its interpretation of the will. YES
HELD:
The trial court has not properly interpreted the real import of the wish
of the testatrix. Analyzing it carefully we will find that the same
contains a clear directive to employ appellant as may be seen from the
words preceding the word "pahihintulutan", which say: "Dapat din
naman malaman ng dalawa kong tagapagmana na sila MARIA PABLO
at ANGELINA GONZALES na sila ay may dapat TUNGKULIN O
GANGPANAN GAYA ng mga sumusunod." The words 'dapat
TUNGKULIN O GANGPANAN" mean to do or to carry out as a mandate
or directive, and having reference to the word "pahihintulutan", can
convey no other meaning than to impose a duty upon appellees. To
follow the interpretation given by the trial court would be to devoid the
wish of the testatrix of its real and true meaning.
Article 797 of the old Civil Code, invoked by the trial court, is
inapplicable. That refers to an institution of an heir intended to be
conditional by providing that a statement to the effect cannot be
considered as a condition unless it appears clearly that such is the
intention of the testator. We are not faced here with any conditional
institution of heirship. What we have is a clear-cut mandate which the
heirs cannot fail to carry out.
ARTICLE 792
Balanay, Jr. vs Martinez
BALANAY vs. MARTINEZ
GR No. L-39247 June 27, 1975
ART 780. Mixed succession is that effected partly by will and
partly by operation of law.
FACTS:
 Leodegaria Julian died and was survived by Felix Balanay Sr. and their
6 children.
 Felix Balanay Jr, one of the 6 children, filed a petition for the probate
of their mother’s notarial will.
 Their mother’s will declared that:
1. She owned the “southern half” of the conjugal lots.
2. Her paraphernal lands and all the conjugal lands be divided
and distributed in the manner set forth in the will.
 Avelina Antonio and Felix Balanay Sr. opposed Balanay Jr’s petition,
but an affidavit was filed where Felix Balanay Sr. withdrew his
opposition and renounced his hereditary rights over the estate of his
wife.
 Avelina contended that the affidavit of renunciation was void.
 A new lawyer, Atty. Montana, appeared in behalf of Felix Balanay Jr,
withdrawing the petition for probate of will and requesting for an
intestate proceeding instead. Such was granted by the probate court.
 Felix Balanay Jr. with a new lawyer filed a motion for reconsideration
on the ground that Atty. Montana had no authority to withdraw the
petition.
 The probate court denied the motion and the will was declared void
the “southern half” of the properties.
 The disposition was declared illegal because she cannot declare
ownership over the undivided conjugal properties, as her right as a co-
owner was inchoate and pro-indiviso.
 The court then ordered for intestate proceedings to commence instead
of testate.
ISSUE:
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 WON mixed succession may occur in this case? YES
HELD:
 For mixed succession to occur, the invalid disposition must be
separable from the valid dispositions. The invalid disposition must not
be a condition to the valid disposition.
 The probate court acted correctly in passing upon the intrinsic validity
of the will before establishing its formal validity.
 Where practical considerations demand that the intrinsic validity of the
will be passed upon, even before it is probated, the court should meet
the issues.
 But the probate court erred in declaring that the will was void and in
converting the testate proceeding into an intestate proceeding.
 The rule is that the invalidity of one of several dispositions contained in
a will does not result in the invalidity of the other disposition, unless it
is presumed that the testator would not have made such other
dispositions if the first invalid disposition had not been made.
 Hence, if there are certain dispositions in a will that are not valid, it will
not render the whole will invalid. The will remains valid, and the valid
dispositions should be followed.
 The rule is testacy is favored over intestacy. The policy of the State is
to give effect to the wishes of the testator as much as possible.
 The illegal disposition of Leodegaria declaring that she owned the
“southern half” of the properties can be rendered invalid, but the
entire will is not nullified.
 Where some of the provisions of a will are valid and others invalid, the
valid parts will be upheld if they can be separated from the invalid
without defeating the intention of the testator or interfering with the
general testamentary scheme, or doing injustice to the beneficiaries.
 The statement of the testatrix that she owned the "southern half of
the conjugal lands is contrary to law because, although she was a co-
owner thereof, her share was inchoate and pro-indiviso. But That
illegal declaration does not nullify the entire will. It may be
disregarded.
 Hence, testacy should be favored over intestacy. The valid dispositions
of Leodegaria in her will should be followed, while the invalid ones
shall be effected by operation of law. (mixed succession)
ARTICLE 795
In Re Will of Riosa
Facts:
Jose Riosa died on 1917. He left a will made on 1908, in which he
disposed of an estate. The will was duly executed in accordance with
the law then in force, namely, section 618 of the Code of Civil
Procedure . The will was not executed in accordance with Act No.
2645, amendatory of said section 618, prescribing certain additional
formalities for the signing and attestation of wills, in force on and after
July 1, 1916. In other words, the will was in writing, signed by the
testator, and attested and subscribed by three credible witnesses in
the presence of the testator and of each other; but was not signed by
the testator and the witnesses on the left margin of each and every
page, nor did the attestation state these facts. The new law, therefore,
went into effect after the making of the will and before the death of
the testator, without the testator having left a will that conforms to the
new requirements.
Issue: The issue which this appeal presents is whether in the
Philippine Islands the law existing on the date of the execution of a
will, or the law existing at the death of the testator, controls.
Ruling:
The rule prevailing in many other jurisdictions is that the validity of the
execution of a will must be tested by the statutes in force at the time
of its execution and that statutes subsequently enacted have no
retrospective effect.
We cannot lose sight of the fact that the testator has provided in detail
for the disposition of his property and that his desires should be
respected by the courts. Justice is a powerful pleader for the second
and third rules on the subject.
In reality, the will becomes a completed act when the will is executed
and attested according to the law, although it does not take effect on
the property until a future time.
The language of Act No. 2645 gives no indication of retrospective
effect. The will in question is admittedly not executed and attested as
provided by the Code of Civil Procedure as amended. Nevertheless, it
is proper to observe that the general principle in the law of wills inserts
itself even within the provisions of said section 634. Our statute
announces a positive rule for the transference of property which must
be complied with as completed act at the time of the execution, so far
as the act of the testator is concerned, as to all testaments made
subsequent to the enactment of Act No. 2645, but is not effective as to
testaments made antecedent to that date.
Therefore, the will of Jose Riosa is valid.
Enriquez vs Abadia
In re: Will and Testament of the deceased REVEREND SANCHO
ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-
appellees, vs. MIGUEL ABADIA, ET AL., oppositors-appellants.
G.R. No. L-7188 August 9, 1954
FACTS: On September 6, 1923, Fr. Sancho Abadia executed a
document purporting to be his Last Will and Testament. He died
subsequently on January 14, 1943. He left properties estimated at
P8,000 in value.
On October 2, 1946, Andres Enriquez, one of the legatees
in said will filed a petition for its probate, in the same proceedings; no
opposition was filed by the other heirs. The trial court found and
declared that said will is a holographic will; that it was in the
handwriting of the testator and that although at the time it was
executed and at the time of the testator’s death, holographic wills
were not permitted by law. Still the court upheld its validity reasoning
that at the time of the hearing and when the case was decided, the
New Civil Code was already in force, and such code permitted the
execution of holographic wills. The TC’s ruling is in line with the liberal
view and in order to carry out the intention of the testator which
according to the TC is the controlling factor and may override any
defect in form.
ISSUE: WON the provisions of the new Civil Code allowing
holographic wills may be applied in order to validate Fr. Abadia’s will?
HELD: NO.
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Article 795 of this same new Civil Code expressly provides:
"The validity of a will as to its form depends upon the observance of
the law in force at the time it is made."
The above provision is but an expression or
statement of the weight of authority to the affect that the
validity of a will is to be judged not by the law enforce at the
time of the testator's death or at the time the supposed will is
presented in court for probate or when the petition is decided
by the court but at the time the instrument was executed. One
reason in support of the rule is that although the will operates upon
and after the death of the testator, the wishes of the testator about
the disposition of his estate among his heirs and among the legatees is
given solemn expression at the time the will is executed, and in reality,
the legacy or bequest then becomes a completed act. (In re Will of
Riosa, 39 Phil., 23.)
Of course, there is the view that the intention of the
testator should be the ruling and controlling factor and that all
adequate remedies and interpretations should be resorted to in order
to carry out said intention, and that when statutes passed after the
execution of the will and after the death of the testator lessen the
formalities required by law for the execution of wills, said subsequent
statutes should be applied so as to validate wills defectively executed
according to the law in force at the time of execution.
However, we should not forget that from the day of the
death of the testator, if he leaves a will, the title of the
legatees and devisees under it becomes a vested right,
protected under the due process clause of the constitution
against a subsequent change in the statute adding new legal
requirements of execution of wills which would invalidate
such a will.
By parity of reasoning, when one executes a will which is
invalid for failure to observe and follow the legal requirements at the
time of its execution then upon his death he should be regarded and
declared as having died intestate, and his heirs will then inherit by
intestate succession, and no subsequent law with more liberal
requirements or which dispenses with such requirements as to
execution should be allowed to validate a defective will and thereby
divest the heirs of their vested rights in the estate by intestate
succession. The general rule is that the Legislature cannot
validate void wills. (57 Am. Jur., Wills, Sec. 231, pp. 192-193).
Ibarle vs Po
BIENVENIDO IBARLE vs. ESPERANZA PO
GR No. L-5064 February 27, 1953
FACTS:
 Winstanley and Navarro were husband and wife. Winstanley died,
leaving Navarro and their minor children as heirs.
 Winstanley left a parcel of land in Cebu, which was conjugal property.
 Subsequently, Navarro sold the land to spouses Canoy. Canoy sold the
land to Ibarle.
 The two deeds of the two sales above were not registered.
 Navarro, after being appointed guardian of her minor children, sold
one-half of the subject land to Po.
 The children alleged that they are the rightful owners of the property
and filed an action to annul the sale.
ISSUE:
 WON the sale of the property to Po was valid? NO.
HELD:
 NO, the sale was void as it deprived the children of their right to the
inheritance, which was transmitted upon the death of Winstanley.
 When Catalina Navarro Vda. de Winstanley sold the entire parcel to
the Canoy spouses, one-half of it already belonged to the seller's
children.
 No formal or judicial declaration being needed to confirm the children's
title, it follows that the first sale was null and void in so far as it
included the children's share.
 It is immaterial whether a short or long period of time lapses between
the death of the predecessor and the entry into possession of the
property of the inheritance because the right is always deemed to be
retroactive from the moment of death.
 Article 657 of the old Civil Code provides that the rights to the
succession of a person are transmitted from the moment of his death.
in a slightly different language, this article is incorporated in the new
Civil Code as article 777.
 The moment of death is the determining factor when the heirs acquire
a definite right to the inheritance, whether such right is pure or
contingent.
 On the other hand, the sale to Po having been made by authority of
the competent court was undeniably legal and effective. The fact that
it has not been recorded is of no consequence. If registration were
necessary, still the non-registration would not avail in favor of Ibarle.
Testate Estate of the Late Alipio Abada vs Abaja
In re: Will and Testament of the deceased REVEREND SANCHO
ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-
appellees, vs. MIGUEL ABADIA, ET AL., oppositors-appellants.
G.R. No. L-7188 August 9, 1954
FACTS: On September 6, 1923, Fr. Sancho Abadia executed a
document purporting to be his Last Will and Testament. He died
subsequently on January 14, 1943. He left properties estimated at
P8,000 in value.
On October 2, 1946, Andres Enriquez, one of the legatees
in said will filed a petition for its probate, in the same proceedings; no
opposition was filed by the other heirs. The trial court found and
declared that said will is a holographic will; that it was in the
handwriting of the testator and that although at the time it was
executed and at the time of the testator’s death, holographic wills
were not permitted by law. Still the court upheld its validity reasoning
that at the time of the hearing and when the case was decided, the
New Civil Code was already in force, and such code permitted the
execution of holographic wills. The TC’s ruling is in line with the liberal
view and in order to carry out the intention of the testator which
according to the TC is the controlling factor and may override any
defect in form.
ISSUE: WON the provisions of the new Civil Code allowing
holographic wills may be applied in order to validate Fr. Abadia’s will?
HELD: NO.
Article 795 of this same new Civil Code expressly provides:
"The validity of a will as to its form depends upon the observance of
the law in force at the time it is made."
The above provision is but an expression or
statement of the weight of authority to the affect that the
validity of a will is to be judged not by the law enforce at the
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time of the testator's death or at the time the supposed will is
presented in court for probate or when the petition is decided
by the court but at the time the instrument was executed. One
reason in support of the rule is that although the will operates upon
and after the death of the testator, the wishes of the testator about
the disposition of his estate among his heirs and among the legatees is
given solemn expression at the time the will is executed, and in reality,
the legacy or bequest then becomes a completed act. (In re Will of
Riosa, 39 Phil., 23.)
Of course, there is the view that the intention of the
testator should be the ruling and controlling factor and that all
adequate remedies and interpretations should be resorted to in order
to carry out said intention, and that when statutes passed after the
execution of the will and after the death of the testator lessen the
formalities required by law for the execution of wills, said subsequent
statutes should be applied so as to validate wills defectively executed
according to the law in force at the time of execution.
However, we should not forget that from the day of the
death of the testator, if he leaves a will, the title of the
legatees and devisees under it becomes a vested right,
protected under the due process clause of the constitution
against a subsequent change in the statute adding new legal
requirements of execution of wills which would invalidate
such a will.
By parity of reasoning, when one executes a will which is
invalid for failure to observe and follow the legal requirements at the
time of its execution then upon his death he should be regarded and
declared as having died intestate, and his heirs will then inherit by
intestate succession, and no subsequent law with more liberal
requirements or which dispenses with such requirements as to
execution should be allowed to validate a defective will and thereby
divest the heirs of their vested rights in the estate by intestate
succession.The general rule is that the Legislature cannot
validate void wills. (57 Am. Jur., Wills, Sec. 231, pp. 192-193).
ARTICLE 16
Miciano vs Brimo
Testate Estate of Joseph G. Brimo, JUAN MICIANO,
administrator, petitioner-appellee, vs. ANDRE BRIMO, opponent-
appellant.
FACTS:
The judicial administrator of the estate of Joseph Brimo (Turkish
national) filed a scheme of partition. The testator provided in his will
that –
xx“it is my wish that the distribution of my property and everything in
connection with this, my will, be made and disposed of in accordance
with the laws in force in the Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I annul and cancel
beforehand whatever disposition found in this will favorable to the
person or persons who fail to comply with this request.”
Andre Brimo, one of the brothers of the deceased, opposed the
approval of the said scheme of partition on the ground that the
partition in question puts into effect the provisions of Joseph G.
Brimo's will which are not in accordance with the laws of his Turkish
nationality, for which reason they are void as being in violation or
article 10 of the Civil Code (Now Art. 16 of NCC).
ISSUES:
1.) WON the provision in the will of an alien which provides that his
estate be disposed in accordance with Philippine law may be given
effect. NO.
2.) WON the failure of the legatee to comply with the provisions of the
will prevented him from receiving his legacy. NO.
HELD:
1.) A provision of foreigner’s will to the effect that his properties shall
be distributed in accordance with Philippine law and not with the
national law, is illegal and void, for his national law cannot be ignored.
2.) The institution of legatees in this will is conditional, and the
condition is that the instituted legatees must respect the testator's will
to distribute his property, not in accordance with the laws of his
nationality, but in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee
who fails to comply with it, as the herein oppositor who, by his attitude
in these proceedings has not respected the will of the testator, as
expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to
law, for article 792 of the civil Code provides the following:
Impossible conditions and those contrary to law or good morals shall
be considered as not imposed and shall not prejudice the heir or
legatee in any manner whatsoever, even should the testator otherwise
provide.
And said condition is contrary to law because it expressly
ignores the testator's national law when, according to article
10 of the civil Code above quoted, such national law of the
testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is
considered unwritten, and the institution of legatees in said will is
unconditional and consequently valid and effective even as to the
herein oppositor.
Bellis vs Bellis
FACTS
Mr. Bellis was a citizen and resident of Texas at the time of his death.
He had five (5) legitimate children with his first wife, Mary Mallen,
whom he divorced. He had three (3) legitimate daughters with his
second wife, Violet, who survived him, and another three (3)
illegitimate children with another woman. Before he died, he executed
two (2) wills, disposing of his Texas properties, the other disposing his
Philippine properties. In both wills, he recognized his illegitimate
children but they were not given anything. Under Texas law, there are
no compulsory heirs or legitime reserved to illegitimate children.
Naturally, the illegitimate children, Maria Cristina and Merriam Palma,
opposed the wills on the ground that they were deprived of their
legitime as illegitimate children. Under Philippine law, they are entitled
to inherit even if they are illegitimate children. They claim that
Philippine law should be applied.
ISSUE
What law should be applied, the Philippine law or the Texas law? May
the illegitimate daughters inherit?
HELD
What applies is the Texas law. Mr. Bellis is a national and domicile of
Texas at the time of his death. Hence, both the intrinsic validity of the
will (substance or successional rights) and the extrinsic validity (forms
of the will) are governed by Texas law. Since under Texas law, the
decedent may dispose of his property as he wishes, the Will should be
respected. The illegitimate daughters are not entitled to any legitime.
22
 Wills and Succession Case Digests
Assuming that Texas law is in conflict of law rule providing that the
domiciliary system (law of domicile) should govern, the same should
not result in a reference back (renvoi) to the Philippine law since Mr.
Bellis was both a national and domicile of Texas at the time of his
death. Nonetheless, if Texas law has a conflict rule, renvoi would not
arise, since the properties covered by the second will are found in the
Philippines. The renvoi doctrine applied in the case of Aznar v. Garcia
cannot be applied since said doctrine is pertinent where the decedent
is a national of one country and domiciliary of another country.
Moreover, it has been pointed out that the decedent executed two (2)
wills- one to govern his Texas properties and the other his Philippine
estate; the latter being the basis of the argument of illegitimate
children that he intended Philippine law to govern. Assuming that such
was the intention of the decedent in executing a separate Philippine
will, it would not alter the law. As rule in Miciano v. Brimo, a provision
of foreigner’s will to the effect that his properties shall be distributed in
accordance with Philippine law and not with the national law, is illegal
and void, for his national law cannot be ignored.
Testate Estate of Christensen vs Garcia
FACTS:
Edward E. Christensen, though born in New York, migrated to
California, where he resided and consequently was considered a
California citizen. In 1913, he came to the Philippines where he
became a domiciliary until his death. However, during the entire period
of his residence in this country he had always considered himself a
citizen of California. In his will executed on March 5, 1951, he
instituted an acknowledged natural daughter, Maria Lucy Christensen
as his only heir, but left a legacy of sum of money in favor of Helen
Christensen Garcia who was rendered to have been declared
acknowledged natural daughter. Counsel for appellant claims that
California law should be applied; that under California law, the matter
is referred back to the law of the domicile; that therefore Philippine
law is ultimately applicable; that finally, the share of Helen must be
increased in view of the success ional rights of illegitimate children
under Philippine law. On the other hand, counsel for the heir of
Christensen contends that inasmuch as it is clear that under Article 16
of our Civil Code, the national law of the deceased must apply, our
courts must immediately apply the internal law of California on the
matter; that under California law there are no compulsory heirs and
consequently a testator could dispose of any property possessed by
him in absolute dominion and that finally, illegitimate children not
being entitled to anything and his will remain undisturbed.
ISSUE:
Whether or not the Philippine law should prevail in administering the
estate of Christensen?
RULING:
The court in deciding to grant more successional rights to Helen said in
effect that there are two rules in California on the matter: the internal
law which should apply to Californians domiciled in California; and the
conflict rule which should apply to Californians domiciled outside of
California. The California conflict rule says: “If there is no law to the
contrary in the place where personal property is situated, is deemed to
follow the person of its owner and is governed by the law of his
domicile.” Christensen being domiciled outside California, the law of his
domicile, the Philippines, ought to be followed. Where it is referred
back to California, it will form a circular pattern referring to both
country back and forth.
Cayetano vs Leonidas
FACTS: Adoracion Campos died, leaving her father, petitioner
Hermogenes Campos and her sisters (private respondents) as
surviving heirs. As Hermogenes Campos was the only compulsory heir,
he executed an Affidavit of Adjudication whereby he adjudicated unto
himself the ownership of the entire estate of the deceased Adoracion.
Nenita C. Paguia filed a petition for the reprobate of a will of the
deceased, Adoracion Campos, which was allegedly executed in the
United States and for her appointment as administratrix of the estate
of the deceased testatrix. She alleges among others that the testatrix
was a perminent resident of Pennsylvania, USA and was only
temporarily residing with her sister in Manila when she died; that
during her lifetime, the testatrix made her last will and testament
according to the laws of Pennsylvania, U.S.A., nominating Wilfredo
Barzaga of New Jersey as executor; that after the testatrix death, her
last will and testament was presented, probated, allowed, and
registered with the Registry of Wins at the County of Philadelphia,
U.S.A., that Clement L. McLaughlin, the administrator who was
appointed after Dr. Barzaga had declined and waived his appointment
as executor in favor of the former, is also a resident of Philadelphia,
U.S.A., and that therefore, there is an urgent need for the
appointment of an administratrix to administer and eventually
distribute the properties of the estate located in the Philippines.
The reprobate was opposed by Polly Cayetano alleging among other
things, that the will in question is a forgery; that the intrinsic
provisions of the will are null and void; and that even if pertinent
American laws on intrinsic provisions are invoked, the same could not
apply inasmuch as they would work injustice and injury to him.
Respondent judge issued an order stating that the Last Will and
Testament of the late Adoracion C. Campos is hereby admitted to and
allowed probate in the Philippines, and Nenita Campos Paguia is
hereby appointed Administratrix of the estate of said decedent.
ISSUE: WON the respondent judge erred in allowing the reprobate of
Adoracion's will, divesting Hermogenes of own his legitime which was
reserved by the law for him.
HELD: NO. Although on its face, the will appeared to have preterited
the petitioner and thus, the respondent judge should have denied its
reprobate outright, the private respondents have sufficiently
established that Adoracion was, at the time of her death, an American
citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A.
Therefore, under Article 16 par. (2) and 1039 of the Civil Code which
respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both with respect to
the order of succession and to the amount of successional rights and
to the intrinsic validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the
decedent.
the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not provide
for legitimes and that all the estate may be given away by the testatrix
to a complete stranger, the petitioner argues that such law should not
apply because it would be contrary to the sound and established public
policy and would run counter to the specific provisions of Philippine
Law.
It is a settled rule that as regards the intrinsic validity of the provisions
of the will, as provided for by Article 16(2) and 1039 of the Civil Code,
the national law of the decedent must apply.
23
 Wills and Succession Case Digests
PCIB vs Escolin
G.R. Nos. L-27860 and L-27896 March 29, 1974
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK,
Administrator of the Testate Estate of Charles Newton
Hodges, petitioner, vs. THE HONORABLE VENICIO ESCOLIN and
AVELINA A. MAGNO, respondents.
BARREDO, J.:p
Facts: On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving
a will executed on November 22, 1952 bequeathing everything to her
husband, Charles Newton Hodges. In the will of Mrs Hodges it was
provided that:
I give, devise and bequeath all of the rest, residue and remainder of
my estate to my husband Charles Newton Hodges; that he shall have
the right to manage, control, use and enjoy said estate during his
lifetime; that at the death of my said husband, Charles Newton
Hodges, I give, devise and bequeath all of the rest, residue and
remainder of my estate, to be equally divided among my brothers and
sisters, share and share alike; that I appoint my said husband, Charles
Newton Hodges, to be executor of this, my last will and testament.
When Mr. Hodges died, Philippine Commercial and Industrial Bank
(PCIB) became the administrator of the estate of C. N. Hodges. PCIB
respectfully states that:
The Spouses are American citizens originally from State of Texas USA
and acquired assets which constitutes their conjugal estate; that
Although Texas was the domicile of origin of the Hodges spouses, this
Honorable Court, conclusively found and categorically ruled that said
spouses had lived and worked for more than 50 years in Iloilo City and
had, therefore, acquired a domicile of choice in said city, which they
retained until the time of their respective deaths; that Linnie executed
her Last Will and Testament; that The Will of Linnie Jane Hodges, with
respect to the order of succession, the amount of successional rights,
and the intrinsic of its testamentary provisions, should be governed by
Philippine laws because:
(a) The testatrix, Linnie Jane Hodges, intended Philippine laws to
govern her Will;
(b) Article 16 of the Civil Code provides that "the national law of the
person whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found", shall prevail. However, the Conflict of Law of
Texas, which is the "national law" of the testatrix, Linnie Jane Hodges,
provide that the domiciliary law (Philippine law) should govern the
testamentary dispositions and successional rights over movables
(personal properties), and the law of the situs of the property (also
Philippine law as to properties located in the Philippines) with regards
immovable (real properties). Thus applying the "Renvoi Doctrine,
Philippine law should apply to the Will of Linnie Jane Hodges and to
the successional rights to her estate insofar as
her movable andimmovable assets in the Philippines are concerned.
xxx
8. Under Philippine and Texas law, the conjugal or community estate
of spouses shall, upon dissolution, be divided equally between them.
Thus, upon the death of Linnie Jane Hodges on May 23, 1957, one-half
(1/2) of the entirety of the assets of the Hodges spouses constituting
their conjugal estate pertained automatically to Charles Newton
Hodges, not by way of inheritance, but in his own right as partner in
the conjugal partnership. The other one-half (1/2) portion of the
conjugal estate constituted the estate of Linnie Jane Hodges. This is
the only portion of the conjugal estate capable of inheritance by her
heirs.
Avelina Magno filed her own "Motion for the Official Declaration of
Heirs of the Estate of Linnie Jane Hodges" stating that the applicable
law to the will of Mrs. Hodges is that of Texas, under which, she
alleges, there is no system of legitime, hence, she prayed that:
That of all the assets of the combined conjugal estate of Linnie Jane
Hodges and Charles Newton Hodges as they exist today, the estate of
Linnie Jane Hodges is clearly entitled to a portion more than fifty
percent (50%) as compared to the portion to which the estate of
Charles Newton Hodges may be entitled.
Issues:
1. What law shall govern the distribution of Mrs. Hodges’
estate?
2. How do you prove the laws of foreign countries?
Held:
1) Philippine Law. Since there is no reliable evidence as to what are
the applicable laws of Texas, U.S.A. "with respect to the order of
succession and to the amount of successional rights" that may be
willed by a testator which, under Article 16 of the Civil Code, are
controlling in the instant cases, in view of the undisputed Texan
nationality of the deceased Mrs. Hodges, these cases should be
returned to the court a quo, so that the parties may prove what said
law provides, it is premature for Us to make any specific ruling now on
either the validity of the testamentary dispositions herein involved or
the amount of inheritance to which the brothers and sisters of Mrs.
Hodges are entitled. But the law of Texas, in its conflicts of law rules,
provides that the domiciliary law governs the testamentary dispositions
and successional rights over movables or personal property, while the
law of the situs governs with respect to immovable property. Such that
with respect to both movable property, as well as immovable property
situated in the Philippines, the law of Texas points to the law of the
Philippines. Applying, therefore, the so-called "renvoi doctrine", as
enunciated and applied by this Honorable Court in the case of "In re
Christensen" (G.R. No. L-16749, Jan. 31, 1963), there can be no
question that Philippine law governs the testamentary provisions in the
Last Will and Testament of the deceased Linnie Jane Hodges, as well
as the successional rights to her estate, both with respect to movables,
as well as immovables situated in the Philippines.
2) The question of what are the laws of Texas governing the matters
herein issue is, in the first instance, one of fact, not of law. Elementary
is the rule that foreign laws may not be taken judicial notice of and
have to be proven like any other fact in dispute between the parties in
any proceeding, with the rare exception in instances when the said
laws are already within the actual knowledge of the court, such as
when they are well and generally known or they have been actually
ruled upon in other cases before it and none of the parties concerned
do not claim otherwise.
If one alleged that a certain provision in the national law of the
decedent, then he must prove that law as a fact like you prove any
other fact in dispute. The exceptions are:
1. If the foreign laws are within the actual knowledge of the
court.
2. When the court has considered before these laws in a
previous case and the parties do not oppose as to the
24
 Wills and Succession Case Digests
consideration of the court as to the existence of the foreign Upon the liberation of the Philippines by the American Forces in 1945,
law. Lorenzo was granted an accrued leave by the U. S. Navy, to visit his
wife and he visited the Philippines. He discovered that his wife Paula
was pregnant and was “living in” and having an adulterous relationship
with his brother, Ceferino Llorente.
Malang vs Moson
On December 4, 1945, Paula gave birth to a boy registered in the
Office of the Registrar of Nabua as “Crisologo Llorente,” with the
FACTS: Abdula contracted marriage with Aida and had 3
certificate stating that the child was not legitimate and the line for the
sons with her. Adbula then married for a second time with
father’s name was left blank.
Jubaida and no child was born out of that marriage.
Abdula divorced Aida. Abdula then married Nayo and they
Lorenzo refused to forgive Paula and live with her.
also had no child. Thereafter, he contracted another
marriage with Mabay and had a daughter with her. Not long
On February 2, 1946, the couple drew a written agreement to the
after, Abdula married 3 other Muslim women but eventually
effect that (1) all the family allowances allotted by the United States
divorced them. Abdula then married his 4th wife Neng,
Navy as part of Lorenzo’s salary and all other obligations for Paula’s
excluding the wives he divorced. They were childless.
daily maintenance and support would be suspended; (2) they would
Abdula died without leaving a will.
dissolve their marital union in accordance with judicial proceedings; (3)
they would make a separate agreement regarding their conjugal
property acquired during their marital life; and (4) Lorenzo would not
HELD: Abdula died intestate on December 1993. It is the
prosecute Paula for her adulterous act since she voluntarily admitted
Muslim Code which should determine the identification
her fault and agreed to separate from Lorenzo peacefully. The
of the heirs in the order of intestate succession and the
agreement was signed by both Lorenzo and Paula and was witnessed
respective shares of the heirs. The Muslim Code took
by Paula’s father and stepmother. The agreement was notarized by
effect on February 4, 1977. If a Muslim died before the
Notary Public Pedro Osabel
effectivity of the Muslim Code, the order of succession shall
be governed by the Civil Code.
Lorenzo returned to the United States and on November 16, 1951 filed
The status and capacity to succeed on the part of
for divorce with the Superior Court of the State of California in and
the individual parties who entered into each and every
for the County of San Diego. After due proceedings, the Court issued
marriage ceremony will depend upon the law in force at
an interlocutory judgment of divorce. On December 4, 1952, the
the time of the performance of the marriage rite. If the
divorce decree became final.
Muslim marriage took place during the effectivity of the Civil
Code and before the effectivity of the Muslim Code, he
Subsequently, Lorenzo returned to the Philippines and married Alicia F.
cannot marry again because under the Civil Code, only one
Llorente in Manila.[13] Apparently, Alicia had no knowledge of the first
marriage is valid. But when the marriage took place when
marriage even if they resided in the same town as Paula, who did not
the Muslim Code has taken effect, subsequent marriages are
oppose the marriage or cohabitation
allowed and valid. The right of the spouses to inherit will
depend on whether or not they have been validly married. If
From 1958 to 1985, Lorenzo and Alicia lived together as husband and
they are not validly married, then they do not have
wife. Their twenty-five (25) year union produced three children, Raul,
successional rights over their partner.
Luz and Beverly, all surnamed Llorente.
The status and capacity to succeed of the children
will depend upon the law in force at the time of
On March 13, 1981, Lorenzo executed a Last Will and Testament.
conception or birth of the child.
[read full text for specific contents; in summary, all properties were
As to property relations, it is the Civil Code that
bequeathed to Alicia and their children with Lorenzo, also making
determines and governs the property relations of the
Alicia the sole executor of the said will]
marriages in this case, for the reason that at the time of the
celebration of the marriages in question, the Civil Code was
On December 14, 1983, Lorenzo filed with the Regional Trial Court,
the only on marriage relations, including property relations
Iriga, Camarines Sur, a petition for the probate and allowance of his
between spouses, whether Muslim or non-Muslim.
last will and testament. On January 24, 1984, finding that the will was
duly executed, the trial court admitted the will to probate.[20]
Llorente vs CA
On June 11, 1985, before the proceedings could be terminated,
PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F. Lorenzo died.
LLORENTE, respondents.
On September 4, 1985, Paula filed with the same court a petition.
Deceased Lorenzo N. Llorente was an enlisted serviceman of the Paula contended (1) that she was Lorenzo’s surviving spouse, (2) that
United States Navy from March 10, 1927 to September 30, 1957 the various property were acquired during their marriage, (3) that
Lorenzo’s will disposed of all his property in favor of Alicia and her
On February 22, 1937, Lorenzo and petitioner Paula Llorente were children, encroaching on her legitime and 1/2 share in the conjugal
married in Nabua, Camarines Sur. property
Before the outbreak of the Pacific War, Lorenzo departed for the RTC: the divorce decree granted to the late Lorenzo Llorente is void
United States and Paula stayed in the conjugal home in barrio and inapplicable in the Philippines, therefore the marriage he
Antipolo, Nabua, Camarines Sur. contracted with Alicia Fortunato on January 16, 1958 at Manila is
likewise void. ... Alicia is not entitled to receive any share from the
On November 30, 1943, Lorenzo was admitted to United States estate even if the will especially said so her relationship with Lorenzo
citizenship and Certificate of Naturalization No. 5579816 was issued in having gained the status of paramour which is under Art. 739 (1)
his favor by the United States District Court, Southern District of New
York.

25
 Wills and Succession Case Digests
the court finds the petition of Paula Titular Llorente, meritorious, and
so declares the intrinsic disposition of the will of Lorenzo Llorente
dated March 13, 1981 as void and declares her entitled as conjugal
partner and entitled to one-half of their conjugal properties, and as
primary compulsory heir, Paula T. Llorente is also entitled to one-third
of the estate and then one-third should go to the illegitimate children,
Raul, Luz and Beverly
After the denial of Alicia's MR, the RTC modified its earlier decision,
stating that Raul and Luz Llorente are not children “legitimate or
otherwise” of Lorenzo since they were not legally adopted by him.[29]
Amending its decision of May 18, 1987, the trial court declared Beverly
Llorente as the only illegitimate child of Lorenzo, entitling her to one-
third (1/3) of the estate and one-third (1/3) of the free portion of the
estate.
CA affirmed RTC decision with a modification that Alicia is declared as
co-owner of whatever properties she and the deceased may have
acquired during the twenty-five (25) years of cohabitation
ISSUE: WON the divorce decree was invalid.
Held: No.
The fact that the late Lorenzo N. Llorente became an American citizen
long before and at the time of: (1) his divorce from Paula; (2)
marriage to Alicia; (3) execution of his will; and (4) death, is duly
established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily
governed by foreign law.
The Civil Code clearly provides:
“Art. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens of
the Philippines, even though living abroad.
“Art. 16. Real property as well as personal property is subject to the
law of the country where it is situated.
“However, intestate and testamentary succession, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the personwhose succession is under consideration, whatever
may be the nature of the property and regardless of the country
wherein said property may be found.” (emphasis ours)
Note: foreign laws do not prove themselves in our jurisdiction and our
courts are not authorized to take judicial notice of them. Like any
other fact, they must be alleged and proved
While the substance of the foreign law was pleaded, the Court
of Appeals did not admit the foreign law. The Court of Appeals and
the trial court called to the fore the renvoi doctrine, where the case
was “referred back” to the law of the decedent’s domicile, in this case,
Philippine law
While the trial court stated that the law of New York was not
sufficiently proven, in the same breath it made the categorical, albeit
equally unproven statement that “American law follows the ‘domiciliary
theory’ hence, Philippine law applies when determining the validity of
Lorenzo’s will
First, there is no such thing as one American law.
The "national law" indicated in Article 16 of the Civil Code cannot
possibly apply to general American law. There is no such law
governing the validity of testamentary provisions in the United States.
Each State of the union has its own law applicable to its citizens and in
force only within the State. It can therefore refer to no other than the
law of the State of which the decedent was a resident.[39] Second,
there is no showing that the application of the renvoi doctrine is called
for or required by New York State law.
The trial court held that the will was intrinsically invalid since it
contained dispositions in favor of Alice, who in the trial court’s
opinion was a mere paramour. The trial court threw the will out,
leaving Alice, and her two children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It declared Alice
entitled to one half (1/2) of whatever property she and Lorenzo
acquired during their cohabitation, applying Article 144 of the Civil
Code of the Philippines.
The hasty application of Philippine law and the complete disregard of
the will, already probated as duly executed in accordance with the
formalities of Philippine law, is fatal, especially in light of the factual
and legal circumstances here obtaining.
For failing to apply these doctrines, the decision of the Court of
Appeals must be reversed:
 In Van Dorn v. Romillo, Jr.[40] we held that owing to the nationality
principle embodied in Article 15 of the Civil Code, only Philippine
nationals are covered by the policy against absolute divorces, the same
being considered contrary to our concept of public policy and morality.
In the same case, the Court ruled that aliens may obtain divorces
abroad, provided they are valid according to their national law.
 Citing this landmark case, the Court held in Quita v. Court of
Appeals,[41] that once proven that respondent was no longer a Filipino
citizen when he obtained the divorce from petitioner, the ruling in Van
Dorn would become applicable and petitioner could “very well lose her
right to inherit” from him.
 In Pilapil v. Ibay-Somera,[42] we recognized the divorce obtained by
the respondent in his country, the Federal Republic of Germany.
There, we stated that divorce and its legal effects may be recognized
in the Philippines insofar as respondent is concerned in view of the
nationality principle in our civil law on the status of persons.
We hold that the divorce obtained by Lorenzo H. Llorente from his first
wife Paula was valid and recognized in this jurisdiction as a
matter of comity. Now, the effects of this divorce (as to the
succession to the estate of the decedent) are matters best left
to the determination of the trial court.
The clear intent of Lorenzo to bequeath his property to his second wife
and children by her is glaringly shown in the will he executed. We do
not wish to frustrate his wishes, since he was a foreigner, not covered
by our laws on “family rights and duties, status, condition and legal
capacity.”
Whether the will is intrinsically valid and who shall inherit from Lorenzo
are issues best proved by foreign law which must be pleaded and
proved. Whether the will was executed in accordance with the
formalities required is answered by referring to Philippine law. In fact,
the will was duly probated.
This case was remanded to the trial court.
Testate Estate of Suntay
FACTS:
On May 14, 1934, Jose Suntay, a Filipino citizen and resident of the
Philippines, died in Amoy, China, leaving real and personal properties
in the Philippines and a house in China. On Oct 15, 1934, the surviving
26
 Wills and Succession Case Digests
widow filed a petition in CFI of Bulacan for the probate of a last will
and testament claimed to have been executed and signed on the
Philippines on Nov 1929 by the late Jose Suntay. The petition was
denied because of the loss of said will after the filing of the petition
A few years after, Silvino Suntay, one of the surviving sons, claimed
that he had found among the documents of his late father, a will and
testament in Chinese characters and executed by the deceased on Jan
4, 1931, and that the same was filed, recorded and probated in China.
Silvino Suntay filed a petition in the intestate proceedings praying for
the probate of the will executed in the Philippines on November 1929
(Exhibit B) or of the will executed in Amoy, Fookien, China, on 4
January 1931.
ISSUE: WON the will executed in China can be probated in the
Philippines NO
HELD:
The fact that the municipal district court of Amoy, China, is a probate
court must be proved. The law of China on procedure in the probate or
allowance of wills must also be proved. The legal requirements for the
execution of a valid will in China in 1931 should also be established by
competent evidence. There is no proof on these points.
In the absence of proof that the municipal district court of Amoy is a
probate court and on the Chinese law of procedure in probate matters,
it may be presumed that the proceedings in the matter of probating or
allowing a will in the Chinese courts are the a deposition or to a
perpetuation of testimony, and even if it were so it does not measure
same as those provided for in our laws on the subject. It is a
proceedings in rem and for the validity of such proceedings personal
notice or by publication or both to all interested parties must be made.
The interested parties in the case were known to reside in the
Philippines. The evidence shows that no such notice was received by
the interested parties residing in the Philippines.
The order of the municipal district court of Amoy, China does not
purport to probate or allow the will which was the subject of the
proceedings. In view thereof, the will and the alleged probate thereof
cannot be said to have been done in accordance with the accepted
basic and fundamental concepts and principles followed in the probate
and allowance of wills. Consequently, the authenticated transcript of
proceedings held in the municipal district court of Amoy, China, cannot
be deemed and accepted as proceedings leading to the probate or
allowance of a will and, therefore, the will referred to therein cannot
be allowed, filed and recorded by a competent court of this country.
No 4th and 5th Set
6th Set
ARTICLE 804
FIRST DIVISION
G.R. No. 147145 January 31, 2005
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA
CAPONONG-NOBLE, petitioner,
vs.
ALIPIO ABAJA and NOEL ABELLAR, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the Decision2 of the
Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The
Court of Appeals sustained the Resolution3 of the Regional Trial Court
of Kabankalan, Negros Occidental, Branch 61 ("RTC-Kabankalan"),
admitting to probate the last will and testament of Alipio Abada
("Abada").
The Antecedent Facts
Abada died sometime in May 1940.4 His widow Paula Toray ("Toray")
died sometime in September 1943. Both died without legitimate
children.
On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then
Court of First Instance of Negros Occidental (now RTC-Kabankalan) a
petition,5 docketed as SP No. 070 (313-8668), for the probate of the
last will and testament ("will") of Abada. Abada allegedly named as his
testamentary heirs his natural children Eulogio Abaja ("Eulogio") and
Rosario Cordova. Alipio is the son of Eulogio.
Nicanor Caponong ("Caponong") opposed the petition on the ground
that Abada left no will when he died in 1940. Caponong further alleged
that the will, if Abada really executed it, should be disallowed for the
following reasons: (1) it was not executed and attested as required by
law; (2) it was not intended as the last will of the testator; and (3) it
was procured by undue and improper pressure and influence on the
part of the beneficiaries. Citing the same grounds invoked by
Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian,
Paz, Evangeline, Geronimo, Humberto, Teodora and Elena Abada
("Joel Abada, et al."), and Levi, Leandro, Antonio, Florian, Hernani and
Carmela Tronco ("Levi Tronco, et al."), also opposed the petition. The
oppositors are the nephews, nieces and grandchildren of Abada and
Toray.
On 13 September 1968, Alipio filed another petition6 before the RTC-
Kabankalan, docketed as SP No. 071 (312-8669), for the probate of
the last will and testament of Toray. Caponong, Joel Abada, et al., and
Levi Tronco, et al. opposed the petition on the same grounds they
cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a petition7 before the RTC-
Kabankalan, docketed as SP No. 069 (309), praying for the issuance in
his name of letters of administration of the intestate estate of Abada
and Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to
probate the will of Toray. Since the oppositors did not file any motion
for reconsideration, the order allowing the probate of Toray’s will
became final and executory.8
In an order dated 23 November 1990, the RTC-Kabankalan designated
Belinda Caponong-Noble ("Caponong-Noble") Special Administratrix of
the estate of Abada and Toray.9 Caponong-Noble moved for the
dismissal of the petition for probate of the will of Abada. The RTC-
Kabankalan denied the motion in an Order dated 20 August 1991.10
Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S.
Layumas discovered that in an Order dated 16 March 1992, former
Presiding Judge Edgardo Catilo had already submitted the case for
decision. Thus, the RTC-Kabankalan rendered a Resolution dated 22
June 1994, as follows:
27
 Wills and Succession Case Digests
There having been sufficient notice to the heirs as required by law;
that there is substantial compliance with the formalities of a Will as the
law directs and that the petitioner through his testimony and the
deposition of Felix Gallinero was able to establish the regularity of the
execution of the said Will and further, there being no evidence of bad
faith and fraud, or substitution of the said Will, the Last Will and
Testament of Alipio Abada dated June 4, 1932 is admitted and allowed
probate.
As prayed for by counsel, Noel Abbellar11 is appointed administrator of
the estate of Paula Toray who shall discharge his duties as such after
letters of administration shall have been issued in his favor and after
taking his oath and filing a bond in the amount of Ten Thousand
(P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio
Abada shall continue discharging her duties as such until further orders
from this Court.
SO ORDERED.12
The RTC-Kabankalan ruled on the only issue raised by the oppositors
in their motions to dismiss the petition for probate, that is, whether the
will of Abada has an attestation clause as required by law. The RTC-
Kabankalan further held that the failure of the oppositors to raise any
other matter forecloses all other issues.
Not satisfied with the Resolution, Caponong-Noble filed a notice of
appeal.
In a Decision promulgated on 12 January 2001, the Court of Appeals
affirmed the Resolution of the RTC-Kabankalan. The appellate court
found that the RTC-Kabankalan properly admitted to probate the will
of Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last will of Abada;
2. Whether the will of Abada requires acknowledgment
before a notary public;13
3. Whether the will must expressly state that it is written in
a language or dialect known to the testator;
4. Whether the will of Abada has an attestation clause, and
if so, whether the attestation clause complies with the
requirements of the applicable laws;
5. Whether Caponong-Noble is precluded from raising the
issue of whether the will of Abada is written in a language
known to Abada;
6. Whether evidence aliunde may be resorted to in the
probate of the will of Abada.
The Ruling of the Court
The Court of Appeals did not err in sustaining the RTC-Kabankalan in
admitting to probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws in force at that time
are the Civil Code of 1889 or the Old Civil Code, and Act No. 190 or
the Code of Civil Procedure14 which governed the execution of wills
before the enactment of the New Civil Code.
The matter in dispute in the present case is the attestation clause in
the will of Abada. Section 618 of the Code of Civil Procedure, as
amended by Act No. 2645,15 governs the form of the attestation clause
of Abada’s will.16Section 618 of the Code of Civil Procedure, as
amended, provides:
SEC. 618. Requisites of will. – No will, except as provided in the
preceding section,17 shall be valid to pass any estate, real or personal,
nor charge or affect the same, unless it be written in the language or
dialect known by the testator and signed by him, or by the testator’s
name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of each other.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each
sheet. The attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of three witnesses,
and the latter witnessed and signed the will and all pages thereof in
the presence of the testator and of each other.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the requisites of a
will are the following:
(1) The will must be written in the language or dialect
known by the testator;
(2) The will must be signed by the testator, or by the
testator’s name written by some other person in his
presence, and by his express direction;
(3) The will must be attested and subscribed by three or
more credible witnesses in the presence of the testator and
of each other;
(4) The testator or the person requested by him to write his
name and the instrumental witnesses of the will must sign
each and every page of the will on the left margin;
(5) The pages of the will must be numbered correlatively in
letters placed on the upper part of each sheet;
(6) The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page of the will, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the
witnesses witnessed and signed the will and all pages of the
will in the presence of the testator and of each other.
28
 Wills and Succession Case Digests
Caponong-Noble asserts that the will of Abada does not indicate that it
is written in a language or dialect known to the testator. Further, she
maintains that the will is not acknowledged before a notary public. She
cites in particular Articles 804 and 805 of the Old Civil Code, thus:
Art. 804. Every will must be in writing and executed in [a] language or
dialect known to the testator.
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. xxx18
Caponong-Noble actually cited Articles 804 and 806 of the New Civil
Code.19 Article 804 of the Old Civil Code is about the rights and
obligations of administrators of the property of an absentee, while
Article 806 of the Old Civil Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new provisions. Article
804 of the New Civil Code is taken from Section 618 of the Code of
Civil Procedure.20 Article 806 of the New Civil Code is taken from Article
685 of the Old Civil Code21 which provides:
Art. 685. The notary and two of the witnesses who authenticate the
will must be acquainted with the testator, or, should they not know
him, he shall be identified by two witnesses who are acquainted with
him and are known to the notary and to the attesting witnesses. The
notary and the witnesses shall also endeavor to assure themselves that
the testator has, in their judgment, the legal capacity required to make
a will.
Witnesses authenticating a will without the attendance of a notary, in
cases falling under Articles 700 and 701, are also required to know the
testator.
However, the Code of Civil Procedure22 repealed Article 685 of the Old
Civil Code. Under the Code of Civil Procedure, the intervention of a
notary is not necessary in the execution of any will.23 Therefore,
Abada’s will does not require acknowledgment before a notary
public.1awphi1.nét
Caponong-Noble points out that nowhere in the will can one discern
that Abada knew the Spanish language. She alleges that such defect is
fatal and must result in the disallowance of the will. On this issue, the
Court of Appeals held that the matter was not raised in the motion to
dismiss, and that it is now too late to raise the issue on appeal. We
agree with Caponong-Noble that the doctrine of estoppel does not
apply in probate proceedings.24 In addition, the language used in the
will is part of the requisites under Section 618 of the Code of Civil
Procedure and the Court deems it proper to pass upon this issue.
Nevertheless, Caponong-Noble’s contention must still fail. There is no
statutory requirement to state in the will itself that the testator knew
the language or dialect used in the will.25 This is a matter that a party
may establish by proof aliunde.26 Caponong-Noble further argues that
Alipio, in his testimony, has failed, among others, to show that Abada
knew or understood the contents of the will and the Spanish language
used in the will. However, Alipio testified that Abada used to gather
Spanish-speaking people in their place. In these gatherings, Abada and
his companions would talk in the Spanish language.27 This sufficiently
proves that Abada speaks the Spanish language.
The Attestation Clause of Abada’s Will
A scrutiny of Abada’s will shows that it has an attestation clause. The
attestation clause of Abada’s will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima
voluntad y testamento en presencia de nosotros, habiendo tambien el
testador firmado en nuestra presencia en el margen izquierdo de todas
y cada una de las hojas del mismo. Y en testimonio de ello, cada uno
de nosotros lo firmamos en presencia de nosotros y del testador al pie
de este documento y en el margen izquierdo de todas y cada una de
las dos hojas de que esta compuesto el mismo, las cuales estan
paginadas correlativamente con las letras "UNO" y "DOS’ en la parte
superior de la carrilla.28
Caponong-Noble proceeds to point out several defects in the
attestation clause. Caponong-Noble alleges that the attestation clause
fails to state the number of pages on which the will is written.
The allegation has no merit. The phrase "en el margen izquierdo de
todas y cada una de las dos hojas de que esta compuesto el mismo"
which means "in the left margin of each and every one of the two
pages consisting of the same" shows that the will consists of two
pages. The pages are numbered correlatively with the letters "ONE"
and "TWO" as can be gleaned from the phrase "las cuales estan
paginadas correlativamente con las letras "UNO" y "DOS."
Caponong-Noble further alleges that the attestation clause fails to
state expressly that the testator signed the will and its every page in
the presence of three witnesses. She then faults the Court of Appeals
for applying to the present case the rule on substantial compliance
found in Article 809 of the New Civil Code.29
The first sentence of the attestation clause reads: "Suscrito y
declarado por el testador Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros, habiendo tambien el testador
firmado en nuestra presencia en el margen izquierdo de todas y cada
una de las hojas del mismo." The English translation is: "Subscribed
and professed by the testator Alipio Abada as his last will and
testament in our presence, the testator having also signed it in our
presence on the left margin of each and every one of the pages of the
same." The attestation clause clearly states that Abada signed the will
and its every page in the presence of the witnesses.
However, Caponong-Noble is correct in saying that the attestation
clause does not indicate the number of witnesses. On this point, the
Court agrees with the appellate court in applying the rule on
substantial compliance in determining the number of witnesses. While
the attestation clause does not state the number of witnesses, a close
inspection of the will shows that three witnesses signed it.
This Court has applied the rule on substantial compliance even before
the effectivity of the New Civil Code. InDichoso de Ticson v. De
Gorostiza,30 the Court recognized that there are two divergent
tendencies in the law on wills, one being based on strict construction
and the other on liberal construction. In Dichoso, the Court noted
thatAbangan v. Abangan,31 the basic case on the liberal construction,
is cited with approval in later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,32 the petitioner, arguing for
liberal construction of applicable laws, enumerated a long line of cases
to support her argument while the respondent, contending that the
rule on strict construction should apply, also cited a long series of
cases to support his view. The Court, after examining the cases
invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid and
inflexible, which would be applicable to all cases. More than anything
else, the facts and circumstances of record are to be considered in the
application of any given rule. If the surrounding circumstances point to
a regular execution of the will, and the instrument appears to have
29
 Wills and Succession Case Digests
been executed substantially in accordance with the requirements of
the law, the inclination should, in the absence of any suggestion of
bad faith, forgery or fraud, lean towards its admission to probate,
although the document may suffer from some imperfection of
language, or other non-essential defect. x x x.
An attestation clause is made for the purpose of preserving, in
permanent form, a record of the facts attending the execution of the
will, so that in case of failure of the memory of the subscribing
witnesses, or other casualty, they may still be proved. (Thompson on
Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected where
its attestation clause serves the purpose of the law. x x
x 331a\^/phi1.net
We rule to apply the liberal construction in the probate of Abada’s will.
Abada’s will clearly shows four signatures: that of Abada and of three
other persons. It is reasonable to conclude that there are three
witnesses to the will. The question on the number of the witnesses is
answered by an examination of the will itself and without the need for
presentation of evidence aliunde. The Court explained the extent and
limits of the rule on liberal construction, thus:
[T]he so-called liberal rule does not offer any puzzle or difficulty, nor
does it open the door to serious consequences. The later decisions do
tell us when and where to stop; they draw the dividing line with
precision.They do not allow evidence aliunde to fill a void in any
part of the document or supply missing details that should
appear in the will itself.l^vvphi1.net They only permit a probe
into the will, an exploration within its confines, to ascertain its
meaning or to determine the existence or absence of the
requisite formalities of law. This clear, sharp limitation eliminates
uncertainty and ought to banish any fear of dire results.34 (Emphasis
supplied)
The phrase "en presencia de nosotros" or "in our presence" coupled
with the signatures appearing on the will itself and after the attestation
clause could only mean that: (1) Abada subscribed to and professed
before the three witnesses that the document was his last will, and (2)
Abada signed the will and the left margin of each page of the will in
the presence of these three witnesses.
Finally, Caponong-Noble alleges that the attestation clause does not
expressly state the circumstances that the witnesses witnessed and
signed the will and all its pages in the presence of the testator and of
each other. This Court has ruled:
Precision of language in the drafting of an attestation clause is
desirable. However, it is not imperative that a parrot-like copy of the
words of the statute be made. It is sufficient if from the language
employed it can reasonably be deduced that the attestation clause
fulfills what the law expects of it.35
The last part of the attestation clause states "en testimonio de ello,
cada uno de nosotros lo firmamos en presencia de nosotros y del
testador." In English, this means "in its witness, every one of us also
signed in our presence and of the testator." This clearly shows that the
attesting witnesses witnessed the signing of the will of the testator,
and that each witness signed the will in the presence of one another
and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12
January 2001 in CA-G.R. CV No. 47644.
SO ORDERED.
EN BANC
G.R. No. L-1787 August 27, 1948
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed
unsuccessfully the probate of what purports to be the last will and
testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in
Balayan, Batangas, on March 3, 1947, almost six months after the
document in question was executed. In the court below, the present
appellant specified five grounds for his opposition, to wit: (1) that the
deceased never executed the alleged will; (2) that his signature
appearing in said will was a forgery; (3) that at the time of the
execution of the will, he was wanting in testamentary as well as
mental capacity due to advanced age; (4) that, if he did ever execute
said will, it was not executed and attested as required by law, and one
of the alleged instrumental witnesses was incapacitated to act as such;
and it was procured by duress, influence of fear and threats and undue
and improper pressure and influence on the part of the beneficiaries
instituted therein, principally the testator's sister, Clemencia Lopez,
and the herein proponent, Jose S. Lopez; and (5) that the signature of
the testator was procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated
in these words: "That the court a quo erred in holding that the
document Exhibit "A" was executed in all particulars as required by
law." To this objection is added the alleged error of the court "in
allowing the petitioner to introduce evidence that Exhibit "A" was
written in a language known to the decedent after petitioner rested his
case and over the vigorous objection of the oppositor.
The will in question comprises two pages, each of which is written on
one side of a separate sheet. The first sheet is not paged either in
letters or in Arabic numerals. This, the appellant believes, is a fatal
defect.
The purpose of the law in prescribing the paging of wills is guard
against fraud, and to afford means of preventing the substitution or of
defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil.,
476.) In the present case, the omission to put a page number on the
first sheet, if that be necessary, is supplied by other forms of
identification more trustworthy than the conventional numerical words
or characters. The unnumbered page is clearly identified as the first
page by the internal sense of its contents considered in relation to the
contents of the second page. By their meaning and coherence, the first
and second lines on the second page are undeniably a continuation of
the last sentence of the testament, before the attestation clause,
which starts at the bottom of the preceding page. Furthermore, the
unnumbered page contains the caption "TESTAMENTO," the invocation
of the Almighty, and a recital that the testator was in full use of his
testamentary faculty, — all of which, in the logical order of sequence,
precede the direction for the disposition of the marker's property.
Again, as page two contains only the two lines above mentioned, the
attestation clause, the mark of the testator and the signatures of the
witnesses, the other sheet can not by any possibility be taken for other
than page one. Abangan vs. Abangan,supra, and Fernandez vs. Vergel
de Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and scope of the first
assignment of error, the matter of the credibility of the witnesses is
assailed under this heading. On the merits we do not believe that the
30
 Wills and Succession Case Digests
appellant's contention deserves serious consideration. Such
contradictions in the testimony of the instrumental witnesses as are set
out in the appellant's brief are incidents not all of which every one of
the witnesses can be supposed to have perceived, or to recall in the
same order in which they occurred.
Everyday life and the result of investigations made in the
field of experimental psychology show that the
contradictions of witnesses generally occur in the details of a
certain incident, after a long series of questioning, and far
from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those who
witness an incident are impressed in like manner, it is but
natural that in relating their impressions they should not
agree in the minor details; hence, the contradictions in their
testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of
signing his name. The reason for this was that the testator was
suffering from "partial paralysis." While another in testator's place
might have directed someone else to sign for him, as appellant
contends should have been done, there is nothing curious or
suspicious in the fact that the testator chose the use of mark as the
means of authenticating his will. It was a matter of taste or
preference. Both ways are good. A statute requiring a will to be
"signed" is satisfied if the signature is made by the testator's mark.
(De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the
opinion that the trial court communicated an abuse of discretion in
allowing the appellant to offer evidence to prove knowledge of Spanish
by the testator, the language in which the will is drawn, after the
petitioner had rested his case and after the opponent had moved for
dismissal of the petition on the ground of insufficiency of evidence. It
is within the discretion of the court whether or not to admit further
evidence after the party offering the evidence has rested, and this
discretion will not be reviewed except where it has clearly been
abused. (64 C. J., 160.) More, it is within the sound discretion of the
court whether or not it will allow the case to be reopened for the
further introduction of evidence after a motion or request for a
nonsuit, or a demurrer to the evidence, and the case may be reopened
after the court has announced its intention as to its ruling on the
request, motion, or demurrer, or has granted it or has denied the
same, or after the motion has been granted, if the order has not been
written, or entered upon the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have
produced their respective direct proofs, they are allowed to offer
rebutting evidence only, but, it has been held, the court, for good
reasons, in the furtherance of justice, may permit them to offer
evidence upon their original case, and its ruling will not be disturbed in
the appellate court where no abuse of discretion appears. (Siuliong
and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So,
generally, additional evidence is allowed when it is newly discovered,
or where it has been omitted through inadvertence or mistake, or
where the purpose of the evidence is to the evidence is to correct
evidence previously offered. (I Moran's Comments on the Rules of
Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present
evidence on the testator's knowledge of Spanish had not been
deliberate. It was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant
impugns the will for its silence on the testator's understanding of the
language used in the testament. There is no statutory requirement
that such knowledge be expressly stated in the will itself. It is a matter
that may be established by proof aliunde. This Court so impliedly ruled
in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will
written in Tagalog was ordered although it did not say that the testator
knew that idiom. In fact, there was not even extraneous proof on the
subject other than the fact that the testator resided in a Tagalog
region, from which the court said "a presumption arises that said Maria
Tapia knew the Tagalog dialect.
The order of the lower court ordering the probate of the last will and
testament of Don Sixto Lopez is affirmed, with costs.
EN BANC
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
AVANCEÑA, J.:
On September 19, 1917, the Court of First Instance of Cebu
admitted to probate Ana Abangan's will executed July, 1916. From this
decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of
two sheets, the first of which contains all of the disposition of the
testatrix, duly signed at the bottom by Martin Montalban (in the name
and under the direction of the testatrix) and by three witnesses. The
following sheet contains only the attestation clause duly signed at the
bottom by the three instrumental witnesses. Neither of these sheets is
signed on the left margin by the testatrix and the three witnesses, nor
numbered by letters; and these omissions, according to appellants'
contention, are defects whereby the probate of the will should have
been denied. We are of the opinion that the will was duly admitted to
probate.
In requiring that each and every sheet of the will should also be
signed on the left margin by the testator and three witnesses in the
presence of each other, Act No. 2645 (which is the one applicable in
the case) evidently has for its object (referring to the body of the will
itself) to avoid the substitution of any of said sheets, thereby changing
the testator's dispositions. But when these dispositions are wholly
written on only one sheet signed at the bottom by the testator and
three witnesses (as the instant case), their signatures on the left
margin of said sheet would be completely purposeless. In requiring
this signature on the margin, the statute took into consideration,
undoubtedly, the case of a will written on several sheets and must
have referred to the sheets which the testator and the witnesses do
not have to sign at the bottom. A different interpretation would
assume that the statute requires that this sheet, already signed at the
bottom, be signed twice. We cannot attribute to the statute such an
intention. As these signatures must be written by the testator and the
witnesses in the presence of each other, it appears that, if the
signatures at the bottom of the sheet guaranties its authenticity,
another signature on its left margin would be unneccessary; and if
they do not guaranty, same signatures, affixed on another part of
same sheet, would add nothing. We cannot assume that the statute
regards of such importance the place where the testator and the
witnesses must sign on the sheet that it would consider that their
signatures written on the bottom do not guaranty the authenticity of
the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be
numbered correlatively in letters placed on the upper part of the sheet,
it is likewise clear that the object of Act No. 2645 is to know whether
31
 Wills and Succession Case Digests
any sheet of the will has been removed. But, when all the dispositive
parts of a will are written on one sheet only, the object of the statute
disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause.
Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying the
will in question, the signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the sheet
are formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its name implies,
appertains only to the witnesses and not to the testator since the latter
does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of
two sheets the first of which contains all the testamentary dispositions
and is signed at the bottom by the testator and three witnesses and
the second contains only the attestation clause and is signed also at
the bottom by the three witnesses, it is not necessary that both sheets
be further signed on their margins by the testator and the witnesses,
or be paged.
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a way
as to attain these primordal ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the testator's
last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do
not show that the testarix knew the dialect in which the will is written.
But the circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this locality where the
testatrix was a neighbor is enough, in the absence of any proof to the
contrary, to presume that she knew this dialect in which this will is
written.
For the foregoing considerations, the judgment appealed from
is hereby affirmed with costs against the appellants. So ordered.
EN BANC
G.R. No. L-28946 January 16, 1929
In re estate of Piraso, deceased.
SIXTO ACOP, petitioner-appellant,
vs.
SALMING PIRASO, ET AL., opponents-appellees.
ROMUALDEZ, J.:
This appeal was taken from the judgment of the Court of First
Instance of Benguet, denying the probate of the instrument Exhibit A,
as the last will and testament of the deceased Piraso.
The proponent-appellant assigns the following as alleged errors of the
lower court:
1. In holding that in order to be valid the will in question
should have been drawn up in the Ilocano dialect.
2. In not holding that the testator Piraso did not know the
Ilocano dialect well enough to understand a will drawn up in
said dialect.
3. In refusing to admit the will in question to probate.
The fundamental errors assigned refer chiefly to the part of the
judgment which reads as follows:
The evidence shows that Piraso knew how to speak the
Ilocano dialect, although imperfectly, and could make
himself understood in that dialect, and the court is of the
opinion that his will should have been written in that dialect.
Such statements were not unnecessary for the decision of the case,
once it has been proved without contradiction, that the said deceased
Piraso did not know English, in which language the instrument Exhibit
A, alleged to be his will, is drawn. Section 628 of the Code of Civil
Procedure, strictly provides that:
"No will, except as provides in the preceding section" (as to wills
executed by a Spaniard or a resident of the Philippine Islands, before
the present Code of Civil Procedure went into effect), "shall be valid to
pass any estate, real or personal, nor charge or affect the
same, unless it be written in the language or dialect known by the
testator," etc. (Emphasis supplied.) Nor can the presumption in favor
of the will established by this court in Abangan vs. Abangan (40 Phil.,
476), to the effect that the testator is presumed to know the dialect of
the locality where he resides, unless there is proof to the contrary,
even he invoked in support of the probate of said document Exhibit A,
as a will, because, in the instant case, not only is it not proven that
English is the language of the City of Baguio where the deceased
Piraso lived and where Exhibit A was drawn, but that the record
contains positive proof that said Piraso knew no other language than
the Igorrote dialect, with a smattering of Ilocano; that is, he did not
know the English language in which Exhibit A is written. So that even if
such a presumption could have been raised in this case it would have
been wholly contradicted and destroyed.
We consider the other question raised in this appeal needless and
immaterial to the adjudication of this case, it having been, as it was,
proven, that the instrument in question could not be probated as the
last will and testament of the deceased Piraso, having been written in
the English language with which the latter was unacquainted.
Such a result based upon solidly established facts would be the same
whether or not it be technically held that said will, in order to be valid,
must be written in the Ilocano dialect; whether or not the Igorrote or
Inibaloi dialect is a cultivated language and used as a means of
communication in writing, and whether or not the testator Piraso knew
the Ilocano dialect well enough to understand a will written in said
dialect. The fact is, we repeat, that it is quite certain that the
instrument Exhibit A was written in English which the supposed
testator Piraso did not know, and this is sufficient to invalidate said will
according to the clear and positive provisions of the law, and inevitably
prevents its probate.
EN BANC
G.R. No. L-2862 April 21, 1952
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 Wills and Succession Case Digests
TESTATE ESTATE OF MARIA ZUÑIGA VDA. DE PANDO,
deceased. JUAN REYES, petitioner-administrator-appellant,
vs.
DOLORES ZUÑIGA VDA. DE VIDAL, oppositor-appellee.
BAUTISTA ANGELO, J.:
This concerns the admission to probate of a document claimed to be
the last will and testament of Maria Zuñiga Vda. de Pando who died in
the City of Manila on October 29, 1945.
On November 6, 1945, a petition for the probate of said will was filed
in the Court of First Instance of Manila. On December 21, 1945,
Dolores Zuñiga Vda. de Vidal, sister of the deceased, filed an
opposition based on several grounds. And, after several days of trial,
at which both parties presented their respective evidence, the court
rendered its decision disallowing the will on the ground that the
signatures of the deceased appearing therein are not genuine, that it
was not proven that the deceased knew the Spanish language in which
it was written, and that even if the signatures are genuine, the same
reveal that the deceased was not of sound mind when she signed the
will. From this decision petitioner appealed to this Court.
While petitioner imputes nine errors to the lower court, we believe,
however, that for purposes of this appeal of discussion of some would
be sufficient. Thus, the issues may be boiled down as follows: 1)
Whether or not the signatures of the deceased appearing in the will
(Exhibit "C") are genuine; 2) whether or not there is evidence to show
that the testatrix knew the language in which the will was written; and
3) whether or not the testatrix was of sound and disposing mind when
she signed the will.
1. To prove that the will was signed by the testatrix in accordance with
law, petitioner presented as witnesses the three persons who attested
to the execution of the will. These witnesses are: Cornelia Gonzales de
Romero, Quintin Ulpindo and Consuelo B. de Catindig. The first used to
provide the deceased with ice every day, and in one of those occasions
she went to her house to bring ice, she requested to act witness to the
execution of the will. The second was a laborer whose job was is to fix
bed made of rattan, and in one of those days he went to the house of
the deceased to work, he was asked also to witness the signing of the
will. And the third was a neighbor of the deceased for many years who
was also requested to act as an instrumental witness. These witnesses
testified in their own simple and natural way that the deceased signed
the will seated on her bed but over a small table placed near the bed
in their presence, and after she had signed it in the places where her
signatures appear, they in turn signed it in the presence and in the
presence of each other. This is the substance of what they have
testified and from an examination of their testimony to the court
entertains no doubt that they had told the truth. There is nothing in
their testimony which may in any way reflect against their credibility
nor has the oppositor proven fact or circumstance which may give rise
to the suspicion that they testified out of personal interest or pecuniary
consideration. They have impressed the court as simple persons who
had intervened in the execution of the will out merely of deference to
the testatrix whom they had served for sometime and had known to
be a good and respectable woman.
What evidence has the oppositor presented to contradict the testimony
of these instrumental witnesses? only one expert witness, Jose G.
Villanueva, who made a comparative analysis of the signatures
appearing in the will in relation to some genuine signatures of the
deceased, and in fact testified on the analysis and study he has made
of said signatures and submitted a memorandum on the study and
comparison he has made. And in his testimony as well as in his
memorandum, this witness has reached the conclusion that the hand
that wrote the signatures of the deceased appearing in the will is not
the same hand that wrote the genuine signatures he had examined
and which he used as basis of his analytical study, thereby concluding
that said signatures are not genuine. The lower court gave full faith
and credit to the opinion of this expert witness, and decreed as a
result that the will cannot be admitted to probate.
There are, however, certain important facts and circumstances which
make us differ from this opinion of the lower court. In the first place,
we find that the opinion of this expert witness has been rebutted by
another expert witness Jose C. Espinosa, whose opinion, to our mind,
deserves more weight and credence. And our reason for reaching this
conclusion is the fact that the standards of the comparison used by
Espinosa are more reliable than those used by Villanueva in the
comparison are two signatures appearing in two documents executed
on November 10, 1942, one signature in an identification card affixed
in April 1940, a half signature appearing in a letter written on October
8, 1943, one signature appearing in a letter written on July 16, 1945,
and one signature appearing in a letter written on January, 1945,
whereas the disputed signatures appearing in the will were affixed on
October 29, 1945. On the other hand, the standards used by Espinosa
in making his comparative study bear dates much closer to that of the
disputed signatures. Thus, he examined four genuine signatures that
were affixed on October 16, 1945, other four signatures that were
affixed in October 1945, one on January 2, 1945, on January 24, 1945,
and one on September 24 1945, He also examined one affixed on
March 12, 1941, only for emphasis. The closeness or proximity of the
time in which the standards used had been written to that of the
suspected signature or document is very important to bring about an
accurate analysis and conclusion. the selection of the proper standards
of comparison is of paramount importance especially if we consider the
age and the state of the health of the author of the questioned
signatures. a signature affixed in 1941 may involved characteristics
different from those borne by a signature affixed in 1945. And this is
because the passing of time and the increase in age may have a
decisive influence in the writing characteristics of a person. It for this
reasons that the authorities of the opinion that in order to bring about
an accurate comparison and analysis, the standard of comparison must
be as close as possible in point of time to the suspected signature.
Such was not followed in the study made by Villanueva. But such was
observed in the study made by Espinosa. He followed the standard
practice in handwriting analysis. It is for this reason that we hold that
Espinosa's opinion deserves more weight and consideration.
The standards should, if possible, have been made by the
same time as the suspected document. It is preferable that
the standards embraced the time of the origin of the
document, so that one part comes from the time after the
origin. (Page 423 "Modern Criminal Investigation" by
Soderman and O' Connell, 1936, Funk and Wagnalls
Company, New York and London.)
If possible less than five or six signatures should always be
examined and preferably double that number." (Page 139,
Forensic Chemistry and Scientific Criminal Investigation by
Lucas, 1935, Edward Arnold & Co., London.)
2. Another ground on which the lower court base the disallowance of
the will is the failure of the petitioner to prove that the testratrix knew
and spoke the language in which the will in question appears to have
been written. According to the lower court, the law requires that the
will should be written in the dialect or language known to the testator
and this fact having been proven, the probate of the will must fail. And
the wall was disallowed.
There is indeed nothing in the testimony of the witnesses presented by
the petitioner which would indicate that the testatrix knew and spoke
the Spanish language used in the preparation of the will in question.
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 Wills and Succession Case Digests
But, in our opinion, this failure alone does not in itself suffice to
conclude that this important requirement of the law has not been
complied with, it appearing that there is enough evidence on record
which supplies this technical omission. In the first place, we have the
undisputed fact that the deceased was a mestiza española, was
married to a Spaniard, Recaredo Pando, and made several trips to
Spain. In the second place, we have the very letters submitted as
evidence by the oppositor written in Spanish by the deceased
possessed the Spanish language, oppositor cannot now be allowed to
allege the contrary. These facts give rise to the presumption that the
testatrix knew the language in which the testament has been written,
which presumption should stand unless the contrary is proven
(Abangan vs. Abangan, 40 Phil., 476; Gonzales vs. Laurel, 46 Phil.
750). And this presumption has not been overcome. And finally, we
have the very attestation clause of the will which states that the
testatrix knew and possessed the Spanish language. It is true that this
matter is not required to be stated in the attestation clause, but its
inclusion can only mean that the instrumental witnesses wanted to
make it of record that the deceased knew the language in which the
will was written. There is, therefore, no valid reason why the will
should be avoided on this ground.
3. The remaining ground which the lower court has considered in
disallowing the will is the fact that the deceased was not of sound and
disposing mind when she signed the will, and it reached this
conclusion, not because of any direct evidence on the matter, but
simply because the deceased signed the will in a somewhat varied
form. On this point the lower court said:
El Juzgado es de opinion que aunque se admita que las
firmas arriba indicadas feuran de Maria Zuñiga Vda. de
Pando, las mismas revelan que ella no estabe en el pleno de
sus facultades mentales cuando la hicieron firmar el
documento, Exhibit C, pues el hecho de que en una sola
ocasion la repetida Maria Zuñiga Vda. de Pando firmo dos
veces, sin escribir su verdadero nombre, demuestra que ella
no se daba cuenta de sus actos por no hallarse mentalmente
sana. Si esto es asi, no se debe legalizar como testamento y
ultima voluntad de la finada Maria Zuñiga Vda. de Pando el
documento, Exhibit C, porque el Articulo 614 de la Ley 190 y
el Articulo 12, Reglamentos de los Tribunales, disponen que
solamente pueden otorgar testamento las personas que al
tiempo de su otorgamiento estaban en el pleno goce de sus
facultades mentales.
The above conclusion is contrary to what the instrumental witnesses
have said on this point. Cornelio Gonzales de Romero stated that she
spoke to the deceased before the signing of the will, and judging from
the way she spoke she was of the impression that the deceased was of
sound mind at the time. To the same effect is the testimony of
Consuelo B. de Catindig. She said that her impression when the
deceased signed the will was that she could still talk and read, only
that she was weak. In fact she read the will before signing it. These
statements had not been contradicted. They give an idea of the mental
had not contradicted. They give an idea of mental condition of the
deceased in the will differ from each other in certain respects, this is
only due to her age and state of health rather than to a defective
mental condition. They do not reveal a condition of forgery or lack of
genuineness. These differences or irregularities are common in the
writings of old people and, far from showing lack of genuineness, are
indicative of the age, sickness, or weak condition of the writer. A
comparison of the three disputed signatures in the will readily give this
impression.
Abbreviated, distorted and illegible, forms, which are
sufficiently free and rapid, often actually indicate
genuineness rather than forgery even though they are very
unusual and not exactly like those in the standard writing.
Those who write of difficulty or hesitation through some
physical infirmity may sometimes produced broken and
unfinished signatures and these results, which in themselves
are distinctly divergent as compared with signatures
produced under conditions of strength and health, may
forcefully indicate genuineness . Under conditions of
weakness due to diseased or age, parts of a genuine
signature may be clumsily written over a second time not at
just the same place and in a way when clearly shows that
the writer either could not see or was so week and
inattentive as not to care what the result might be. This
careless, perfectly evident repetition (figure 184), unlike the
painstaking and delicate retouching of the forger, often
indicates genuineness. (Page 365, Questioned Documents by
Osborne, 2nd Edition, 1927.)
We are, therefore, of the opinion that the lower court erred in
disallowing the will Exhibit C.
Wherefore, the decision appealed from is hereby reversed. The Court
admits the will Exhibit C to probate, and remands these case to the
lower court for further proceedings, with costs against the appellee.
EN BANC
G.R. No. L-13781 January 30, 1960
Testate Estate of JOSE J. JAVELLANA, Deceased. CRISTETA
JIMENEA VDA. DE JAVELLANA, and BENJAMIN
JAVELLANA, petitioners-appellees,
vs.
JOSE JAVELLANA y AZAOLA and JOSE JAVELLANA,
JR., oppositors-appellants.
BARRERA, J.:
On June 29, 1957, a petition to probate the alleged last will and
testament of Jose J. Javellana, who died on May 24 of the same year,
was presented in the Court of First Instance of Rizal by Crsiteta
Jimenea Vda. de Javellana and Benjamin Javellana, widow and brother
respectively of the deceased, alleging that the aforesaid Jose J.
Javellana, at the time of his death, a resident of Ssan Juan Rizal, left
porperties with an approximate value of P400,000.00; that he also left
a will which was delivered to the clerk of court pursuant to the Rules
of Court; that Oscar Ledesma, therein named executor, had agreed to
act as such; that the decedent's next of kin were; the wido., Criteta J.
Vda. de Javellana, his children — Erlinda Javellana, Jose Javellana y
Azaola, and Jose Javellana, Jr. (Pepito), his sister Juanito J. de
Ledesma, and brother Benjamin Javellana, whose respective addresses
wre given in the petition.
To this petition, Jose Javellana y Azaola and Jose Javellana, Jr.
(Pepito) filed separate opposiytions, both claiming that the alleged will
of Jose J. Javellana deposited by peittioners with the clerk of court was
null and void, the same not having been executed "in accordance with
the formalities required by law" and that "the legal requirements
necessary for its validit" had not been complied with.
At the hearing, petitioners introduced as evidence in support of the
petition, a copy of the will; certification of the date and cause of death
of the testator; proof of publication of the petition, once a week for 3
consecutive weeks, in a newspaper of general circulation, and thre
testimonies of Jose G. Guevarra, Eloisa Villanueva and Jose Yulo, Jr.,
the 3 instrumental witnesses to the will, whi, in sustancer, testified
34
 Wills and Succession Case Digests
that sometime in April, 1956, they were asked to witness the execution
of the will of the late Jose. J. Javellana; that on the said occasion, Jose
J. Javellana signed the 4 pages of the will in their presence, and they,
in turn, also signed each and evey page thereof in the presence of the
testator and of one another; and that these acts wetre acknowledge
before notary public Fernando Grey, Jr. on the same occasion.
For their part, the oppositor limited their evidence to the presentation
of two letters in the Visayan dialect allegedly written by the deceased,
the signatures appearing thereon being identified by Jose Javellana, Jr.
(Pepito) and Manuel Azaola, as those of the deceased, for the sole
purpose of comparing said signatures woth those appearing in the will.
On December 10, 1957, the court a quo issued an order allowing the
probate of the will and directing the issuance of letters testamentary to
Oscar Ledesma as executor thereoif, upon the latter's filing a bond in
the sum of P10,000.00. From this order, oppositors appealed to this
Court charging the lower court of committing error in allowing
oprobate of the will, Exhibit C, on 2 grounds: (1) that the 3 sttesting
witnesses failed to clearly and convincingly estabish the due execution
of the will; and (2) that petitioners failed to prove that the will was
written in a language known to the testator.
The first basis of oppositor's appeal has no merit. It is true that
witnesses, particularly Miss Eloisa Villanueva, apparently found
difficulty recalling who arrived first at the appointed place, or the order
of the witnesses' signing the will, or failed to mention by name the
persons present at the time of the witnesses was signing the
document. These details, however, are minor and significant and do
not enervate their positive testimony that at the execution of the will
the testator, the 3 witnesses, the notary public and Atty. Vicente
Hilado were all together in the private office of the latter; that Jose
Guevarra, Eloisa Villanueva and Jose Yulo, Jr., the instrumental
witnesses, were unanimous in declaring that they actually saw the
testator sign the will as well as each and every page thereof, and they,
in turen, affixed their signatures to all of its 4 pages. For the purpose
of determining tjhe due execution of a will, it is not necessary that the
instrumental witnesses should give an accurate and detailed account
of the proceeding, such as recalling the order of the signing of the
document by the dsaid wirtneese. It is sufficient that they have seen
or at least were so situated at the moment that they could have seen
each other sign, had they wnated to do so.1 In fact, in the instant
case, at least two witnesses, Yulo and Guevarra, both testified hat the
testator and the 3 witnesses signed in the presence of each and every
one of them.
With respect to the second ground, there is some merit in appellant's
contention that the language requirement of the law on wills has not
been satisfactorily complied with in this case. Admittedly, there is want
of expression in the body of the will itself or in its attestation clause
that the testator knew Spanish, the language in which it is written. It is
true that there is no statutory provision requiring this and that proof
thereof may be established by evidence aliunde.2 But here, there is
absolutely no such evidence presented by the petitioners-appellees.
Not even the petition for probate contains any allegation to this effect.
No reference to it whatsoever is made in the appealed order.
In some cases, it is true, this lack of evidence was considered cured by
presumptioin of knowledge of the language or dialect used in the will,
as where the will is executed in a certain province or locality, in the
dialect currently used in such provimnce or locality in which the
testator is a native or resident, the presumption arises that the testator
knew the dialect so used, in the absence of evidence to the contrary; 3
or where the will is in Spanish, the fact that the testratrix was a
"mestiza española", was married to a Spaniard, made several trips to
Spain, and some of her letters in her own handwriting submitted as
evidence by the oppositor, are in Spanish, give rise to the presumption
that she knew the language in which the will was written, in the
absence of proof to the contrary.4
In the case before us, no such or similar circumstances exist. On the
contrary, there is evidence that the testator is a Visayan although
residing in San Juan, Rizal at the time of his death. The will was
executed in the City of Manila. Undoubtedly, it cannot be said, and
there is no evidence, that Spaniards is the language currently used
either in San Juan, Rizal, or Manila. It follows, therefore, that no
presumption can rise that the testator knew the Spanish Language.
But petitioner-appellees insist in their brief that the burden is on the
oppositors to allege and prove that the testator did not know the
Spanish language in the face of the legal presumption that "the law
has been obeyed", "that a will executed in the Philippines must be
presumed to have been executed in conformity with the laws of the
Philippines".5 and "that things have happened in accordance with the
ordinary course of nature and the ordinary habits of life", concluding
that it woiuld certainly be contrary to the ordinary habits of life for a
person to execute his will in a language unknown to him. This, we
believe, is, to use a colloquial term, being the question. If the
argument of counsel is correct, then every unopposed will may be
probated upon its mere presentation in court, without need of
producing evidence regarding its execution. Counsel's statement is its
own refutation.
We find, in the record stone indicia, although insufficient to give rise to
the presumption, that the testator might, in fact, have known the
Spanish language. In oppositor's own Exhibit 3 (a letter admittedly
written by the testator) appear the salutation "Querido Primo" and the
complimentary ending "Su primo" which are Spanish terms. Having
found that al the formal requisites for the validity of the will have been
satisfactorily establishment, except the language requirement, we
deem it in the interest of justice to afford the parties a opportunity to
present evidence, if they so desire, on this controverted issue.
Wherefore, let the records of this case be remanded to the court of
origin for furhter proceedings as above indicated, without costs. It is
so ordered.
SECOND DIVISION
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance
of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy
Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against respondent judge for
having admitted to probate a will, which on its face is void because it
is written in English, a language not known to the illiterate testatrix,
and which is probably aforged will because she and the attesting
witnesses did not appear before the notary as admitted by the notary
himself?
That question arises under the pleadings filed in the testate case and
in the certiorari case in the Court of Appeals which reveal the following
tangled strands of human relationship:
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 Wills and Succession Case Digests
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army
(Philippine Scouts), Fort McKinley, married Marcelina Salvador in 1923
(p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy
named Agapito who used the surname Suroza and who considered
them as his parents as shown in his 1945 marriage contract with
Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of
Testate Case showing that Agapito was 5 years old when Mauro
married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a
pensioner of the Federal Government. That explains why on her death
she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical
technologist and went abroad. Agapito also became a soldier. He was
disabled and his wife Nenita was appointed as his guardian in 1953
when he was declared an incompetent in Special Proceeding No. 1807
of the Court of First Instance of Rizal, Pasig Branch I (p. 16, Rollo of
CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de
la Cruz wanted also to be his guardian in another proceeding. Arsenia
tried to prove that Nenita was living separately from Agapito and that
she (Nenita) admitted to Marcelina that she was unfaithful to Agapito
(pp. 61-63, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship
proceeding and confirmed Nenita's appointment as guardian of Agapito
(p. 16, Rollo of CA case). Agapito has been staying in a veteran's
hospital in San Francisco or Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and
Hermogena Talan begot a child named Marilyn Sy, who, when a few
days old, was entrusted to Arsenia de la Cruz (apparently a girl friend
of Agapito) and who was later delivered to Marcelina Salvador Suroza
who brought her up as a supposed daughter of Agapito and as her
granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn
used the surname Suroza. She stayed with Marcelina but was not
legally adopted by Agapito. She married Oscar Medrano and is residing
at 7666 J.B. Roxas Street, Makati, apparently a neighbor of Marina
Paje, a resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23,
1973, when she was 73 years old. That will which is in English was
thumbmarked by her. She was illiterate. Her letters in English to the
Veterans Administration were also thumbmarked by her (pp. 38-39, CA
Rollo). In that wig, Marcelina bequeathed all her estate to her
supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in
Quezon City. At the time of her death, she was a resident of 7374 San
Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter
lot and house in that place. She acquired the lot in 1966 (p. 134,
Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of
Marcelina (P. 97, CA Rollo) and the executrix in her will (the alternate
executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband),
filed with the Court of First Instance of Rizal, Pasig Branch 25, a
petition for the probate of Marcelina's alleged will. The case was
assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy
clerk of court, Evangeline S. Yuipco, to hear the evidence. The
transcripts of the stenographic notes taken at the hearing before the
deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina
as administratrix. On the following day, April 1, Judge Honrado issued
two orders directing the Merchants Banking Corporation and the Bank
of America to allow Marina to withdraw the sum of P10,000 from the
savings accounts of Marcelina S. Suroza and Marilyn Suroza and
requiring Corazon Castro, the custodian of the passbooks, to deliver
them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated
April 11, 1975, instructing a deputy sheriff to eject the occupants of
the testatrix's house, among whom was Nenita V. Suroza, and to place
Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary
proceeding for the settlement of Marcelina's estate. She and the other
occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them.
They alleged that the decedent's son Agapito was the sole heir of the
deceased, that he has a daughter named Lilia, that Nenita was
Agapito's guardian and that Marilyn was not Agapito's daughter nor
the decedent's granddaughter (pp. 52-68, Record of testate case).
Later, they questioned the probate court's jurisdiction to issue the
ejectment order.
In spite of the fact that Judge Honrado was already apprised that
persons, other than Marilyn, were claiming Marcelina's estate, he
issued on April 23 an order probating her supposed will wherein
Marilyn was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set
aside proceedings, admit opposition with counter-petition for
administration and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina, that
the will was not duly executed and attested, that it was procured by
means of undue influence employed by Marina and Marilyn and that
the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void
because of the preterition of Agapito and that Marina was not qualified
to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the
housemaid of Marcelina, who swore that the alleged will was
falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on
April 18) and her omnibus motion to set aside the proceedings (filed
on April 24), Nenita filed the next day, April 25, an opposition to the
probate of the will and a counter-petition for letters of administration.
In that opposition, Nenita assailed the due execution of the will and
stated the names and addresses of Marcelina's intestate heirs, her
nieces and nephews (pp. 113-121, Record). Nenita was not aware of
the decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador
Teodocio, Marcelina's niece, who swore that Marcelina never executed
a win (pp. 124-125, Record).
Marina in her answer to Nenita's motion to set aside the proceedings
admitted that Marilyn was not Marcelina's granddaughter but was the
daughter of Agapito and Arsenia de la Cruz and that Agapito was not
36
 Wills and Succession Case Digests
Marcelina's sonbut merely an anak-anakan who was not legally
adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's
counter-petition for the issuance of letters of administration because of
the non-appearance of her counsel at the hearing. She moved for the
reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all
pending incidents, Nenita V. Suroza reiterated her contention that the
alleged will is void because Marcelina did not appear before the notary
and because it is written in English which is not known to her (pp.
208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various
incidents "raised" by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the wig,
Nenita "filed a case to annul" the probate proceedings (p. 332,
Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado
(p. 398, Record), was also assigned to Judge Honrado. He dismissed it
in his order of February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting
that the executrix had delivered the estate to Marilyn, and that the
estate tax had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12,
1978, filed in this Court, Nenita charged Judge Honrado with having
probated the fraudulent will of Marcelina. The complainant reiterated
her contention that the testatrix was illiterate as shown by the fact
that she affixed her thumbmark to the will and that she did not know
English, the language in which the win was written. (In the decree of
probate Judge Honrado did not make any finding that the will was
written in a language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge
that the testatrix had a son named Agapito (the testatrix's supposed
sole compulsory and legal heir), who was preterited in the will, did not
take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and
informed him that the testatrix did not know the executrix Marina Paje,
that the beneficiary's real name is Marilyn Sy and that she was not the
next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in
allowing Marina and her cohorts to withdraw from various banks the
deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court,
for not giving her access to the record of the probate case by alleging
that it was useless for Nenita to oppose the probate since Judge
Honrado would not change his decision. Nenita also said that
Evangeline insinuated that if she (Nenita) had ten thousand pesos, the
case might be decided in her favor. Evangeline allegedly advised
Nenita to desist from claiming the properties of the testatrix because
she (Nenita) had no rights thereto and, should she persist, she might
lose her pension from the Federal Government.
Judge Honrado in his brief comment did not deal specifically with the
allegations of the complaint. He merely pointed to the fact that Nenita
did not appeal from the decree of probate and that in a motion dated
July 6, 1976 she asked for a thirty day period within which to vacate
the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with
Nenita and that the latter did not mention Evangeline in her letter
dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline)
prevented Nenita from having access to the record of the testamentary
proceeding. Evangeline was not the custodian of the record.
Evangeline " strongly, vehemently and flatly denied" Nenita's charge
that she (Evangeline) said that the sum of ten thousand pesos was
needed in order that Nenita could get a favorable decision. Evangeline
also denied that she has any knowledge of Nenita's pension from the
Federal Government.
The 1978 complaint against Judge Honorado was brought to attention
of this Court in the Court Administrator's memorandum of September
25, 1980. The case was referred to Justice Juan A. Sison of the Court
of Appeals for investigation, report and recommendation. He submitted
a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against
Judge Honrado a petition for certiorari and prohibition wherein she
prayed that the will, the decree of probate and all the proceedings in
the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who
notarized the will. He swore that the testatrix and the three attesting
witnesses did not appear before him and that he notarized the will
"just to accommodate a brother lawyer on the condition" that said
lawyer would bring to the notary the testatrix and the witnesses but
the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy
was an appeal and her failure to do so did not entitle her to resort to
the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No.
SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a
motion to dismiss the administrative case for having allegedly become
moot and academic.
We hold that disciplinary action should be taken against respondent
judge for his improper disposition of the testate case which might have
resulted in a miscarriage of justice because the decedent's legal heirs
and not the instituted heiress in the void win should have inherited the
decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust
judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable negligence or
ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of first
instance for serious misconduct or inefficiency ( Sec. 67, Judiciary
Law). Misconduct implies malice or a wrongful intent, not a mere error
of judgment. "For serious misconduct to exist, there must be reliable
evidence showing that the judicial acts complained of were corrupt or
inspired by an intention to violate the law, or were in persistent
disregard of well-known legal rules" (In re lmpeachment of Horrilleno,
43 Phil. 212, 214-215).
37
 Wills and Succession Case Digests
Inefficiency implies negligence, incompetence, ignorance and
carelessness. A judge would be inexcusably negligent if he failed to
observe in the performance of his duties that diligence, prudence and
circumspection which the law requires in the rendition of any public
service (In re Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA
107, 119).
In this case, respondent judge, on perusing the will and noting that it
was written in English and was thumbmarked by an obviously illiterate
testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a
language "understood and known" to the testatrix. But in its
concluding paragraph, it was stated that the will was read to the
testatrix "and translated into Filipino language". (p. 16, Record of
testate case). That could only mean that the will was written in a
language not known to the illiterate testatrix and, therefore, it is void
because of the mandatory provision of article 804 of the Civil Code
that every will must be executed in a language or dialect known to the
testator. Thus, a will written in English, which was not known to the
Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil.
660).
The hasty preparation of the will is shown in the attestation clause and
notarial acknowledgment where Marcelina Salvador Suroza is
repeatedly referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have
noted not only the anomaly as to the language of the will but also that
there was something wrong in instituting the supposed granddaughter
as sole heiress and giving nothing at all to her supposed father who
was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk
of court, respondent judge could have noticed that the notary was not
presented as a witness.
In spite of the absence of an opposition, respondent judge should
have personally conducted the hearing on the probate of the will so
that he could have ascertained whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of
duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina
S. Suroza, a fine equivalent to his salary for one month is imposed on
respondent judge (his compulsory retirement falls on December 25,
1981).
The case against respondent Yuipco has become moot and academic
because she is no longer employed in the judiciary. Since September
1, 1980 she has been assistant city fiscal of Surigao City. She is
beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm.
Matter No. 2044-CFI November 21, 1980, 101 SCRA 225).
SO ORDERED.
ARTICLE 805
Abangan vs. Abangan – go to Article 804
EN BANC
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-
appellants.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting
to probate the document and its duplicate, marked as Exhibits "A" and
"A-1", as the true last will and testament of Josefa Villacorte,
deceased, and appointing as executor Celso Icasiano, the person
named therein as such.
This special proceeding was begun on October 2, 1958 by a petition
for the allowance and admission to probate of the original, Exhibit "A"
as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958,
and caused notice thereof to be published for three (3) successive
weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the
known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix,
filed her opposition; and on November 10, 1958, she petitioned to
have herself appointed as a special administrator, to which proponent
objected. Hence, on November 18, 1958, the court issued an order
appointing the Philippine Trust Company as special
administrator.1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also
filed a manifestation adopting as his own Natividad's opposition to the
probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a motion for
the admission of an amended and supplemental petition, alleging that
the decedent left a will executed in duplicate with all the legal
requirements, and that he was, on that date, submitting the signed
duplicate (Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de
Gomez and Enrique Icasiano filed their joint opposition to the
admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959,
oppositor Natividad Icasiano filed her amended opposition. Thereafter,
the parties presented their respective evidence, and after several
hearings the court issued the order admitting the will and its duplicate
to probate. From this order, the oppositors appealed directly to this
Court, the amount involved being over P200,000.00, on the ground
that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on
June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and
attested by three instrumental witnesses, namely: attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will
was acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong,
38
 Wills and Succession Case Digests
Notary Public in and for the City of Manila; and that the will was
actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and
testament, together with former Governor Emilio Rustia of Bulacan,
Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament,
attorneys Torres and Natividad were in the Philippines at the time of
the hearing, and both testified as to the due execution and authenticity
of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The
latter also testified upon cross examination that he prepared one
original and two copies of Josefa Villacorte last will and testament at
his house in Baliuag, Bulacan, but he brought only one original and
one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page,
it does not contain the signature of one of the attesting witnesses,
Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate
copy attached to the amended and supplemental petition and marked
as Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to show
that the original of the will and its duplicate were subscribed at the
end and on the left margin of each and every page thereof by the
testatrix herself and attested and subscribed by the three mentioned
witnesses in the testatrix's presence and in that of one another as
witnesses (except for the missing signature of attorney Natividad on
page three (3) of the original); that pages of the original and duplicate
of said will were duly numbered; that the attestation clause thereof
contains all the facts required by law to be recited therein and is
signed by the aforesaid attesting witnesses; that the will is written in
the language known to and spoken by the testatrix that the attestation
clause is in a language also known to and spoken by the witnesses;
that the will was executed on one single occasion in duplicate copies;
and that both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on the
same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of
the original, admits that he may have lifted two pages instead of one
when he signed the same, but affirmed that page three (3) was signed
in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect
that the signatures of the testatrix in the duplicate (Exhibit "A-1") are
not genuine nor were they written or affixed on the same occasion as
the original, and further aver that granting that the documents were
genuine, they were executed through mistake and with undue
influence and pressure because the testatrix was deceived into
adopting as her last will and testament the wishes of those who will
stand to benefit from the provisions of the will, as may be inferred
from the facts and circumstances surrounding the execution of the will
and the provisions and dispositions thereof, whereby proponents-
appellees stand to profit from properties held by them as attorneys-in-
fact of the deceased and not enumerated or mentioned therein, while
oppositors-appellants are enjoined not to look for other properties not
mentioned in the will, and not to oppose the probate of it, on penalty
of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was,
that the testatrix signed both original and duplicate copies (Exhibits
"A" and "A-1", respectively) of the will spontaneously, on the same in
the presence of the three attesting witnesses, the notary public who
acknowledged the will; and Atty. Samson, who actually prepared the
documents; that the will and its duplicate were executed in Tagalog, a
language known to and spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty. Fermin Samson, together
before they were actually signed; that the attestation clause is also in
a language known to and spoken by the testatrix and the witnesses.
The opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were not
written by the same had which wrote the signatures in the original will
leaves us unconvinced, not merely because it is directly contradicted
by expert Martin Ramos for the proponents, but principally because of
the paucity of the standards used by him to support the conclusion
that the differences between the standard and questioned signatures
are beyond the writer's range of normal scriptural variation. The expert
has, in fact, used as standards only three other signatures of the
testatrix besides those affixed to the original of the testament (Exh.
A); and we feel that with so few standards the expert's opinion and
the signatures in the duplicate could not be those of the testatrix
becomes extremely hazardous. This is particularly so since the
comparison charts Nos. 3 and 4 fail to show convincingly that the are
radical differences that would justify the charge of forgery, taking into
account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed
right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the
admitted and questioned signatures does not appear reliable,
considering the standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting power.
On the whole, therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and the
two instrumental witnesses, Torres and Natividad (Dr. Diy being in the
United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The
fact that some heirs are more favored than others is proof of neither
(see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson
vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent might as well
die intestate. The testamentary dispositions that the heirs should not
inquire into other property and that they should respect the
distribution made in the will, under penalty of forfeiture of their shares
in the free part do not suffice to prove fraud or undue influence. They
appear motivated by the desire to prevent prolonged litigation which,
as shown by ordinary experience, often results in a sizeable portion of
the estate being diverted into the hands of non-heirs and speculators.
Whether these clauses are valid or not is a matter to be litigated on
another occassion. It is also well to note that, as remarked by the
Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and
undue influence are mutually repugnant and exclude each other; their
joining as grounds for opposing probate shows absence of definite
evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one
witness to affix his signature to one page of a testament, due to the
simultaneous lifting of two pages in the course of signing, is not per se
sufficient to justify denial of probate. Impossibility of substitution of
this page is assured not only the fact that the testatrix and two other
witnesses did sign the defective page, but also by its bearing the
coincident imprint of the seal of the notary public before whom the
testament was ratified by testatrix and all three witnesses. The law
should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law to
guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and
the evidence on record attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off.
39
 Wills and Succession Case Digests
Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was
entirely through pure oversight is shown by his own testimony as well
as by the duplicate copy of the will, which bears a complete set of
signatures in every page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise evidence that no
one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict
and literal application of the statutory requirements, where the
purposes of the law are otherwise satisfied. Thus, despite the literal
tenor of the law, this Court has held that a testament, with the only
page signed at its foot by testator and witnesses, but not in the left
margin, could nevertheless be probated (Abangan vs. Abangan, 41
Phil. 476); and that despite the requirement for the correlative
lettering of the pages of a will, the failure to make the first page either
by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil.
429). These precedents exemplify the Court's policy to require
satisfaction of the legal requirements in order to guard against fraud
and bid faith but without undue or unnecessary curtailment of the
testamentary privilege.
The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of original because it lacked one
signature in its third page, it is easily discerned that oppositors-
appellants run here into a dilemma; if the original is defective and
invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid
and can be probated, then the objection to the signed duplicate need
not be considered, being superfluous and irrelevant. At any rate, said
duplicate, Exhibit A-1, serves to prove that the omission of one
signature in the third page of the original testament was inadvertent
and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted
without a new publication does not affect the jurisdiction of the
probate court, already conferred by the original publication of the
petition for probate. The amended petition did not substantially alter
the one first filed, but merely supplemented it by disclosing the
existence of the duplicate, and no showing is made that new interests
were involved (the contents of Exhibit A and A-1 are admittedly
identical); and appellants were duly notified of the proposed
amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no error in
admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed,
with costs against appellants.
EN BANC
G.R. No. L-6285 February 15, 1912
PEDRO BARUT, petitioner-appellant,
vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan
vs. Pedro Barut and another, No. 6284,1just decided by this court,
wherein there was an application for the probate of an alleged last will
and testament of the same person the probate of whose will is
involved in this suit.
This appeal arises out of an application on the part of Pedro Barut to
probate the last will and testament of Maria Salomon, deceased. It is
alleged in the petition of the probate that Maria Salomon died on the
7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving
a last will and testament bearing date March 2, 1907. Severo Agayan,
Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged to
have been witnesses to the execution thereof. By the terms of said will
Pedro Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano
dialect. Its translation into Spanish appears at page 11. After disposing
of her property the testatrix revoked all former wills by her made. She
also stated in said will that being unable to read or write, the same
had been read to her by Ciriaco Concepcion and Timotea Inoselda and
that she had instructed Severo Agayan to sign her name to it as
testatrix.
The probate of the will was contested and opposed by a number of the
relatives of the deceased on various grounds, among them that a later
will had been executed by the deceased. The will referred to as being
a later will is the one involved in case No. 6284 already referred to.
Proceeding for the probate of this later will were pending at the time.
The evidence of the proponents and of the opponents was taken by
the court in both cases for the purpose of considering them together.
In the case before us the learned probate court found that the will was
not entitled to probate upon the sole ground that the handwriting of
the person who it is alleged signed the name of the testatrix to the will
for and on her behalf looked more like the handwriting of one of the
other witnesses to the will than that of the person whose handwriting
it was alleged to be. We do not believe that the mere dissimilarity in
writing thus mentioned by the court is sufficient to overcome the
uncontradicted testimony of all the witnesses to the will that the
signature of the testatrix was written by Severo Agayan at her request
and in her presence and in the presence of all the witnesses to the
will. It is immaterial who writes the name of the testatrix provided it is
written at her request and in her presence and in the presence of all
the witnesses to the execution of the will.
The court seems , by inference at least, to have had in mind that
under the law relating to the execution of a will it is necessary that the
person who signs the name of the testatrix must afterwards sign his
own name; and that, in view of the fact that, in the case at bar, the
name signed below that of the testatrix as the person who signed her
name, being, from its appearance, not the same handwriting as that
constituting the name of the testatrix, the will is accordingly invalid,
such fact indicating that the person who signed the name of the
testatrix failed to sign his own. We do not believe that this contention
can be sustained. Section 618 of the Code of Civil Procedure reads as
follows:
No will, except as provided in the preceding section, shall be
valid to pass any estate, real or personal, nor charge or
effect the same, unless it be in writing and signed by the
testator, or by the testator's name written by some other
person in his presence, and by his expenses direction, and
attested and subscribed by three or more credible witnesses
in the presence of the testator and of each. . . .
This is the important part of the section under the terms of which the
court holds that the person who signs the name of the testator for him
must also sign his own name The remainder of the section reads:
40
 Wills and Succession Case Digests
The attestation shall state the fact that the testator signed
the will, or caused it to be signed by some other person, at
his express direction, in the presence of three witnesses,
and that they attested and subscribed it in his presence and
in the presence of each other. But the absence of such form
of attestation shall not render the will invalid if it is proven
that the will was in fact signed and attested as in this section
provided.
From these provisions it is entirely clear that, with respect to
the validity of the will, it is unimportant whether the person who writes
the name of the testatrix signs his own or not. The important thing is
that it clearly appears that the name of the testatrix was signed at her
express direction in the presence of three witnesses and that they
attested and subscribed it in her presence and in the presence of each
other. That is all the statute requires. It may be wise as a practical
matter that the one who signs the testator's name signs also his own;
but that it is not essential to the validity of the will. Whether one
parson or another signed the name of the testatrix in this case is
absolutely unimportant so far as the validity of her will is concerned.
The plain wording of the statute shows that the requirement laid down
by the trial court, if it did lay down, is absolutely unnecessary under
the law; and the reasons underlying the provisions of the statute
relating to the execution of wills do not in any sense require such a
provision. From the standpoint of language it is an impossibility to
draw from the words of the law the inference that the persons who
signs the name of the testator must sign his own name also. The law
requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The
name of a person who is unable to write may be signed by another by
express direction to any instrument known to the law. There is no
necessity whatever, so far as the validity of the instrument is
concerned, for the person who writes the name of the principal in the
document to sign his own name also. As a matter of policy it may be
wise that he do so inasmuch as it would give such intimation as would
enable a person proving the document to demonstrate more readily
the execution by the principal. But as a matter of essential validity of
the document, it is unnecessary. The main thing to be established in
the execution of the will is the signature of the testator. If that
signature is proved, whether it be written by himself or by another at
his request, it is none the less valid, and the fact of such signature can
be proved as perfectly and as completely when the person signing for
the principal omits to sign his own name as it can when he actually
signs. To hold a will invalid for the lack of the signature of the person
signing the name of the principal is, in the particular case, a complete
abrogation of the law of wills, as it rejects and destroys a will which
the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition
to the doctrine which we have herein laid down. They are Ex
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep.,
700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these
cases is in point. The headnote in the case last above stated gives an
indication of what all of cases are and the question involved in each
one of them. It says:
The testatrix was not able to sign it for her. Instead of
writing her name he wrote his own upon the will. Held, That
the will was not duly executed.
All of the above cases are precisely of this character. Every one of
them was a case in which the person who signed the will for the
testator wrote his own name to the will instead of writing that of the
testator, so that the testator's name nowhere appeared attached to
the will as the one who executed it. The case of Ex parte Arcenas
contains the following paragraph:
Where a testator does not know, or is unable for any reason,
to sign the will himself, it shall be signed in the following
manner: "John Doe, by the testator, Richard Roe;" or in this
form: "By the testator. John Doe, Richard Roe." All this must
be written by the witness signing at the request of the
testator.
The only question for decision in that case, as we have before stated,
was presented by the fact that the person who was authorized to sign
the name of the testator to the will actually failed to sign such name
but instead signedhis own thereto. The decision in that case related
only to that question.
Aside from the presentation of an alleged subsequent will the
contestants in this case have set forth no reason whatever why the will
involved in the present litigation should not be probated. The due and
legal execution of the will by the testatrix is clearly established by the
proofs in this case. Upon the facts, therefore, the will must be
probated. As to the defense of a subsequent will, that is resolved in
case No. 6284 of which we have already spoken. We there held that
said later will not the will of the deceased.
The judgment of the probate court must be and is hereby reversed
and that court is directed to enter an order in the usual form probating
the will involved in this litigation and to proceed with such probate in
accordance with law.
EN BANC
G.R. No. L-20475 March 19, 1924
In re will of TAN DIUCO, deceased. MAMERTA BASE, petitioner-
appellant.
ARAULLO, C.J.:
On March 3, 1921, Mamerta Base instituted this proceeding in the
Court of First Instance of Leyte for the probate of the will, Exhibit A,
executed, according to her, by the Chinaman Tan Diuco, a resident of
the municipality of Malitbog of said province, who died on December 8,
1920. That court denied the probate of the will on November 2, 1922,
and the petitioner brought the case on appeal to this court, alleging
that the lower court erred in holding that said will was not signed by
three instrumental witnesses and in not allowing it to probate.
After a hearing on the petition, the Court of First Instance entered the
order appealed from, in which it is found that said will was executed
with all the solemnities prescribed by Act No. 2645, except that it was
not signed by three instrumental witnesses beside the signature of the
testator and before the attestation clause, and this fact is the ground
upon which the petition was denied.
The document in question, Exhibit A, appears to have been signed by
Simplicio Sala by order of the testator, whose name is before the said
signature, by reason of the latter's incapacity on account of his
weakness and the trembling of his hand, the testator also stating that
he directed said Simplicio Sala to sign it in his name and in the
presence of three witnesses who also signed with him at the bottom of
said document, and on the left margin of each of its three pages
correlatively numbered in letters by Sala in the name of the testator
Tan Diuco and by the witnesses therein mentioned, named Pablo
Maturan, Ladislao Fenomeno, and Enrique Peñaredondo. After the
signature of the testator, Tan Diuco by Simplicio Sala, the following
paragraph appears:
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 Wills and Succession Case Digests
We, the undersigned witnesses to the forgoing will, do
hereby state that the testator signed this will and each of its
sheets in the presence of all and each of us, and we and
each of us likewise did sign this will and all of its sheets in
the presence of the testator and each of us, witnesses.
"TAN DIUCO
By "SIMPLICIO SALA
"LADISLAO FENOMENO
"PABLO MATURAN
"ENRIQUE PEÑAREDONDO"
Section 618 of the Code of Civil Procedure, as amended by Act No.
2645, provides, indeed, among the necessary requirements before a
will can be probated, that it be attested and signed by three or more
credible witnesses in the presence of the testator and of each other.
And said section, as amended, further provides as follows:
* * * The testator or the person requested by him to write
his name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof, on the
left margin, and said pages shall be numbered correlatively
in letters placed on the upper part of each sheet. The
attestation shall state the number of sheets or pages used,
upon which the will is written, and that fact that the testator
signed the will and every page thereof, or caused some
other person to write his name, under his express direction,
in the presence of three witnesses, and the latter witnessed
and signed the will and all pages thereof in the presence of
the testator and of each other.
Instrumental witness, as defined by Escriche in his Diccionario
Razonado de Legislacion y Jurisprudencia, volume 4, page 1115, is one
who takes part in the execution of an instrument or writing.
At present and under the laws now in force, particularly Act No. 2645
amendatory to said section 618 of the Code of Civil Procedure, when a
will is to be executed, the testator draws or writes it personally or
through another person and signs it also personally, or if he is
physically incapacitated, as in the instant case, through another person
who may or may not be the one who prepared or wrote the will, that
is, the document constituting the testator's last will and testament.
The will having thus been prepared and before it is signed by the
testator or the person acting in his stead, or the one directed by him to
sign it in his name, in which case the name of the testator is written
before that of the signer, as above stated, in order that said document
may have the character of a valid will, the testator gathers three or
more credible witnesses and tells them that the contents of said
document is his will, without informing them of its contents, and then
the testator, or the person directed by him to do so, signs it in the
presence of the testator and of each other, and the testator or the
person acting in his stead, as well as the three witnesses sign on the
left margin of each page or sheet, which must be numbered
correlatively in letters on the upper part of the page. These witnesses
are the witnesses, referred to in the aforesaid law as instrumental
witnesses, for the simple reason that they took part in the execution of
an instrument or document known as will, their participation being
limited to the acts aforementioned.
In dealing with attestation, said section 618 of the Code of Civil
Procedure, as amended by Act No. 2645, does not say that said
witnesses must be different from those who signed the attestation
clause, for in the first part of said section, after speaking of the
signature of the testator or the person signing in his place, it
adds, "and attested and subscribed by three or more credible
witnesses in the presence of the testator and of each other," from
which it clearly follows that the same witnesses who signed on the left
margin of each page of the document presented by the testator to
them as his will, must be the ones who should sign the attestation
clause, inasmuch as they alone can certify the facts to be stated in
said clause, for having taken a direct part therein, as they saw the
testator sign the will, or the person requested by him to sign all the
sheets of the will, that is, the document constituting his last will and
testament, and affirm that it was signed under his express direction in
the presence of said witnesses and that all the sheets thereof had also
been signed by them in the presence of said testator and of each of
them, as stated in the attestation clause of the will of the deceased
Tan Diuco, with the other details appropriate in said clause.
Besides, as may be seen, the said three witnesses who signed the
attestation clause, did so also on the left margin and beside the
signature of the testator or of Simplicio Sala who signed by order of
the latter, and if account is taken of the fact that these witnesses are
"instrumental" witnesses, as above demonstrated, and they have made
reference to their own signatures, as well as that of the testator and of
the person who signed by the latter's order below the attestation
clause, it is evident that in the instant case, it is merely a matter of
technicality devoid of any importance as to the probate of the will that
said witnesses are called instrumental witnesses, as if they were
different from those who have to sign the attestation clause, for all of
them are but the same witnesses; and, as this court held in the case of
Abangan vs. Abangan (40 Phil., 476), "The object of the solemnities
surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight
of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when a interpretation already
given assures such ends, any other interpretation whatsoever, that
adds nothing but demands more requisites entirely unnecessary,
useless and frustative of the testator's last will, must be disregarded;"
which doctrine must be applied in this case, in view of the facts herein
mentioned and what has been above demonstrated.
For all of the foregoing, the order appealed from is reversed, and the
document, Exhibit A, presented by the proponent as the last will and
testament of the deceased Tan Diuco is admitted to probate, without
special finding as to costs of both instances. So ordered.
EN BANC
G.R. No. L-9150 March 31, 1915
MARIANO LEAÑO, petitioner-appellant,
vs.
ARCADIO LEAÑO, objector-appellee.
CARSON, J.:
The evidence of record satisfactorily discloses that Cristina Valdes,
deceased, placed her costs against her name, attached by some other
person to the instrument offered for probate which purports to be her
last will and testament, in the presence of three witnesses whose
names are attached to the attesting clause, and that they attested and
subscribed the instrument in her presence and in the presence of each
other.
We are of the opinion that the placing of the cross opposite her name
at the construction of the instrument was a sufficient compliance with
the requirements of section 618 of the Code of Civil Procedure, which
prescribes that except where wills are signed by some other person
than the testator in the manner and from herein indicated, a valid will
42
 Wills and Succession Case Digests
must be signed by the testator. The right of a testator to sign his will
by mark, executed animo testandihas been uniformly sustained by the
courts of last resort of the United States in construing statutory
provisions prescribing the mode of execution of wills in language
identical with, or substantially similar to that found in section 618 of
our code, which was taken from section 2349 of the Code of Vermont.
(Page on Wills, par. 173, and the cases there cited in support of the
doctrine just announced.)
The trial judge was of contrary opinion, and declined to admit the
instrument to probate as the last will and testament of the decedent.
We are of opinion, however, that the evidence of record satisfactorily
establishes the execution of that instrument as and for her last will and
testament in the manner and form prescribed by law.
The judgment entered in the court below should therefore be
reversed, without costs in this instance, and the record remanded to
the court below, where judgment will be entered admitting the
instrument in question to probate in accordance with the prayer of the
petitioner. So ordered.
EN BANC
G.R. No. L-4067 November 29, 1951
In the Matter of the will of ANTERO MERCADO, deceased.
ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing
the will of Antero Mercado dated January 3, 1943. The will is written in
the Ilocano dialect and contains the following attestation clause:
We, the undersigned, by these presents to declare that the
foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this
attestation clause and that of the left margin of the three
pages thereof. Page three the continuation of this attestation
clause; this will is written in Ilocano dialect which is spoken
and understood by the testator, and it bears the
corresponding number in letter which compose of three
pages and all them were signed in the presence of the
testator and witnesses, and the witnesses in the presence of
the testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third
day of January, one thousand nine hundred forty three,
(1943) A.D.
Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES
Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who
wrote the name of Antero Mercado, followed below by "A reugo del
testator" and the name of Florentino Javier. Antero Mercado is alleged
to have written a cross immediately after his name. The Court of
Appeals, reversing the judgement of the Court of First Instance of
Ilocos Norte, ruled that the attestation clause failed (1) to certify that
the will was signed on all the left margins of the three pages and at
the end of the will by Atty. Florentino Javier at the express request of
the testator in the presence of the testator and each and every one of
the witnesses; (2) to certify that after the signing of the name of the
testator by Atty. Javier at the former's request said testator has written
a cross at the end of his name and on the left margin of the three
pages of which the will consists and at the end thereof; (3) to certify
that the three witnesses signed the will in all the pages thereon in the
presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to
state that Antero Mercado caused Atty. Florentino Javier to write the
testator's name under his express direction, as required by section 618
of the Code of Civil Procedure. The herein petitioner (who is appealing
by way of certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the cross
written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory
is that the cross is as much a signature as a thumbmark, the latter
having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil.,
479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296
and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the
usual signature of Antero Mercado or even one of the ways by which
he signed his name. After mature reflection, we are not prepared to
liken the mere sign of the cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the trustworthiness of a
thumbmark.
What has been said makes it unnecessary for us to determine there is
a sufficient recital in the attestation clause as to the signing of the will
by the testator in the presence of the witnesses, and by the latter in
the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the
petitioner. So ordered.
EN BANC
G.R. No. L-15153 August 31, 1960
In the Matter of the summary settlement of the Estate of the
deceased
ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga
City admitting to probate the will of one Anacleta Abellana. The case
was originally appealed to the Court of Appeals where the following
assignment of error is made:
The appellants respectfully submit that the Trial Court erred
in holding that the supposed testament, Exh. "A", was
signed in accordance with law; and in admitting the will to
probate.
In view of the fact that the appeal involves a question of law the said
court has certified the case to us.
The facts as found by the trial court are as follows:
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 Wills and Succession Case Digests
It appears on record that the last Will and Testament
(Exhibit "A"), which is sought to be probated, is written in
the Spanish language and consists of two (2) typewritten
pages (pages 4 and 5 of the record) double space. The first
page is signed by Juan Bello and under his name appears
typewritten "Por la testadora Anacleta Abellana, residence
Certificate A-1167629, Enero 20, 1951, Ciudad de
Zamboanga', and on the second page appears the signature
of three (3) instrumental witnesses Blas Sebastian, Faustino
Macaso and Rafael Ignacio, at the bottom of which appears
the signature of T. de los Santos and below his signature is
his official designation as the notary public who notarized
the said testament. On the first page on the left margin of
the said instrument also appear the signatures of the
instrumental witnesses. On the second page, which is the
last page of said last Will and Testament, also appears the
signature of the three (3) instrumental witnesses and on
that second page on the left margin appears the signature of
Juan Bello under whose name appears handwritten the
following phrase, "Por la Testadora Anacleta Abellana'. The
will is duly acknowledged before Notary Public Attorney
Timoteo de los Santos. (Emphasis supplied)
The appeal squarely presents the following issue: Does the signature
of Dr. Juan A. Abello above the typewritten statement "Por la
Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with
the requirements of law prescribing the manner in which a will shall be
executed?
The present law, Article 805 of the Civil Code, in part provides as
follows:
Every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself
or by the testator's name written by some other person in
his presence, and by his express direction, and attested and
subscribed by three or more credible witness in the presence
of the testator and of one another. (Emphasis supplied.)
The clause "must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his
presence and by his express direction," is practically the same as the
provisions of Section 618 of the Code of Civil Procedure (Act No. 190)
which reads as follows:
No will, except as provided in the preceding section shall be
valid to pass any estate, real or personal, nor charge or
affect the same, unless it be in writing and signed by the
testator, or by the testator's name written by some other
person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses
in the presence of the testator and of each other. . . .
(Emphasis supplied).
Note that the old law as well as the new require that the testator
himself sign the will, or if he cannot do so, the testator's name must
be written by some other person in his presence and by his express
direction. Applying this provision this Court said in the case of Ex Parte
Pedro Arcenas, et al., Phil., 700:
It will be noticed from the above-quoted section 618 of the
Code of Civil Procedure that where the testator does not
know how, or is unable, to sign, it will not be sufficient that
one of the attesting witnesses signs the will at the testator's
request, the notary certifying thereto as provided in Article
695 of the Civil Code, which, in this respect, was modified by
section 618 above referred to, but it is necessary that the
testator's name be written by the person signing in his stead
in the place where he could have signed if he knew how or
was able to do so, and this in the testator's presence and by
his express direction; so that a will signed in a manner
different than that prescribed by law shall not be valid and
will not be allowed to be probated.
Where a testator does not know how, or is unable for any
reason, to sign the will himself, it shall be signed in the
following manner:
John Doe by the testator, Richard Doe; or in this form: "By
the testator, John Doe, Richard Doe." All this must be
written by the witness signing at the request of the testator.
Therefore, under the law now in force, the witness Naval A.
Vidal should have written at the bottom of the will the full
name of the testator and his own name in one forms given
above. He did not do so, however, and this is failure to
comply with the law is a substantial defect which affects the
validity of the will and precludes its allowance,
notwithstanding the fact that no one appeared to oppose it.
The same ruling was laid down in the case of Cuison vs. Concepcion, 5
Phil., 552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held
that the important thing is that it clearly appears that the name of the
testatrix was signed at her express direction; it is unimportant whether
the person who writes the name of the testatrix signs his own or not.
Cases of the same import areas follows: (Ex Parte Juan Ondevilla, 13
Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does
not appear written under the will by said Abellana herself, or by Dr.
Juan Abello. There is, therefore, a failure to comply with the express
requirement in the law that the testator must himself sign the will, or
that his name be affixed thereto by some other person in his presence
and by his express direction.
It appearing that the above provision of the law has not been complied
with, we are constrained to declare that the said will of the deceased
Anacleta Abellana may not be admitted to probate.
WHEREFORE, the decision appealed from is hereby set aside and the
petition for the probate of the will denied. With costs against
petitioner.
EN BANC
G.R. No. L-3907 March 12, 1908
ROMAN ABAYA, petitioner-appellant,
vs.
DONATA ZALAMERO, respondent-appellee.
TORRES, J.:
On the 6th of August, Roman Abaya filed a petition with the Court of
First Instance of La Laguna, for the allowance of the will executed by
Juan Zalamero, a resident of Pagsanhan, in said province, on the 29th
of October, 1905, and produced in court the said will, which was
written in Tagalog dialect. Donata Zalamero opposed the petition,
alleging that the will had been executed under pressure and unlawful
44
 Wills and Succession Case Digests
and improper influence on the part of those who were to benefit
thereby, and that it had not been executed and signed in accordance
with the provisions of section 618 of the Code of Civil Procedure. A day
was appointed for the hearing and in the course of the proceedings
the witnesses offered by both parties were examined; on the 10th of
January, 1907, the court refused to admit the will of said Juan
Zalamero, as requested by Roman Abaya; Abaya appealed from the
decision and moved for a new trial which motion has not been finally
acted upon by the court; for this reason the petitioner, now before this
court, still insists thereon for the effects of the appeal which he had
interposed, and has submitted a certified copy of the proceedings to
which the assignment of errors presented by him refers.
Two points are presented. The first is, that Juan Zalamero, while in
life, executed his will on the 29th of October, 1905, under lawful
pressure and influence exercised by those who were thereby
benefited; and second, that the said will was not executed and signed
in accordance with the provisions of section 618 of the Code of Civil
Procedure.
After an examination of the facts alleged and the evidence adduced by
both parties, and considering the case according to the rules of
common sense and sound criticism, it must necessarily be admitted
that the weight and preponderance of the evidence prove in a
conclusive manner the authenticity and genuineness of the said will as
the real and true expression of the will of the testator, Juan Zalamero,
and for this reason the first point should have been decided by the
court below in a negative sense.
It was not expressly pretended that the said will should be disallowed
under the provisions of section 634 of the Code of Civil Procedure,
either because the testator was insane or otherwise mentally incapable
to execute such instrument at the time of its execution, or because it
was procured by undue and improper pressure and influence on the
part of the beneficiaries; nor even if such request had been made,
could the nullity of the said will have been judicially declared in view of
the lack of satisfactory proof of the presence of such circumstances.
Therefore, the court, in order to disallow the petition, had to disregard
them and rest the decision upon the allegation that the will was not
executed in accordance with the provisions of section 618 of the Code
of Civil Procedure.
Notwithstanding the reasons stated in the judgment appealed from, it
appears that the will in question was executed with the requirements
established by the law in force, and that, therefore, the decision upon
the second point should be against the opponents to the petition.
It is shown by the evidence, and by the will itself, that for the reasons
set forth by the testator and at his own request, one of the witnesses
to the will, Mariano Zaguirre, wrote with his own hand the name and
surname of Juan Zalamero, the testator, and his presence, and that
the latter put a cross between them and a note stating that what had
been written before the name and surname of the said Juan Zalamero,
with the cross placed at the foot thereof, was his testament and
contained his last will as stated by him when he directed the execution
thereof in the presence of the three witnesses who subscribed it in his
presence, and in the presence of each other.
It is true that the witness Mariano Zaguirre, who was requested by the
testator to write his name and surname at the end of his will, did not
affix his own signature immediately below the name and surname of
Juan Zalamero and below the cross placed by the latter with the words
"by request of the testator Juan Zalamero;" but in the said will are
clearly stated the reason why it was not signed by the testator himself
as also the request he made to the witness Zaguirre, and a repetition
thereof was not necessary; further, that this same witness, upon being
requested, wrote with his own hand the name and surname of the
testator, who afterwards placed the cross between them, stating that
it was his statement, all of which was written immediately after the
said name and surname of the testator and the cross made by him,
and the same was subscribed by the three witnesses in the manner
provided by law.
The essential requisites prescribed by the above-mentioned section
618 of the law have been complied with, namely, that three witnesses
were present at the execution of the will of Juan Zalamero at the date
mentioned therein; that they heard his statement that the said
instrument, written and drawn up under his direction, contained his
last will; that they saw and witnessed when, at the express request of
the testator, and under his direction, the witness, Mariano Zaguirre,
wrote at the foot of the will the name and surname of Juan Zalamero,
and when the latter put the cross between his written name and
surname, each of the witnesses subscribing it at the time and in the
presence of each other.
For the reasons hereinbefore set forth it is our opinion that the
judgment appealed from should be reversed and that it be declared, as
we now do, that the will executed by the late Juan Zalamero while in
life, under date of the 29th of October, 1905, was executed in
accordance with the law, and that therefore it should be duly admitted
in order that it may produce all consequent legal effects, and it is so
ordered without any special ruling as to costs.
EN BANC
G.R. No. 1641 January 19, 1906
GERMAN JABONETA, plaintiff-appellant,
vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
CARSON, J.:
In these proceedings probate was denied the last will and testament of
Macario Jaboneta, deceased, because the lower court was of the
opinion from the evidence adduced at the hearing that Julio Javellana,
one of the witnesses, did not attach his signature thereto in the
presence of Isabelo Jena, another of the witnesses, as required by the
provisions of section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this
particular point, being a part of the testimony of the said Isabeo Jena:
Q. 1641 Who first signed the will?
A. 1641 I signed it first, and afterwards Aniceto and
the others.
Q. 1641 Who were those others to whom you have
just referred?
A. 1641 After the witness Aniceto signed the will I left
the house, because I was in a hurry, and at the moment
when I was leaving I saw Julio Javellana with the pen in his
hand in position ready to sign (en actitud de firmar). I
believe he signed, because he was at the table. . . .
Q. 1641 State positively whether Julio Javellana did
or did not sign as a witness to the will.
45
 Wills and Succession Case Digests
A. 1641 I can't say certainly, because as I was
leaving the house I saw Julio Javellana with the pen in his
hand, in position ready to sign. I believe he signed.
Q. 1641 Why do you believe Julio Javellana signed?
A. 1641 Because he had the pen in his hand, which
was resting on the paper, though I did not actually see him
sign.
Q. 1641 Explain this contradictory statement.
A. 1641 After I signed I asked permission to leave,
because I was in a hurry, and while I was leaving Julio had
already taken the pen in his hand, as it appeared, for the
purpose of signing, and when I was near the door I
happened to turn my face and I saw that he had his hand
with the pen resting on the will, moving it as if for the
purpose of signing.
Q. 1641 State positively whether Julio moved his
hand with the pen as if for the purpose of signing, or
whether he was signing
A. I believe he was signing.
The truth and accuracy of the testimony of this witness does not seem
to have been questioned by any of the parties to the proceedings, but
the court, nevertheless, found the following facts:
On the 26th day of December, 1901, Macario Jaboneta
executed under the following circumstances the document in
question, which has been presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this
province, he ordered that the document in question be
written, and calling Julio Javellana, Aniceto Jalbuena, and
Isabelo Jena as witnesses, executed the said document as
his will. They were all together, and were in the room where
Jaboneta was, and were present when he signed the
document, Isabelo Jena signing afterwards as a witness, at
his request, and in his presence and in the presence of the
other two witnesses. Aniceto Jalbuena then signed as a
witness in the presence of the testator, and in the presence
of the other two persons who signed as witnesses. At that
moment Isabelo Jena, being in a hurry to leave, took his hat
and left the room. As he was leaving the house Julio
Javellana took the pen in his hand and put himself in
position to sign the will as a witness, but did not sign in the
presence of Isabelo Jena; but nevertheless, after Jena had
left the room the said Julio Javellana signed as a witness in
the presence of the testator and of the witness Aniceto
Jalbuena.
We can not agree with so much of the above finding of facts as holds
that the signature of Javellana was not signed in the presence of Jena,
in compliance with the provisions of section 618 of the Code of Civil
Procedure. The fact that Jena was still in the room when he saw
Javellana moving his hand and pen in the act of affixing his signature
to the will, taken together with the testimony of the remaining
witnesses which shows that Javellana did in fact there and then sign
his name to the will, convinces us that the signature was affixed in the
presence of Jena. The fact that he was in the act of leaving, and that
his back was turned while a portion of the name of the witness was
being written, is of no importance. He, with the other witnesses and
the testator, had assembled for the purpose of executing the
testament, and were together in the same room for that purpose, and
at the moment when the witness Javellana signed the document he
was actually and physically present and in such position with relation
to Javellana that he could see everything which took place by merely
casting his eyes in the proper direction, and without any physical
obstruction to prevent his doing so, therefore we are of opinion that
the document was in fact signed before he finally left the room.
The purpose of a statutory requirement that the witness sign
in the presence of the testator is said to be that the testator
may have ocular evidence of the identity of the instrument
subscribed by the witness and himself, and the generally
accepted tests of presence are vision and mental
apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599,
and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is
sufficient if the witnesses are together for the purpose of witnessing
the execution of the will, and in a position to actually see the testator
write, if they choose to do so; and there are many cases which lay
down the rule that the true test of vision is not whether the testator
actually saw the witness sign, but whether he might have seen him
sign, considering his mental and physical condition and position at the
time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as
between the testator and the witnesses are equally applicable in
determining whether the witnesses signed the instrument in the
presence of each other, as required by the statute, and applying them
to the facts proven in these proceedings we are of opinion that the
statutory requisites as to the execution of the instrument were
complied with, and that the lower court erred in denying probate to
the will on the ground stated in the ruling appealed from.
We are of opinion from the evidence of record that the instrument
propounded in these proceedings was satisfactorily proven to be the
last will and testament of Macario Jaboneta, deceased, and that it
should therefore be admitted to probate.
The judgment of the trial court is reversed, without especial
condemnation of costs, and after twenty days the record will be
returned to the court form whence it came, where the proper orders
will be entered in conformance herewith. So ordered.
EN BANC
G.R. No. L-5971 February 27, 1911
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.
CARSON, J.:
The only question raised by the evidence in this case as to the due
execution of the instrument propounded as a will in the court below, is
whether one of the subscribing witnesses was present in the small
room where it was executed at the time when the testator and the
other subscribing witnesses attached their signatures; or whether at
that time he was outside, some eight or ten feet away, in a large room
connecting with the smaller room by a doorway, across which was
hung a curtain which made it impossible for one in the outside room to
see the testator and the other subscribing witnesses in the act of
attaching their signatures to the instrument.
46
 Wills and Succession Case Digests
A majority of the members of the court is of opinion that this
subscribing witness was in the small room with the testator and the
other subscribing witnesses at the time when they attached their
signatures to the instrument, and this finding, of course, disposes of
the appeal and necessitates the affirmance of the decree admitting the
document to probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination
of this question of fact of vital importance in the determination of this
case, as he was of opinion that under the doctrine laid down in the
case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that
one of the subscribing witnesses was in the outer room when the
testator and the other describing witnesses signed the instrument in
the inner room, had it been proven, would not be sufficient in itself to
invalidate the execution of the will. But we are unanimously of opinion
that had this subscribing witness been proven to have been in the
outer room at the time when the testator and the other subscribing
witnesses attached their signatures to the instrument in the inner
room, it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence" of
the witness in the outer room. This because the line of vision from this
witness to the testator and the other subscribing witnesses would
necessarily have been impeded by the curtain separating the inner
from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses
in the execution of a will is not whether they actually saw
each other sign, but whether they might have been seen
each other sign, had they chosen to do so, considering their
mental and physical condition and position with relation to
each other at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with
relation to each other at the moment of the subscription of each
signature, must be such that they may see each other sign if they
choose to do so. This, of course, does not mean that the testator and
the subscribing witnesses may be held to have executed the
instrument in the presence of each other if it appears that they would
not have been able to see each other sign at that moment, without
changing their relative positions or existing conditions. The evidence in
the case relied upon by the trial judge discloses that "at the moment
when the witness Javellana signed the document he was actually and
physically present and in such position with relation to Jaboneta that
he could see everything that took place by merely casting his eyes in
the proper direction and without any physical obstruction to prevent
his doing so." And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses to an
alleged will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast upon
the paper at the moment of its subscription by each of them, but that
at that moment existing conditions and their position with relation to
each other were such that by merely casting the eyes in the proper
direction they could have seen each other sign. To extend the doctrine
further would open the door to the possibility of all manner of fraud,
substitution, and the like, and would defeat the purpose for which this
particular condition is prescribed in the code as one of the requisites in
the execution of a will.
The decree entered by the court below admitting the instrument
propounded therein to probate as the last will and testament of Pedro
Rimando, deceased, is affirmed with costs of this instance against the
appellant.
EN BANC
G.R. No. L-18799 March 31, 1964
HON. JOSE F. FERNANDEZ, Judge of the Court of First
Instance, Negros Occidental,
ASUNCION MARAVILLA, ET AL., petitioners,
vs.
HERMINIO MARAVILLA, respondent.
BARRERA, J.:
Petitioners herein appeal by certiorari from the decision of the Court of
Appeals (in CA-G.R. No. 27200-R) wherein, over their objection, raising
the question of jurisdiction petition, the appellate court took
cognizance of the petition for certiorari and prohibition filed by
Herminio Maravilla and, in consequence thereof, set aside the
appointment of petitioner Eliezar Lopez as a special co-administrator of
the estate of the deceased Digna Maravilla. The pertinent antecedent
facts are as follows:
On August 25, 1958, respondent Herminio Maravilla filed with he Court
of First Instance of Negros Occidental a petition for probate of the will
(Spec. Proc. No. 4977) of his deceased wife Digna Maravilla who died
on August 12 of that same year. In the will the surviving spouse was
named as the universal heir and executor.
On September 30, 1958, Pedro, Asuncion, and Regina Maravilla
(brother and sisters of the deceased Digna Maravilla) filed an
opposition to the probate of the will, on the ground, inter alia, that the
will was not signed on each page by the testatrix in the presence of
the attesting witnesses and of one another.
On March 16, 1959, on motion of respondent Herminio, which was
opposed by Pedro, Asuncion, and Regina Maravilla, the court issued an
order appointing him special administrator of the estate of the
deceased, for the reason that:
... all the properties subject of the will are conjugal
properties of the petitioner and his late wife, Digna
Maravilla, and before any partition of the conjugal property
is done, the Court cannot pinpoint which of the property
subject of the Will belongs to Digna Maravilla, exclusively,
that shall be administered by the special administrator.
Hence, although it is true that the petitioner Herminio
Maravilla has an adverse interest in the property subject of
the Will, the Court finds it impossible for the present time to
appoint any person other than the petitioner as special
administrator of the property until after the partition is
ordered, for the reason that the properties mentioned in the
Will are in the name of the petitioner who is the surviving
spouse of the deceased.
On February 8, 1960, the court rendered a decision denying probate of
the will, as it was not duly signed on each page by the testatrix in the
presence of the attesting witnesses and of one another.
On February 17, 1960, Pedro, Asuncion, and Regina Maravilla, filed
with the court a petition for appointment of Eliezar Lopez (son of
Asuncion Maravilla) as special co-administrator to protect their
interests, on the ground that the will, having been denied probate,
they are the legal heirs of the decedent. Said petition was heard on
February 20, at which hearing, respondent's counsel orally moved for
postponement, because respondent's principal counsel (Salonga) had
not been notified and was not present. The court ordered presentation
of oral evidence, consisting of the testimonies of Eliezar Lopez, and
Regina and Francisco Maravilla.
47
 Wills and Succession Case Digests
On February 26, 1960, respondent filed with the court his notice of
appeal, appeal bond and record on appeal, from the decision denying
probate of the will. Some devisees under the will, likewise, appealed
from said decision.
On February 25, 1960, Pedro, Asuncion, and Regina Maravilla, filed
with the court a petition for the removal of respondent as special
administrator, as he failed to file an inventory within 3 months from his
appointment and qualification as special administrator, as provided for
in Section 1, Rule 84, of the Rules of Court. To this petition,
respondent filed an opposition, on the ground that said provision of
the Rules of Court does not apply to a special administrator, and an
inventory had already been submitted by him, before said petition for
his removal was filed.1äwphï1.ñët
On February 27, 1960, the devisees Conchita and Rose Marie Kohlhaas
filed with the court a petition for appointment of Conchita as special
co-administratrix. Devisee Adelina Sajo, likewise, filed a similar petition
February 29.
On March 5, 1960, the court held a joint hearing the (1) petition to
appoint Eliezar Lopez as special administrator, (2) approval of
respondent's record appeal and appeal bond, (3) petition to remove
respondent as special administrator, (4) petition to appoint Conchita
Kohlhaas as special co-administratrix, and (5) petition to appoint
Adelina Sajo as special co-administrator. At said hearing, respondent
objected to the appointment of Eliezar Lopez was special co-
administratrix, on grounds that (a) the law allows only one special co-
administrator (b) the order of March 16, 1959 estops the court from
appointing Eliezar Lopez as special co-administrator (c) such
appointment is unfair to respondent, because owns at least 3/4 of the
whole property, conjugal nature, which would be subjected to the
administrate of a stranger, and (d) a deadlock between two special
administrators would ruin the management of the property, including
those of respondent. On cross-examination of Eliezar Lopez,
respondent's counsel elicited the facts that (1) Lopez was employed
full time in the PCAPE, with office in Manila. and could not discharge
the functions of a co-administrator, and (2) there was merely intention
on Lopez part to resign from office.
After said joint hearing, the court appointed Eliezar Lopez as special
co-administrator in an order dictated open court, to protect the
interests of Pedro, Asuncion and Regina Maravilla.
From this order, respondent, on March 7, 1960, filed with the Court of
Appeals a petition for certiorari and prohibition (with prayer for
preliminary injunction) to annul the order appointing Eliezar Lopez as
special co-administrator, and to prohibit the probate court from further
proceeding with the petition for the removal of respondent as special
administrator. The Court of Appeals issued a writ of preliminary
injunction on March 9, 1960 which was amended on March 11, 1960 to
make it more specific.
On October 6, 1960, petitioners Regina Maravilla, et al. filed with the
Court of Appeals a petition to certify the case to the Supreme Court,
on the grounds that the principal amount in controversy in this case
exceeds P200,000.00, and the writs (of certiorari and prohibition)
prayed for are not in aid of appellate jurisdiction of the Court of
Appeals, since the probate case is not on appeal before it. To this
petition, respondent filed an opposition. on the grounds that the
amount in controversy is less than P200,000.00 and the decision of the
probate court (of February 8, 1960) is now on appeal before the Court
of Appeals (CA-G.R. No. 27478-R); hence, the writ prayed for is in aid
of its appellate jurisdiction, and the present case does not involve title
to or possession of real estate exceeding in value P200,000.00.1
On May 16, 1961, the Court of Appeals rendered a decision granting
the writs (certiorari and prohibition) prayed for by respondent, and
declaring null and void the appointment of Eliezar Lopez as special co-
administrator.
Petitioners Regina Maravilla, et al. filed a motion for reconsideration of
said decision, but it was denied by the Court of Appeals. Hence, this
appeal.
Petitioners claim that the Court of Appeals had no jurisdiction to issue
the writs of certiorari and prohibition prayed for by respondent, the
same not being in aid of its appellate jurisdiction.
We agree with petitioners. The Court of Appeals, in the decision
appealed from, assumed jurisdiction over the present case on the
theory that "the amount in controversy relative to the appointment of
Eliezar Lopez as special co-administrator to protect the interests of
respondents (herein petitioners) is only P90,000.00 more or less, i.e.,
one fourth of the conjugal property" (of respondent and the deceased
Digna Maravilla) which, is per inventory submitted by respondent as
special administrator is valued at P362,424.90. This theory is
untenable. Note that the proceedings had on the appointment of
Eliezar Lopez as special co-administrator are merely incidental to the
probate or testate proceedings of the deceased Digna Maravilla
presently on appeal before the Court of Appeals (CA-G.R. No. 27478-
R) where petitioners' motion to elevate the same to the Supreme
Court, on the ground that the amount herein involved is within the
latter's exclusive jurisdiction, is still pending, resolution. That the Court
of Appeals has no appellate jurisdiction over said testate proceedings
cannot be doubted, considering that the properties therein involved
are valued at P362,424,90, as per inventory of the special
administrator.
Under Section 2, Rule 75, of the Rules of Court, the property to be
administered and liquidated in testate or intestate proceedings of the
deceased spouse is, not only that part of the conjugal estate pertaining
to the deceased spouse, but the entire conjugal estate. This Court has
already held that even if the deceased had left no debts, upon the
dissolution of the marriage by the death of the husband or wife, the
community property shall be inventoried, administered, and liquidated
in the testate or intestate proceedings of the deceased spouse (Vda.
de Roxas v. Pecson, et al., L-2211, December 20, 1948; 82 Phil. 407;
see also Vda. de Chantengco v. Chantengco, et al., L-10663, October
31, 1958). In a number of cases where appeal was taken from an
order of a probate court disallowing a will, this Court, in effect,
recognized that the amount or value involved or in controversy therein
is that of the entire estate (Suntay v. Suntay, L-3087, July 31, 1954,
50 O.G. 5321; Vano v. Vda. de Garces, et al., L-6303, June 30, 1954,
50 O.G. 3045). Not having appellate jurisdiction over the proceedings
in probate (CA-G.R. No. 27478-R), considering that the amount
involved therein is more than P200,000.00, the Court of Appeals
cannot also have original jurisdiction to grant the writs of certiorari and
prohibition prayed for by respondent in the instant case, which are
merely incidental thereto.
In the United States, the rule is that "proceedings in probate are
appealable where the amount or value involved is reducible to a
pecuniary standard, the amount involved being either the appellant's
interest or the value of the entire estate according as the issues on
appeal involve only the appellant's rights or the entire administration
of the estate. ... In a contest for administration of an estate the
amount or value of the assets of the estate is the amount in
controversy for purposes of appeal." (4 C.J.S. 204). In line with this
ruling, it is to be observed that respondent's interest as appellant in
the probate proceedings (CA-G.R. No. 27478-R) is, according to his
theory, the whole estate amounting to P362,424.90, or, at least more
than 3/4 thereof, or approximately P270,000.00. Such interest,
48
 Wills and Succession Case Digests
reduced to a pecuniary standard on the basis of the inventory, is the
amount or value of the matter in controversy, and such amount being
more than P200,000.00, it follows that the appeal taken in said
proceedings falls within the exclusive jurisdiction of the Supreme Court
and should, therefore, be certified to it pursuant to Section 17 of the
Judiciary Act of 1948, as amended.
Note also that the present proceedings under review were for the
annulment of the appointment of Eliezar Lopez as special co-
administrator and to restrain the probate court from removing
respondent as special administrator. It is therefore, a contest for the
administration of the estate and, consequently, the amount or value of
the assets of the whole estate is the value in controversy (4 C.J.S.
204). It appearing that the value of the estate in dispute is much more
than P200,000.00, the Court of Appeals clearly had no original
jurisdiction to issue the writs in question.
The Court of Appeals, in the decision appealed from, arrived at the
amount of "P90,000.00 more or less", as the amount involved in the
case, upon authority of the case of Vistan v. Archbishop (73 Phil. 20).
But this case is inapplicable, as it does not refer to the question of
administration of the estate, nor to an order denying probate of a will,
but only to the recovery of a particular legacy consisting of the rentals
of a fishpond belonging to the estate. In an analogous case involving
the administration of a trust fund, the United States Supreme Court
held:
Where the trust fund administered and ordered to be
distributed by the circuit court, in a suit to compel the
stockholders of a corporation to pay their subscriptions to
stock to realize the fund, amounts to more than $5,000.00,
this court has jurisdiction of the appeal, which is not affected
by the fact that the amounts decreed to some of the
creditors are less than that sum (Handly et al. vs. Stutz, et
al., 34 Law Ed. 706).
Respondent also contends that appeals in special proceedings, as
distinguished from ordinary civil cases, are within the exclusive
appellate jurisdiction of the Court of Appeals, since they are not
enumerated in Section 17 of the Judiciary Act, as amended.
Granting, arguendo, that a special proceeding is not a civil action, it
has never been decided that a special proceeding is not a "civil case"
(Carpenter v. Jones, 121 Cal. 362; 58 p. 842). On the other hand, it
has been held that the term "civil case" includes special proceedings
(Herkimer v. Keeler, 100 Iowa 680, N.W. 178). Moreover, Section 2,
Rule 73, of the Rules of Court provides that the rules on ordinary civil
actions are applicable in special proceedings where they are not
inconsistent with, or when they may serve to supplement the
provisions relating to special proceedings. Consequently, the procedure
of appeal is the same in civil actions as in special proceedings. (See
Moran's Comments on the Rules of Court, Vol. II, 1957 Ed., p. 326.)
The cases cited by respondent where this Court ruled that the separate
total claim of the parties and not the combined claims against each
other determine the appellate jurisdictional amount, are not applicable
to, the instant case, because Section 2, Rule 75 of the Rules of Court is
explicit that the amount or value involved or in controversy in probate
proceedings is that of the entire estate. Assuming, arguendo, that the
rule in the cases cited by respondent is here applicable, it should be
noted that respondent claims the whole estate of at least more than
3/4 thereof. Said claim, reduced to a pecuniary standard, on the basis
of the inventory, would amount to more than P200,000.00 and,
consequently, within the exclusive jurisdiction of the Supreme Court.
The case of Ledesma v. Natividad (L-6115, May 10, 1954) cited by
respondent in his brief, is also inapplicable, because unlike the instant
case, it did not involve a contest in the administration of the estate.
While it is true that questions of fact have been raised in the probate
proceedings (Spec. Proc. No. 4977, CFI of Negros Occidental) which
was appealed by respondent to the Court of Appeals, it becomes
immaterial, in view of Sections 17 and 31 of the Judiciary Act of 1948,
as amended, providing that the Supreme Court shall have exclusive
appellate jurisdiction over "all cases in which the value in controversy
exceeds two hundred thousand pesos, exclusive of interests and
costs", and that "all cases which may be erroneously brought to the
Supreme Court, or to the Court of Appeals shall be sent to the proper
court, which shall hear the same as if it had originally been brought
before it".
On the question of the appointment of petitioner Eliezar Lopez as
special administrator, we agree with respondent that there was no
need for it. Note that the Rules of Court contain no provision on
special co-administrator, the reason being, that the appointment of
such special administrator is merely temporary and subsists only until a
regular executor or administrator is duly appointed. Thus, it would not
only be unnecessary but also impractical, if for the temporary duration
of the need for a special administrator, another one is appointed aside
from the husband, in this case, upon whom the duty to liquidate the
community property devolves merely to protect the interests of
petitioners who, in the event that the disputed will is allowed to
probate, would even have no right to participate in the proceedings at
all. (Roxas v. Pecson, 82 Phil. 407.)
In view of the conclusion herein reached, in connection with the
amount involved in the controversy, it is suggested that appropriate
steps be taken on the appeal pending in the Court of Appeals involving
the probate of the will (CA-G.R. No. 27478-R) to comply with the
provisions of the Judiciary Act on the matter.
WHEREFORE, the decision of the Court of Appeals of May 16, 1961 is
set aside and another one entered also setting aside the order of the
trial court of March 5, 1960, appointing Eliezar Lopez as special co-
administrator. Without costs. So ordered.
EN BANC
G.R. No. L-26545 December 16, 1927
Testate Estate of Florencia R. Mateo. PERFECTO
GABRIEL, petitioner-appellee,
vs.
RITA R. MATEO, ET AL., opponents-appellants.
AVANCEÑA, C. J.:
The judgment appealed from allowed the will of Florencia Mateo dated
February 6, 1923, composed of two used sheets to probate. The will
appears to be signed by the testatrix and three witnesses on the left
margin of each of the sheets, by the testatrix alone at the bottom, and
by the three witnesses after the attestation clause. The testatrix died
on August 13, 1925. Opposition to such probate was filed by Rita
Mateo, the testatrix's sister, and by other relatives.
The three attesting witnesses to this will, testifying in this case,
declared that the signature of the testatrix were written in their
presence and that they signed their names in the presence of the
testatrix and of each other.
The testatrix from girlhood knew how to sign her name and did so with
her right hand; but as the right side of her body later became
paralyzed, she learned to sign with her left hand and for many years
49
 Wills and Succession Case Digests
thereafter, up to the time of her death, she used to sign with that whether or not they signed with the same pen and ink, these are
hand. Opponents allege that Florencia Mateo did not sign this will. details of such trivial importance, considering that this will was signed
two years before the date on which these witnesses gave their
testimony, that it is not proper to set aside the will for this reason
There are three salient arguments among those adduced by the
alone.
opponents in support of their opposition.

The attesting witnesses to this will, who testified also as witnesses at

The attesting witnesses testified that the testratrix signed before they
the trial of this case, showed themselves to be intelligent and honest,
did. The signatures of the testatrix on the left margin of the two sheets
one of them being a lawyer of twelve year's practice, and there is no
of the will are between the signatures of the two witnesses Vidal
reason to reject their testimony, and to suppose that they were
Rañoa and Julio Gabriel, and below her surname is the signature of the
untruthful in testifying, and that they falsified the will in question.
other witness Felicisimo Gabriel. The signatures of Vidal Rañoa and
Julio Gabriel are on a level with each other, while that of Felicisimo
Gabriel is found a little lower down. The testatrix's signatures start on Lastly, attention is called to the unreasonableness of the testatrix in
the line with Felicisimo Gabriel's signature, but tend to rise and her not leaving anything to the principal opponent, her sister Rita Mateo,
surname reaches a level with Julio Gabriel's signature. and to her nephews and nieces, to whom she had been so affectionate
during life. But as to the affectionate relations between the deceased
and the opponents, only the opponent Rita Mateo testified, and she
It is said that this direction of the testatrix's signature was due to the
only stated that she was on good terms with her sister during the
fact that when it was written Felicisimo Gabriel's signature was already
latter's lifetime; that the said sister used to give her a sack or some
there, and so she had to write her surname upwards in order to avoid
gantas of rice, and, a times, a little money; that she held all her
interfering with that Felicisimo Gabriel, which would have been the
nephews and nieces in equal regard. But even supposing that this
case had she continued on the horizontal line on which she had written
were so, there is nothing strange in the testatrix having left nothing to
her first name. From this detail it is pretended to draw the inference
the opponents, or in her having left all of her estate to the only heir
that the attesting witnesses signed before testatrix, contrary to their
instituted in her will, Tomas Mateo, who is also one of her nieces. And
testimony that she singed before they did. This deduction, however, is
not only is it not strange, but it seems reasonable, since, according to
unnecessary. It may be inferred with equal, if not greater, logic that
the evidence of the testatrix when the former was but 3 years old, and
the testatrix signed before him, and when it came to the witness
from then on up to the time of her death had never been separated
Gabriel's turn, he, finding the space below the testatrix signature free,
from her.
signed his name there. On the other hand, it may be noted that the
testatrix's other signature at the bottom of the will also shows a more
or less marked tendency to rise, notwithstanding the fact that there The opposition presented Doctor Banks as expert. He testified that the
was no signature with which she might interfere if she continued to signatures of the testatrix in the will are not genuine. The petitioner,
write in a straight horizontal line. Furthermore, if, as the opposition on the other hand, presented another expert, Pedro Serrano Laktao,
alleges, the testatrix's signature is not genuine and was placed there who affirmed that these signatures are genuine. But, over the
by another person, it is strange that the latter should have done so in testimony of these experts, we have the categorical and positive
such a way as to write it above Gabriel's signature while following the declaration of veracious witnesses who affirm that these signatures
horizontal line, when this could have been avoided by simply putting it were written by the testatrix herself.
a little higher. And this may be attributed to carelessness in the first
case, but it cannot be so explained in the second.
The judgment appealed from is affirmed, with costs against the
appellants. So ordered.
Attention is also called to the apparently different kinds of ink used by
the testatrix in her signature and by the attesting witnesses. Really an
FIRST DIVISION
examination of these signature reveals a somewhat deeper intensity of
ink in the signature of the testatrix than in those of the attesting
witnesses. It is alleged that this circumstance cannot be reconciled G.R. No. L-37453 May 25, 1979
with the declaration of the attesting witnesses that they used the same
pen and ink as the testatrix. But, only one of these witnesses declared RIZALINA GABRIEL GONZALES, petitioner,
this. The other one was not sure of it and said that he said that he did vs.
not perfectly remember this detail. The third scarcely made reference HONORABLE COURT OF APPEALS and LUTGARDA
to this particular. At all events, this apparent difference in ink may be SANTIAGO, respondents.
merely
due — supposing that the same ink and pen were used — to the
difference in pressure employed in writing these signatures, as is Francisco D. Rilloraza, Jr. for petitioners.
reasonable to suppose when we consider that the testatrix was a
paralytic and wrote with her left hand; or it may have been due to the Angel A. Sison for private respondent.
fact that the attesting witnesses dipped lightly in the ink while the
testatrix dipped the pen so as to take up the ink from the bottom of
the well. To bring out this irregularity, the opposition presented the
expert Del Rosario who asserted, among other things, that the
signature of the testatrix is more recent than that of the attesting GUERRERO, J.:
witnesses. If this opinion is correct and if, as alleged, the testatrix's
signature is forged, it would mean that the forgers, after having
prepared the will and made the witnesses sign, allowed sometime to This is a petition for review of the decision of the Court of Appeals,
elapsed before forging the testatrix's signature, which supposition is First Division, 1 promulgated on May 4, 1973 in CA G.R. No. 36523-R
not all probable, nor has it been explained.lawphi1.net which reversed the decision of the Court of First Instance of Rizal
dated December 15, 1964 and allowed the probate of the last will and
testament of the deceased Isabel Gabriel. *
At all events, even admitting that there is a certain question as to
whether the attesting witnesses signed before or after the testatrix, or
50
 Wills and Succession Case Digests
It appears that on June 24, 1961, herein private respondent Lutgarda
Santiago filed a petition with the Court of First Instance of Rizal
docketed as Special Proceedings No. 3617, for the probate of a will
alleged to have been executed by the deceased Isabel Gabriel and
designating therein petitioner as the principal beneficiary and
executrix.
There is no dispute in the records that the late Isabel Andres Gabriel
died as a widow and without issue in the municipality of Navotas,
province of Rizal her place of residence, on June 7, 1961 at the age of
eighty-five (85), having been born in 1876. It is likewise not
controverted that herein private respondent Lutgarda Santiago and
petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and
that private respondent, with her husband and children, lived with the
deceased at the latters residence prior an- d up to the time of her
death.
The will submitted for probate, Exhibit "F", which is typewritten and in
Tagalog, appears to have been executed in Manila on the 15th day of
April, 1961, or barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the pages whereon the
attestation clause and the acknowledgment of the notary public were
written. The signatures of the deceased Isabel Gabriel appear at the
end of the will on page four and at the left margin of all the pages.
The attestation clause, which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na
ang aming mga tinitirahan ay nakasulat sa gawing
kanan at kahilira ng aming mga pangalan sa ibaba
nito, ay pagpapatutuo na ipinakilala ipinaalam at
ipinahayag sa amin ni Isabel Gabriel na ang
kasulatang ito na binubuo ng Limang Dahon (Five
Pages) pati na ang dahong ito, na siya niyang
TESTAMENTO AT HULING HABILIN, ngayong ika
15 ng Abril, 1961, ay nilagdaan ng nasabing
testadora na si Isabel Gabriel ang nasabing
testamento sa ibaba o ilalim ng kasulatan na nasa
ika apat na dahon (page four) at nasa itaas ng
patunay naming ito, at sa kaliwang panig ng lahat
at bawat dahon (and on the left hand margin of
each and every page), sa harap ng lahat at bawat
isa sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing testadora, at sa
harap ng lahat at bawat isa sa amin, sa ilalim ng
patunay ng mga saksi at sa kaliwang panig ng
lahat at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the
signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R.
Gimpaya, and opposite the same, under the heading "Tirahan", are
their respective places of residence, 961 Highway 54, Philamlife, for
Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas.
Their signatures also appear on the left margin of all the other pages.
The WW is paged by typewritten words as follows: "Unang Dahon"
and underneath "(Page One)", "Ikalawang Dahon" and underneath
"(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the
Catholic Cemetery of Navotas, Rizal in accordance with the rites of the
Roman Catholic Church, all expenses to be paid from her estate; that
all her obligations, if any, be paid; that legacies in specified amounts
be given to her sister, Praxides Gabriel Vda. de Santiago, her brother
Santiago Gabriel, and her nephews and nieces, Benjamin, Salud,
Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed
Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia,
Verena an surnamed Santiago. To herein private respondent Lutgarda
Santiago, who was described in the will by the testatrix as "aking
mahal na pamangkin na aking pinalaki, inalagaan at minahal na
katulad ng isang tunay na anak" and named as universal heir and
executor, were bequeathed all properties and estate, real or personal
already acquired, or to be acquired, in her testatrix name, after
satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein
petitioner, assailing the document purporting to be the will of the
deceased on the following grounds:
1. that the same is not genuine; and in the
alternative
2. that the same was not executed and attested as
required by law;
3. that, at the time of the alleged execution of the
purported wilt the decedent lacked testamentary
capacity due to old age and sickness; and in the
second alternative
4. That the purported WW was procured through
undue and improper pressure and influence on the
part of the principal beneficiary, and/or of some
other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1,
1962. After trial, the court a quo rendered judgment, the summary and
dispositive portions of which read:
Passing in summary upon the grounds advanced
by the oppositor, this Court finds:
1. That there is no iota of evidence to support the
contentio that the purported will of the deceased
was procured through undue and improper
pressure and influence on the part of the
petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the
contention that at the time of the alleged
execution of the purported will, the deceased
lacked testamentary capacity due to old age and
sickness;
3. That sufficient and abundant evidence warrants
conclusively the fact that the purported will of the
deceased was not executed and attested as
required by law;
4. That the evidence is likewise conclusive that the
document presented for probate, Exhibit 'F' is not
the purported win allegedly dictated by the
deceased, executed and signed by her, and
attested by her three attesting witnesses on April
15, 1961.
WHEREFORE, Exhibit "F", the document presented
for probate as the last wig and testament of the
deceased Isabel Gabriel is here by DISALLOWED.
51
 Wills and Succession Case Digests
From this judgment of disallowance, Lutgarda Santiago appealed to
respondent Court, hence, the only issue decided on appeal was
whether or not the will in question was executed and attested as
required by law. The Court of Appeals, upon consideration of the
evidence adduced by both parties, rendered the decision now under
review, holding that the will in question was signed and executed by
the deceased Isabel Gabriel on April 15, 1961 in the presence of the
three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the presence of the
deceased and of each other as required by law, hence allow ed
probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration of the
3
aforesaid decision and such motion was opposed 4 by petitioner-
appellant Lutgarda Santiago. Thereafter. parties submitted their
respective Memoranda, 5and on August 28, 1973, respondent Court,
Former Special First Division, by Resolution 6 denied the motion for
reconsideration stating that:
The oppositor-appellee contends that the
preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel
was not executed in accordance with law because
the same was signed on several occasions, that
the testatrix did not sign the will in the presence
of all the instrumental witnesses did not sign the
will in the presence of each other.
The resolution of the factual issue raised in the
motion for reconsideration hinges on the
appreciation of the evidence. We have carefully
re-examined the oral and documentary evidence
of record, There is no reason to alter the findings
of fact in the decision of this Court sought to be
set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales
contends that respondent Court abused its discretion and/or acted
without or in excess of its jurisdiction in reverssing the findings of fact
and conclusions of the trial court. The Court, after deliberating on the
petition but without giving due course resolved, in the Resolution
dated Oct. 11, 1973 to require the respondents to comment thereon,
which comment was filed on Nov. 14, 1973. Upon consideration of the
allegations, the issues raised and the arguments adduced in the
petition, as well as the Comment 8 of private respondent thereon, We
denied the petition by Resolution on November 26, 1973, 9 the
question raised being factual and for insufficient showing that the
findings of fact by respondent Court were unsupported by substantial
evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes
fried a Motion for Reconsideration 10 which private respondent
answered by way of her Comment or Opposition 11 filed on January
15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March
27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the
document, Exhibit "F" was executed and attested as required by law
when there was absolutely no proof that the three instrumental
witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower
court that the preparation and execution of the win Exhibit "F", was
unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not
previously furnished with the names and residence certificates of the
witnesses as to enable him to type such data into the document
Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three
typewritten lines under the typewritten words "Pangalan" and
"Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that
it was incredible that Isabel Gabriel could have dictated the wilt Exhibit
"F , without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court
that Matilde Orobia was not physically present when the Will Exhibit
"F" was allegedly signed on April 15, 1961 by the deceased Isabel
Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave
undue importance to the picture takings as proof that the win was
improperly executed.
VIII. The Court of Appeals erred in holding that the grave
contradictions, evasions, and misrepresentations of witnesses
(subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said
testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or
has so far departed from the accepted and usual course of judicial
proceedings, as to call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial
court and admitting to probate Exhibit "F", the alleged last will and
testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same
are substantially factual in character and content. Hence, at the very
outset, We must again state the oft-repeated and well-established rule
that in this jurisdiction, the factual findings of the Court of Appeals are
not reviewable, the same being binding and conclusive on this Court.
This rule has been stated and reiterated in a long line of cases
enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737,
743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA
393), 13and in the more recent cases of Baptisia vs. Carillo and
CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig
vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA
83, 88). In the case of Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned
by the then Justice Recto, it has been well-settled that the jurisdiction
of tills Court in cases brought to us from the Court of Appeals is limited
to reviewing and revising the errors of law imputed to it, its findings of
fact being conclusive. More specifically, in a decision exactly a month
later, this Court, speaking through the then Justice Laurel, it was held
that the same principle is applicable, even if the Court of Appeals was
in disagreement with the lower court as to the weight of the evidence
with a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when
supported by substantive evidence are not reviewable on appeal by
certiorari. Said findings of the appellate court are final and cannot be
disturbed by Us particularly because its premises are borne out by the
record or based upon substantial evidence and what is more, when
52
 Wills and Succession Case Digests
such findings are correct. Assignments of errors involving factual
issues cannot be ventilated in a review of the decision of the Court of
Appeals because only legal questions may be raised. The Supreme
Court is not at liberty to alter or modify the facts as set forth in the
decision of the Court of Appeals sought to be reversed. Where the
findings of the Court of Appeals are contrary to those of the trial court,
a minute scrutiny by the Supreme Court is in order, and resort to duly-
proven evidence becomes necessary. The general rule We have thus
stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now
proceed to consider petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court
of Appeals erred in holding that the document, Exhibit "F", was
executed and attested as required by law when there was absolutely
no proof that the three instrumental witnesses were credible
witnesses. She argues that the require. ment in Article 806, Civil Code,
that the witnesses must be credible is an absolute requirement which
must be complied with before an alleged last will and testament may
be admitted to probate and that to be a credible witness, there must
be evidence on record that the witness has a good standing in his
community, or that he is honest and upright, or reputed to be
trustworthy and reliable. According to petitioner, unless the
qualifications of the witness are first established, his testimony may
not be favorably considered. Petitioner contends that the term
"credible" is not synonymous with "competent" for a witness may be
competent under Article 820 and 821 of the Civil Code and still not be
credible as required by Article 805 of the same Code. It is further
urged that the term "credible" as used in the Civil Code should receive
the same settled and well- known meaning it has under the
Naturalization Law, the latter being a kindred legislation with the Civil
Code provisions on wigs with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of
the Civil Code provides the qualifications of a witness to the execution
of wills while Article 821 sets forth the disqualification from being a
witness to a win. These Articles state:
Art. 820. Any person of sound mind and of the
age of eighteen years or more, and not blind, deaf
or dumb, and able to read and write, may be a
witness to the execution of a will mentioned in
article 806 of this Code. "Art. 821. The following
are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification
of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness
testify initially or at any time during the trial as to his good standing in
the community, his reputation for trustworthythiness and reliableness,
his honesty and uprightness in order that his testimony may be
believed and accepted by the trial court. It is enough that the
qualifications enumerated in Article 820 of the Civil Code are complied
with, such that the soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him, that his age (18
years or more) is shown from his appearance, testimony , or
competently proved otherwise, as well as the fact that he is not blind,
deaf or dumb and that he is able to read and write to the satisfaction
of the Court, and that he has none of the disqualifications under Article
821 of the Civil Code. We reject petitioner's contention that it must
first be established in the record the good standing of the witness in
the community, his reputation for trustworthiness and reliableness, his
honesty and uprightness, because such attributes are presumed of the
witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term
"credible" as used in the Civil Code should be given the same meaning
it has under the Naturalization Law where the law is mandatory that
the petition for naturalization must be supported by two character
witnesses who must prove their good standing in the community,
reputation for trustworthiness and reliableness, their honesty and
uprightness. The two witnesses in a petition for naturalization are
character witnesses in that being citizens of the Philippines, they
personally know the petitioner to be a resident of the Philippines for
the period of time required by the Act and a person of good repute
and morally irreproachable and that said petitioner has in their opinion
all the qualifications necessary to become a citizen of the Philippines
and is not in any way disqualified under the provisions of the
Naturalization Law (Section 7, Commonwealth Act No. 473 as
amended).
In probate proceedings, the instrumental witnesses are not character
witnesses for they merely attest the execution of a will or testament
and affirm the formalities attendant to said execution. And We agree
with the respondent that the rulings laid down in the cases cited by
petitioner concerning character witnesses in naturalization proceedings
are not applicable to instrumental witnesses to wills executed under
the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three
instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and
Maria Gimpaya, are competent and credible is satisfactorily supported
by the evidence as found by the respondent Court of Appeals, which
findings of fact this Tribunal is bound to accept and rely upon.
Moreover, petitioner has not pointed to any disqualification of any of
the said witnesses, much less has it been shown that anyone of them
is below 18 years of age, of unsound mind, deaf or dumb, or cannot
read or write.
It is true that under Article 805 of the New Civil Code, every will, other
than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the
testator and of one another, While the petitioner submits that Article
820 and 821 of the New Civil Code speak of the competency of a
witness due to his qualifications under the first Article and none of the
disqualifications under the second Article, whereas Article 805 requires
the attestation of three or more credible witnesses, petitioner
concludes that the term credible requires something more than just
being competent and, therefore, a witness in addition to
being competent under Articles 820 and 821 must also be a credible
witness under Article 805.
Petitioner cites American authorities that competency and credibility of
a witness are not synonymous terms and one may be a competent
witness and yet not a credible one. She exacerbates that there is no
evidence on record to show that the instrumental witnesses are
credible in themselves, that is, that they are of good standing in the
community since one was a family driver by profession and the second
the wife of the driver, a housekeeper. It is true that Celso Gimpaya
was the driver of the testatrix and his wife Maria Gimpaya, merely a
housekeeper, and that Matilde Orobia was a piano teacher to a
grandchild of the testatrix But the relation of employer and employee
much less the humble or financial position of a person do not
disqualify him to be a competent testamentary witness. (Molo Pekson
and Perez Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of
Raymundo, Off. Gaz., March 18,1941, p. 788).
53
 Wills and Succession Case Digests
Private respondent maintains that the qualifications of the three or
more credible witnesses mentioned in Article 805 of the Civil Code are
those mentioned in Article 820 of the same Code, this being obvious
from that portion of Article 820 which says "may be Q witness to the
execution of a will mentioned in Article 805 of this Code," and cites
authorities that the word "credible" insofar as witnesses to a will are
concerned simply means " competent." Thus, in the case of Suntay vs.
Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will
was duly executed and that it was in existence at the time of, and not
revoked before, the death of the testator, still the provisions of the lost
wig must be clearly and distinctly proved by at least two credible
witnesses. 'Credible witnesses' mean competent witnesses and not
those who testify to facts from or upon hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344,
the Supreme Court held that "Section 620 of the same Code of Civil
Procedure provides that any person of sound mind, and of the age of
eighteen years or more, and not blind, deaf, or dumb and able to read
and write, may be a witness to the execution of a will. This same
provision is reproduced in our New Civil Code of 1950, under Art. 820.
The relation of employer and employee, or being a relative to the
beneficiary in a win, does not disqualify one to be a witness to a will.
The main qualification of a witness in the attestation of wills, if other
qualifications as to age, mental capacity and literacy are present, is
that said witness must be credible, that is to say, his testimony may be
entitled to credence. There is a long line of authorities on this point, a
few of which we may cite:
A 'credible witness is one who is not is not to
testify by mental incapacity, crime, or other cause.
Historical Soc of Dauphin County vs. Kelker 74 A.
619, 226 Pix 16, 134 Am. St. Rep. 1010. (Words
and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible
witness' to a will means a 'competent witness.'
Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas.
1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to
attestation of wins means 'competent witness that
is, one competent under the law to testify to fact
of execution of will. Vernon's Ann. Civ St. art.
8283. Moos vs. First State Bank of Uvalde, Tex .
Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills
requiring that a will shall be attested by two
credible witnesses means competent; witnesses
who, at the time of attesting the will, are legally
competent to testify, in a court of justice, to the
facts attested by subscribing the will, the
competency being determined as of the date of
the execution of the will and not of the timr it is
offered for probate, Smith vs. Goodell 101 N.E.
255, 256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating
to wills, means competent witnesses — that is,
such persons as are not legally disqualified from
testifying in courts of justice, by reason of mental
incapacity, interest, or the commission of crimes,
or other cause excluding them from testifying
generally, or rendering them incompetent in
respect of the particular subject matter or in the
particular suit. Hill vs. Chicago Title & Trust co 152
N.E. 545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental
witness to a will is determined by the statute, that is Art. 820 and 821,
Civil Code, whereas his credibility depends On the appreciation of his
testimony and arises from the belief and conclusion of the Court that
said witness is telling the truth. Thus, in the case of Vda. de Aroyo v.
El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968,
the Supreme Court held and ruled that: "Competency as a witness is
one thing, and it is another to be a credible witness, so credible that
the Court must accept what he says. Trial courts may allow a person
to testify as a witness upon a given matter because he is competent,
but may thereafter decide whether to believe or not to believe his
testimony." In fine, We state the rule that the instrumental witnesses
in Order to be competent must be shown to have the qualifications
under Article 820 of the Civil Code and none of the disqualifications
under Article 821 and for their testimony to be credible, that is worthy
of belief and entitled to credence, it is not mandatory that evidence be
first established on record that the witnesses have a good standing in
the community or that they are honest and upright or reputed to be
trustworthy and reliable, for a person is presumed to be such unless
the contrary is established otherwise. In other words, the instrumental
witnesses must be competent and their testimonies must be credible
before the court allows the probate of the will they have attested. We,
therefore, reject petitioner's position that it was fatal for respondent
not to have introduced prior and independent proof of the fact that the
witnesses were "credible witnesses that is, that they have a good
standing in the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth
assignments of errors, petitioner disputes the findings of fact of the
respondent court in finding that the preparation and execution of the
will was expected and not coincidental, in finding that Atty. Paraiso
was not previously furnished with the names and residence certificates
of the witnesses as to enable him to type such data into the document
Exhibit "F", in holding that the fact that the three typewritten lines
under the typewritten words "pangalan" and "tinitirahan" were left
blank shows beyond cavil that the three attesting witnesses were all
present in the same occasion, in holding credible that Isabel Gabriel
could have dictated the will without note or document to Atty. Paraiso,
in holding that Matilde Orobia was physically present when the will was
signed on April 15, 1961 by the deceased Isabel Gabriel and the other
witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial
court gave undue importance to the picture takings as proof that the
will was improperly executed, and in holding that the grave
contradictions, evasions and misrepresentations of the witnesses
(subscribing and notary) presented by the petitioner had been
explained away.
Since the above errors are factual We must repeat what We have
previously laid down that the findings of fact of the appellate court are
binding and controlling which We cannot review, subject to certain
exceptions which We win consider and discuss hereinafter. We are
convinced that the appellate court's findings are sufficiently justified
and supported by the evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the testatrix to the office of
Atty. Paraiso and bringing all the witnesses without previous
appointment for the preparation and execution of the win and that it
was coincidental that Atty. Paraiso was available at the moment
impugns the finding of the Court of Appeals that although Atty. Paraiso
admitted the visit of Isabel Gabriel and of her companions to his office
on April 15, 1961 was unexpected as there was no prior appointment
with him, but he explained that he was available for any business
transaction on that day and that Isabel Gabriel had earlier requested
him to help her prepare her will. The finding of the appellate court is
amply based on the testimony of Celso Gimpaya that he was not only
informed on the morning of the day that he witnessed the will but that
it was the third time when Isabel Gabriel told him that he was going to
witness the making of her will, as well as the testimony of Maria
Gimpaya that she was called by her husband Celso Gimpaya to
54
 Wills and Succession Case Digests
proceed to Isabel Gabriel's house which was nearby and from said
house, they left in a car to the lawyer's office, which testimonies are
recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso
Gimpaya and his wife Maria Gimpaya obtained residence certificates a
few days before Exhibit "F" was executed. Celso Gimpaya's residence
certificate No. A-5114942 was issued at Navotas, Rizal on April 13,
1961 while Maria Gimpaya's residence certificate No. A-5114974 was
issued also at Navotas, Rizal on April 14, 1961. The respondent Court
correctly observed that there was nothing surprising in these facts and
that the securing of these residence certificates two days and one day,
respectively, before the execution of the will on April 15, 1961, far
from showing an amazing coincidence, reveals that the spouses were
earlier notified that they would be witnesses to the execution of Isabel
Gabriel's will.
We also agree with the respondent Court's conclusion that the
excursion to the office of Atty. Paraiso was planned by the deceased,
which conclusion was correctly drawn from the testimony of the
Gimpaya spouses that they started from the Navotas residence of the
deceased with a photographer and Isabel Gabriel herself, then they
proceeded by car to Matilde Orobia's house in Philamlife, Quezon City
to fetch her and from there, all the three witnesses (the Gimpayas and
Orobia) passed by a place where Isabel Gabriel stayed for about ten to
fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to
Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that
previous to the day that. the will was executed on April 15, 1961,
Isabel Gabriel had requested him to help her in the execution of her
will and that he told her that if she really wanted to execute her will,
she should bring with her at least the Mayor of Navotas, Rizal and a
Councilor to be her witnesses and that he (Atty. Paraiso) wanted a
medical certificate from a physician notwithstanding the fact that he
believed her to be of sound and disposition mind. From this evidence,
the appellate court rightly concluded, thus: "It is, therefore, clear that
the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso
Gimpaya and Maria Gimpaya including the photographer in the law
office of Atty. Paraiso was not coincidental as their gathering was pre-
arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously
furnished with the names and residence certificates of the witnesses as
to enable him to type such data into the document Exhibit ' L which
the petitioner assails as contradictory and irreconcilable with the
statement of the Court that Atty. Paraiso was handed a list (containing
the names of the witnesses and their respective residence certificates)
immediately upon their arrival in the law office by Isabel Gabriel and
this was corroborated by Atty. Paraiso himself who testified that it was
only on said occasion that he received such list from Isabel Gabriel,
We cannot agree with petitioner's contention. We find no contradiction
for the, respondent Court held that on the occasion of the will making
on April 15, 1961, the list was given immediately to Atty. Paraiso and
that no such list was given the lawyer in any previous occasion or date
prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names
and residence certificates of the witnesses on a prior occasion or on
the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial
acknowledgment of Notary Public Cipriano Paraiso, subscribed and
sworn to by the witnesses on April 15, 1961 following the attestation
clause duly executed and signed on the same occasion, April 15, 1961.
And since Exhibit "F" is a notarial will duly acknowledged by the
testatrix and the witnesses before a notary public, the same is a public
document executed and attested through the intervention of the
notary public and as such public document is evidence of the facts in
clear, unequivocal manner therein expressed. It has in its favor the
presumption of regularity. To contradict all these, there must be
evidence that is clear, convincing and more than merely preponderant.
(Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed
by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the
fact that the three typewritten lines under the typewritten words
"pangalan ' and "tinitirahan" were left blank shows beyond cavil that
the three attesting witnesses were all present in the same occasion
merits Our approval because tills conclusion is supported and borne
out by the evidence found by the appellate court, thus: "On page 5 of
Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.
date issued" and place issued the only name of Isabel Gabriel with
Residence Tax certificate No. A-5113274 issued on February 24, 1961
at Navotas Rizal appears to be in typewritten form while the names,
residence tax certificate numbers, dates and places of issuance of said
certificates pertaining to the three (3) witnesses were personally
handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's
even the sale must be made to close relatives; and the seventh was
the appointment of the appellant Santiago as executrix of the will
without bond. The technical description of the properties in paragraph
5 of Exhibit F was not given and the numbers of the certificates of title
were only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of
the properties disposed and the docket number of a special proceeding
are indicated which Atty. Paraiso candidly admitted were supplied by
him, whereupon petitioner contends that it was incredible that Isabel
Gabriel could have dictated the will Exhibit "F" without any note or
document to Atty. Paraiso, considering that Isabel Gabriel was an old
and sickly woman more than eighty-one years old and had been
suffering from a brain injury caused by two severe blows at her head
and died of terminal cancer a few weeks after the execution of Exhibit
"F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the
testamentary capacity of the testatrix and is, therefore, beyond Our
power to revise and review, We nevertheless hold that the conclusion
reached by the Court of Appeals that the testatrix dictated her will
without any note or memorandum appears to be fully supported by the
following facts or evidence appearing on record. Thus, Isabel Gabriel,
despite her age, was particularly active in her business affairs as she
actively managed the affairs of the movie business ISABELITA Theater,
paying the aparatistas herself until June 4, 1961, 3 days before her
death. She was the widow of the late Eligio Naval, former Governor of
Rizal Province and acted as coadministratrix in the Intestate Estate of
her deceased husband Eligio Naval. The text of the win was in
Tagalog, a dialect known and understood by her and in the light of all
the circumstances, We agree with the respondent Court that the
testatrix dictated her will without any note or memorandum, a fact
unanimously testified to by the three attesting witnesses and the
notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The
evidence, both testimonial and documentary is, according to the
respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix
and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such
factual finding of the appellate court is very clear, thus: "On the
contrary, the record is replete with proof that Matilde Orobia was
physically present when the will was signed by Isabel Gabriel on April
'15, 1961 along with her co-witnesses Celso Gimpaya and Maria
Gimpaya. The trial court's conclusion that Orobia's admission that she
gave piano lessons to the child of the appellant on Wednesdays and
Saturdays and that April 15, 1961 happened to be a Saturday for
which reason Orobia could not have been present to witness the will
on that — day is purely conjectural. Witness Orobia did not admit
55
 Wills and Succession Case Digests
having given piano lessons to the appellant's child every Wednesday the trial court. On the other hand, the respondent Court of Appeals
and Saturday without fail. It is highly probable that even if April 15, held that said contradictions, evasions and misrepresentations had
1961 were a Saturday, she gave no piano lessons on that day for been explained away. Such discrepancies as in the description of the
which reason she could have witnessed the execution of the will. typewriter used by Atty. Paraiso which he described as "elite" which to
Orobia spoke of occasions when she missed giving piano lessons and him meant big letters which are of the type in which the will was
had to make up for the same. Anyway, her presence at the law office typewritten but which was Identified by witness Jolly Bugarin of the
of Atty. Paraiso was in the morning of April 15, 1961 and there was N.B.I. as pica the mistake in mentioning the name of the photographer
nothing to preclude her from giving piano lessons on the afternoon of by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin
the same day in Navotas, Rizal." Cifra, Jr.— these are indeed unimportant details which could have
been affected by the lapse of time and the treachery of human
memory such that by themselves would not alter the probative value
In addition to the testimony of Matilde Orobia, Celso Gimpaya and
of their testimonies on the true execution of the will, (Pascual vs. dela
Maria Gimpaya that Matilde was present on April 15, 1961 and that she
Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony
signed the attestation clause to the will and on the left-hand margin of
of every person win be Identical and coinciding with each other with
each of the pages of the will, the documentary evidence which is the
regard to details of an incident and that witnesses are not expected to
will itself, the attestation clause and the notarial acknowledgment
remember all details. Human experience teach us "that contradictions
overwhelmingly and convincingly prove such fact that Matilde Orobia
of witnesses generally occur in the details of certain incidents, after a
was present on that day of April 15, 1961 and that she witnessed the
long series of questionings, and far from being an evidence of
will by signing her name thereon and acknowledged the same before
falsehood constitute a demonstration of good faith. In as much as not
the notary public, Atty. Cipriano P. Paraiso. The attestation clause
all those who witness an incident are impressed in like manner, it is
which Matilde Orobia signed is the best evidence as to the date of
but natural that in relating their impressions, they should not agree in
signing because it preserves in permanent form a recital of all the
the minor details; hence the contradictions in their testimony." (Lopez
material facts attending the execution of the will. This is the very
vs. Liboro, 81 Phil. 429).
purpose of the attestation clause which is made for the purpose of
preserving in permanent form a record of the facts attending the
execution of the will, so that in case of failure in the memory of the It is urged of Us by the petitioner that the findings of the trial court
subscribing witnesses, or other casualty they may still be proved. should not have been disturbed by the respondent appellate court
(Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. because the trial court was in a better position to weigh and evaluate
745). the evidence presented in the course of the trial. As a general rule,
petitioner is correct but it is subject to well-established exceptions. The
right of the Court of Appeals to review, alter and reverse the findings
As to the seventh error assigned by petitioner faulting the Court of
of the trial court where the appellate court, in reviewing the evidence
Appeals in holding that the trial court gave undue importance to the
has found that facts and circumstances of weight and influence have
picture-takings as proof that the win was improperly executed, We
been ignored and overlooked and the significance of which have been
agree with the reasoning of the respondent court that: "Matilde
misinterpreted by the trial court, cannot be disputed. Findings of facts
Orobia's Identification of the photographer as "Cesar Mendoza",
made by trial courts particularly when they are based on conflicting
contrary to what the other two witnesses (Celso and Maria Gimpaya)
evidence whose evaluation hinges on questions of credibility of
and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is
contending witnesses hes peculiarly within the province of trial courts
at worst a minor mistake attributable to lapse of time. The law does
and generally, the appellate court should not interfere with the same.
not require a photographer for the execution and attestation of the
In the instant case, however, the Court of Appeals found that the trial
will. The fact that Miss Orobia mistakenly Identified the photographer
court had overlooked and misinterpreted the facts and circumstances
as Cesar Mendoza scarcely detracts from her testimony that she was
established in the record. Whereas the appellate court said that
present when the will was signed because what matters here is not the
"Nothing in the record supports the trial court's unbelief that Isabel
photographer but the photograph taken which clearly portrays Matilde
Gabriel dictated her will without any note or document to Atty.
Orobia herself, her co-witnesses Celso Gimpaya. " Further, the
Paraiso;" that the trial court's conclusion that Matilde Orobia could not
respondent Court correctly held: "The trial court gave undue
have witnessed anybody signing the alleged will or that she could not
importance to the picture takings, jumping therefrom to the conclusion
have witnessed Celso Gimpaya and Maria Gimpaya sign the same or
that the will was improperly executed. The evidence however, heavily
that she witnessed only the deceased signing it, is a conclusion based
points to only one occasion of the execution of the will on April 15,
not on facts but on inferences; that the trial court gave undue
1961 which was witnessed by Matilde Orobia, Celso Gimpaya and
importance to the picture-takings, jumping therefrom to the conclusion
Maria Gimpaya. These witnesses were quite emphatic and positive
that the will was improperly executed and that there is nothing in the
when they spoke of this occasion. Hence, their Identification of some
entire record to support the conclusion of the court a quo that the will
photographs wherein they all appeared along with Isabel Gabriel and
signing occasion was a mere coincidence and that Isabel Gabriel made
Atty. Paraiso was superfluous."
an appointment only with Matilde Orobia to witness the signing of her
will, then it becomes the duty of the appellate court to reverse findings
Continuing, the respondent Court declared: "It is true that the second of fact of the trial court in the exercise of its appellate jurisdiction over
picture-taking was disclosed at the cross examination of Celso the lower courts.
Gimpaya. But this was explained by Atty. Paraiso as a reenactment of
the first incident upon the insistence of Isabel Gabriel. Such
Still the petitioner insists that the case at bar is an exception to the
reenactment where Matilde Orobia was admittedly no longer present
rule that the judgment of the Court of Appeals is conclusive as to the
was wholly unnecessary if not pointless. What was important was that
facts and cannot be reviewed by the Supreme Court. Again We agree
the will was duly executed and witnessed on the first occasion on April
with the petitioner that among the exceptions are: (1) when the
15, 1961 , " and We agree with the Court's rationalization in
conclusion is a finding grounded entirely on speculations, surmises or
conformity with logic, law and jurisprudence which do not require
conjectures; (2) when the inference is manifestly mistaken, absurd or
picture-taking as one of the legal requisites for the execution or
impossible; (3) when there is a grave abuse of discretion; (4) when
probate of a will.
the presence of each other as required by law. " Specifically, We affirm
that on April 15, 1961 the testatrix Isabel Gabriel, together with
Petitioner points to alleged grave contradictions, evasions and Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a
misrepresentations of witnesses in their respective testimonies before photographer proceeded in a car to the office of Atty. Cipriano Paraiso

56
 Wills and Succession Case Digests
at the Bank of P.I. Building, Manila in the morning of that day; that on
the way, Isabel Gabriel obtained a medical certificate from one Dr.
Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's
office and told the lawyer that she wanted her will to be made; that
Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be
written in the will and the attorney wrote down the dictation of Isabel
Gabriel in Tagalog, a language known to and spoken by her; that Atty.
Paraiso read back to her what he wrote as dictated and she affirmed
their correctness; the lawyer then typed the will and after finishing the
document, he read it to her and she told him that it was alright; that
thereafter, Isabel Gabriel signed her name at the end of the will in the
presence of the three witnesses Matilde Orobia, Celso Gimpaya and
Maria Gimpaya and also at the left-hand margin of each and every
page of the document in the presence also of the said three witnesses;
that thereafter Matilde Orobia attested the will by signing her name at
the end of the attestation clause and at the left-hand margin of pages
1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and
the other two witnesses, Celso Gimpaya and Maria Gimpaya; then,
Celso Gimpaya signed also the will at the bottom of the attestation
clause and at the left-hand margin of the other pages of the document
in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya;
that Maria Gimpaya followed suit, signing her name at the foot of the
attestation clause and at the left-hand margin of every page in the
presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that
thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No.
IV, Series of 1961, in his Notarial Register. On the occasion of the
execution and attestation of the will, a photographer took pictures, one
Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso
Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of
the signing of the will, and another, Exhibit "H", showing Matilde
Orobia signing testimony that he had earlier advised Isabel Gabriel to
bring with her at least the Mayor and a Councilor of Navotas, Rizal to
be her witnesses for he did not know beforehand the Identities of the
three attesting witnesses until the latter showed up at his law office
with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which was
not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that
he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was
credible that Isabel Gabriel could have dictated the will, Exhibit "F",
without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the
respondent court is fully supported by the evidence on record as
stated in the decision under review, thus: "Nothing in the record
supports the trial court's unbelief that Isabel Gabriel dictated her will
without any note or document to Atty. Paraiso. On the contrary, all the
three attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece of paper
that she handed to said lawyer she had no note or document. This fact
jibes with the evidence — which the trial court itself believed was
unshaken — that Isabel Gabriel was of sound disposing memory when
she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not
complicated but quite simple. The first was Isabel Gabriel's wish to be
interred according to Catholic rites the second was a general directive
to pay her debts if any; the third provided for P1,000.00 for her sister
Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother
Santiago Gabriel; the fourth was a listing of her 13 nephews and
nieces including oppositor-appellee Rizalina Gabriel and the amount for
each legatee the fifth was the institution of the petitioner-appellant,
Lutgarda Santiago as the principal heir mentioning in general terms
seven (7) types of properties; the sixth disposed of the remainder of
her estate which she willed in favor of appellant Lutgarda Santiago but
prohibiting the sale of such properties to anyone except in extreme
situations in which judgment is based on a misapprehension of facts;
(5) when the findings of fact are conflicting, (6) when the Court of
Appeals, in making its findings, went beyond the issues of the case
and the same is contrary to the admissions of both appellant and
appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967;
Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967;
Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar
does not fall within any of the exceptions enumerated above. We
likewise hold that the findings of fact of the respondent appellate court
are fully supported by the evidence on record. The conclusions are
fully sustained by substantial evidence. We find no abuse of discretion
and We discern no misapprehension of facts. The respondent Court's
findings of fact are not conflicting. Hence, the well-established rule
that the decision of the Court of Appeals and its findings of fact are
binding and conclusive and should not be disturbed by this Tribunal
and it must be applied in the case at bar in its full force and effect,
without qualification or reservation. The above holding simply
synthesize the resolutions we have heretofore made in respect ' to
petitioner's previous assignments of error and to which We have
disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected
by Us as We find the respondent Court acted properly and correctly
and has not departed from the accepted and usual course of judicial
proceedings as to call for the exercise of the power of supervision by
the Supreme Court, and as We find that the Court of Appeals did not
err in reversing the decision of the trial court and admitting to probate
Exhibit "F", the last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its
summation and evaluation of the evidence on record is unassailable
that: "From the welter of evidence presented, we are convinced that
the will in question was executed on April 15, 1961 in the presence of
Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and
witnessing the same in the the will on a table with Isabel Gabriel,
Celso Gimpaya and Maria Gimpaya sitting around the table. Atty.
Paraiso, after finishing the notarial act, then delivered the original to
Isabel Gabriel and retained the other copies for his file and notarial
register. A few days following the signing of the will, Isabel Gabriel,
Celso Gimpaya and another photographer arrived at the office of Atty.
Paraiso and told the lawyer that she wanted another picture taken
because the first picture did not turn out good. The lawyer told her
that this cannot be done because the will was already signed but
Isabel Gabriel insisted that a picture be taken, so a simulated signing
was performed during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the
testimonies of the witnesses for the proponent of the will, their alleged
evasions, inconsistencies and contradictions. But in the case at bar, the
three instrumental witnesses who constitute the best evidence of the
will making have testified in favor of the probate of the will. So has the
lawyer who prepared it, one learned in the law and long in the practice
thereof, who thereafter notarized it. All of them are disinterested
witnesses who stand to receive no benefit from the testament. The
signatures of the witnesses and the testatrix have been identified on
the will and there is no claim whatsoever and by anyone, much less
the petitioner, that they were not genuine. In the last and final
analysis, the herein conflict is factual and we go back to the rule that
the Supreme Court cannot review and revise the findings of facts of
the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed
from is hereby AFFIRMED, with costs against the petitioner.
SO ORDERED.
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 Wills and Succession Case Digests
EN BANC Applying that doctrine to the instant case, we hold that, as each and
every page used of the will bears the signatures of the testator and
the witnesses, the fact that said signatures do not all appear on the
G.R. No. L-21755 December 29, 1924
left margin of each page does not detract from the validity of the
will.lawphi1.net
In the matter of the testate estate of Antonio Mojal, deceased.
FILOMENA NAYVE, petitioner-appellee,
Turning to the second defect alleged, that is to say, the fact that the
vs.
sheets of the document are not paged with letters, suffice it to cite the
LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.
case of Unson vs. Abella (43 Phil., 494), where this court held that
paging with Arabic numerals and not with letters, as in the case before
ROMUALDEZ, J.: us, is within the spirit of the law and is just as valid as paging with
letters.
This is a proceeding for the probate of the will of the deceased Antonio
Mojal instituted by his surviving spouse, Filomena Nayve. The probate As to the proposition that the attestation clause does not state the
is opposed by Leona Mojal and Luciana Aguilar, sister and niece, number of sheets or pages of the will, which is the third defect
respectively, of the deceased. assigned, it must be noted that the last paragraph of the will here in
question and the attestation clause, coming next to it, are of the
The Court of First Instance of Albay, which tried the case, overruled following tenor:
the objections to the will, and ordered the probate thereof, holding
that the document in controversy was the last will and testament of In witness
Antonio Mojal, executed in accordance with law. From this judgment whereof, I set
the opponents appeal, assigning error to the decree of the court my hand unto
allowing the will to probate and overruling their opposition. this will here in
the town of
The will in question, Exhibit A, is composed of four sheets with written Camalig, Albay,
matter on only side of each, that is, four pages written on four sheets. Philippine
The four sides or pages containing written matter are paged "Pag. 1," Islands, this
"Pag. 2," "Pag. 3," "Pag. 4," successively. Each of the first two sides or 26th day of
pages, which was issued, was signed by the testator and the three November,
witnesses on the margin, left side of the reader. On the third page nineteen
actually used, the signatures of the three witnesses appear also on the hundred and
margin, left side of the reader, but the signature of the testator is not eighteen,
on the margin, but about the middle of the page, at the end of the will composed of
and before the attestation clause. On the fourth page, the signatures four sheets,
of the witnesses do not appear on the margin, but at the bottom of including the
the attestation clause, it being the signature of the testator that is on next:
the margin, left side of the reader. ANTONIO MOJAL

The defects attributed to the will are:

(Signed and
(a) The fact of not having been signed by the testator and the declared by the
witnesses on each and every sheet on the left margin; ( b) the fact of testator Don
the sheets of the document not being paged with letters; (c) the fact Antonio Mojal
that the attestation clause does not state the number of sheets or to be his last
pages actually used of the will; and (d) the fact that the testator does will and
not appear to have signed all the sheets in the presence of the three testament in
witnesses, and the latter to have attested and signed all the sheets in the presence of
the presence of the testator and of each other. each of us, and
at the request
As to the signatures on the margin, it is true, as above stated, that the of said testator
third page actually used was signed by the testator, not on the left Don Antonio
margin, as it was by the witnesses, but about the middle of the page Mojal, we
and the end of the will; and that the fourth page was signed by the signed this will
witnesses, not on the left margin, as it was by the testator, but about in the presence
the middle of the page and at the end of the attestation clause. of each other
and of the
testator.)
In this respect the holding of this court in the case of Avera vs. Garcia
PEDRO CARO
and Rodriguez (42 Phil., 145), is applicable, wherein the will in
SILVERIO MORCO
question was signed by the testator and the witnesses, not on the left,
ZOILO MASINAS
but right, margin. The rule laid down in that case is that the document
contained the necessary signatures on each page, whereby each page
of the will was authenticated and safeguarded against any possible As may be seen, the number of sheets is stated in said last paragraph
alteration. In that case, the validity of the will was sustained, and of the will. It is true that in the case of Uy Coque vs. Navas L.
consequently it was allowed to probate. Sioca (43 Phil., 405), it was held that the attestation clause must state
the number of sheets or pages composing the will; but when, as in the
case before us, such fact, while it is not stated in the attestation
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clause, appears at the end of the will proper, so that no
proof aliunde is necessary of the number of the sheets of the will, then
there can be no doubt that it complies with the intention of the law
that the number of sheets of which the will is composed be shown by
the document itself, to prevent the number of the sheets of the will
from being unduly increased or decreased.
With regard to the last defect pointed out, namely, that the testator
does not appear to have signed on all the sheets of the will in the
presence of the three witnesses, and the latter to have attested and
signed on all the sheets in the presence of the testator and of each
other, it must be noted that in the attestation clause above set out it is
said that the testator signed the will "in the presence of each of the
witnesses" and the latter signed "in the presence of each other and of
the testator." So that, as to whether the testator and the attesting
witnesses saw each other sign the will, such a requirement was clearly
and sufficiently complied with. What is not stated in this clause is
whether the testator and the witnesses signed all the sheets of the
will.
The act of the testator and the witnesses seeing reciprocally the
signing of the will is one which cannot be proven by the mere
exhibition of the will unless it is stated in the document. And this fact
is expressly stated in the attestation clause now before us. But the fact
of the testator and the witnesses having signed all the sheets of the
will may be proven by the mere examination of the document,
although it does not say anything about this, and if that is the fact, as
it is in the instant case, the danger of fraud in this respect, which is
what the law tries to avoid, does not exist.
Therefore, as in the instant case the fact that the testator and the
witnesses signed each and every page of the will is proven by the
mere examination of the signatures in the will, the omission to
expressly state such evident fact does not invalidate the will nor
prevent its probate.
The order appealed from is affirmed with the costs against the
appellants. So ordered.
EN BANC
G.R. No. L-15025 March 15, 1920
In the matter of the estate of REMIGIA SAGUINSIN,
deceased.
ARCADIO DEL ROSARIO, applicant-appellant,
JOSE A. DEL PRADO, ET. AL., legatees-appellants,
vs.
RUFINA SAGUINSIN, opponent-appellee.
ARELLANO, C.J.:
There was presented in the Court of First Instance of the city of Manila
for allowance an instrument which the petitioner calls the will of
Remigia Saguinsin. It is a manuscript signed by the alleged testatrix
and three witnesses on October 3, 1918, the conclusion of which says:
"I, the testatrix, sign in the presence of the witnesses this will written
by D. Lino Mendoza at my request and under my direction." (Yo, la
testadora, firmo en presencia de los testigos este testamento que ha
escrito D. Lino Mendoza a mi ruego y bajo mi direccion.)--Then follows
a signature and then these expressions: "The testatrix signed in our
presence and each of us signed in the presence of the others." (La
testadora ha firmado en nuestra presencia y cada uno de nosotros en
presencia de los demas.) — "Witness who wrote this will at the request
and under the free and voluntary personal direction of the testatrix
herself." (Testigo que escribio este testamento a ruego y bajo la libre y
voluntaria direccion personal de la misma testadora.) (Sgd.) Lino
Mendoza — "Attesting witnesses." (Testigos del testamento.) Then
come three signatures.
These three signature together with that of the alleged testatrix are
written also on the left margin of the firs page or folio and on the third
page or second folio, but not on the second page or reverse side of
the first page where, as is seen, the manuscript is continued, the
second folio not containing anything but the date and the and of the
manuscript.
Under these, conditions the instrument was impugned by a sister of
the alleged testatrix and after the taking of the declaration of the
authors of the signatures which appear three times and in different
parts of the manuscript, the court declared that the document
attached to the record could not be allowed as a will.
Certain person who allege themselves to be legatees appealed jointly
with the lawyer for the petitioner.
And upon considering the case on appeal, this court decides:
That, in conformity with Act No. 2645, amendatory to section 618 of
the Code of Civil Procedure, the concluding part of the will does not
express what that law, under pain of nullity, requires. Section 618, as
amended, says: "The attestation shall state the number of sheets or
pages used upon which the will is written . . . ." None of these
requirements appear in the attesting clause at the end of the
document presented. The second page, i.e., what is written on the
reverse side of the first, engenders the doubt whether what is written
thereon was ordered written by the alleged testatrix or was
subsequently added by the same hand that drew the first page and the
date that appears on the third. With this non-fulfillment alone of Act
No. 2645 it is impossible to allow the so-called will which violates said
law.
That besides this violation there is another as evident as the
preceding. Said Act No. 2645 provides: "The testator or the person
requested by him to write his name and the instrumental witnesses of
the will shall also sign, as aforesaid, each and every page thereof, on
the left margin, and said pages shall be numbered correlatively in
letters placed on the upper part of each sheet." The English text differs
from the Spanish text: the former say only pages (paginas) while the
latter puts (hojas). "Hoja," according to the Diccionario de la
Academia, "is with respect to books or notebooks folio." According to
the same dictionary "pagina (page) is each of one of the two faces or
planes of the leaf of a book or notebook; that which is written or
printed on each page, for example I have read only two pages of this
book." Two pages constitute one leaf. One page represents only one-
half of one leaf. The English text requires that the signature which
guarantees the genuineness of the testament shall be placed on the
left hand margin of each page and that each page should be
numbered by letter in the upper part This requirement is entirely
lacking on the second page that is, on the reverse side of the first.
According to the old method of paging "folio 1.º y su vto." that is, first
folio and the reverse side, should have been stated, and the second
page would then have been included in the citation. By the failure to
comply with this requisite the law has been obviously violated. In the
English text the word "pages" does not leave any room for doubt and
it is invariably used in the text of the law, whereas in the Spanish text,
"hoja" and "pagina" are used indifferently as may be seen in the
following part which says: "el atestiguamiento hara constar el numero
de hojas o paginas utiles en que esta extendido el testamento." This
failure to comply with the law also vitiates the will and invalidates it, as
the second page is lacking in authenticity.
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 Wills and Succession Case Digests
This is a defect so radical that there is no way by which what is written
on the reverse side of the first folio may be held valid. It is possible
that this document consists of only the two folios numbered 1 and 2,
and that on the reverse side of number 2 nothing may have been
written upon the order of the testatrix, the testament ending at the
foot of the first folio with the legacy "To my nephew Catalino Ignacio,
pesos 200" (A mi sobrino Catalino Ignacio doscientos pesos) and from
that part then immediately follows folio No. 2 — "Manila a tres de
Octubre de mil novecientos diez y ocho.--Yo la testadora firmo en
presencia etc." (Manila, October 3, 1918, — I, the testatrix, sign in the
presence of etc.) There is nothing which guarantees all the contents of
page 2. The margin of this page is absolutely blank. there is nothing
which gives the assurance that the testatrix ordered the insertion of all
the contents of page 2. It may very well be that it was subsequently
added thereby substituting the will of the testatrix, a result for the
prevention of which this manner of authenticity by affixing the
signature on each page and not merely on each folio was provided for
by law. This defect is radical and totally vitiates the testament. It is not
enough that the signatures guaranteeing authenticity should appear
upon two folios or leaves; three pages having been written, the
authenticity of all three of them should be guaranteed with the
signature of the alleged testatrix and her witnesses. The English text
which requires the signing of pages and not merely leaves or folios
should prevail. it is so provided in section 15 of the Administrative
Code (Act No. 2711).
The judgment appealed from is affirmed, with costs of this instance
against the appellant.
EN BANC
G.R. No. 15566 September 14, 1921
EUTIQUIA AVERA, petitioner-appellee,
vs.
MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the
minors Cesar Garcia and Jose Garcia,objectors-appellants.
STREET, J.:
In proceedings in the court below, instituted by Eutiquia Avera for
probate of the will of one Esteban Garcia, contest was made by Marino
Garcia and Juan Rodriguez, the latter in the capacity of guardian for
the minors Jose Garcia and Cesar Garcia. Upon the date appointed for
the hearing, the proponent of the will introduced one of the three
attesting witnesses who testified — with details not necessary to be
here specified — that the will was executed with all necessary external
formalities, and that the testator was at the time in full possession of
disposing faculties. Upon the latter point the witness was corroborated
by the person who wrote the will at the request of the testator. Two of
the attesting witnesses were not introduced, nor was their absence
accounted for by the proponent of the will.
When the proponent rested the attorney for the opposition introduced
a single witness whose testimony tended to show in a vague and
indecisive manner that at the time the will was made the testator was
so debilitated as to be unable to comprehend what he was about.
After the cause had been submitted for determination upon the proof
thus presented, the trial judge found that the testator at the time of
the making of the will was of sound mind and disposing memory and
that the will had been properly executed. He accordingly admitted the
will to probate.
From this judgment an appeal was taken in behalf of the persons
contesting the will, and the only errors here assigned have reference
to the two following points, namely, first, whether a will can be
admitted to probate, where opposition is made, upon the proof of a
single attesting witness, without producing or accounting for the
absence of the other two; and, secondly, whether the will in question
is rendered invalid by reason of the fact that the signature of the
testator and of the three attesting witnesses are written on the right
margin of each page of the will instead of the left margin.
Upon the first point, while it is undoubtedly true that an uncontested
will bay be proved by the testimony of only one of the three attesting
witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this
court declared after an elaborate examination of the American and
English authorities that when a contest is instituted, all of the attesting
witnesses must be examined, if alive and within reach of the process
of the court.
In the present case no explanation was made at the trial as to why all
three of the attesting witnesses were not produced, but the probable
reason is found in the fact that, although the petition for the probate
of this will had been pending from December 21, 1917, until the date
set for the hearing, which was April 5, 1919, no formal contest was
entered until the very day set for the hearing; and it is probable that
the attorney for the proponent, believing in good faith the probate
would not be contested, repaired to the court with only one of the
three attesting witnesses at hand, and upon finding that the will was
contested, incautiously permitted the case to go to proof without
asking for a postponement of the trial in order that he might produce
all the attesting witnesses.
Although this circumstance may explain why the three witnesses were
not produced, it does not in itself supply any basis for changing the
rule expounded in the case above referred to; and were it not for a
fact now to be mentioned, this court would probably be compelled to
reverse this case on the ground that the execution of the will had not
been proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in
the lower court either upon the submission of the cause for
determination in that court or upon the occasion of the filing of the
motion for a new trial. Accordingly it is insisted for the appellee that
this question cannot now be raised for the first time in this court. We
believe this point is well taken, and the first assignment of error must
be declared not be well taken. This exact question has been decided
by the Supreme Court of California adversely to the contention of the
appellant, and we see no reason why the same rule of practice should
not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reason why the appellate tribunals are
disinclined to permit certain questions to be raised for the first time in
the second instance. In the first place it eliminates the judicial criterion
of the Court of First Instance upon the point there presented and
makes the appellate court in effect a court of first instance with
reference to that point, unless the case is remanded for a new trial. In
the second place, it permits, if it does not encourage, attorneys to
trifle with the administration of justice by concealing from the trial
court and from their opponent the actual point upon which reliance is
placed, while they are engaged in other discussions more simulated
than real. These considerations are, we think, decisive.
In ruling upon the point above presented we do not wish to be
understood as laying down any hard and fast rule that would prove an
embarrassment to this court in the administration of justice in the
future. In one way or another we are constantly here considering
aspects of cases and applying doctrines which have escaped the
attention of all persons concerned in the litigation below; and this is
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necessary if this court is to contribute the part due from it in the
correct decision of the cases brought before it. What we mean to
declare is that when we believe that substantial justice has been done
in the Court of First Instance, and the point relied on for reversal in
this court appears to be one which ought properly to have been
presented in that court, we will in the exercise of a sound discretion
ignore such question relates a defect which might have been cured in
the Court of First Instance if attention had been called to it there. In
the present case, if the appellant had raised this question in the lower
court, either at the hearing or upon a motion for a new trial, that court
would have had the power, and it would have been is duty,
considering the tardy institution of the contest, to have granted a new
trial in order that all the witnesses to the will might be brought into
court. But instead of thus calling the error to the attention of the court
and his adversary, the point is first raised by the appellant in this
court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains
nothing inconsistent with the ruling we now make, for it appears from
the opinion in that case that the proponent of the will had obtained an
order for a republication and new trial for the avowed purpose of
presenting the two additional attesting witnesses who had not been
previously examined, but nevertheless subsequently failed without any
apparent reason to take their testimony. Both parties in that case were
therefore fully apprised that the question of the number of witnesses
necessary to prove the will was in issue in the lower court.
The second point involved in this case is whether, under section 618 of
the Code of Civil Procedure, as amended by Act No. 2645, it is
essential to the validity of a will in this jurisdiction that the names of
the testator and the instrumental witnesses should be written on the
left margin of each page, as required in said Act, and not upon the
right margin, as in the will now before us; and upon this we are of the
opinion that the will in question is valid. It is true that the statute says
that the testator and the instrumental witnesses shall sign their names
on the left margin of each and every page; and it is undeniable that
the general doctrine is to the effect that all statutory requirements as
to the execution of wills must be fully complied with. The same
doctrine is also deducible from cases heretofore decided by this court.
Still some details at times creep into legislative enactments which are
so trivial it would be absurd to suppose that the Legislature could have
attached any decisive importance to them. The provision to the effect
that the signatures of the testator and witnesses shall be written on
the left margin of each page — rather than on the right margin —
seems to be this character. So far as concerns the authentication of
the will, and of every part thereof, it can make no possible difference
whether the names appear on the left or no the right margin, provided
they are on one or the other. In Caraig vs. Tatlonghari (R. G. No.
12558, decided March 23, 1918, not reported), this court declared a
will void which was totally lacking in the signatures required to be
written on its several pages; and in the case of Re estate of Saguinsin
(41 Phil., 875), a will was likewise declared void which contained the
necessary signatures on the margin of each leaf ( folio), but not in the
margin of each page containing written matter.
The instrument now before us contains the necessary signatures on
every page, and the only point of deviation from the requirement of
the statute is that these signatures appear in the right margin instead
of the left. By the mode of signing adopted every page and provision
of the will is authenticated and guarded from possible alteration in
exactly the same degree that it would have been protected by being
signed in the left margin; and the resources of casuistry could be
exhausted without discovering the slightest difference between the
consequences of affixing the signatures in one margin or the other.
The same could not be said of a case like that of Estate of
Saguinsin, supra, where only the leaves, or alternate pages, were
signed and not each written page; for as observed in that case by our
late lamented Chief Justice, it was possible that in the will as there
originally executed by the testratrix only the alternative pages had
been used, leaving blanks on the reverse sides, which conceivably
might have been filled in subsequently.
The controlling considerations on the point now before us were well
stated In Re will of Abangan (40 Phil., 476, 479), where the court,
speaking through Mr. Justice Avanceña, in a case where the signatures
were placed at the bottom of the page and not in the margin, said:
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid substitution o will and testaments and to guarantee
their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such
ends, any other interpretation whatsoever, that adds nothing
but demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be
disregarded.
In the case before us, where ingenuity could not suggest any possible
prejudice to any person, as attendant upon the actual deviation from
the letter of the law, such deviation must be considered too trivial to
invalidate the instrument.
It results that the legal errors assigned are not sustainable, and the
judgment appealed from will be affirmed. It is so ordered, with costs
against the appellants.
EN BANC
G.R. No. L-14322 February 25, 1960
In the matter of the TESTATE ESTATE OF PETRONILA TAMPOY,
deceased,
vs.
DIOSDADA ALBERASTINE, petitioner-appellant.
BAUTISTA ANGELO, J.:
This concerns the probate of a document which purports to be the last
will and testament of one Petronila Tampoy. After the petition was
published in accordance with law and petitioner had presented oral
and documentaryevidence, the trial court denied the petition on the
ground that the left hand margin of the first of the will does not bear
the thumbmark of the testatrix. Petitioner appealed from this ruling
but the Court of Appeals certified the case to us because it involves
purely a question of law.
The facts of this case as found by the trial court as follows:
De las pruebas resulta que Petronila Tampoy, ya viuda y sin
hijos, rogo a Bonigfacio Miñoza que la leyera el testamento
Exhibito A y la expicara su contenido en su casa en al calle
San Miguel, del municipio de Argao, provincia de Cebu, en
19 de noviember de 1939, y lasi lo hizo Bonifacio Miñoza en
presencia de los tres testigos instrumentales, Rosario K.
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 Wills and Succession Case Digests
Chan, Mauricio de la Peña y Simeon Omboy, y despues de
conformarse con el contendido del testamento, ella rogo a
Bonifacio Miñoza, que escribiera su nombre al pie del
testamento, en la pagina segunda, y asi lo hizo Bonifacio
Miñoza, y despues ella estampo su marca digital entra su
nombre y apelido en presencia de todos y cada uno de los
tres testigos instrumentales, Rosario K. Chan, Mauricio de la
Peña y Simeon Omboy y de Bonifacio Miñoza, y despues,
Bonifacio Miñoza firmo tambien al pie del todos y cada uno
de lo tres testigos arriba nombrados. La testadora asi como
Bonifacio Miñoza parte de la primera pagina del testamento
qeu se halla compuesto de dos paginas. Todos y cada uno
de los tres testigos instrumentales, Rosario K. Chan,
Mauricio de la Peña y Simeon Omboy, firmaron al pie de la
clausula de atestiguamiento que esta escrita en la pagina
segunda del testamento y en la margen izquierda de la
misma pagina 2 y de la pagina primera en presencia de la
testadora, de Bonifacio Miñoza, del abogado Kintanar y de
todos y cada uno de ellos. El testamento fue otorgado por la
testadora libre y expontaneament, sin haber sido
amenazada, forzada o intimidada, y sin haberse ejercido
sobre ella influencia indebida, estando la misma en pleno
uso de sus facultades mentales y disfrutando de buena
salud. La testadore fallecio en su case en Argao en 22 de
febrero de 1957 (Vease certificado de defuncion Exhibito B).
La heredera instituida en el testamento, Carmen Alberastine,
murio dos semanas despues que la testadora, o sea en 7 de
Marzo de 1957, dejando a su madre, la solicitante Diosdada
Alberastine.
The above facts are not controverted, there being no opposition to the
probate of the will. However, the trial court denied the petition on the
ground that the first page of the will does not bear the thumbmark of
the testatrix. Petitioner now prays that this ruling be set aside for the
reason that, although the first page of the will does not bear the
thumbmark of the testatrix, the same however expresses her true
intention to givethe property to her whose claims remains undisputed.
She wishes to emphasize that no one has filed any to the opposition to
the probate of the will and that while the first page does not bear the
thumbmark of the testatrix, the second however bears her thumbmark
and both pages were signed by the three testimonial witnesses.
Moreover, despite the fact that the petition for probate is unoppossed,
the three testimonial witnesses testified and manifested to the court
that the document expresses the true and voluntary will of the
deceased.
This contention cannot be sustained as it runs counter to the express
provision of the law. Thus, Section 618 of Act 190, as amended,
requires that the testator sign the will and each and every page
thereof in the presence of the witnesses, and that the latter sign the
will and each and every page thereof in the presence of the testator
and of each other, which requirement should be expressed in the
attestation clause. This requirement is mandatory, for failure to comply
with it is fatal to the validity of the will (Rodriguez vs. Alcala, 55 Phil.,
150). Thus, it has been held that "Statutes prescribing the formalities
to be observed in the execution of wills are very strictly construed. As
stated in 40 Cyc., at page 1097, 'A will must be executed in
accordance with the statutory requirements; otherwise it is entirely
void.' All these requirements stand as of equal importance and must be
observed, and courts cannot supply the defective execution of a will.
No power or discretion is vested in them, either to superadd other
conditions or dispence with those enumerated in the statutes" (Uy
Coque vs. Navas L. Sioca, 43 Phil., 405, 407; See also Saño vs.
Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs.
Morata, 54 Phil., 481).
Since the will in question suffers from the fatal defect that it does not
bear the thumbmark of the testatrix on its first page even if it bears
the signature of the three instrumental witnesses, we cannot escape
the conclusion that the same fails to comply with the law and
therefore, cannot be admitted to probate.
Wherefore, the order appealed from is affirmed, without
pronouncement as to costs.
EN BANC
G.R. No. 17857 June 12, 1922
In re will of Josefa Zalamea y Abella, deceased.
PEDRO UNSON, petitioner-appellee,
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.
VILLAMOR, J.:
On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60 years old,
who was residing in the municipality of Pagsanjan, Province of Laguna,
executed her last will and testament with an attached inventory of her
properties, Exhibits A and A-1, in the presence of three witnesses, who
signed with her all the pages of said documents. The testatrix died on
the 6th of January, 1921, and, as the record shows, the executor
appointed in the will, Pedro Unson, filed in the court of First Instance
of Laguna on the 19th of January of the same year an application for
the probate of the will and the issuance of the proper letters of
administration in his favor.
To said application an opposition was presently by Antonio Abella,
Ignacia Abella, Avicencia Abella, and Santiago Vito, alleging that the
supposed will of the deceased Zalamea was not executed in conformity
with the provinces of the law, inasmuch as it was not paged
correlatively in letters, nor was there any attestation clause in it, nor
was it signed by the testatrix and the witnesses in the presence of
each other.
Trial having been held, the judge a quo overruled the opposition of the
contestants, and ordered the probate of the will, Exhibit A, and the
inventory, Exhibit A-1, holding that both documents contained the true
and last will of the deceased Josefa Zalamea.
From the judgment of the court below, the contestants have appealed,
and in their brief they assign three errors, which, in their opinion,
justify the reversal of the judgment appealed from.
The first error assigned by the appellants as committed by the court
below is its finding to the effect that Exhibit A, said to be the will of
the deceased Josefa Zalamea, was executed with all the solemnities
required by the law.
The arguments advanced by appellants' counsel in support of the first
assignment of error tend to impeach the credibility of the witnesses for
the proponent, specially that of Eugenio Zalamea. We have made a
careful examination of the evidence, but have not found anything that
would justify us in disturbing the finding of the courta quo. The
attesting witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly
testify that together with the other witness to the will, Pedro de Jesus,
they did sign each and every page of the will and of the inventory in
the presence of each other and of the testatrix, as the latter did
likewise sign all the pages of the will and of the inventory in their
presence.
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In their brief the appellants intimate that one of the pages of the will
was not signed by the testatrix, nor by the witnesses on the day of the
execution of the will, that is, on the 19th of July, 1918, basing their
contention on the testimony of Aurelio Palileo, who says that on one
occasion Gonzalo Abaya told him that one of the pages of the will had
not been signed by the witnesses, nor by the testatrix on the day of its
execution. Palileo's testimony is entirely contradicted by Gonzalo Abaya
not only in the direct, but in the rebuttal, evidence as well. To our
mind, Palileo's testimony cannot prevail over that of the attesting
witnesses, Gonzalo Avaya and Eugenio Zalamea. The appellants
impeach the credibility of Eugenio Zalamea, for having made a sworn
declaration before the justice of the peace of Santa Cruz, Laguna,
before the trial of this case, to the effect that he was really one of the
witnesses to the will in question, which fact was corroborated by
himself at the trial. The appellants take Zalamea's testimony in
connection with the dismissal of a criminal case against a nephew of
his, in whose success he was interested, and infer from this fact the
partiality of his testimony. We deem this allegation of little importance
to impeach the credibility of the witness Zalamea, especially because
his testimony is corroborated by the other attesting witness. Gonzalo
Abaya, and by attorney Luis Abaya, who had prepared the testament
at the instance of the testatrix. The foregoing is sufficient for us to
conclude that the first assignment of error made by the appellants is
groundless.
The appellants contend that the court below erred in admitting the will
to probate notwithstanding the omission of the proponent to produce
one of the attesting witnesses.
At the trial of this case the attorneys for the proponent stated to the
court that they had necessarily to omit the testimony of Pedro de
Jesus, one of the persons who appear to have witnessed the execution
of the will, for there were reasonable grounds to believe that said
witness was openly hostile to the proponent, inasmuch as since the
announcement of the trial of the petition for the probate of the will,
said witness has been in frequent communication with the contestants
and their attorney, and has refused to hold any conference with the
attorneys for the proponent. In reply to this, the attorney for the
contestants, said to the court, "without discussing for the present
whether or not in view of those facts (the facts mentioned by the
attorneys for the petitioner), in the hypothesis that the same are
proven, they are relieved from producing that witness, for while it is a
matter not decided, it is a recognized rule that the fact that a witness
is hostile does not justify a party to omit his testimony; without
discussing this, I say, I move that said statement be stricken out, and
if the proponent wants these facts to stand to stand in the record, let
him prove them." The court a quo ruled, saying, "there is no need."
To this ruling of the court, the attorney for the appellants did not take
any exception.
In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), recently
decided by this court, in deciding the question whether a will can be
admitted to probate, where opposition is made, upon the proof of a
single attesting witness, without producing or accounting for the
absence of the other two, it was said; "while it is undoubtedly true that
an uncontested will may be proved by the testimony of only one of the
three attesting witnesses, nevertheless in Cabang vs. Delfinado (34
Phil., 291), this court declared after an elaborate examination of the
American and English authorities that when a contest is instituted, all
of the attesting witnesses must be examined, if alive and within reach
of the process of the court.
In the present case no explanation was made at the trial as
to why all three of the attesting witnesses were not
produced, but the probable reason is found in the fact that,
although the petition for the probate of this will had been
pending from December 21, 1917, until the date set for the
hearing, which was April 5, 1919, no formal contest was
entered until the very day set for the hearing; and it is
probable that the attorney for the • proponent, believing in
good faith that probate would not be contested, repaired to
the court with only one of the three attesting witnesses at
hand, and upon finding that the will was contested,
incautiously permitted the case to go to proof without asking
for a postponement of the trial in order that he might
produce all the attesting witnesses.
Although this circumstance may explain why the three
witnesses were not produced, it does not in itself supply any
basis for changing the rule expounded in the case above
referred to; and were it not for a fact now to be mentioned,
this court would probably be compelled to reverse this case
on the ground that the execution of the will had not been
proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the
appellant in the lower court either upon the submission of
the cause for determination in that court or upon the
occasion of the filing of the motion for a new trial.
Accordingly it is insisted for the appellee that this question
cannot now be raised for t he first time in this court. We
believe this point is well taken, and the first assignment of
error must be declared not to be well taken. This exact
question has been decided by the Supreme Court of
California adversely to the contention of the appellant, and
we see no reason why the same rule of practice should not
be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reasons why the appellate tribunals
are disinclined to permit certain questions to be raised for
the first time in the second instance. In the first place it
eliminates the judicial criterion of the Court of First Instance
upon the point there presented and makes the appellate
court in effect a court of first instance with reference to that
point, unless the case is remanded for a new trial. In the
second place, it permits, if it does not encourage, attorneys
to trifle with the administration of justice by concealing from
the trial court and from their opponent the actual point upon
which reliance is placed, while they are engaged in other
discussions more simulated than real. These considerations
are, we think, decisive.
In ruling upon the point above presented we do not wish to
be understood as laying down any hard and fast rule that
would prove an embarrassment to this court in the
administration of justice in the future. In one way or another
we are constantly here considering aspects of cases and
applying doctrines which have escaped the attention of all
persons concerned in the litigation below; and this is
necessary if this court is to contribute the part due from it in
the correct decision of the cases brought before it. What we
mean to declare is that when we believe that substantial
justice has been done in the Court of First Instance, and the
point relied on for reversal in this court appears to be one
which ought properly to have been presented in that court,
we will in the exercise of a sound discretion ignore such
question upon appeal; and this is the more proper when the
question relates to a defect which might have been cured in
the Court of First Instance if attention had been called to it
there. In the present case, if the appellant had raised this
question in the lower court, either at the hearing or upon a
motion for a new trial, that court would have had the power,
and it would have been its duty, considering the tardy
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institution of the contest, to have granted a new trial in
order that all the witnesses to the will might be brought into
court. But instead of thus calling the error to the attention of
the court and his adversary, the point is first raised by the
appellant in this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado,
supra, contains nothing inconsistent with the ruling we now
make, for it appears from the opinion in that case that the
proponent of the will had obtained an order for a
republication and new trial for the avowed purpose of
presenting the two additional attesting witnesses who had
not been previously examined, but nevertheless
subsequently failed without any apparent reason to take
their testimony. Both parties in that case were therefore fully
apprised that the question of the number of witnesses
necessar to prove the will was in issue in the lower court.
In the case at bar, we do not think this question properly to have been
raised at the trial, but in the memorandum submitted by the attorney
for the appellants to the trial court, he contended that the will could
not be admitted to probate because one of the witnesses to the will
was not produced, and that the voluntary non-production of this
witness raises a presumption against the pretension of the proponent.
The trial court found that the evidence introduced by the proponent,
consisting of the testimony of the two attesting witnesses and the
other witness who was present at the execution, and had charge of
the preparation of the will and the inventory, Exhibits A and A-1, was
sufficient. As announced in Cabang vs. Delfinado, supra, the general
rule is that, where opposition is made to the probate of a will, the
attesting witnesses must be produced. But there are exceptions to this
rule, for instance, when a witness is dead, or cannot be served with
process of the court, or his reputation for truth has been questioned or
he appears hostile to the cause of the proponent. In such cases, the
will may be admitted to probate without the testimony of said witness,
if, upon the other proofs adduced in the case, the court is satisfied
that the will has been duly executed. Wherefore, we find that the non-
production of the attesting witness, Pedro de Jesus, as accounted for
by the attorney for the proponent at the trial, does not render void the
decree of the court a quo, allowing the probate.
But supposing that said witness, when cited, had testified adversely to
the application, this would not by itself have change the result reached
by the court a quo, for section 632 of the Code of Civil Procedure
provides that a will can be admitted to probate, notwithstanding that
one or more witnesses do not remember having attested it, provided
the court is satisfied upon the evidence adduced that the will has been
executed and signed in the manner prescribed by the law.
The last error assigned by the appellants is made to consist in the
probate of the inventory, Exhibit A-1, despite the fact that this exhibit
has no attestation clause in it, and its paging is made in Arabic
numerals and not in letters.
In the third paragraph of the will, reference is made to the inventory,
Exhibit A-1, and at the bottom of said will, the testatrix Josefa Zalamea
says:
In witness whereof, I sign this will composed of ten folios
including the page containing the signatures and the
attestation of the witnesses; I have likewise signed the
inventory attached to this will composed of ten folios in the
presence of Messrs. Gonzalo Abaya, Eugenio Zalamea, Pedro
de Jesus, in this municipality of Pagsanjan, Laguna,
Philippine Islands, this 19th of July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this one
whereunto we have affixed our signatures, as well as the
inventory of the properties of Doña Josefa Zalamea y Abella,
was read to Doña Josefa Zalamea y Abella, and the latter
affixed her name to the last, and each and every page of
this will and inventory composed of ten folios in our
presence; and she declared this to be her last will and
testament and at her request we have affixed hereunto our
respective signatures in her presence and in the presence of
each other as witnesses to the will and the inventory this
19th of July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
In view of the fact that the inventory is referred to in the will as an
integral part of it, we find that the foregoing attestation clause is in
compliance with section 1 of Act No. 2645, which requires this
solemnity for the validity of a will, and makes unnecessary any other
attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in letters, we
adhere to the doctrine announced in the case of Aldaba vs. Roque (p.
378, ante), recently decided by this court. In that case the validity of
the will was assailed on the ground that its folios were paged with the
letters A, B, C, etc., instead of with the letters "one," two," "three,"
etc. It was held that this way of numbering the pages of a will is in
compliance with the spirit of the law, inasmuch as either one of these
methods indicates the correlation of the pages and serves to prevent
the abstraction of any of them. In the course of the decision, we said:
"It might be said that the object of the law in requiring that the paging
be made in letters is to make falsification more difficult, but it should
be noted that since all the pages of the testament are signed at the
margin by the testatrix and the witnesses, the difficulty of forging the
signatures in either case remains the same. In other words the more
or less degree of facility to imitate the writing of the letters A, B, C,
etc., does not make for the easiness to forge the signatures. And as in
the present case there exists the guaranty of the authenticity of the
testament, consisting in the signatures on the left margins of the
testament and the paging thereof as declared in the attestation clause,
the holding of this court in Abangan vs. Abangan (40 Phil., 476), might
as well be repeated:
"The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a
will. So when an interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary,
useless, and frustrative of the testator's last will, must be
disregarded."
In that case the testament was written on one page, and the
attestation clause on another. Neither one of these pages was
numbered in any way, and it was held: "In a will consisting of two
sheets the first of which contains all the testamentary dispositions and
is signed at the bottom by the testator and three witnesses, and the
second contains only the attestation clause and is signed also at the
bottom by the three witnesses it is not necessary that both sheets be
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 Wills and Succession Case Digests
further signed on their margins by the testator and the witnesses, or VILLAMOR, J.:
be paged."
It appears from the record of the case that on July 9, 1918, Maria
This means that, according to the particular case, the emission of Roque y Paraiso, the widow of Bruno Valenzuela, resident of the barrio
paging does not necessarily render the testament invalid. of Mambog, municipality of Malolos, Province of Bulacan, executed her
last will and testament in the Tagalog dialect with the help of Vicente
Platon and in the presence of three witnesses who signed the
The law provides that the numbering of the pages should be in letters
attestation clause and each of the four pages of the testament. Maria
placed on the upper part of the sheet, but if the paging should be
Roque died on December 3, 1919, and when her will was filed in court
placed in the lower part, would the testament be void for this sole
for probate, it was contested by Ludovico Roque on the ground that it
reason? We believe not. The law also provides that the testator and
had not been prepared nor executed in conformity with the
the witnesses must sign the left margin of each of the sheets of the
requirements and solemnities prescribed by law.
testament; but if they should sign on the right margin, would this fact
also annul the testament? Evidently not. This court has already held
in Avera vs. Garcia and Rodriguez (42 Phi., 145): After due proceedings had been had, the Court of First Instance of
Bulacan by its decision rendered on February 27th of the following
year, pronounced the testament in question valid, and ordered its
"It is true that the statute says that the testator and the
probate, appointing Ceferino Aldaba as the administrator of the estate.
instrumental witnesses shall sign their names on the left
margin of each and every page; and it is undeniable that the
general doctrine is to the effect that all statutory The errors assigned by the appellant are two, to wit: "That each and
requirements as to the execution of wills must be fully every folio of the said testament is not paged correlatively in letter,"
complied with. The same execution for wills must be fully and "that the said will lacks the attestation clause required by law."
complied with. The same doctrine is also deducible from
cases heretofore decided by this court."
We have examined document Exhibit 4 which is the will in question
and we find at the end thereof the following in Tagalog which
"Still some details at time creep into legislative enactments translated into English reads:
which are so trivial that it would be absurd to suppose that
the Legislature could have attached any decisive importance
This document expresses my last and spontaneous will, and
to them. The provision to the effect that the signatures of
is my last will and testament, which was drawn by the
the testator and witnesses shall be written on the left margin
lawyer, Don Vicente Platon, at my direction, and everything
of each page — rather than on the margin — seems to be of
contained in this testament has been ordained and directed
this character. So far as concerns the authentication of the
by me to said Vicente Platon in order that it might be
will, and of every part thereof, it can make no possible
embodied in this testament, and after this testament has
difference whether the names appear on the left or on the
been drawn up, I directed him to read it so that I might hear
right margin, provided they are on one or the other. In Craig
all its contents, and I have heard and understood all the
vs. Tatlonghari (G. R. No. 12558, decided March 23, 1918,
contents of this document which is my last will, wherefore,
not reported), this court declared a will void which was
and not knowing how to write, I have requested Don Vicente
totally lacking in the signatures required to be written on its
Platon to write and sign my name in my stead hereon; I
several pages; and in the case of Re Estate of Saguinsin (41
declare that this testament is composed of four sheets,
Phil., 875) a will was likewise declared void which contained
actually used, that the sheets are paged with the letter A, B,
the necessary signatures on the margin of each leaf (folio),
C, and d, and above my name I have placed the thumb
but not in the margin of each page containing written
mark of my right hand in the presence of the subscribing
matter."
witnesses, and that all the witnesses have signed in my
presence and of each other here at Malolos, Bulacan, this
We do not desire to intimate that the numbering in letters is a 9th day of the month of July, 1918; and I also declare that
requisite of no importance. But since its principal object is to give the at my request Don Vicente Platon has written my name on
correlation of the pages, we hold that his object may be attained by the left margin of all pages of this testament, in the
writing one, two, three, etc., as well as by writing A, B, C, etc. presence of the witnesses, and all the witnesses have also
signed all the pages of this testament on the left margin in
my presence and that of each other.
We see no reason why the same rule should not be applied where the
paging is in Arabic numerals, instead of in letters, as in the inventory
in question. So that, adhering to the view taken by this court in the X (Her thumb mark)
case of Abangan vs. Abangan, and followed in Aldava vs. Roque, with MARIA ROQUE Y PARAISO,
regard to the appreciation of the solemnities of a will, we find that the Per VICENTE PLATON.
judgement appealed from should be, as is hereby, affirmed with the (Sgd.) REGINO E. MENDOZA,
costs against the appellants. So ordered. Witness.

EN BANC (Sgd.) IGNACIO ANIAG,

Witness.
G.R. No. L-17304 May 22, 1922
(Sgd.) CEFERINO ALDABA.
Witness.
In re will of Maria Roque y Paraiso, deceased.
CEFERINO ALDABA, petitioner-appellee,
vs. In reality, it appears that it is the testatrix who makes the declaration
LUDOVICO ROQUE, opponent-appellant. about the points contained in the above described paragraph;
however, as the witnesses, together with the testatrix, have signed the
65
 Wills and Succession Case Digests
said declaration, we are of the opinion and so hold that the words
above quoted of the testament constitute a sufficient compliance with
the requirements of section 1 of Act No. 2645 which provides that:
The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all the pages thereof in
the presence of the testator and of each other.
In regard to the other assignment of error, to wit, that each of the
folios of the said testament is not paged correlatively in letters "one."
"two," "three," etc., but only with the letters A, B, C, etc., we are of
the opinion that this method of indicating the paging of the testament
is a compliance with the spirit of the law, since either one of the two
ways above-mentioned indicates the correlation of the pages and
serves to prevent the loss of any of them. It might be said that the
object of the law in requiring that the paging be made in letters is to
make falsification more difficult, but it should be noted that since all
the pages of the testament are signed at the margin by the testatrix
and the witnesses, the difficulty of forging the signatures in either case
remains the same. In other words the more or less degree of facility to
imitate the writing of the letters A, B, C, etc., does not make for the
easiness to forge the signature. And as in the present case there exists
the guaranty of the authenticity of the testament, consisting in the
signatures on the left marging of the testament and the paging thereof
as declared in the attestation clause, the holding of this court in
Abangan vs. Abangan (40 Phil, 476), might as well be repeated:
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guarantee
their truth and authenticity. Therefore the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such
ends, any other interpretation whatsoever, that adds nothing
but demands more requisites entirely unnecesary, useless,
and frustrative of the testator's last will, must be
disregarded.
In that case the testament was written on one page, and the
attestation clause on another. Neither one of these pages was
numbered in any way; and it was held:
In a will consisting of two sheets the first of which contains
all the testamentary dispositions and is signed at the bottom
by the testator and three witnesses and the second contains
only the attestation clause and is signed also at the bottom
by the three witnesses, it is not necessary that both sheets
be further signed on their margings by the testator and the
witnesses, or be paged.
This means that, according to the particular case, the omission of
paging does not necessarily render the testament invalid.
The law provides that the numbering of the pages should be in letters
placed on the upper part of the sheet, but if the paging should be
place din the lower part, would the testament be void for his sole
reason? We believe not. The law also provides that the testator and
the witnesses must sign the left margin of each of the sheets of the
testament; but if they should sign on the right margin, would this fact
also annul the testament? Evidently not. This court has already held
in Avera vs. Garcia and Rodriguez (42 Phil., 145):lävvphì1·né+
It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left
margin of each and every page; and it is undeniable that the
general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully
complied with. The same doctrine is also deducible from
cases heretofore decided by this court
Still some details at times creep into legislative enactments
which are so trivial that it would be absurd to suppose that
the Legislature could have attached any decisive importance
to them. The provision to the effect that the signatures of
the testator and witnesses shall be written on the left margin
of each page — rather than on the right margin — seems to
be of this character. So far as concerns the authentication of
the will, and of every part thereof, it can make no possible
different whether the names appear on the left or on the
right margin, provided they are on one or the other.
In Caraig vs. Tatlonghari (R. G. No. 12558, decided March
23, 1918, not reported), this court declared a will void which
was totally lacking in the signatures required to be written
on its several pages; and in the case of Re estate of
Saguinsin (41 Phil., 875), a will was likewise declared void
which contained the necessary signature on the margin of
each left (folio), but not on the margin of each page
containing written matter.
We do not desire to intimate that the numbering in letters is a
requisite of no importance. But since its principal object is to give the
correlation of the pages, we hold that this object may be attained by
writing "one." "two," "three," etc., well as by writing A, B, C, etc.
Following, therefore, the view maintained by this court in the case
ofAbangan vs. Abangan, supra, as regards the appreciation of the
solemnities of a testament, we decide that the judgment appealed
from must be, as is hereby, affirmed with costs against the appellant.
So ordered.
In Re: Pilapil – I did not include this because it’s entirely written in
Spanish. 
EN BANC
G.R. No. L-21151 February 25, 1924
In re will of Antonio Vergel de Dios, deceased.
RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA JAVIER, legatees-
appellants,
vs.
FERNANDO VERGEL DE DIOS, ET AL., opponents-appellees.
ROMUALDEZ, J.:
The question in this case is as to the validity of the document Exhibit A
as a will, which was propounded by Ramon J. Fernandez for probate,
and contested by Fernando Vergel de Dios and Francisco, Ricardo and
Virgilio Rustia, the court of First Instance of Manila having denied its
probate.
The applicant takes this appeal, assigning error to the action of the
lower court in holding the attestation fatally defective and in not
finding Act No. 2645 void.
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 Wills and Succession Case Digests
The defects attributed to the will by the contestants are as follows, to
wit:
(a) It was not sufficiently proven that the testator knew the
contents of the will.
(b) The testator did not sign all the pages of the will.
(c) He did not request anybody to attest the document as
his last will.
(d) He did not sign it in the presence of any witness.
(e) The witnesses did not sign it in the presence of the
testator, or of each other, nor with knowledge on the part of
the testator that they were signing his will.
(f ) The witnesses did not sign the attestation clause before
the death of the testator.
(g) This clause was written after the execution of the
dispositive part of the will and was attached to the will after
the death of the testator.
(h) The signatures of the testator on page 3 of Exhibit A are
not authentic.
The evidence sufficiently shows that when Attorney Lopez Lizo read
the will to the testator, the latter's mind was perfectly sane and he
understood it: that he signed all the pages of the will proper, although
he did not sign the page containing the attestation clause; that while
he did not personally call the witnesses, yet the latter were invited by
Attorney Lopez Lizo to act as such in his presence. The law does not
require that the testator precisely be the person to request the
witnesses to attest his will. It was also sufficiently established in the
record, beside being stated in the attestation clause, that the testator
signed the will in the presence of the three witnesses and that the
latter, in turn, signed it in the presence of the testator and of each
other, the testator knowing that the witnesses were signing his will;
that the witnesses signed the attestation clause before the death of
the testator; that this clause, with the names of the witnesses in blank,
was prepared before the testator signed the will, and that the sheet
containing said clause, just as those of the will proper, was a loose
sheet, and that all the four sheets of which the will Exhibit A was
actually composed were kept together and are the very ones
presented in this case; and finally, that the signatures of the testator
on page 3 of said exhibit are authentic.
It thus appearing from the record that there are no such defects as
those mentioned by the opponents, and it having been proven that the
testator executed said will in a language known by him and
consciously, freely and spontaneously, it would seen unnecessary to go
further, and the matter might be brought to a close right here, by
holding the will in question valid and allowable to probate, were it not
for the fact that the trial court and the opponents questioned the
sufficiency and validity of the attestation clause because the sheet on
which it is written is not numbered, and it is not stated there that the
testator signed on the margin of each sheet of the will in the presence
of the three witnesses, or that the latter signed it is the presence of
the testator and of each other, and specially because said attestation
clause is not signed by the testator either at the margin or the bottom
thereof.
As to the numbering of the sheet containing the attestation clause, it is
true that it does not appeal on the upper part of the sheet, but it does
not appear in its text, the pertinent part of which is copied hereinafter,
with the words, having reference to the number of sheets of the will,
underscored, including the page number of the attestation:
* * * We certify that the foregoing document written in
Spanish, a language known by the testator Antonino Vergel
de Dios, consisting of three sheet actually used, correlatively
enumerated, besides this sheet . . . .
If, as stated in this clause, the foregoing document consists
of three sheets, besides that of the clause itself, which is in singular, it
is clear that such a sheet of the attestation clause is the fourth and
that the will, including said sheet, has four sheets. This description
contained in the clause in question constitutes substantial compliance
with the requirements prescribed by the law regarding the paging. So
it was held by this Court in the case of Abangan vs. Abangan (40 Phil.,
476), where the sheet containing the attestation, as well as the
preceding one, was also not paged. Furthermore the law, as we shall
see later on, does not require that the sheet containing nothing but
the attestation clause, wholly or in part, be numbered or paged.
Consequently this lack of paging on the attestation sheet does not take
anything from the validity of the will.
Turning now to the question whether or not in this clause it is stated
that the testator signed on the margin of each sheet of the will, in the
presence of the witnesses and the latter in the presence of each other,
let us see what is said in said clause on this point, and to this end its
pertinent part is hereinafter transcribed and is as follows:
* * * and he (the testator) signed at the bottom of the
aforesaid will in our presence and we at his request did the
same in his presence and in that of each other as witnesses
to the will, and lastly, the testator, as well as we, as
witnesses, signed in the same manner on the left margin of
each sheet. (Emphasis ours.)
The underscored phrase "in the same manner" cannot in the instant
case mean, and it in fact means nothing, but that the testator and the
witnesses signed on the left margin of each sheet of the will "in the
same manner" in which they signed at the bottom thereof, that is, the
testator in the presence of the witnesses and the latter in the presence
of the testator and of each other. This phrase in the same
manner cannot, in view of the context of the pertinent part, refer to
another thing, and was used here as a suppletory phrase to include
everything and avoid the repetition of a long and difficult one, such as
what is meant by it. The same section 618 of the Code of Civil
Procedure, in order to avoid the repetition of the same long phrase
about the testator having signed in the presence of the witnesses and
the latter in the presence of each other, resorts to a similar expression
in the second paragraph and says, "as aforesaid."
Concerning the absolute absence of the signature of the testator from
the sheet containing the attestation clause, this point was already
decided in the above cited case of Abangan vs. Abangan, where this
court held that:
The testator's signature is not necessary in the attestation
clause because this, as its name implies, appertains only to
the witnesses and not to the testator.
In that case of Abangan vs. Abangan it was held that the signature of
the testator is not necessary in the attestation clause, but the theory is
not announced that such a clause is unnecessary to the validity to the
will.
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For this reason such doctrine does not annul the judgment in the case
of Uy Coque vs. Navas L. Sioca (43 Phil., 405), where in effect the
doctrine, among others, was laid down that the attestation clause is
necessary to the validity of the will. One of the points on which
greatest stress was laid in that case Uy Coque is that the requirements
of the law regarding the number of the pages used, the signing of the
will and of each of its pages by the testator in the presence of three
witnesses, and the attestation and signing of the will and of each of its
pages by the witnesses in the presence of each other cannot be
proven aliunde but by the attestation clause itself which must express
the complaince of the will with such requirements. But it was not held
in that case of Uy Coque that the signature of the testator was
necessary in the attestation clause, nor was such point discussed
there, which was the point at issue in the case of Abangan vs.
Abangan, supra.
The appellees, however, argue that such clause in the case
of Abangan vs. Abangan begins at the bottom and on the same sheet
in which the testamentary provision terminated, that is to say, the will
properly speaking. Even then if it is intended to commit
misrepresentation or fraud, which are the things that with the
requirements of the law for the making and attesting of wills it is
intended to avoid, it is just the same that the clause; as in the case
ofAbangan vs. Abangan, begins at the bottom of the will properly
speaking, as, like the case before us, it is wholly contained in a
separate sheet. The fact is that this separate sheet, containing the
attestation clause wholly or in part, is not signed any place by the
testator in the case of Abangan vs. Abangan, as it is not in the present
case.
Section 618 of the code of Civil Procedure, as amended by Act No.
2645, contains three paragraphs, of which the first enumerates in
general terms the requirements to be met by a will executed after said
Code took effect, to wit, that the language or dialect in which it is
written be known by the testator, that it be signed by the latter or by
another person in the name of the testator by his express direction
and in his presence, and that it be attested and signed by three or
more credible witnesses in the presence of the testator and of each
other.
These general rules are amplified in the next two paragraphs as to the
special requirements for the execution of the will by the testator and
the signing thereof by the witnesses, with which the second paragraph
of the section deals, and as to the attestation clause treated in the
third and last paragraph of said section 618.
For this reason the second paragraph of this section 618 says:
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, on the left
margin, and said pages shall be numbered correlatively in
letters placed on the upper part of each sheet.
These are the solemnities that must surround the execution of the will
properly speaking, without any reference whatsoever to the attestation
clause not treated in this second paragraph. It is in this second
paragraph which deals only with the will (without including the
attestation clause), that the signature or name of the testator and
those of the witnesses are mentioned as necessary on the left margin
of each and everyone of the sheets of the will (not of the attestation
clause), as well as the paging of said sheet (of the will, and not of the
attestation clause which is not yet spoken of).
Now, are the signatures of the testator and the paging of the will also
necessary in the attestation clause? Let us see the last paragraph of
this section 618 of the Code which already deals with the requirements
for the attestation clause. This last paragraph reads thus:
The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused
some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.
As may be seen this last paragraph refers to the contents of the text of
the attestation, not the requirements or signatures thereof outside of
its text. It does not require that the attestation be signed by the
testator or that the page or sheet containing it be numbered.
From this analysis of our law now in force it appears:
First. That the will must have an attestation clause as a
complement, without which it cannot be probate and with
which only not aliunde (Uy Coque vs. Navas L. Sioca , supra)
may the requirements to be stated in its text be proven. The
attestation clause must be prepared and signed, as in the
instant case, on the same occasion on which the will is
prepared and signed, in such a way that the possibility of
fraud, deceit or suppression of the will or the attestation
clause be reduced to a minimum; which possibility always
exists, as experience shows, in spite of the many
precautions taken by the legislator to insure the true and
free expression of one's last will.
Second. That the will is distinct and different from the
attestation, although both are necessary to the validity of
the will, similar, in our opinion, to a document which is not
public so long as it is not acknowledged before a notary, the
document being a distinct and different thing from the
acknowledgment, each of which must comply with different
requisites, among which is the signature of the maker which
is necessary in the document but not in the acknowledgment
and both things being necessary to the existence of the
public document.
Third. That the will proper must meet the requirements
enumerated in the second paragraph of section 618 of the
Code of Civil Procedure.
Fourth. That the text of the attestation clause must express
compliance with the requirements prescribed for the will.
In the case at bar the attestation clause in question states that the
requirements prescribed for the will were complied with, and this is
enough for it, as such attestation clause, to be held as meeting the
requirements prescribed by the law for it.
The fact that in said clause the signature of the testator does not
appear does not affect its validity, for, as above stated, the law does
not require that it be signed by the testator.
We find no merit in the assignment of error raising the question as to
the validity of Act No. 2645, which is valid. For the purposes of this
decision, it is not necessary to reason out this conclusion, it being
sufficient for the adjudication of this case to hold the first error
assigned by the appellants to have been demonstrated.
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The foregoing conclusions lead us to hold, as we do here by hold, that
the documents Exhibit A, as the last will and testament of the
deceased Antonio Vergel de Dios, meets all the requirements
prescribed by the low now in force and therefore it must be allowed to
probate as prayed for by the petitioner.
The judgment appealed from is reversed, and it is ordered that the
lower court proceed with the probate of the will Exhibit A in
accordance with law, without express pronouncement as to costs. So
ordered.
EN BANC
G.R. No. L-1787 August 27, 1948
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed
unsuccessfully the probate of what purports to be the last will and
testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in
Balayan, Batangas, on March 3, 1947, almost six months after the
document in question was executed. In the court below, the present
appellant specified five grounds for his opposition, to wit: (1) that the
deceased never executed the alleged will; (2) that his signature
appearing in said will was a forgery; (3) that at the time of the
execution of the will, he was wanting in testamentary as well as
mental capacity due to advanced age; (4) that, if he did ever execute
said will, it was not executed and attested as required by law, and one
of the alleged instrumental witnesses was incapacitated to act as such;
and it was procured by duress, influence of fear and threats and undue
and improper pressure and influence on the part of the beneficiaries
instituted therein, principally the testator's sister, Clemencia Lopez,
and the herein proponent, Jose S. Lopez; and (5) that the signature of
the testator was procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated
in these words: "That the court a quo erred in holding that the
document Exhibit "A" was executed in all particulars as required by
law." To this objection is added the alleged error of the court "in
allowing the petitioner to introduce evidence that Exhibit "A" was
written in a language known to the decedent after petitioner rested his
case and over the vigorous objection of the oppositor.
The will in question comprises two pages, each of which is written on
one side of a separate sheet. The first sheet is not paged either in
letters or in Arabic numerals. This, the appellant believes, is a fatal
defect.
The purpose of the law in prescribing the paging of wills is guard
against fraud, and to afford means of preventing the substitution or of
defecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil.,
476.) In the present case, the omission to put a page number on the
first sheet, if that be necessary, is supplied by other forms of
identification more trustworthy than the conventional numerical words
or characters. The unnumbered page is clearly identified as the first
page by the internal sense of its contents considered in relation to the
contents of the second page. By their meaning and coherence, the first
and second lines on the second page are undeniably a continuation of
the last sentence of the testament, before the attestation clause,
which starts at the bottom of the preceding page. Furthermore, the
unnumbered page contains the caption "TESTAMENTO," the invocation
of the Almighty, and a recital that the testator was in full use of his
testamentary faculty, — all of which, in the logical order of sequence,
precede the direction for the disposition of the marker's property.
Again, as page two contains only the two lines above mentioned, the
attestation clause, the mark of the testator and the signatures of the
witnesses, the other sheet can not by any possibility be taken for other
than page one. Abangan vs. Abangan,supra, and Fernandez vs. Vergel
de Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and scope of the first
assignment of error, the matter of the credibility of the witnesses is
assailed under this heading. On the merits we do not believe that the
appellant's contention deserves serious consideration. Such
contradictions in the testimony of the instrumental witnesses as are set
out in the appellant's brief are incidents not all of which every one of
the witnesses can be supposed to have perceived, or to recall in the
same order in which they occurred.
Everyday life and the result of investigations made in the
field of experimental psychology show that the
contradictions of witnesses generally occur in the details of a
certain incident, after a long series of questioning, and far
from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those who
witness an incident are impressed in like manner, it is but
natural that in relating their impressions they should not
agree in the minor details; hence, the contradictions in their
testimony. (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of
signing his name. The reason for this was that the testator was
suffering from "partial paralysis." While another in testator's place
might have directed someone else to sign for him, as appellant
contends should have been done, there is nothing curious or
suspicious in the fact that the testator chose the use of mark as the
means of authenticating his will. It was a matter of taste or
preference. Both ways are good. A statute requiring a will to be
"signed" is satisfied if the signature is made by the testator's mark.
(De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the
opinion that the trial court communicated an abuse of discretion in
allowing the appellant to offer evidence to prove knowledge of Spanish
by the testator, the language in which the will is drawn, after the
petitioner had rested his case and after the opponent had moved for
dismissal of the petition on the ground of insufficiency of evidence. It
is within the discretion of the court whether or not to admit further
evidence after the party offering the evidence has rested, and this
discretion will not be reviewed except where it has clearly been
abused. (64 C. J., 160.) More, it is within the sound discretion of the
court whether or not it will allow the case to be reopened for the
further introduction of evidence after a motion or request for a
nonsuit, or a demurrer to the evidence, and the case may be reopened
after the court has announced its intention as to its ruling on the
request, motion, or demurrer, or has granted it or has denied the
same, or after the motion has been granted, if the order has not been
written, or entered upon the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have
produced their respective direct proofs, they are allowed to offer
rebutting evidence only, but, it has been held, the court, for good
reasons, in the furtherance of justice, may permit them to offer
evidence upon their original case, and its ruling will not be disturbed in
the appellate court where no abuse of discretion appears. (Siuliong
and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So,
generally, additional evidence is allowed when it is newly discovered,
or where it has been omitted through inadvertence or mistake, or
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where the purpose of the evidence is to the evidence is to correct
evidence previously offered. (I Moran's Comments on the Rules of
Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present
evidence on the testator's knowledge of Spanish had not been
deliberate. It was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant
impugns the will for its silence on the testator's understanding of the
language used in the testament. There is no statutory requirement
that such knowledge be expressly stated in the will itself. It is a matter
that may be established by proof aliunde. This Court so impliedly ruled
in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will
written in Tagalog was ordered although it did not say that the testator
knew that idiom. In fact, there was not even extraneous proof on the
subject other than the fact that the testator resided in a Tagalog
region, from which the court said "a presumption arises that said Maria
Tapia knew the Tagalog dialect.
The order of the lower court ordering the probate of the last will and
testament of Don Sixto Lopez is affirmed, with costs.
EN BANC
G.R. No. L-2415 July 31, 1950
Testatee estate of the late Paula Toray. EUSTAQUIA
TENEFRANCIA, petitioner-appellant,
vs.
ROSA ABAJA, oppositor-appellee.
REYES, J.:
This is an appeal from an order of the Court of First Instance of
Negros Occidental denying probate of a will.
The will in question purports to have been executed in August, 1943,
by Paula Toray, who died the following month. Presented for probate
by one of the legatees, the herein appellant Eustaquia Tenefrancia, it
was opposed by Rosa Abaja, daughter of the deceased Eulogia Abaja,
instituted heir in an earlier will executed by the same testatrix and her
deceased husband. The lower court disallowed the will on the ground
that it was not executed in accordance with law in that the attestation
clause did not state that the testatrix signed the will in the presence of
the instrumental witnesses.
Among the formalities prescribed by law (section 618 of Act 190, as
amended by Act No. 2645) to a valid will is the requirement that the
attestation clause should state "the fact that the testator signed the
will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of three witnesses."
This requirement was not complied with in the present case, for the
attestation clause fails to state that fact. This is obvious from the
following agreed translation of the said attestation clause:
Nosotros Antonio T. Abanilla, Juan G. Mission y Juan Tullao
todos vecinos del Barrio Inayauan, Cawayan, Negros
occidental, Filipinas, testigos de este testamento,
Testificamos que Paula Toray, la testadora que declaro que
este es su testamento o ultima voluntad y que cuando
otorgo este testamento, ella estaba en su sano y cabal
juicio, habiendo hecho constar el mismo, en dos pliegos de
papel, firmados por nosotros en presencia de la testadora, y
de nosotros tres testigos en todos los peligros de este
testamento.
It is pointed out, however, that the attestation clause states that the
testatrix declared in the presence of the three witnesses that the
document in question was her last will or testament, and it is argued
that this testament taken together with the preceding clause which
reads: "En fe de todo lo cual firmo con mi nombre este mi testamento
o ultima voluntad, escrito en dialecto visayo que es el dialecto que
poseo y hablo, en Inayauan, comprension de Cawayan, Filipinas, hoy a
16 de Agosto de 1943," expresses the idea that the testatrix signed
the will in the presence of the witnesses. The argument is not only far-
fetched but it also overlooks the fact that it is in the attestation clause
signed the will in the presence of the subscribing witnesses, since that
is one of the statements by law required to be embodied in the
attestation clause. The words above quoted, which, in the will in
question, are written above the signature of the testator and come
before the attestation clause, do not form a part of the latter. By the
attestation clause is meant "that clause wherein the witnesses certify
that the instrument has been executed before them, and the manner
of the execution of the same." (Black, Law Dictionary.) It is signed not
by the testator but by the witnesses, for it is a declaration made by the
witnesses and not by the testator. And the law is clear that it is the
attestation clause that must contain a statement, among others, that
the testator signed the will in the presence of the witnesses. Without
that statement, the attestation clause is fatally defective.
This defect is not cured by proof aliunde or even by a judicial finding
based upon such proof that the testator did in fact sign the will in the
presence of the subscribing witnesses. That is a fact required by law to
be stated in the attestation clause itself, and it is settled that where it
is not so stated it cannot be established by evidence aliunde, and that
where such evidence has been admitted, even without opposition, it
should not be given the effect intended. (Uy Coque vs. Navas L. Sioca,
43 Phil., 405; Quinto vs. Morata, 54 Phil., 481.) In the case last cited
this Court had the following to say:
It is vigorously contended on behalf of the appellant, that
the alleged defect of the attestation clause1 has been cured
by oral evidence, which was admitted without opposition on
the part of the appellee. This contention cannot be
sustained. The doctrine of this court with reference to
statute of frauds is not applicable to wills. The statute of
frauds relates to contracts and agreements. The subject of
wills and testaments and the formalities surrounding their
execution are governed by separate and specific provisions
of Act No. 190.
An examination of section 618 of Act No. 190, prior to, and
after its amendment by Act No. 2645, shows clearly that the
legislature intended to exclude evidence aliunde tending to
establish that the will has been executed and attested in
conformity with the requirements of the law, where such
compliance does not appear on the face of the will itself.
Prior to its amendments, section 618 contained the following
saving clause: "But the absence of such form of attestation
shall not render the will invalid if is as proven that the will
was in fact signed and attested as in this section provided."
The most outstanding feature of the amendment of said
section 618 by Act No. 2645 is the elimination of said saving
clause and the greater emphasis laid on the formalities as to
signatures and the attestation clause. There can be no
doubt, therefore, that the intention of the legislature, in
eleminating said clause, was to exclude
evidence aliunde, and that where such evidence was
admitted without opposition, it should not be given effect
and thus defeat the manifest intention of the legislation in
amending said section 618.
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Section 618 of Act No. 190, as amended, should be given a
strict interpretation. In the case of Uy Coque vs. Navas L.
Sioca (43 Phil., 405) this court, speaking of the construction
to be given to said section, said:
Statutes prescribing the formalities to be observed
in the execution of wills are very strictly construed.
As stated in 40 Cyc., at page 1097, "A will must be
executed in accordance with the statutory
requirements; otherwise it is entirely void. All
these requirements stand as of equal importance
and must be observed, and courts cannot supply
the defective execution of a will. No power or
discretion is vested in them, either to superadd
other conditions or dispense with those
enumerated in the statutes. (Uy Coque vs. Navas
L. Sioca, 43 Phil., 405, 407.)
It is also urged that the lower court should not have entertained the
opposition of Rosa Abaja, who had no legal interest in the proceeding.
But it does not appear that timely objection to the said opposition was
made in the court below, and it is settled that the mere fact that a
stranger has been permitted to oppose the allowance of a will is not a
reversible error and does not invalidate the proceedings where no
objection is interposed by any of the parties in interest. (Paras vs.
Narciso, 35 Phil., 244.) It is true that in the course of Rosa Abaja's
declaration, counsel for appellant made some manifestation tending to
question the admissibility of her testimony. But it is not clear that the
remark was meant to be an objection to the opposition itself. And in
any event, even without opposition, the lower court could not have
legally allowed the will in question, for under section 618 of Act No.
190, as amended by Act No. 2645, no will shall be valid to pass any
estate, real or personal., nor charge or affect the same unless the
attestation clause conforms to the requirements therein provided, and
the imperactive language of the Rules of Court (Rule 77, section 9 [a])
directs that the will "shall be disallowed" if not executed and "attested
as required by law."
In view of the foregoing, the order appealed from is affirmed, with
costs against the appellant.
EN BANC
G.R. No. L-46097 October 18, 1939
TEOFILA ADEVA VIUDA DE LEYNEZ, petitioner,
vs.
IGNACIO LEYNEZ, respondent.
LAUREL, J.:
This is a petition for a writ of certiorari to review the decision of
the Court of Appeals affirming the decision of the Court of First
Instance of Mindoro denying probate of the will of the deceased
Valerio Leynez, on the ground that its attestation clause does not
conform to the requirements section 618, as amended, of the Code of
Civil Procedure.
The attestation clause of the will is worded as follows:
Suscrito y declarado por el testador Valerio Leynez,
como su ultima voluntad y testamento en presencia de todos
y cada uno de nosotros, y a ruego de dicho testador,
firmamos el presente cada uno en presencia de los otros, o
de los demas y de la del mismo testador Valerio Leynez . El
testamento consta de los (2) paginas solamente.
The question presented is, under section 618, as amended, of
the Code of Civil Procedure, is this attestation clause legally sufficient?
The pertinent portion of this section of the Code is as follows:
. . . the attestation shall state the number of sheets
or pages used, upon which the will is written, and the fact
that the testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of three witnesses, an the
later witnessed and signed the will and all pages thereof in
the presence of the testator and of each other.
The alleged defect in the attestation clause of the controverted
will is that it fails to state that the testator and the three witnesses
signed each and every page of the will in the manner prescribed by
law, because it merely states "firmanos el presente cada uno en
presencia de los otros, o de los demas y de la del mismo testador
Valerio Leynez." In deciding this question the Court of Appeals,
however, ruled:
A la luz de las jurisprudencias arriba citadas en la
clausada de atestiguamiento discutida en el asunto de autos
no encontramos un cumplimiento sustantial del requisito
exigido por la ley, de que en ella se haga constar que el
testador y los testigos han firmado unos en presencia de
otros, todas y cada una de las paginas usadas del
testamento, requisito que no se puede establecer por medio
de su prueba aliunde.
Against this conclusion of the Court of Appeals, petitioner puts
forward the contention that it has decided a question of substance in a
way not probably in accord with the law and the applicable decisions
of this court (Rule 47, paragraph e [1] of Supreme Court.) The rule of
liberal construction of the applicable law should, petitioner avers, be
held to apply in the case at bar, and in support of her content on she
invokes a long array of cases (Abangan vs .Abangan, 40 Phil., 476;
Avera vs. Garcia and Rodriguez, 42 Phil., 145; Aldaba vs. Roque, 43
Phil., 378; Unson vs .Abella, 43 Phil., 494; Fernandez vs. Vergel de
Dios, 46 Phil., 922; Nayve vs. Mojal, 47 Phil., 152; De Gala vs
.Gonzalez, 53 Phil., 104; Rey vs. Cartagena, 56 Phil., 282; Dichoso de
Ticson vs. De Gorostiza, 57 Phil., 437; Sebastian vs. Paganiban, 59
Phil., 653; De Guzman vs. Celestino, G.R. No. 35273, April 25, 1932;
Policarpio vs. Baltazar, G.R. No. 36349, November 14, 1932;
Malate vs. Olea, G.R. No. 36154, December 16, 1932; In re Estate of
Jennings, 1933, G.R. No. 38758). To this line of cases those of
Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939, and Grey vs. Fabie,
G.R. No. 45160, May 23, 1939, may perhaps be added. Respondent,
on the other hand, equally invokes a number of cases wherein, he
contends, the rule of strict construction was made to prevail. (Uy
Coque vs. Navas L. Sioca, 43 Phil., 405; In re Estate of Neuark, 46
Phil., 841; Saño vs.Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50
Phil., 30; Quinto vs. Morata, 54 Phil., 481; Rodriguez vs. Alcala, 55
Phil., 150.)
This Court has already taken notice of these different views
within, in Dichoso de Ticson vs. De Gorostiza(57 Phil., 437, 439-440),
it frankly made the following observation : "The truth is that there
have been, noticeable in the Philippines two divergent tendencies in
the law of wills — the one being planted on strict construction and the
other on liberal construction. A late example of the former views may
be found in the decision in Rodriguez vs. Alcala ([1930], 55 Phil., 150),
sanctioning a literal enforcement of the law. The basic case in the
other direction, predicated on reason, is Abangan vs.
Abangan ([1919], 40 Phil., 476), oft-cited approvingly in later
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 Wills and Succession Case Digests
decisions." It is fairness to recognize the existence of opposing
currents of legal thought, a situation which perhaps has brought about
a certain degree of confusion in this field. It is also fairness to avow,
however, that a more careful examination of the cases will show that,
while the two tendencies mentioned in easily discernible, the conflict in
many cases is more apparent than real, and the variance, if at all, in
the application of the principles involved was due in some instances to
the marked differentiation of facts and the consequent personal or
collective criteria in particular cases.lâwphi1.nêt
We have taken pains to examine the numerous cases relied
upon by the petitioner and those relied upon by the respondent, and
while we do not deem it necessary to make a detailed comparison
between them, we find no difficulty in selecting what we consider is
the reasonable rule to apply in this case at bar. It is, of course, not
possible to lay down a general rule, rigid and inflexible, which would
be applicable to all cases. More than anything else, the facts and
circumstances of record are to be considered in the application of any
given rule. If the surrounding circumstances point to a regular
execution of the will, and the instrument appears to have been
executed substantially in accordance with the requirements of the law,
the inclination should, in the absence of any suggestion of bad faith,
forgery or fraud, lean towards its admission to probate, although the
document may suffer from some imperfection of language, or other
non-essential defect. This, in our opinion, is the situation in the
present case, and we, therefore, hold that the requirement that the
attestation clause, among other things, shall state "that the testator
signed the will and every page thereof in the presence of three
witnesses, and that the witnesses signed the will in the presence of
the testator and of each other," is sufficiently complied with, it
appearing that the testator and the witnesses signed each and every
page of the will according to the stipulation of the parties. (Record on
Appeal, stipulation, pp. 10, 14, 15); and this fact being shown in the
will itself, and there being, furthermore, no question raised as to the
authenticity of the signature of the testator and the witnesses.
An attestation clause is made for the purpose of preserving, in
permanent form, a record of the facts attending the execution of the
will, so that in case of failure of the memory of the subscribing
witnesses, or other casualty, they may still be proved. (Thompson on
Wills, 2 ed., sec. 132.) A will, therefore, should not be rejected where
its attestation clause serves the purpose of the law. The law-making
body, in recognition of the dangers to which testamentary dispositions
are apt to be subject in the hands of unscrupulous individuals, has
surrounded the execution of the wills with every solemnity deemed
necessary to safeguard it. This purpose was indicated when our
legislature provided for the exclusion of evidence aliunde to prove the
execution of the will. We should not, however, attribute the prohibition
as indicative of a desire to impose unreasonable restraint or beyond
what reason and justice permit. It could not have been the intention of
the legislature in providing for the essential safeguards in the
execution of a will to shackle the very right of testamentary disposition
which the law recognizes and holds sacred. The pronouncement of this
Court in Abangan vs. Abangan (40 Phil., 476, 479), expresses the
sound rule to which we have recently adhered in principle.
(Rodriguez vs. Yap, G.R. No. 45924, promulgated May 18, 1939; and
Grey vs. Fabie, G.R. No. 45160, promulgated May 23, 1939):
The object of the solemnities surrounding the
execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on
this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such
ends, any other interpretation whatsoever, that adds nothing
but demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be
disregarded.
It follows that the writ of certiorari should be, as it is hereby,
granted and the judgment of the Court of Appeals reversed, with the
result that the controverted will, Exhibit A, of the deceased Valerio
Leynez, shall be admitted to probate. So ordered, with costs against
the respondent-appellee. So ordered.
FIRST DIVISION
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE
WILL OF DOROTEA PEREZ, (deceased): APOLONIO
TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance
of Southern Leyte, (Branch III, Maasin),respondent.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the Court of First
Instance of Southern Leyte, Branch III, in Special Proceedings No. R-
1713, entitled "In the Matter of the Petition for Probate of the Will of
Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied
the probate of the will, the motion for reconsideration and the motion
for appointment of a special administrator.
In the petition for probate filed with the respondent court, the
petitioner attached the alleged last will and testament of the late
Dorotea Perez. Written in the Cebuano-Visayan dialect, the will
consists of two pages. The first page contains the entire testamentary
dispositions and is signed at the end or bottom of the page by the
testatrix alone and at the left hand margin by the three (3)
instrumental witnesses. The second page which contains the
attestation clause and the acknowledgment is signed at the end of the
attestation clause by the three (3) attesting witnesses and at the left
hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the
requirement of publication, the trial court commissioned the branch
clerk of court to receive the petitioner's evidence. Accordingly, the
petitioner submitted his evidence and presented Vicente Timkang, one
of the subscribing witnesses to the will, who testified on its
genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued
the questioned order denying the probate of the will of Dorotea Perez
for want of a formality in its execution. In the same order, the
petitioner was also required to submit the names of the intestate heirs
with their corresponding addresses so that they could be properly
notified and could intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner
filed a manifestation and/or motion, ex partepraying for a thirty-day
period within which to deliberate on any step to be taken as a result of
the disallowance of the will. He also asked that the ten-day period
required by the court to submit the names of intestate heirs with their
addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying
the probate of the will. However, the motion together with the
previous manifestation and/or motion could not be acted upon by the
Honorable Ramon C. Pamatian due to his transfer to his new station at
72
 Wills and Succession Case Digests
Pasig, Rizal. The said motions or incidents were still pending resolution
when respondent Judge Avelino S. Rosal assumed the position of
presiding judge of the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of special
administrator.
Subsequently, the new Judge denied the motion for reconsideration as
well as the manifestation and/or motion filed ex parte. In the same
order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to
comply with the order requiring him to submit the names of' the
intestate heirs and their addresses.
The petitioner decided to file the present petition.
necessity for the extrinsic validity of the wig that the signatures of the
subscribing witnesses should be specifically located at the end of the
wig after the signature of the testatrix. He contends that it would be
absurd that the legislature intended to place so heavy an import on the
space or particular location where the signatures are to be found as
long as this space or particular location wherein the signatures are
found is consistent with good faith and the honest frailties of human
nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.

For the validity of a formal notarial will, does Article 805 of the Civil
It must be noted that the law uses the
Code require that the testatrix and all the three instrumental and
terms attested and subscribed Attestation consists in witnessing the
attesting witnesses sign at the end of the will and in the presence of
testator's execution of the will in order to see and take note mentally
the testatrix and of one another?
that those things are, done which the statute requires for the
execution of a will and that the signature of the testator exists as a
Article 805 of the Civil Code provides: fact. On the other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of Identification of such
Every will, other than a holographic will, must be paper as the will which was executed by the testator. (Ragsdale v. Hill,
subscribed at the end thereof by the testator 269 SW 2d 911).
himself or by the testator's name written by some
other person in his presence, and by his express Insofar as the requirement of subscription is concerned, it is our
direction, and attested and subscribed by three or considered view that the will in this case was subscribed in a manner
more credible witnesses in the presence of the which fully satisfies the purpose of Identification.
testator and of one another.
The signatures of the instrumental witnesses on the left margin of the
The testator or the person requested by him to first page of the will attested not only to the genuineness of the
write his name and the instrumental witnesses of signature of the testatrix but also the due execution of the will as
the will, shall also sign, as aforesaid, each and embodied in the attestation clause.
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
While perfection in the drafting of a will may be desirable,
correlatively in letters placed on the upper part of
unsubstantial departure from the usual forms should be ignored,
each page.
especially where the authenticity of the will is not assailed. (Gonzales
v. Gonzales, 90 Phil. 444, 449).
The attestation shall state the number of pages
used upon which the will is written, and the fact
The law is to be liberally construed, "the underlying and fundamental
that the testator signed the will and every page
objective permeating the provisions on the law on wills in this project
thereof, or caused some other person to write his
consists in the liberalization of the manner of their execution with the
name, under his express direction, in the presence
end in view of giving the testator more freedom in expressing his last
of the instrumental witnesses, and that the lacier
wishes but with sufficient safeguards and restrictions to prevent the
witnesses and signed the will and the pages
commission of fraud and the exercise of undue and improper pressure
thereof in the presence of the testator and of one
and influence upon the testator. This objective is in accord with the
another.
modern tendency in respect to the formalities in the execution of a
will" (Report of the Code commission, p. 103).
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to
Parenthetically, Judge Ramon C. Pamatian stated in his questioned
the witnesses, it shall be interpreted to them.
order that were not for the defect in the place of signatures of the
witnesses, he would have found the testimony sufficient to establish
The respondent Judge interprets the above-quoted provision of law to the validity of the will.
require that, for a notarial will to be valid, it is not enough that only
the testatrix signs at the "end" but an the three subscribing witnesses
The objects of attestation and of subscription were fully met and
must also sign at the same place or at the end, in the presence of the
satisfied in the present case when the instrumental witnesses signed at
testatrix and of one another because the attesting witnesses to a will
the left margin of the sole page which contains all the testamentary
attest not merely the will itself but also the signature of the testator. It
dispositions, especially so when the will was properly Identified by
is not sufficient compliance to sign the page, where the end of the will
subscribing witness Vicente Timkang to be the same will executed by
is found, at the left hand margin of that page.
the testatrix. There was no question of fraud or substitution behind the
questioned order.
On the other hand, the petitioner maintains that Article 805 of the Civil
Code does not make it a condition precedent or a matter of absolute

73
 Wills and Succession Case Digests
We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing the will. This
would have been a fatal defect were it not for the fact that, in this
case, it is discernible from the entire wig that it is really and actually
composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by the testatrix
at the end or at the bottom while the instrumental witnesses signed at
the left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament
consists of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the
following observations with respect to the purpose of the requirement
that the attestation clause must state the number of pages used:
The law referred to is article 618 of the Code of
Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall
state the number of pages or sheets upon which
the win is written, which requirement has been
held to be mandatory as an effective safeguard
against the possibility of interpolation or omission
of some of the pages of the will to the prejudice of
the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180;
Uy Coque vs. Navas L. Sioca, 43 Phil. 405;
Gumban vs. Gorecho, 50 Phil. 30; Quinto vs.
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66
Phil. 611). The ratio decidendi of these cases
seems to be that the attestation clause must
contain a statement of the number of sheets or
pages composing the will and that if this is missing
or is omitted, it will have the effect of invalidating
the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or
examination of the will itself. But here the
situation is different. While the attestation clause
does not state the number of sheets or pages
upon which the will is written, however, the last
part of the body of the will contains a statement
that it is composed of eight pages, which
circumstance in our opinion takes this case out of
the rigid rule of construction and places it within
the realm of similar cases where a broad and
more liberal view has been adopted to prevent the
will of the testator from being defeated by purely
technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which
applies a similar liberal approach:
... Impossibility of substitution of this page is
assured not only (sic) the fact that the testatrix
and two other witnesses did sign the defective
page, but also by its bearing the coincident imprint
of the seal of the notary public before whom the
testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness
over whose conduct she had no control where the
purpose of the law to guarantee the Identity of
the testament and its component pages is
sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record
attests to the fun observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. Vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will
by muddling or bungling it or the attestation
clause.
WHEREFORE, the present petition is hereby granted. The orders of the
respondent court which denied the probate of tile will, the motion for
reconsideration of the denial of probate, and the motion for
appointment of a special administrator are set aside. The respondent
court is ordered to allow the probate of the wig and to conduct further
proceedings in accordance with this decision. No pronouncement on
costs.
SO ORDERED.
EN BANC
G.R. No. L-42258 January 15, 1936
In re Will of the deceased Leoncia Tolentino.
VICTORIO PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.
GODDARD, J.:
Both parties in this case appeal from an order of the trial court denying
the probate of the alleged will of Leoncia Tolentino, deceased. That
court found that the will in question was executed by the deceased on
the date appearing thereon, September 7, 1933, one day before the
death of the testatrix, contrary to the contention of the oppositor that
it was executed after her death. The court, however, denied probate
on the ground that the attestation clause was not in conformity with
the requirements of law in that it is not stated therein that the testatrix
caused Attorney Almario to write her name at her express direction.
The appeal of the oppositor-appellant is based upon the alleged failure
of the trial court in not finding that the will in question was executed
after the death of Leoncia Tolentino, or that she was mentally and
physically incapable of executing said will one day before her death.
After a careful examination of the evidence on these points we find no
reason for setting aside the conclusion of the trial court as set forth
above. The assignments of the oppositor-appellant are therefore
overruled.
As to the contention of the petitioner-appellant, as stated above, the
trial court denied probate of the will on the sole ground that the
attestation clause does not state that the testratrix requested Attorney
Almario to write her name.
The last paragraph of the questioned will reads in part as follows:
En prueba de todo lo cual, firmo el presente testamento con
mi marcha digital, poque no puedo estampar mi firma a
causa de mi debilidad, rogando al abogado M. Almario que
poga mi nombre en el sitio donde he de estampar mi
marcha digital . . ..
The evidence of record established the fact that Leoncia Tolentino,
assisted by Attorney Almario, placed her thumb mark on each and
every age of time questioned will and the said attorney merely wrote
her name to indicate the place where she placed said thumb mark. In
74
 Wills and Succession Case Digests
other words Attorney Almario did not sign for the testatrix. She signed
for placing her thumb mark on each and every page thereof "A statute
requiring a will to be 'signed' is satisfied if the signature is made by the
testator's mark." (Quoted by this court from 28 R.C.L., p, 117; De
Gala vs.Gonzales and Ona, 53 Phil., 104, 108.) It is clear, therefore,
that it was not necessary that the attestation clause in question should
state that the testatrix requested Attorney Almario to sign her name
inasmuch as the testratrix signed the will in question in accordance
with law.
The appealed order of the trial court is reversed and the questioned
will of Leoncia Tolentino, deceased, is hereby admitted to probate with
the costs of this appeal against the oppositor-appellant.
Jallores. Vs. Interino – cannot be located in the internet and in the
SCRA. 
EN BANC
G.R. No. 17430 May 31, 1922
In the matter of the estate of Geronima Uy Coque, deceased.
ANDREA UY COQUE, ET AL., petitioners-appellees,
vs.
JUAN NAVAS L. SIOCA, special administrator of the estate of
Geronima Uy Coque, deceased, opponent-appellant.
OSTRAND, J.:
This is an appeal from an order of the Court of First Instance of
Samar, admitting a will to probate.
The validity of the will is attacked on the ground that the testatrix was
mentally incapacitated at the time of its execution and on the further
ground that it was not executed on the form prescribed by section 618
of the Code of Civil Procedure as amended by Act No. 2645,
The transcript of the testimony taken in the probate proceedings not
appearing in the record, we cannot review the findings of the court
below as to the sanity of the testatrix. This leaves for our consideration
only the question as to whether the omission of certain formalities in
the execution of the will are fatal to its validity.
Section 618 of the Code of Civil Procedure as amended by Act No.
2645 reads:
No will, except as provided in the preceding section, shall be
valid to pass any estate, real or personal, nor charge or
affect the same, unless it be written in the language or
dialect known by the testator and signed by him, or by the
testator's name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of each other. The testator or
the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, on the left margin,
and said pages shall be numbered correlatively in letters
placed on the upper part of each sheet. The attestation shall
state the number of sheets or pages used, upon which the
will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to
write his name, under his express direction, in the presence
of three witnesses, and the latter witnessed and signed the
will and all pages thereof in the presence of the testator and
of each other.
The formal deffects of the will in question occur in its attestation
clause which, in translation, read as follows:
We, the undersigned witnesses of this will, state that it has
been shown to us by the testatrix as her last will and
testament. And as she cannot sign her name, she asked that
Mr. Filomeno Piczon sign her name in the presence of each
of us, and each of us, the witnesses, also signed in the
presence of the testatrix.
It will be noted that the attestation clause does not state the number
of pages contained in the will nor does it state that the witnesses
signed in the presence of each other. Neither do these facts appear in
any other part of the will.
Statutes prescribing the formalities to be observed in the execution of
wills are very strictly construed. As stated in 40 Cyc., at page 1097, "A
will must be executed in accordance with the statutory requirements;
otherwise it is entirely void. All these requirements stand as of equal
importance and must be observed, and courts cannot supply the
defective execution of a will. No power or discretion is vested in them,
either to superadd other conditions or dispose with those enumerated
in the statutes."
This court has also frequently held that a will should not be probated
unless in its execution there has been a strict complaince with all the
requisites prescribed in section 618 of the Code of Civil Produre. It is
true that in the case of Abangan vs. Abangan (40 Phil., 476) the court
upheld the validity of a will consisting of only two pages, the first
containing all the testamentary dispositions and being signed by the
testator at the bottom and by both the testator and the witnesses in
the margin, the second page containing only the attestaiton clause
with the signatures of the witnesses at the bottom but without
marginal signatures. The decision was based on the ground that it
could not have been the intention of the legislator to require, as an
essential to the validity of the will, that all the signatures appear twice
on the same page as such a requirement would be entirely
purposeless. This decision is no doubt sound; that in statutory
construction the evident intent of the legislator controls will probably
not be disputed.
But it must not be forgotten that in construing statutory provisions in
regard to the formal requisites of a will, we are seeking to ascertain
the intent, of the legislator and not that the testator; the latter's
intention is frequently defeated through non-observance of the statue.
The purpose of the Legislature in prescribing the rather strict
formalities now required in the execution of a will are clearly revealed
by comparing section 618, supra, as originally enacted with the
amended section quoted above. The original section reads:
No will, except as provided in the preceding section, shall be
valid to pass any estate, real or personal, nor charge or
affect the same, unless it be in writing and signed by the
testator, or by the testator's name written by some other
person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses
in the presence of the testator and of each other. The
attestation shall state the fact that the testator signed the
will, or caused it to be signed by some other person, at this
express direction, in the presence of three witnesses, and
that they attested and subscribed it is his presence and in
the presence of each other. But the absence of such form of
75
 Wills and Succession Case Digests
attestation shall not render the will in valid if it is proven that
the will was in fact signed and attested as in this section
provided.
The amendments or changes introduced by Act No. 2645 are ( a) that
the will must now be executed in a language or dialect known to the
testator; (b) that the testator and witnesses must sign each page on
the left margin; (c) that the pages be numbered correclatively; (d) that
the attestation clause shall state the number sheets or page used in
the will and (e) that it must appear from the attestation clause itself
that the testator and witnesses signed in the form and manner
required by law and that is this can no longer be proven by evidence
aliunde.
The changes mentioned under (d) and (e) are the only ones which
need be considered in the present case. The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the
document might easily be so prepared that the removal of a sheet
would completely change the testamentary dispositions of the will and
in the absence of a statement of the total number of sheets such
removal might be effected by taking out the sheet and changing the
numbers at the top of the following sheets or pages. If, on the other
hand, the total number of sheets is stated in the attestation clause the
falsification of the document will involve the inserting of new pages
and the forgoing of the signatures of the testator and witnesses in the
margin, a matter attended with much greater difficulty.
The purpose of the new requirement that it must appear in the
attestation clause that the testator and the witnesses signed in the
presence of each other and that the fact cannot be proved by
evidence aliunde is, perhaps, less obvious, but, in view of the well-
known unreliability of oral evidence, it is clear that a statement in the
attestation clause will afford more satisfatory evidence of the fact to be
proven. In any event, the fact that the old rule in regard to
admissibility or oral evidence to prove that the testator and witnesses
signed in the manner prescribed by the law evidently had been found
unsatisfactory and was deliberately varied by amendment shows that
the Legislature attached importance to the mater. If so, the courts will
not be justified in enervating the amendment by too liberal a
construction.
We therefore hold that the two defects noted in the attestation clause
of the alleged will renders it null and void and that it cannot be
admitted to probate. The order appealed from is reversed with the
costs against the appellee. So ordered.
EN BANC
G.R. No. L-24556 December 18, 1925
In re will of Victoria Quintana, deceased. EMILIANO S.
SAÑO, petitioner-appellee,
vs.
MAMERTO QUINTANA, ET AL., opponents-appellants.
AVANCEÑA, C.J.:
The judgment appealed from allowed the probate of the will of the
deceased Victoria Quintana executed on March 22, 1924. Without
going into discussion of the points raised by the parties as to the
formalities of this will we find a sufficient reason for reversing the
judgment appealed from and denying the probate thereof.
In the attestation clause there is no statement that the witnesses to
the will have signed on the left margin of each page of the will in the
presence of the testatrix. Section 618 of Act No. 190, as amended by
Act No. 2645, provides that he attestation clause shall state the fact
that the testator signed the will and all the pages thereof, or caused
another persons to place his name thereon at his expressed direction
in the presence of the three witnesses to the will, and that the latter
signed the will and all its pages in the presence of the testator and of
each other. In the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405),
this court has held that the requirement that the attestation clause
must contain the statement that the witnesses signed in the presence
of each other is imperative and non-comfort in said case in support of
this doctrine may be adduced for holding that the will is also null and
void when in the attestation clause it does not appear that the
witnesses to the will signed it and every page thereof on the left
margin and in the presence of the testatrix. In order to insure the
authenticity of a will, which is the object of the law, it is just as
important, if not the most important, that the witnesses should sign in
the presence of the testator and of each other.lawphi1.net
The judgment appealed from is reversed, and the probate of the will of
Victoria Quintana is denied, without special pronouncement as to
costs. So ordered.
EN BANC
G.R. No. L-26135 March 3, 1927
In re will of Eustaquio Hagoriles. PETRONILO
GUMBAN, petitioner-appellee,
vs.
INOCENCIA GORECHO, ET AL., opponents-appellants.
MALCOLM, J.:
This is an appeal by the widow, Inocencia Gorecho, and eighteen other
opponents, from an order of the Court of First Instance of Iloilo
probating the document presented by Petronilo Gumban as the last will
and testament of the deceased Eustaquio Hagoriles. Among the errors
assigned is included the finding of the trial court that the alleged will
was prepared in conformity with the law, notwithstanding it did not
contain an attestation clause stating that the testator and the
witnesses signed all the pages of the will.
In support of their argument on the assignment of error above-
mentioned, appellants rely on a series of cases of this court beginning
with in the Matter of the Estate of Saguinsin ([1920], 41 Phil., 875),
continuing with in In re Will of Andrada ([1921], 42 Phil., 180), Uy
Coque vs. Navas L. Sioca ([1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with in Saño vs.
Quintana ([1925]), 48 Phil., 506). Appelle counters with the citation of
a series of cases beginning with Abangan vs. Abangan ([1919], 40
Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil.,
378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922, and
culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In
its last analysis, our task is to contrast and, if possible, conciliate, the
last two decisions cited by opposing counsel, namely, those of Saño
vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
In the case of Saño vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses signed the
will and each and every page thereof on the left margin in the
presence of the testator is defective, and such a defect annuls the will.
The case of Uy Coque vs. Sioca, supra, was cited, but the case
ofNayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast,
is the decision in Nayve vs. Mojal and Aguilar,supra, wherein it was
held that the attestation clause must state the fact that the testator
and the witnesses reciprocally saw the signing of the will, for such an
76
 Wills and Succession Case Digests
act cannot be proved by the mere exhibition of the will, if it is not
stated therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also
by the mere examination of the signatures appearing on the document
itself, and the omission to state such evident fact does not invalidate
the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom
do they admit inconsistency in doctrine. Yet here, unless aided by
casuistry of the extreme type, it would be impossible to reconcile the
Mojal and Quintana decisions. They are fundamentally at variance. If
we rely on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding
points may be mentioned. In the first place, the Mojal decision was
concurred in by only four members of the court, less than a majority,
with two strong dissenting opinions; the Quintana decisions was
concurred in by seven members of the court, a clear majority, with one
formal dissent. In the second place, the Mojal decision was
promulgated in December, 1924; the Quintana decision was thus
subsequent in point of time. And in the third place, the Quintana
decision is believed more nearly to conform to the applicable
provisions of the law.
The right to dispose of property by will is governed entirely by statute.
The law of the case is here found in section 618 of the Code of Civil
procedure, as amended by Act No. 2645, and in section 634 of the
same Code, as unamended. It is part provided in section 618, as
amended, that "No will . . . shall be valid . . . unless . . . ." It is further
provided in the same section that "The attestation shall state the
number of sheets or pages used, upon which the will and every page
thereof, or caused some other person to write his name, under his
express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of
the testator and of each other." Codal section 634 provides that " The
will shall be disallowed in either of the following cases: 1.
If not executed and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but cautiously goes
further and makes use of the negative, to enforce legislative intention.
It is not within the province of the courts to disregard the legislative
purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Saño vs.
Quintana, supra, and, to the extent necessary, modify the decision in
the case of Nayve vs. Mojal and Aguilar, supra.
It may not be said here that our ruling is predicated on technicality or
injustice. The will in question was formulated in a medley of three
languages, Visayan, English , and Spanish. Suspicious circumstances
surrounded the making of the will by the bedridden old man, who is
alleged to have signed it. However, no express pronouncements on the
two important questions relating to the language of the will and the
testamentary capacity of the deceased are required.
The order appealed from will be reversed, and the document Exhibit A
disallowed as a will, without special pronouncement as to costs in
either instance. So ordered.
EN BANC
G.R. No. L-31732 February 19, 1930
Estate of the deceased Gregorio Pueblo.
CARMEN QUINTO, applicant-appellant,
vs.
MARGARITA MORATA, in substitution of Mateo Pueblo,
deceased, contestant-appellee.
JOHNSON, J.:
This is an appeal from a decision of the Honorable Manuel V. Moran,
judge of the Court of first Instance of Cavite, denying the application
of Carmen Quinto for the probate of the alleged will of the deceased
Gregorio Pueblo, her husband.
The application for probate was filed on October 26, 1928 by Carmen
Quinto, executrix of said will. It was a joint and mutual will of Gregorio
Pueblo and his said wife Carmen Quinto and contained a provision that
the surviving spouse shall take charge of the properties therein
described and that they shall pass to the heirs and legatees at the time
of the death of the surviving spouse.
To said application an opposition was filed by Mateo Pueblo, a brother
of the deceased, on the following grounds: (1) That the attestation
clause of said will does not state the number of pages of which the will
is composed, and (2) that the attestation clause does not state that
each and every page of the will was signed by the testators in the
presence of the witnesses, and that the latter signed the same in the
presence of the testators and in the presence of each other.
Upon the issue thus raised, and after hearing the evidence, the court
rendered a judgment denying the petition on the ground that the
attestation clause did not state that the witnesses signed the will in the
presence of the testators, or that both the testators and the witnesses
signed the will and each and every page thereof in the presence of
each other. In this connection the lower court said:
. . . En la clausula de atestiguamiento del testamento en
cuestion, se hace constar que los testadores firmaron el
testamento en presencia de los tres testigos instrumentales
y que estos firmaron el testamento los unos en presencia de
los otros, pero no se hace constar que dichos testigos
firmaron el testamento enpresencia de los testadores, ni que
estos y aquellos firmaron today y cada una de las paginas
del testamento los primeros en presencia de los segundos y
vice-versa.
En su virtud, se deniega la solicitud en la que se pide la
legalizacion del alegado testamento Exhibit A de Gregorio
Pueblo y Carmen Quinto, y se declara que Gregorio Pueblo
murio intestado.
From the judgment the petitioner appealed and now contends:
That the lower court committed an error in denying the application of
the petitioner for the probate of the will of the deceased Gregorio
Pueblo.
The attestation clause of the will in question (Exhibit A-1) reads as
follows:
Nosotros los que firmamos al final de este testamento,
Florentino Joya, Aguedo Soriano y Teodoro Bleza damos fe,
de haber visto o presenciado el acto de firmar en esta
escritura o testamento de los esposes Gregorio Pueblo y
Carmen Quinto; lo firmaron ellos en nuestra presencia, y que
nosotros los testigos, lo firmamos en presencia de cade uno
de nostros, hoy 3 de noviembre de 1920. Este testamento
esta compuesto de tres fojas utiles.
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 Wills and Succession Case Digests
As will be noted, the attestation clause contravenes the express
requirements of section 618 of Act No. 190, as amended by Act No.
2645, in two ways: First, it fails to state that each and every page of
the will was signed by the testators and the witnesses; and, second, it
fails to state that the witnesses signed each and every page of the will
in the presence of the testators.
In the case of Saño vs. Quintana (48 Phil., 506) this court held that
"an attestation clause which does not recite that the witnesses signed
the will and each and every page thereof on the left margin in the
presence of the testator is defective, and such defect annuls the will."
This doctrine was restated and reaffirmed in the case of
Gumban vs. Gorecho (50 Phil., 30).
It is vigorously contended on behalf of the appellant, that the alleged
defect of the attestation clause has been cured by oral evidence, which
was admitted without opposition on the part of the appellee. This
contention cannot be sustained. The doctrine of this court with
reference to statute of frauds is not applicable to wills. The statue of
frauds relates to contracts and agreements. The subject of will and
testaments and the formalities surrounding their execution are
governed by separate and specific provisions of Act No. 190.
An examination of section 618 of Act No. 190, prior to, and after its
amendment by Act No. 2645, shows clearly that the Legislature
intended to exclude evidence aliunde, tending to establish that the will
has been executed and attested in conformity with the requirements of
the law, where such compliance does not appear on the face of the,
will itself. Prior to its amendment, section 618 contained the following
saving clause: "But the absence of such form of attestation shall not
render the will invalid if it is proven that the will was in fact signed and
attested as in this section provided."
The most outstanding feature of the amendment of said section 618
by Act No. 2645 is the elimination of said saving clause and the
greater emphasis laid on the formalities as to signatures and the
attestation clause. There can be no doubt, therefore, that the intention
of the Legislature, in eliminating said clause, was admitted without
opposition, it should not be given effect and thus defeat the manifest
intention of the Legislature in amending said section 618.
Section 618 of Act No. 190, as amended, should be given a strict
interpretation. In the case of Uy Coque vs. Navas L. Sioca (43 Phil.,
405) this court, speaking of the construction to be given to said
section, said:
Statutes prescribing the formalities to be observed in the
execution of wills are very strictly construed. As stated in 40
Cyc., at page 1097, "A will must be executed in accordance
with the statutory requirements; otherwise it is entirely void.
All these requirements stand as of equal importance and
must be observed, and courts cannot supply the defective
execution of a will. No power or discretion is vested in them,
either to superadd other conditions or dispense with those
enumerated in the statutes." (Uy Coque vs. Navas L. Sioca,
43 Phil., 405, 407.)
The judgment appealed from, disallowing the will of Gregorio Pueblo,
is in confirmity with the facts and the law, and the same should be and
in hereby affirmed, with costs. So ordered.
SECOND DIVISION
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA,
JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,
HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO,
VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO
ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA,
represented herein by his heirs, JESUS CANEDA, NATIVIDAD
CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review
on certiorari is the issue of whether or not the attestation clause
contained in the last will and testament of the late Mateo Caballero
complies with the requirements of Article 805, in relation to Article
809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a
widower without any children and already in the twilight years of his
life, executed a last will and testament at his residence in Talisay,
Cebu before three attesting witnesses, namely, Cipriano Labuca,
Gregorio Cabando and Flaviano Toregosa. The said testator was duly
assisted by his lawyer, Atty. Emilio Lumontad, and a notary public,
Atty. Filoteo Manigos, in the preparation of that last will. 1 It was
declared therein, among other things, that the testator was leaving by
way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not
appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a
petition docketed as Special Proceeding No. 3899-R before Branch II
of the then Court of First Instance of Cebu seeking the probate of his
last will and testament. The probate court set the petition for hearing
on August 20, 1979 but the same and subsequent scheduled hearings
were postponed for one reason to another. On May 29, 1980, the
testator passed away before his petition could finally be heard by the
probate court. 3 On February 25, 1981, Benoni Cabrera, on of the
legatees named in the will, sough his appointment as special
administrator of the testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court in its order
of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of
the testator, instituted a second petition, entitled "In the Matter of the
Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of
First Instance of Cebu. On October 18, 1982, herein petitioners had
their said petition intestate proceeding consolidated with Special
Proceeding No. 3899-R in Branch II of the Court of First Instance of
Cebu and opposed thereat the probate of the Testator's will and the
appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court,
now known as Branch XV of the Regional Trial Court of Cebu,
appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the
records of Special Proceeding No. 3965-R to the archives since the
testate proceeding for the probate of the will had to be heard and
resolved first. On March 26, 1984 the case was reraffled and
eventually assigned to Branch XII of the Regional Trial Court of Cebu
where it remained until the conclusion of the probate proceedings. 6
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 Wills and Succession Case Digests
In the course of the hearing in Special Proceeding No. 3899-R, herein
petitioners appeared as oppositors and objected to the allowance of
the testator's will on the ground that on the alleged date of its
execution, the testator was already in the poor state of health such
that he could not have possibly executed the same. Petitioners likewise
reiterated the issue as to the genuineness of the signature of the
testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca,
and the notary public Atty. Filoteo Manigos, testified that the testator
executed the will in question in their presence while he was of sound
and disposing mind and that, contrary to the assertions of the
oppositors, Mateo Caballero was in good health and was not unduly
influenced in any way in the execution of his will. Labuca also testified
that he and the other witnesses attested and signed the will in the
presence of the testator and of each other. The other two attesting
witnesses were not presented in the probate hearing as the had died
by then. 8
On April 5, 1988, the probate court rendered a decision declaring the
will in question as the last will and testament of the late Mateo
Caballero, on the ratiocination that:
. . . The self-serving testimony of the two
witnesses of the oppositors cannot overcome the
positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that
indeed Mateo Caballero executed the Last Will and
Testament now marked Exhibit "C" on December
5, 1978. Moreover, the fact that it was Mateo
Caballero who initiated the probate of his Will
during his lifetime when he caused the filing of the
original petition now marked Exhibit "D" clearly
underscores the fact that this was indeed his Last
Will. At the start, counsel for the oppositors
manifested that he would want the signature of
Mateo Caballero in Exhibit "C" examined by a
handwriting expert of the NBI but it would seem
that despite their avowal and intention for the
examination of this signature of Mateo Caballero
in Exhibit "C", nothing came out of it because they
abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses
for the oppositors.
All told, it is the finding of this Court that Exhibit
"C" is the Last Will and Testament of Mateo
Caballero and that it was executed in accordance
with all the requisites of the law. 9
Undaunted by the said judgment of the probate court, petitioners
elevated the case in the Court of Appeals in CA-G.R. CV No. 19669.
They asserted therein that the will in question is null and void for the
reason that its attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will witnessed
the testator signing the will in their presence and that they also signed
the will and all the pages thereof in the presence of the testator and of
one another.
On October 15, 1991, respondent court promulgated its
decision 10 affirming that of the trial court, and ruling that the
attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation
clause in question may be considered as having
substantialy complied with the requirements of
Art. 805 of the Civil Code. What appears in the
attestation clause which the oppositors claim to be
defective is "we do certify that the testament was
read by him and the attestator, Mateo Caballero,
has published unto us the foregoing will consisting
of THREE PAGES, including the acknowledgment,
each page numbered correlatively in letters of the
upper part of each page, as his Last Will and
Testament, and he has signed the same and every
page thereof, on the spaces provided for his
signature and on the left hand margin in the
presence of the said testator and in the presence
of each and all of us (emphasis supplied).
To our thinking, this is sufficient compliance and
no evidence need be presented to indicate the
meaning that the said will was signed by the
testator and by them (the witnesses) in the
presence of all of them and of one another. Or as
the language of the law would have it that the
testator signed the will "in the presence of the
instrumental witnesses, and that the latter
witnessed and signed the will and all the pages
thereof in the presence of the testator and of one
another." If not completely or ideally perfect in
accordance with the wordings of Art. 805 but (sic)
the phrase as formulated is in substantial
compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of
respondent court, but the same was denied in the latter's resolution of
January 14, 1992, 12 hence this appeal now before us. Petitioners
assert that respondent court has ruled upon said issue in a manner not
in accord with the law and settled jurisprudence on the matter and are
now questioning once more, on the same ground as that raised before
respondent court, the validity of the attestation clause in the last will
of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly
hereafter, after some prefatory observations which we feel should be
made in aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a
person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate after his
death. 13 Under the Civil Code, there are two kinds of wills which a
testator may execute. 14 the first kind is the ordinary or attested will,
the execution of which is governed by Articles 804 to 809 of the Code.
Article 805 requires that:
Art. 805. Every will, other than a holographic will,
must be subscribed at the end thereof by the
testator himself or by the testator's name written
by some other person in his presence, and by his
express direction, and attested and subscribed by
three or more credible witnesses in the presence
of the testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of
each page.
79
 Wills and Succession Case Digests
The attestation should state the number of pages
used upon which the will is written, and the fact
that the testator signed the will and every page
thereof, or caused some other person to write his
name, under his express direction, in the presence
of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages
thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not
known to the witness, it shall be interpreted to
them.
In addition, the ordinary will must be acknowledged before a notary
public by a testator and the attesting witness.15 hence it is likewise
known as notarial will. Where the attestator is deaf or deaf-mute,
Article 807 requires that he must personally read the will, if able to do
so. Otherwise, he should designate two persons who would read the
will and communicate its contents to him in a practicable manner. On
the other hand, if the testator is blind, the will should be read to him
twice; once, by anyone of the witnesses thereto, and then again, by
the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines
as one that is entirely written, dated, and signed by the testator
himself. This kind of will, unlike the ordinary type, requires no
attestation by witnesses. A common requirement in both kinds of will
is that they should be in writing and must have been executed in a
language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation
clause need not be written in a language or dialect known to the
testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise need
not even be known to the attesting witnesses. 18 The last paragraph of
Article 805 merely requires that, in such a case, the attestation clause
shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the
attesting witnesses certify that the instrument has been executed
before them and to the manner of the execution the same. 19 It is a
separate memorandum or record of the facts surrounding the conduct
of execution and once signed by the witnesses, it gives affirmation to
the fact that compliance with the essential formalities required by law
has been observed. 20 It is made for the purpose of preserving in a
permanent form a record of the facts that attended the execution of a
particular will, so that in case of failure of the memory of the attesting
witnesses, or other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete
lack of which would result in the invalidity of the will, 22 should state
(1) the number of the pages used upon which the will is written; (2)
that the testator signed, or expressly caused another to sign, the will
and every page thereof in the presence of the attesting witnesses; and
(3) that the attesting witnesses witnessed the signing by the testator
of the will and all its pages,and that said witnesses also signed the
will and every page thereof in the presence of the testator and of one
another.
The purpose of the law in requiring the clause to state the number of
pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent
any increase or decrease in the pages; 23 whereas the subscription of
the signature of the testator and the attesting witnesses is made for
the purpose of authentication and identification, and thus indicates
that the will is the very same instrument executed by the testator and
attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby
declare the due execution of the will as embodied in the attestation
clause. 25 The attestation clause, therefore, provide strong legal
guaranties for the due execution of a will and to insure the authenticity
thereof. 26 As it appertains only to the witnesses and not to the
testator, it need be signed only by them. 27 Where it is left unsigned, it
would result in the invalidation of the will as it would be possible and
easy to add the clause on a subsequent occasion in the absence of the
testator and its witnesses. 28
In its report, the Code Commission commented on the reasons of the
law for requiring the formalities to be followed in the execution of
wills, in the following manner:
The underlying and fundamental objectives
permeating the provisions on the law on wills in
this Project consists in the liberalization of the
manner of their execution with the end in view of
giving the testator more freedom in expressing his
last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure
and influence upon the testator.
This objective is in accord with the modern
tendency with respect to the formalities in the
execution of wills. . . . 29
2. An examination of the last will and testament of Mateo Caballero
shows that it is comprised of three sheets all of which have been
numbered correlatively, with the left margin of each page thereof
bearing the respective signatures of the testator and the three
attesting witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect and is signed
at the foot thereof by the testator. The attestation clause in question,
on the other hand, is recited in the English language and is likewise
signed at the end thereof by the three attesting witnesses
hereto. 30 Since it is the proverbial bone of contention, we reproduce it
again for facility of reference:
We, the undersigned attesting Witnesses, whose
Residences and postal addresses appear on the
Opposite of our respective names, we do hereby
certify that the Testament was read by him and
the testator, MATEO CABALLERO; has published
unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each page
numbered correlatively in the letters on the upper
part of each page, as his Last Will and Testament
and he has the same and every page thereof, on
the spaces provided for his signature and on the
left hand margin, in the presence of the said
testator and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both
attest and subscribe to the will in the presence of the testator and of
one another. "Attestation" and "subscription" differ in meaning.
Attestation is the act of senses, while subscription is the act of the
hand. The former is mental, the latter mechanical, and to attest a will
is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe
a paper published as a will is only to write on the same paper the
names of the witnesses, for the sole purpose of identification. 31
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 Wills and Succession Case Digests
In Taboada vs. Rizal, 32 we clarified that attestation consists in
witnessing the testator's execution of the will in order to see and take
note mentally that those things are done which the statute requires for
the execution of a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of identification of such
paper as the will which was executed by the testator. As it involves a
mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed
signed in the presence of the testator and of each other unless this is
substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause,
in contravention of the express requirements of the third paragraph of
Article 805 of the Civil Code for attestation clauses, fails to specifically
state the fact that the attesting witnesses the testator sign the will and
all its pages in their presence and that they, the witnesses, likewise
signed the will and every page thereof in the presence of the testator
and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause
herein assailed is the fact that while it recites that the testator indeed
signed the will and all its pages in the presence of the three attesting
witnesses and states as well the number of pages that were used, the
same does not expressly state therein the circumstance that said
witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on
the spaces provided for his signature and on the left hand margin,"
obviously refers to the testator and not the instrumental witnesses as
it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence
of the testator and in the presence of each and all of us" may, at first
blush, appear to likewise signify and refer to the witnesses, it must,
however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the
words "he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin." What is then
clearly lacking, in the final logical analysis , is the statement that the
witnesses signed the will and every page thereof in the presence of
the testator and of one another.
It is our considered view that the absence of that statement required
by law is a fatal defect or imperfection which must necessarily result in
the disallowance of the will that is here sought to be admitted to
probate. Petitioners are correct in pointing out that the aforestated
defect in the attestation clause obviously cannot be characterized as
merely involving the form of the will or the language used therein
which would warrant the application of the substantial compliance rule,
as contemplated in the pertinent provision thereon in the Civil Code, to
wit:
Art. 809. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and
influence, defects and imperfections in the form of
attestation or in the language used therein shall
not render the will invalid if it is not proved that
the will was in fact executed and attested in
substantial compliance with all the requirements of
article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at
the end thereof and at the left margin of each page by the three
attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witness affixed their respective signatures in
the presence of the testator and of each other since, as petitioners
correctly observed, the presence of said signatures only establishes the
fact that it was indeed signed, but it does not prove that the attesting
witnesses did subscribe to the will in the presence of the testator and
of each other. The execution of a will is supposed to be one act so that
where the testator and the witnesses sign on various days or occasions
and in various combinations, the will cannot be stamped with the
imprimatur of effectivity. 33
We believe that the further comment of former Justice J.B.L.
Reyes 34 regarding Article 809, wherein he urged caution in the
application of the substantial compliance rule therein, is correct and
should be applied in the case under consideration, as well as to future
cases with similar questions:
. . . The rule must be limited to disregarding those
defects that can be supplied by an examination of
the will itself: whether all the pages are
consecutively numbered; whether the signatures
appear in each and every page; whether the
subscribing witnesses are three or the will was
notarized. All theses are facts that the will itself
can reveal, and defects or even omissions
concerning them in the attestation clause can be
safely disregarded. But the total number of
pages, and whether all persons required to sign
did so in the presence of each other must
substantially appear in the attestation clause,
being the only check against perjury in the
probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and
imperfections must only be with respect to the form of the attestation
or the language employed therein. Such defects or imperfections
would not render a will invalid should it be proved that the will was
really executed and attested in compliance with Article 805. In this
regard, however, the manner of proving the due execution and
attestation has been held to be limited to merely an examination of the
will itself without resorting to evidence aliunde, whether oral or
written.
The foregoing considerations do not apply where the attestation clause
totally omits the fact that the attesting witnesses signed each and
every page of the will in the presence of the testator and of each
other. 35 In such a situation, the defect is not only in the form or
language of the attestation clause but the total absence of a specific
element required by Article 805 to be specifically stated in the
attestation clause of a will. That is precisely the defect complained of
in the present case since there is no plausible way by which we can
read into the questioned attestation clause statement, or an
implication thereof, that the attesting witness did actually bear witness
to the signing by the testator of the will and all of its pages and that
said instrumental witnesses also signed the will and every page thereof
in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot
be revoked or relied on by respondents since it presupposes that the
defects in the attestation clause can be cured or supplied by the text
of the will or a consideration of matters apparent therefrom which
would provide the data not expressed in the attestation clause or from
which it may necessarily be gleaned or clearly inferred that the acts
not stated in the omitted textual requirements were actually complied
within the execution of the will. In other words, defects must be
remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied by only extrinsic
evidence thereof, since an overall appreciation of the contents of the
81
 Wills and Succession Case Digests
will yields no basis whatsoever from with such facts may be plausibly
deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such
requirements by the instrumental witnesses, oblivious of the fact that
he is thereby resorting to extrinsic evidence to prove the same and
would accordingly be doing by the indirection what in law he cannot
do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was
a divergence of views as to which manner of interpretation should be
followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal requirements
were at that time embodied primarily in Section 618 of Act No. 190,
the Code of Civil Procedure. Said section was later amended by Act No.
2645, but the provisions respecting said formalities found in Act. No.
190 and the amendment thereto were practically reproduced and
adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was
first laid down in the case of Abangan vs. Abangan, 36 where it was
held that the object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and
authenticity. Therefore, the laws on this subject should be interpreted
in such a way as to attain these primordial ends. Nonetheless, it was
also emphasized that one must not lose sight of the fact that it is not
the object of the law to restrain and curtail the exercise of the right to
make a will, hence when an interpretation already given assures such
ends, any other interpretation whatsoever that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative
of the testator's last will, must be disregarded. The subsequent cases
ofAvera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson
vs. Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs.
Mojal, et al. 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe
the formalities that should be observed in the execution of wills are
mandatory in nature and are to be strictly construed was followed in
the subsequent cases of In the Matter of the Estate of Saguinsin, 43 In
re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of
Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to
clarify the seemingly conflicting decisions in the aforementioned cases.
In said case of Gumban, the attestation clause had failed to state that
the witnesses signed the will and each and every page thereof on the
left margin in the presence of the testator. The will in question was
disallowed, with these reasons therefor:
In support of their argument on the assignment of
error above-mentioned, appellants rely on a series
of cases of this court beginning with (I)n the
Matter of the (E)state of Saguinsin ([1920], 41
Phil., 875), continuing with In re Will of Andrada
[1921], 42 Phil., 180), Uy Coque vs. Navas L.
Sioca [1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana([1925], 48 Phil., 506).
Appellee counters with the citation of a series of
cases beginning withAbangan vs.
Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378),
and Fernandez vs. Vergel de Dios ([1924], 46
Phil., 922), and culminating in Nayve vs. Mojal and
Aguilar ([1924], 47 Phil., 152). In its last analysis,
our task is to contrast and, if possible, conciliate
the last two decisions cited by opposing counsel,
namely, those of Sano vs. Quintana,supra,
and Nayve vs. Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was
decided that an attestation clause which does not
recite that the witnesses signed the will and each
and every page thereof on the left margin in the
presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs.
Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the
testator and the witnesses reciprocally saw the
signing of the will, for such an act cannot be
proved by the mere exhibition of the will, if it is
not stated therein. It was also held that the fact
that the testator and the witnesses signed each
and every page of the will can be proved also by
the mere examination of the signatures appearing
on the document itself, and the omission to state
such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish
previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided
impossible to reconcile the Mojal and Quintana
decisions. They are fundamentally at variance. If
we rely on one, we affirm. If we rely on the other,
we reverse.
In resolving this puzzling question of authority,
three outstanding points may be mentioned. In
the first place, the Mojal, decision was concurred
in by only four members of the court, less than a
majority, with two strong dissenting opinions; the
Quintana decision was concurred in by seven
members of the court, a clear majority, with one
formal dissent. In the second place, the Mojal
decision was promulgated in December, 1924,
while the Quintana decision was promulgated in
December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third
place, the Quintana decision is believed more
nearly to conform to the applicable provisions of
the law.
The right to dispose of property by will is
governed entirely by statute. The law of the case
is here found in section 61 of the Code of Civil
Procedure as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It
is in part provided in section 61, as amended that
"No will . . . shall be valid . . . unless . . .." It is
further provided in the same section that "The
attestation shall state the number of sheets or
pages used, upon which the will is written, and
the fact that the testator signed the will and every
page thereof, or caused some other person to
write his name, under his express direction, in the
presence of three witnesses, and the latter
witnessed and signed the will and all pages
thereof in the presence of the testator and of each
other." Codal section 634 provides that "The
will shall be disallowed in either of the following
case: 1. If not executed and attested as in this Act
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 Wills and Succession Case Digests
provided." The law not alone carefully makes use
of the imperative, but cautiously goes further and
makes use of the negative, to enforce legislative
intention. It is not within the province of the
courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case
of Sano vs. Quintana, supra, and, to the extent
necessary, modify the decision in the case
of Nayve vs. Mojal and Aguilar, supra. (Emphases
in the original text).
But after the Gumban clarificatory pronouncement, there were
decisions of the Court that once more appeared to revive the seeming
diversity of views that was earlier threshed out therein. The cases
of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs.
Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling
as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
Cartagena, 54 De Ticson vs. De Gorostiza, 55Sebastian vs.
Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs.
Leynez, 59 Martir vs. Martir, 60Alcala vs. De Villa, 61 Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered
away from the strict interpretation rule and established a trend toward
an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views
and of the undeniable inclination towards a liberal construction,
recommended the codification of the substantial compliance rule, as it
believed this rule to be in accord with the modern tendency to give a
liberal approach to the interpretation of wills. Said rule thus became
what is now Article 809 of the Civil Code, with this explanation of the
Code Commission:
The present law provides for only one form of
executing a will, and that is, in accordance with
the formalities prescribed by Section 618 of the
Code of Civil Procedure as amended by Act No.
2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the
legal formalities and had even said that the
provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of
the attestation clause were mandatory, and non-
compliance therewith invalidated the will (Uy
Coque vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of the testator
in disposing of his property.
However, in recent years the Supreme Court
changed its attitude and has become more liberal
in the interpretation of the formalities in the
execution of wills. This liberal view is enunciated
in the cases ofRodriguez vs. Yap, G.R. No. 45924,
May 18, 1939; Leynez vs. Leynez, G.R. No. 46097,
October 18, 1939; Martir vs. Martir, G.R. No.
46995, June 21, 1940; and Alcala vs. Villa, G.R.
No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme
Court, it has practically gone back to the original
provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645
in the year 1916. To turn this attitude into a
legislative declaration and to attain the main
objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the
Project is recommended, which reads:
"Art. 829. In the absence of
bad faith, forgery, or fraud, or
undue and improper pressure
and influence, defects and
imperfections in the form of
attestation or in the language
used therein shall not render
the will invalid if it is proved
that the will was in fact
executed and attested in
substantial compliance with all
the requirements of article
829." 65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does
not offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop;
they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply
missing details that should appear in the will itself. They only permit a
probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty
and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions
which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the
will being assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the invalidation of
the attestation clause and ultimately, of the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned
decision of respondent court is hereby REVERSED and SET ASIDE. The
court a quo is accordingly directed to forthwith DISMISS its Special
Proceeding No. 3899-R (Petition for the Probate of the Last Will and
Testament of Mateo Caballero) and to REVIVE Special Proceeding No.
3965-R (In the matter of the Intestate Estate of Mateo Caballero) as
an active case and thereafter duly proceed with the settlement of the
estate of the said decedent.
SO ORDERED.
EN BANC
G.R. No. L-5826 April 29, 1953
Testate estate of the late VICENTE CAGRO. JESUSA
CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the
Court of First Instance of Samar, admitting to probate the will allegedly
executed by Vicente Cagro who died in Laoangan, Pambujan, Samar,
on February 14, 1949.
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 Wills and Succession Case Digests
The main objection insisted upon by the appellant in that the will is be acknowledged before a notary public by the testator and the
fatally defective, because its attestation clause is not signed by the witnesses. A notarial will executed with indifference to these two codal
attesting witnesses. There is no question that the signatures of the provisions opens itself to nagging questions as to its legitimacy.
three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed by
The case stems from a petition for probate filed on 10 April 1984 with
the witnesses on the left-hand margin.
the Regional Trial Court (RTC) of Manila. The petition filed by
petitioner Felix Azuela sought to admit to probate the notarial will of
We are of the opinion that the position taken by the appellant is Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is
correct. The attestation clause is 'a memorandum of the facts the son of the cousin of the decedent.
attending the execution of the will' required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An
The will, consisting of two (2) pages and written in the vernacular
unsigned attestation clause cannot be considered as an act of the
Pilipino, read in full:
witnesses, since the omission of their signatures at the bottom thereof
negatives their participation.
HULING HABILIN NI EUGENIA E. IGSOLO
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law and SA NGALAN NG MAYKAPAL, AMEN:
may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc,
mandate that the will be signed on the left-hand margin of all its Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-
pages. If an attestation clause not signed by the three witnesses at the unawa at memoria ay nag-hahayag na ito na ang aking huling habilin
bottom thereof, be admitted as sufficient, it would be easy to add such at testamento, at binabali wala ko lahat ang naunang ginawang habilin
clause to a will on a subsequent occasion and in the absence of the o testamento:
testator and any or all of the witnesses.

Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La

Wherefore, the appealed decision is reversed and the probate of the Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at
will in question denied. So ordered with costs against the petitioner ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo ng
and appellee. bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;

THIRD DIVISION Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan

sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa
G.R. No. 122880 April 12, 2006 mahabang panahon, yaong mga bahay na nakatirik sa lote numero 28,
Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din
ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa
FELIX AZUELA, Petitioner,
inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten
vs.
Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by
sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24,
ERNESTO G. CASTILLO, Respondents.
Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito ay
walang pasubali’t at kondiciones;
DECISION
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang
TINGA, J.: nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na
kailanman siyang mag-lagak ng piyansiya.
The core of this petition is a highly defective notarial will, purportedly
executed by Eugenia E. Igsolo (decedent), who died on 16 December Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng
1982 at the age of 80. In refusing to give legal recognition to the due Hunyo, 1981.
execution of this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of notarial wills,
(Sgd.)
all self-evident in view of Articles 805 and 806 of the Civil Code.
EUGENIA E. IGSOLO
(Tagapagmana)
A will whose attestation clause does not contain the number
of pages on which the will is written is fatally defective. A will
PATUNAY NG MGA SAKSI
whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly,
a will which does not contain an acknowledgment, but a Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong
mere jurat, is fatally defective. Any one of these defects is ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya
sufficient to deny probate. A notarial will with all three niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981, ay nilagdaan ng
defects is just aching for judicial rejection. nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t
sa amin, at kami namang mga saksi ay lumagda sa harap ng nasabing
There is a distinct and consequential reason the Civil Code provides a
tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa ilalim ng
comprehensive catalog of imperatives for the proper execution of a
nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t dahon ng
notarial will. Full and faithful compliance with all the detailed requisites
kasulatan ito.
under Article 805 of the Code leave little room for doubt as to the
validity in the due execution of the notarial will. Article 806 likewise
imposes another safeguard to the validity of notarial wills — that they

84
 Wills and Succession Case Digests
EUGENIA E. IGSOLO of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano,
address: 500 San Diego St. and Juanito Estrada. The RTC also called to fore "the modern tendency
Sampaloc, Manila Res. Cert. No. A-7717-37 in respect to the formalities in the execution of a will x x x with the
Issued at Manila on March 10, 1981. end in view of giving the testator more freedom in expressing his last
wishes;"7 and from this perspective, rebutted oppositor’s arguments
that the will was not properly executed and attested to in accordance
QUIRINO AGRAVA
with law.
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981 After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and having in
mind the modern tendency in respect to the formalities in the
LAMBERTO C. LEAÑO
execution of a will, i.e., the liberalization of the interpretation of the
address: Avenue 2, Blcok 7,
law on the formal requirements of a will with the end in view of giving
Lot 61, San Gabriel, G.MA., Cavite Res.
the testator more freedom in expressing his last wishes, this Court is
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
persuaded to rule that the will in question is authentic and had been
executed by the testatrix in accordance with law.
JUANITO ESTRERA
address: City Court Compound,
On the issue of lack of acknowledgement, this Court has noted that at
City of Manila Res. Cert. No. A574829
the end of the will after the signature of the testatrix, the following
Issued at Manila on March 2, 1981.
statement is made under the sub-title, "Patunay Ng Mga Saksi":

Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa

"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling
Lungsod ng Maynila.
dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana
na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981, ay
(Sgd.) nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit
PETRONIO Y. BAUTISTA at sa kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at
bawa’t sa amin, at kami namang mga saksi ay lumagda sa harap ng
Doc. No. 1232 ; NOTARIO PUBLIKO nasabing tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa
Page No. 86 ; Until Dec. 31, 1981 ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t
Book No. 43 ; PTR-152041-1/2/81-Manila dahon ng kasulatan ito."
Series of 1981 TAN # 1437-977-81
The aforequoted declaration comprises the attestation clause and the
The three named witnesses to the will affixed their signatures on the acknowledgement and is considered by this Court as a substantial
left-hand margin of both pages of the will, but not at the bottom of the compliance with the requirements of the law.
attestation clause.
On the oppositor’s contention that the attestation clause was not
The probate petition adverted to only two (2) heirs, legatees and signed by the subscribing witnesses at the bottom thereof, this Court
devisees of the decedent, namely: petitioner himself, and one Irene is of the view that the signing by the subscribing witnesses on the left
Lynn Igsolo, who was alleged to have resided abroad. Petitioner margin of the second page of the will containing the attestation clause
prayed that the will be allowed, and that letters testamentary be and acknowledgment, instead of at the bottom thereof, substantially
issued to the designated executor, Vart Prague. satisfies the purpose of identification and attestation of the will.

The petition was opposed by Geralda Aida Castillo (Geralda Castillo),
who represented herself as the attorney-in-fact of "the 12 legitimate
heirs" of the decedent.2 Geralda Castillo claimed that the will is a
forgery, and that the true purpose of its emergence was so it could be
utilized as a defense in several court cases filed by oppositor against
petitioner, particularly for forcible entry and usurpation of real
property, all centering on petitioner’s right to occupy the properties of
the decedent.3 It also asserted that contrary to the representations of
petitioner, the decedent was actually survived by 12 legitimate heirs,
namely her grandchildren, who were then residing abroad. Per
records, it was subsequently alleged that decedent was the widow of
Bonifacio Igsolo, who died in 1965,4 and the mother of a legitimate
child, Asuncion E. Igsolo, who predeceased her mother by three (3)
months.5
Oppositor Geralda Castillo also argued that the will was not executed
and attested to in accordance with law. She pointed out that
decedent’s signature did not appear on the second page of the will,
and the will was not properly acknowledged. These twin arguments
are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated
10 August 1992.6 The RTC favorably took into account the testimony
With regard to the oppositor’s argument that the will was not
numbered correlatively in letters placed on upper part of each page
and that the attestation did not state the number of pages thereof, it is
worthy to note that the will is composed of only two pages. The first
page contains the entire text of the testamentary dispositions, and the
second page contains the last portion of the attestation clause and
acknowledgement. Such being so, the defects are not of a serious
nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page,
which contains only the last portion of the attestation clause and
acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the testatrix
on the will is a forgery, the testimonies of the three subscribing
witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of
the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo,
who had substituted his since deceased mother-in-law, Geralda
Castillo. In a Decision dated 17 August 1995, the Court of Appeals
reversed the trial court and ordered the dismissal of the petition for
probate.9 The Court of Appeals noted that the attestation clause failed

85
 Wills and Succession Case Digests
to state the number of pages used in the will, thus rendering the will
void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil
Code that "the number of pages used in a notarial will be stated in the
attestation clause" is merely directory, rather than mandatory, and
thus susceptible to what he termed as "the substantial compliance
rule."11
The solution to this case calls for the application of Articles 805 and
806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed
at the end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each
and every page thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required
to retain a copy of the will, or file another with the office of the Clerk
of Court.
The appellate court, in its Decision, considered only one defect, the
failure of the attestation clause to state the number of pages of the
will. But an examination of the will itself reveals several more
deficiencies.
As admitted by petitioner himself, the attestation clause fails to state
the number of pages of the will.12 There was an incomplete attempt to
comply with this requisite, a space having been allotted for the
insertion of the number of pages in the attestation clause. Yet the
blank was never filled in; hence, the requisite was left uncomplied
with.
The Court of Appeals pounced on this defect in reversing the trial
court, citing in the process Uy Coque v. Navas L. Sioca13 and In re: Will
of Andrada.14 In Uy Coque, the Court noted that among the defects of
the will in question was the failure of the attestation clause to state the
number of pages contained in the will.15 In ruling that the will could
not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day: "The purpose
of requiring the number of sheets to be stated in the attestation clause
is obvious; the document might easily be so prepared that the
removal of a sheet would completely change the testamentary
dispositions of the will and in the absence of a statement of
the total number of sheets such removal might be effected by
taking out the sheet and changing the numbers at the top of
the following sheets or pages. If, on the other hand, the total
number of sheets is stated in the attestation clause the falsification of
the document will involve the inserting of new pages and the forging
of the signatures of the testator and witnesses in the margin, a matter
attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation
clause of which failed to state the number of sheets or pages used.
This consideration alone was sufficient for the Court to declare
"unanim[ity] upon the point that the defect pointed out in the attesting
clause is fatal."17 It was further observed that "it cannot be denied that
the x x x requirement affords additional security against the danger
that the will may be tampered with; and as the Legislature has seen fit
to prescribe this requirement, it must be considered material."18
Against these cited cases, petitioner cites Singson v.
Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court allowed
probate to the wills concerned therein despite the fact that the
attestation clause did not state the number of pages of the will. Yet
the appellate court itself considered the import of these two cases, and
made the following distinction which petitioner is unable to rebut, and
which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show
that the attestation does not state the number of pages used upon
which the will is written. Hence, the Will is void and undeserving of
probate.
We are not impervious of the Decisions of the Supreme Court in
"Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and
Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA 195,"
to the effect that a will may still be valid even if the attestation does
not contain the number of pages used upon which the Will is written.
However, the Decisions of the Supreme Court are not applicable in the
aforementioned appeal at bench. This is so because, in the case of
"Manuel Singson versus Emilia Florentino, et al., supra," although the
attestation in the subject Will did not state the number of pages used
in the will, however, the same was found in the last part of the body of
the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the attestation clause
shall state the number of pages or sheets upon which the will is
written, which requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation or omission
of some of the pages of the will to the prejudice of the heirs to whom
the property is intended to be bequeathed (In re Will of Andrada, 42
Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs.
Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to
be that the attestation clause must contain a statement of the number
of sheets or pages composing the will and that if this is missing or is
omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different. While
the attestation clause does not state the number of sheets or pages
upon which the will is written, however, the last part of the body of
the will contains a statement that it is composed of eight pages, which
circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a
broad and more liberal view has been adopted to prevent the will of
the testator from being defeated by purely technical considerations."
(page 165-165, supra) (Underscoring supplied)
86
 Wills and Succession Case Digests
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the
notarial acknowledgement in the Will states the number of pages used
in the:
"x x x
We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing the will. This
would have been a fatal defect were it not for the fact that, in this
case, it is discernible from the entire will that it is really and actually
composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by the testatrix
at the end or at the bottom while the instrumental witnesses signed at
the left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "this Last Will and Testament
consists of two pages including this page" (pages 200-201, supra)
(Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will
is not stated in any part of the Will. The will does not even contain any
notarial acknowledgment wherein the number of pages of the will
should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of
the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains
apropos, considering that the requirement that the attestation state
the number of pages of the will is extant from Section 618.23 However,
the enactment of the Civil Code in 1950 did put in force a rule of
interpretation of the requirements of wills, at least insofar as the
attestation clause is concerned, that may vary from the philosophy
that governed these two cases. Article 809 of the Civil Code states: "In
the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code
Commission, which stated that "the underlying and fundamental
objective permeating the provisions on the [law] on [wills] in this
project consists in the [liberalization] of the manner of their execution
with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the
[modern tendency] in respect to the formalities in the execution of
wills."24 However, petitioner conveniently omits the qualification
offered by the Code Commission in the very same paragraph he cites
from their report, that such liberalization be "but with sufficient
safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the
testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by
Justice Regalado, speaking for the Court on the conflicting views on
the manner of interpretation of the legal formalities required in the
execution of the attestation clause in wills.27 Uy
Coque and Andrada are cited therein, along with several other cases,
as examples of the application of the rule of strict
construction.28 However, the Code Commission opted to recommend a
more liberal construction through the "substantial compliance rule"
under Article 809. A cautionary note was struck though by Justice
J.B.L. Reyes as to how Article 809 should be applied:
x x x The rule must be limited to disregarding those defects that can
be supplied by an examination of the will itself: whether all the pages
are consecutively numbered; whether the signatures appear in each
and every page; whether the subscribing witnesses are three or the
will was notarized. All these are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the presence of
each other must substantially appear in the attestation clause,
being the only check against perjury in the probate
proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes
in its assailed decision, considering that the failure to state the number
of pages of the will in the attestation clause is one of the defects which
cannot be simply disregarded. In Caneda itself, the Court refused to
allow the probate of a will whose attestation clause failed to state that
the witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other,30 the other omission cited
by Justice J.B.L. Reyes which to his estimation cannot be lightly
disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now
stands, is that omission which can be supplied by an examination of
the will itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will
itself."31 Thus, a failure by the attestation clause to state that the
testator signed every page can be liberally construed, since that fact
can be checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one another’s
presence should be considered a fatal flaw since the attestation is the
only textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on
which the will was written remains a fatal flaw, despite Article 809.
The purpose of the law in requiring the clause to state the number of
pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent
any increase or decrease in the pages.33 The failure to state the
number of pages equates with the absence of an averment on the part
of the instrumental witnesses as to how many pages consisted the will,
the execution of which they had ostensibly just witnessed and
subscribed to. Following Caneda, there is substantial compliance with
this requirement if the will states elsewhere in it how many pages it is
comprised of, as was the situation in Singson andTaboada. However,
in this case, there could have been no substantial compliance with the
requirements under Article 805 since there is no statement in the
attestation clause or anywhere in the will itself as to the number of
pages which comprise the will.
At the same time, Article 809 should not deviate from the need to
comply with the formal requirements as enumerated under Article 805.
Whatever the inclinations of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw fit to
prescribe substantially the same formal requisites as enumerated in
Section 618 of the Code of Civil Procedure, convinced that these
remained effective safeguards against the forgery or intercalation of
notarial wills.34 Compliance with these requirements, however picayune
in impression, affords the public a high degree of comfort that the
testator himself or herself had decided to convey property post
mortem in the manner established in the will.35 The transcendent
legislative intent, even as expressed in the cited comments of
the Code Commission, is for the fruition of the testator’s
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 Wills and Succession Case Digests
incontestable desires, and not for the indulgent admission of
wills to probate.
The Court could thus end here and affirm the Court of Appeals.
However, an examination of the will itself reveals a couple of even
more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the
instrumental witnesses. While the signatures of the instrumental
witnesses appear on the left-hand margin of the will, they do not
appear at the bottom of the attestation clause which after all consists
of their averments before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the
signatures of the three witnesses to the will do not appear at the
bottom of the attestation clause, although the page containing the
same is signed by the witnesses on the left-hand margin."37 While
three (3) Justices38 considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through
Chief Justice Paras, ruled that the attestation clause had not been duly
signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the
will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand
margin.
We are of the opinion that the position taken by the appellant is
correct. The attestation clause is "a memorandum of the facts
attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the
witnesses, since the omission of their signatures at the bottom thereof
negatives their participation.
The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law and
may be deemed as their signatures to the attestation clause. This is
untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its
pages. If an attestation clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it would be easy to add such
clause to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental
witnesses sign each page of the will, from the requisite that the will be
"attested and subscribed by [the instrumental witnesses]." The
respective intents behind these two classes of signature are distinct
from each other. The signatures on the left-hand corner of every page
signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to
the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the will.
An unsigned attestation clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses’ undertakings in the clause, since the
signatures that do appear on the page were directed towards a wholly
different avowal.
The Court may be more charitably disposed had the witnesses in this
case signed the attestation clause itself, but not the left-hand margin
of the page containing such clause. Without diminishing the value of
the instrumental witnesses’ signatures on each and every page, the
fact must be noted that it is the attestation clause which contains the
utterances reduced into writing of the testamentary witnesses
themselves. It is the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used upon which the
will is written; the fact that the testator had signed the will and every
page thereof; and that they witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another. The
only proof in the will that the witnesses have stated these elemental
facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly
attested to by the instrumental witnesses, as they failed to sign the
attestation clause.
Yet, there is another fatal defect to the will on which the denial of this
petition should also hinge. The requirement under Article 806 that
"every will must be acknowledged before a notary public by the
testator and the witnesses" has also not been complied with. The
importance of this requirement is highlighted by the fact that it had
been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of
Article 806 in this case is equally as critical as the other cited flaws in
compliance with Article 805, and should be treated as of equivalent
import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista,
wrote "Nilagdaan ko at ninotario ko ngayong10 ng Hunyo 10 (sic),
1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation
can those words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a deed in going
before some competent officer or court and declaring it to be his act or
deed.41 It involves an extra step undertaken whereby the signor
actually declares to the notary that the executor of a document has
attested to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though
it does not hew to the usual language thereof. A jurat is that part of an
affidavit where the notary certifies that before him/her, the document
was subscribed and sworn to by the executor.42 Ordinarily, the
language of the jurat should avow that the document was subscribed
and sworn before the notary public, while in this case, the notary
public averred that he himself "signed and notarized" the document.
Possibly though, the word "ninotario" or "notarized" encompasses the
signing of and swearing in of the executors of the document, which in
this case would involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as
a jurat, the will would nonetheless remain invalid, as the express
requirement of Article 806 is that the will be "acknowledged", and not
merely subscribed and sworn to. The will does not present any textual
proof, much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their own free
act or deed. The acknowledgment made in a will provides for another
all-important legal safeguard against spurious wills or those made
beyond the free consent of the testator. An acknowledgement is not
an empty meaningless act.43 The acknowledgment coerces the testator
and the instrumental witnesses to declare before an officer of the law
that they had executed and subscribed to the will as their own free act
or deed. Such declaration is under oath and under pain of perjury,
thus allowing for the criminal prosecution of persons who participate in
the execution of spurious wills, or those executed without the free
consent of the testator. It also provides a further degree of assurance
that the testator is of certain mindset in making the testamentary
dispositions to those persons he/she had designated in the will.
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 Wills and Succession Case Digests
It may not have been said before, but we can assert the rule, self-
evident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and
sworn to before a notary public.
There are two other requirements under Article 805 which were not
fully satisfied by the will in question. We need not discuss them at
length, as they are no longer material to the
disposition of this case. The provision requires that the testator and
the instrumental witnesses sign each and every page of the will on the
left margin, except the last; and that all the pages shall be numbered
correlatively in letters placed on the upper part of each page. In this
case, the decedent, unlike the witnesses, failed to sign both pages of
the will on the left margin, her only signature appearing at the so-
called "logical end"44 of the will on its first page. Also, the will itself is
not numbered correlatively in letters on each page, but instead
numbered with Arabic numerals. There is a line of thought that has
disabused the notion that these two requirements be construed as
mandatory.45 Taken in isolation, these omissions, by themselves, may
not be sufficient to deny probate to a will. Yet even as these omissions
are not decisive to the adjudication of this case, they need not be
dwelt on, though indicative as they may be of a general lack of due
regard for the requirements under Article 805 by whoever executed
the will.
All told, the string of mortal defects which the will in question suffers
from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
ARTICLE 806
Azuela vs. CA - see previous case.
EN BANC
G.R. No. L-20357 November 25, 1967
IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF
THE WILL OF GREGORIO GATCHALIAN, deceased. PEDRO
REYES GARCIA, petitioner-appellant,
vs.
FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G.
COSCA, FEDERICO G. TUBOG, VIRGINIA G. TALANAY and
ANGELES G. TALANAY, oppositors-appellees.
DIZON, J.:
This is an appeal taken by Pedro Reyes Garcia from the decision of the
Court of First Instance of Rizal in Special Proceedings No. 2623
denying the allowance of the will of the late Gregorio Gatchalian, on
the ground that the attesting witnesses did not acknowledge it before
a notary public, as required by law.
On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of
age, died in the municipality of Pasig, Province of Rizal, leaving no
forced heirs. On April 2 of the same year, appellant filed a petition with
the above named court for the probate of said alleged will (Exhibit "C")
wherein he was instituted as sole heir. Felipe Gatchalian, Aurora G.
Camins, Angeles G. Cosca, Federico G. Tubog, Virginia G. Talanay and
Angeles G. Talanay, appellees herein, opposed the petition on the
ground, among others, that the will was procured by fraud; that the
deceased did not intend the instrument signed by him to be as his will;
and that the deceased was physically and mentally incapable of
making a will at the time of the alleged execution of said will.
After due trial, the court rendered the appealed decision finding the
document Exhibit "C" to be the authentic last will of the deceased but
disallowing it for failure to comply with the mandatory requirement of
Article 806 of the New Civil Code — that the will must be
acknowledged before a notary public by the testator and the
witnesses.
An examination of the document (Exhibit "C") shows that the same
was acknowledged before a notary public by the testator but not by
the instrumental witnesses.
Article 806 of the New Civil Code reads as follows:
Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not
be required to retain a copy of the will, or file another with
the office of the Clerk of Court.
We have held heretofore that compliance with the requirement
contained in the above legal provision to the effect that a will must be
acknowledged before a notary public by the testator and also by the
witnesses is indispensable for its validity (In re: Testate Estate of
Alberto, G. R. No. L-11948, April 29, 1959). As the document under
consideration does not comply with this requirement, it is obvious that
the same may not be probated.
WHEREFORE, the decision appealed from is affirmed, with costs.
EN BANC
G.R. No. L-7179 June 30, 1955
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD
JAVELLANA, petitioner-appellee,
vs.
DOÑA MATEA LEDESMA, oppositor-appellant.
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted
to probate the documents in the Visayan dialect, marked Exhibits D
and E, as the testament and codicil duly executed by the deceased Da.
Apolinaria Ledesma Vda. de Javellana, on March 30, 1950, and May
29, 1952, respectively, with Ramon Tabiana, Gloria Montinola de
Tabiana and Vicente Yap as witnesses. The contestant, Da. Matea
Ledesma, sister and nearest surviving relative of said deceased,
appealed from the decision, insisting that the said exhibits were not
executed in conformity with law. The appeal was made directly to this
Court because the value of the properties involved exceeded two
hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix
lacked testamentary capacity and that the dispositions were procured
through undue influence. These grounds were abandoned at the
hearing in the court below, where the issue was concentrated into
three specific questions: (1) whether the testament of 1950 was
executed by the testatrix in the presence of the instrumental
89
 Wills and Succession Case Digests
witnesses; (2) whether the acknowledgment clause was signed and The most important variation noted by the contestants concerns that
the notarial seal affixed by the notary without the presence of the signing of the certificate of acknowledgment (in Spanish) appended to
testatrix and the witnesses; and (3) if so, whether the codicil was the Codicil in Visayan, Exhibit E. Unlike the testament, this codicil was
thereby rendered invalid and ineffective. These questions are the same executed after the enactment of the new Civil Code, and, therefore,
ones presented to us for resolution. had to be acknowledged before a notary public (Art. 806). Now, the
instrumental witnesses (who happen to be the same ones who
attested the will of 1950) asserted that after the codicil had been
The contestant argues that the Court below erred in refusing credence
signed by the testatrix and the witnesses at the San Pablo Hospital,
to her witnesses Maria Paderogao and Vidal Allado, cook and driver,
the same was signed and sealed by notary public Gimotea on the same
respectively, of the deceased Apolinaria Ledesma. Both testified that
occasion. On the other hand, Gimotea affirmed that he did not do so,
on March 30, 1950, they saw and heard Vicente Yap (one of the
but brought the codicil to his office, and signed and sealed it there.
witnesses to the will) inform the deceased that he had brought the
The variance does not necessarily imply conscious perversion of truth
"testamento" and urge her to go to attorney Tabiana's office to sign it;
on the part of the witnesses, but appears rather due to a well-
that Da. Apolinaria manifested that she could not go, because she was
established phenomenon, the tendency of the mind, in recalling past
not feeling well; and that upon Yap's insistence that the will had to be
events, to substitute the usual and habitual for what differs slightly
signed in the attorney's office and not elsewhere, the deceased took
from it (II Moore on Facts, p. 878; The Ellen McGovern, 27 Fed. 868,
the paper and signed it in the presence of Yap alone, and returned it
870).
with the statement that no one would question it because the property
involved was exclusively hers.
At any rate, as observed by the Court below, whether or not the
notary signed the certification of acknowledgment in the presence of
Our examination of the testimony on record discloses no grounds for
the testatrix and the witnesses, does not affect the validity of the
reversing the trial Court's rejection of the improbable story of the
codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does
witnesses. It is squarely contradicted by the concordant testimony of
not require that the signing of the testator, witnesses and notary
the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his
should be accomplished in one single act. A comparison of Articles 805
wife Gloria Montinola, who asserted under oath that the testament was
and 806 of the new Civil Code reveals that while testator and
executed by testatrix and witnesses in the presence of each other, at
witnesses sign in the presence of each other, all that is thereafter
the house of the decedent on General Hughes St., Iloilo City, on March
required is that "every will must be acknowledged before a notary
30, 1950. And it is highly unlikely, and contrary to usage, that either
public by the testator and the witnesses" (Art. 806); i.e., that the latter
Tabiana or Yap should have insisted that Da. Apolinaria, an infirm lady
should avow to the certifying officer the authenticity of their signatures
then over 80 years old, should leave her own house in order to
and the voluntariness of their actions in executing the testamentary
execute her will, when all three witnesses could have easily repaired
disposition. This was done in the case before us. The subsequent
thither for the purpose. Moreover, the cross-examination has revealed
signing and sealing by the notary of his certification that the testament
fatal flaws in the testimony of Contestant's witnesses. Both claim to
was duly acknowledged by the participants therein is no part of the
have heard the word "testamento" for the first time when Yap used it;
acknowledgment itself nor of the testamentary act. Hence their
and they claimed ability to recall that word four years later, despite the
separate execution out of the presence of the testatrix and her
fact that the term meant nothing to either. It is well known that what
witnesses can not be said to violate the rule that testaments should be
is to be remembered must first be rationally conceived and assimilated
completed without interruption (Andalis vs. Pulgueras, 59 Phil. 643),
(II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive
or, as the Roman maxim puts it, "uno codem die ac tempore in eadem
that Yap brought the will, and that the deceased alone signed it,
loco", and no reversible error was committed by the Court in so
precisely on March 30, 1950; but she could remember no other date,
holding. It is noteworthy that Article 806 of the new Civil Code does
nor give satisfactory explanation why that particular day stuck in her
not contain words requiring that the testator and the witnesses should
mind. Worse still, Allado claimed to have heard what allegedly
acknowledge the testament on the same day or occasion that it was
transpired between Yap and Da. Apolinaria from the kitchen of the
executed.
house, that was later proved to have been separated from the
deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from The decision admitting the will to probate is affirmed, with costs
the kitchen. Later, on redirect examination, Allado sought to cure his against appellant.
testimony by claiming that he was upstairs in a room where the
servants used to eat when he heard Yap converse with his mistress;
FIRST DIVISION
but this correction is unavailing, since it was plainly induced by two
highly leading questions from contestant's counsel that had been
previously ruled out by the trial Court. Besides, the contradiction is G.R. No. L-32213 November 26, 1973
hardly consonant with this witness' 18 years of service to the
deceased. AGAPITA N. CRUZ, petitioner,
vs.
Upon the other hand, the discrepancies in the testimony of the HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of
instrumental witnesses urged upon us by the contestant-appellant, Branch I, Court of First Instance of Cebu, and MANUEL B.
concerning the presence or absence of Aurelio Montinola at the signing LUGAY, respondents.
of the testament or of the codicil, and the identity of the person who
inserted the date therein, are not material and are largely imaginary, ESGUERRA, J.:
since the witness Mrs. Tabiana confessed inability to remember all the
details of the transaction. Neither are we impressed by the argument
that the use of some Spanish terms in the codicil and testament Petition to review on certiorari the judgment of the Court First Instance
(likelegado, partes iguales, plena propiedad) is proof that its contents of Cebu allowing the probate of the last will a testament of the late
were not understood by the testatrix, it appearing in evidence that Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the surviving
those terms are of common use even in the vernacular, and that the spouse of the said decease opposed the allowance of the will (Exhibit
deceased was a woman of wide business interests. "E"), alleging the will was executed through fraud, deceit,
misrepresentation and undue influence; that the said instrument was
execute without the testator having been fully informed of the content
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 Wills and Succession Case Digests
thereof, particularly as to what properties he was disposing and that
the supposed last will and testament was not executed in accordance
with law. Notwithstanding her objection, the Court allowed the probate
of the said last will and testament Hence this appeal by certiorari
which was given due course.
The only question presented for determination, on which the decision
of the case hinges, is whether the supposed last will and testament of
Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and subscribe to
the will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T.
Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one
of them, the last named, is at the same time the Notary Public before
whom the will was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed by at least
three credible witnesses in the presence of the testator and of each
other, considering that the three attesting witnesses must appear
before the notary public to acknowledge the same. As the third
witness is the notary public himself, petitioner argues that the result is
that only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private respondent-appellee,
Manuel B. Lugay, who is the supposed executor of the will, following
the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of them,
bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
It is said that there are, practical reasons for
upholding a will as against the purely technical
reason that one of the witnesses required by law
signed as certifying to an acknowledgment of the
testator's signature under oath rather than as
attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We
are inclined to sustain that of the appellant that the last will and
testament in question was not executed in accordance with law. The
notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot
acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding in space or
ahead of. (The New Webster Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d.
p. 245.) Consequently, if the third witness were the notary public
himself, he would have to avow assent, or admit his having signed the
will in front of himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit such
a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard
against any illegal or immoral arrangement Balinon v. De Leon, 50 0.
G. 583.) That function would defeated if the notary public were one of
the attesting instrumental witnesses. For them he would be interested
sustaining the validity of the will as it directly involves him and the
validity of his own act. It would place him in inconsistent position and
the very purpose of acknowledgment, which is to minimize fraud
(Report of Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that notary public
may, in addition, act as a witness to the executive of the document he
has notarized. (Mahilum v. Court Appeals, 64 0. G. 4017; 17 SCRA
482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his
signing merely as notary in a will nonetheless makes him a witness
thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will,
N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback,
122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132
A. 721;See also Trenwith v. Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the law in this jurisdiction or
are not decisive of the issue herein because the notaries public and
witnesses referred to aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not as acknowledging witnesses.
He the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the
Civil Code which reads:
ART. 806. Every will must be acknowledged before
a notary public by the testator and the witnesses.
The notary public shall not be required to retain a
copy of the will or file another with the office of
the Clerk of Court. [Emphasis supplied]
To allow the notary public to act as third witness, or one the attesting
and acknowledging witnesses, would have the effect of having only
two attesting witnesses to the will which would be in contravention of
the provisions of Article 80 be requiring at least three credible
witnesses to act as such and of Article 806 which requires that the
testator and the required number of witnesses must appear before the
notary public to acknowledge the will. The result would be, as has
been said, that only two witnesses appeared before the notary public
for or that purpose. In the circumstances, the law would not be duly in
observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby
reversed and the probate of the last will and testament of Valente Z.
Cruz (Exhibit "E") is declared not valid and hereby set aside.
Cost against the appellee.
Conejos vs. Yves – cannot be located in the internet or in the SCRA.

Gonzales vs. CA – go to Article 805
SECOND DIVISION
G.R. No. L-51546 January 28, 1980
JOSE ANTONIO GABUCAN, petitioner-appellant,
vs.
HON. JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA and
NELDA G. ENCLONAR, respondents-appellees.
AQUINO, J.:
This case is about the dismissal of a petition for the probate of a
notarial will on the ground that it does not bear a thirty-centavo
documentary stamp.
The Court of First Instance of Camiguin in its "decision" of December
28, 1977 in Special Proceeding No. 41 for the probate of the will of the
late Rogaciano Gabucan, dismissed the proceeding (erroneously
characterizes as an "action")
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 Wills and Succession Case Digests
The proceeding was dismissed because the requisite documentary
stamp was not affixed to the notarial acknowledgment in the will and,
hence, according to respondent Judge, it was not admissible in
evidence, citing section 238 of the Tax Code, now section 250 of the
1977 Tax Code, which reads:
SEC. 238. Effect of failure to stamp taxable
document. — An instrument, document, or paper
which is required by law to be stamped and which
has been signed, issued, accepted, or transferred
without being duly stamped, shall not be
recorded, nor shall it or any copy thereof or any
record of transfer of the same be admitted or used
in evidence in any court until the requisite stamp
or stamps shall have been affixed thereto and
cancelled.
No notary public or other officer authorized to
administer oaths shall add his jurat or
acknowledgment to any document subject to
documentary stamp tax unless the proper
documentary stamps are affixed thereto and
cancelled.
The probate court assumed that the notarial acknowledgment of the
said will is subject to the thirty-centavo documentary stamp tax fixed
in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.
Respondent Judge refused to reconsider the dismissal in spite of
petitioner's manifestation that he had already attached the
documentary stamp to the original of the will. (See Mahilum vs. Court
of Appeals, 64 O. G. 4017, 17 SCRA 482, 486.)
The case was brought to this Court by means of a petition for
mandamus to compel the lower court to allow petitioner's appeal from
its decision. In this Court's resolution of January 21, 1980 the petition
for mandamus was treated in the interest of substantial and speedy
justice as an appeal under Republic Act No. 5440 as well as a special
civil action of certiorari under Rule 65 of the Rules of Court.
We hold that the lower court manifestly erred in declaring that,
because no documentary stamp was affixed to the will, there was "no
will and testament to probate" and, consequently, the alleged "action
must of necessity be dismissed".
What the probate court should have done was to require the petitioner
or proponent to affix the requisite thirty-centavo documentary stamp
to the notarial acknowledgment of the will which is the taxable portion
of that document.
That procedure may be implied from the provision of section 238 that
the non-admissibility of the document, which does not bear the
requisite documentary stamp, subsists only "until the requisite stamp
or stamps shall have been affixed thereto and cancelled."
Thus, it was held that the documentary stamp may be affixed at the
time the taxable document is presented in evidence (Del Castillo vs.
Madrilena 49 Phil. 749). If the promissory note does not bear a
documentary stamp, the court should have allowed plaintiff's tender of
a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67,
71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the
lack of the documentary stamp on a document does not invalidate
such document. See Cia. General de Tabacos vs. Jeanjaquet 12 Phil.
195, 201-2 and Delgado and Figueroa vs. Amenabar 16 Phil. 403, 405-
6.)
WHEREFORE, the lower court's dismissal of the petition for probate is
reversed and set aside. It is directed to decide the case on the merits
in the light of the parties' evidence. No costs.
SO ORDERED.
ARTICLE 808
FIRST DIVISION
G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of
the Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA.
ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO,
Associate Justices, Intermediate Appellate Court, First
Division (Civil Cases), and BAYANI MA. RINO, respondents.
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the
First Civil Cases Division of the then Intermediate Appellate Court, now
Court of Appeals, which affirmed the Order dated 27 June 1983 2 of
the Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the
last will and testament 3 with codicil 4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a
notarial will entitled "Huling Habilin" wherein he disinherited an
illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate before Branch 4
of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public
and by private respondent who were present at the execution, the
testator did not read the final draft of the will himself. Instead, private
respondent, as the lawyer who drafted the eight-paged document,
read the same aloud in the presence of the testator, the three
instrumental witnesses and the notary public. The latter four followed
the reading with their own respective copies previously furnished
them.
Meanwhile, Brigido's holographic will was subsequently admitted to
probate on 9 December 1977. On the 29th day of the same month, a
codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na
Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the notarial will
to generate cash for the testator's eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory clauses
were unchanged. As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was private
respondent who read it aloud in his presence and in the presence of
the three instrumental witnesses (same as those of the notarial will)
and the notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon
the testator's death on 3 January 1979 by private respondent as
executor with the Court of First Instance, now Regional Trial Court, of
Siniloan, Laguna. 5Petitioner, in turn, filed an Opposition on the
following grounds: that the will sought to be probated was not
executed and attested as required by law; that the testator was insane
or otherwise mentally incapacitated to make a will at the time of its
execution due to senility and old age; that the will was executed under
92
 Wills and Succession Case Digests
duress, or influence of fear and threats; that it was procured by undue We agree with petitioner in this respect.
and improper pressure and influence on the part of the beneficiary
who stands to get the lion's share of the testator's estate; and lastly,
Regardless of respondent's staunch contention that the testator was
that the signature of the testator was procured by fraud or trick.
still capable of reading at the time his will and codicil were prepared,
the fact remains and this was testified to by his witnesses, that Brigido
When the oppositor (petitioner) failed to substantiate the grounds did not do so because of his "poor," 10 "defective," 11 or
relied upon in the Opposition, a Probate Order was issued on 27 June "blurred" 12 vision making it necessary for private respondent to do the
1983 from which an appeal was made to respondent court. The main actual reading for him.
thrust of the appeal was that the deceased was blind within the
meaning of the law at the time his "Huling Habilin" and the codicil
The following pronouncement in Garcia vs. Vasquez 13 provides an
attached thereto was executed; that since the reading required by Art.
insight into the scope of the term "blindness" as used in Art. 808, to
808 of the Civil Code was admittedly not complied with, probate of the
wit:
deceased's last will and codicil should have been denied.

The rationale behind the requirement of reading

On 11 April 1986, the Court of Appeals rendered the decision under
the will to the testator if he is blind or incapable of
review with the following findings: that Brigido Alvarado was not blind
reading the will himself (as when he is illiterate), is
at the time his last will and codicil were executed; that assuming his
to make the provisions thereof known to him, so
blindness, the reading requirement of Art. 808 was substantially
that he may be able to object if they are not in
complied with when both documents were read aloud to the testator
accordance with his wishes . . .
with each of the three instrumental witnesses and the notary public
following the reading with their respective copies of the instruments.
The appellate court then concluded that although Art. 808 was not Clear from the foregoing is that Art. 808 applies not only to blind
followed to the letter, there was substantial compliance since its testators but also to those who, for one reason or another, are
purpose of making known to the testator the contents of the drafted "incapable of reading the(ir) will(s)." Since Brigido Alvarado was
will was served. incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective," or
"blurred" vision, there can be no other course for us but to conclude
The issues now before us can be stated thus: Was Brigido Alvarado
that Brigido Alvarado comes within the scope of the term "blind" as it
blind for purpose of Art, 808 at the time his "Huling Habilin" and its
is used in Art. 808. Unless the contents were read to him, he had no
codicil were executed? If so, was the double-reading requirement of
way of ascertaining whether or not the lawyer who drafted the will and
said article complied with?
codicil did so confortably with his instructions. Hence, to consider his
will as validly executed and entitled to probate, it is essential that we
Regarding the first issue, there is no dispute on the following facts: ascertain whether Art. 808 had been complied with.
Brigido Alvarado was not totally blind at the time the will and codicil
were executed. However, his vision on both eyes was only of "counting
Article 808 requires that in case of testators like Brigido Alvarado, the
fingers at three (3) feet" by reason of the glaucoma which he had
will shall be read twice; once, by one of the instrumental witnesses
been suffering from for several years and even prior to his first
and, again, by the notary public before whom the will was
consultation with an eye specialist on
acknowledged. The purpose is to make known to the incapacitated
14 December 1977.
testator the contents of the document before signing and to give him
an opportunity to object if anything is contrary to his instructions.
The point of dispute is whether the foregoing circumstances would
qualify Brigido as a "blind" testator under Art. 808 which reads:
That Art. 808 was not followed strictly is beyond cavil. Instead of the
notary public and an instrumental witness, it was the lawyer (private
Art. 808. If the testator is blind, the will shall be respondent) who drafted the eight-paged will and the five-paged
read to him twice; once, by one of the subscribing codicil who read the same aloud to the testator, and read them only
witnesses, and again, by the notary public before once, not twice as Art. 808 requires.
whom the will is acknowledged.
Private respondent however insists that there was substantial
Petitioner contends that although his father was not totally blind when compliance and that the single reading suffices for purposes of the
the will and codicil were executed, he can be so considered within the law. On the other hand, petitioner maintains that the only valid
scope of the term as it is used in Art. 808. To support his stand, compliance or compliance to the letter and since it is admitted that
petitioner presented before the trial court a medical certificate issued neither the notary public nor an instrumental witness read the
by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology contents of the will and codicil to Brigido, probate of the latter's will
(Philippine Eye Research Institute), 6 the contents of which were and codicil should have been disallowed.
interpreted in layman's terms by Dr. Ruperto Roasa, whose expertise
was admitted by private respondent. 7 Dr. Roasa explained that
We sustain private respondent's stand and necessarily, the petition
although the testator could visualize fingers at three (3) feet, he could
must be denied.
no longer read either printed or handwritten matters as of 14
December 1977, the day of his first consultation. 8
This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been
On the other hand, the Court of Appeals, contrary to the medical
satisfied, the reason being that the solemnities surrounding the
testimony, held that the testator could still read on the day the will and
execution of wills are intended to protect the testator from all kinds of
the codicil were executed but chose not to do so because of "poor
fraud and trickery but are never intended to be so rigid and inflexible
eyesight." 9 Since the testator was still capable of reading at that time,
as to destroy the testamentary privilege. 14
the court a quo concluded that Art. 808 need not be complied with.

93
 Wills and Succession Case Digests
In the case at bar, private respondent read the testator's will and incapacitated testator the contents of the draft of his will, had already
codicil aloud in the presence of the testator, his three instrumental been accomplished. To reiterate, substantial compliance suffices where
witnesses, and the notary public. Prior and subsequent thereto, the the purpose has been served.
testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and
WHEREFORE, the petition is DENIED and the assailed Decision of
acknowledgement take place. There is no evidence, and petitioner
respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
does not so allege, that the contents of the will and codicil were not
Considering the length of time that this case has remained pending,
sufficiently made known and communicated to the testator. On the
this decision is immediately executory. Costs against petitioner.
contrary, with respect to the "Huling Habilin," the day of the execution
was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony SO ORDERED.
of Atty. Rino is that Brigido Alvarado already acknowledged that the
will was drafted in accordance with his expressed wishes even prior to Garcia vs. Vasquez – cannot be located in the internet. Go to SCRA.
5 November 1977 when Atty. Rino went to the testator's residence
precisely for the purpose of securing his conformity to the draft. 15
ARTICLE 809
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three Alvarado vs. Gaviola – go to Article 808
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Caneda vs. CA – go to Article 805
Crescente O. Evidente (one of the three instrumental witnesses and
the testator's physician) asked the testator whether the contents of the
document were of his own free will. Brigido answered in the EN BANC
affirmative. 16 With four persons following the reading word for word
with their own copies, it can be safely concluded that the testator was G.R. No. L-5826 April 29, 1953
reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms
actually appearing on the typewritten documents. This is especially Testate estate of the late VICENTE CAGRO. JESUSA
true when we consider the fact that the three instrumental witnesses CAGRO, petitioner-appellee,
were persons known to the testator, one being his physician (Dr. vs.
Evidente) and another (Potenciano C. Ranieses) being known to him PELAGIO CAGRO, ET AL., oppositors-appellants.
since childhood.
PARAS, C.J.:
The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial This is an appeal interposed by the oppositors from a decision of the
requirements of the law in order to insure the authenticity of the will, Court of First Instance of Samar, admitting to probate the will allegedly
the formal imperfections should be brushed aside when they do not executed by Vicente Cagro who died in Laoangan, Pambujan, Samar,
affect its purpose and which, when taken into account, may only on February 14, 1949.
defeat the testator's will. 17
The main objection insisted upon by the appellant in that the will is
As a final word to convince petitioner of the propriety of the trial fatally defective, because its attestation clause is not signed by the
court's Probate Order and its affirmance by the Court of Appeals, we attesting witnesses. There is no question that the signatures of the
quote the following pronouncement in Abangan v. Abangan, 18 to wit: three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed by
The object of the solemnities surrounding the the witnesses on the left-hand margin.
execution of wills is to close the door against bad
faith and fraud, to avoid the substitution of wills We are of the opinion that the position taken by the appellant is
and testaments and to guaranty their truth and correct. The attestation clause is 'a memorandum of the facts
authenticity. Therefore the laws on the subject attending the execution of the will' required by law to be made by the
should be interpreted in such a way as to attain attesting witnesses, and it must necessarily bear their signatures. An
these primordial ends. But, on the other hand, unsigned attestation clause cannot be considered as an act of the
also one must not lose sight of the fact that it is witnesses, since the omission of their signatures at the bottom thereof
not the object of the law to restrain and curtail the negatives their participation.
exercise of the right to make a will. So when an
interpretation already given assures such ends,
The petitioner and appellee contends that signatures of the three
any other interpretation whatsoever, that adds
witnesses on the left-hand margin conform substantially to the law and
nothing but demands more requisites entirely
may be deemed as their signatures to the attestation clause. This is
unnecessary, useless and frustrative of the
untenable, because said signatures are in compliance with the legal
testator's will, must be disregarded (emphasis
mandate that the will be signed on the left-hand margin of all its
supplied).
pages. If an attestation clause not signed by the three witnesses at the
bottom thereof, be admitted as sufficient, it would be easy to add such
Brigido Alvarado had expressed his last wishes in clear and clause to a will on a subsequent occasion and in the absence of the
unmistakable terms in his "Huling Habilin" and the codicil attached testator and any or all of the witnesses.
thereto. We are unwilling to cast these aside fro the mere reason that
a legal requirement intended for his protection was not followed
Wherefore, the appealed decision is reversed and the probate of the
strictly when such compliance had been rendered unnecessary by the
will in question denied. So ordered with costs against the petitioner
fact that the purpose of the law, i.e., to make known to the
and appellee.
94
 Wills and Succession Case Digests
FIRST DIVISION administrator was likewise denied because of the petitioner's failure to
comply with the order requiring him to submit the names of' the
intestate heirs and their addresses.
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE
WILL OF DOROTEA PEREZ, (deceased): APOLONIO The petitioner decided to file the present petition.
TABOADA, petitioner,
vs.
For the validity of a formal notarial will, does Article 805 of the Civil
HON. AVELINO S. ROSAL, as Judge of Court of First Instance
Code require that the testatrix and all the three instrumental and
of Southern Leyte, (Branch III, Maasin),respondent.
attesting witnesses sign at the end of the will and in the presence of
the testatrix and of one another?
GUTIERREZ, JR. J.:
Article 805 of the Civil Code provides:
This is a petition for review of the orders issued by the Court of First
Instance of Southern Leyte, Branch III, in Special Proceedings No. R-
Every will, other than a holographic will, must be
1713, entitled "In the Matter of the Petition for Probate of the Will of
subscribed at the end thereof by the testator
Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied
himself or by the testator's name written by some
the probate of the will, the motion for reconsideration and the motion
other person in his presence, and by his express
for appointment of a special administrator.
direction, and attested and subscribed by three or
more credible witnesses in the presence of the
In the petition for probate filed with the respondent court, the testator and of one another.
petitioner attached the alleged last will and testament of the late
Dorotea Perez. Written in the Cebuano-Visayan dialect, the will
The testator or the person requested by him to
consists of two pages. The first page contains the entire testamentary
write his name and the instrumental witnesses of
dispositions and is signed at the end or bottom of the page by the
the will, shall also sign, as aforesaid, each and
testatrix alone and at the left hand margin by the three (3)
every page thereof, except the last, on the left
instrumental witnesses. The second page which contains the
margin, and all the pages shall be numbered
attestation clause and the acknowledgment is signed at the end of the
correlatively in letters placed on the upper part of
attestation clause by the three (3) attesting witnesses and at the left
each page.
hand margin by the testatrix.

The attestation shall state the number of pages

Since no opposition was filed after the petitioner's compliance with the
used upon which the will is written, and the fact
requirement of publication, the trial court commissioned the branch
that the testator signed the will and every page
clerk of court to receive the petitioner's evidence. Accordingly, the
thereof, or caused some other person to write his
petitioner submitted his evidence and presented Vicente Timkang, one
name, under his express direction, in the presence
of the subscribing witnesses to the will, who testified on its
of the instrumental witnesses, and that the lacier
genuineness and due execution.
witnesses and signed the will and the pages
thereof in the presence of the testator and of one
The trial court, thru then Presiding Judge Ramon C. Pamatian issued another.
the questioned order denying the probate of the will of Dorotea Perez
for want of a formality in its execution. In the same order, the
If the attestation clause is in a language not
petitioner was also required to submit the names of the intestate heirs
known to the witnesses, it shall be interpreted to
with their corresponding addresses so that they could be properly
the witnesses, it shall be interpreted to them.
notified and could intervene in the summary settlement of the estate.

The respondent Judge interprets the above-quoted provision of law to

Instead of complying with the order of the trial court, the petitioner
require that, for a notarial will to be valid, it is not enough that only
filed a manifestation and/or motion, ex partepraying for a thirty-day
the testatrix signs at the "end" but an the three subscribing witnesses
period within which to deliberate on any step to be taken as a result of
must also sign at the same place or at the end, in the presence of the
the disallowance of the will. He also asked that the ten-day period
testatrix and of one another because the attesting witnesses to a will
required by the court to submit the names of intestate heirs with their
attest not merely the will itself but also the signature of the testator. It
addresses be held in abeyance.
is not sufficient compliance to sign the page, where the end of the will
is found, at the left hand margin of that page.
The petitioner filed a motion for reconsideration of the order denying
the probate of the will. However, the motion together with the
On the other hand, the petitioner maintains that Article 805 of the Civil
previous manifestation and/or motion could not be acted upon by the
Code does not make it a condition precedent or a matter of absolute
Honorable Ramon C. Pamatian due to his transfer to his new station at
necessity for the extrinsic validity of the wig that the signatures of the
Pasig, Rizal. The said motions or incidents were still pending resolution
subscribing witnesses should be specifically located at the end of the
when respondent Judge Avelino S. Rosal assumed the position of
wig after the signature of the testatrix. He contends that it would be
presiding judge of the respondent court.
absurd that the legislature intended to place so heavy an import on the
space or particular location where the signatures are to be found as
Meanwhile, the petitioner filed a motion for the appointment of special long as this space or particular location wherein the signatures are
administrator. found is consistent with good faith and the honest frailties of human
nature.
Subsequently, the new Judge denied the motion for reconsideration as
well as the manifestation and/or motion filed ex parte. In the same We find the petition meritorious.
order of denial, the motion for the appointment of special
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 Wills and Succession Case Digests
Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the
terms attested and subscribed Attestation consists in witnessing the
testator's execution of the will in order to see and take note mentally
that those things are, done which the statute requires for the
execution of a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of Identification of such
paper as the will which was executed by the testator. (Ragsdale v. Hill,
269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our
considered view that the will in this case was subscribed in a manner
which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the
first page of the will attested not only to the genuineness of the
signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed. (Gonzales
v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental
objective permeating the provisions on the law on wills in this project
consists in the liberalization of the manner of their execution with the
end in view of giving the testator more freedom in expressing his last
wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure
and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a
will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned
order that were not for the defect in the place of signatures of the
witnesses, he would have found the testimony sufficient to establish
the validity of the will.
The objects of attestation and of subscription were fully met and
satisfied in the present case when the instrumental witnesses signed at
the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly Identified by
subscribing witness Vicente Timkang to be the same will executed by
the testatrix. There was no question of fraud or substitution behind the
questioned order.
We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing the will. This
would have been a fatal defect were it not for the fact that, in this
case, it is discernible from the entire wig that it is really and actually
composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by the testatrix
at the end or at the bottom while the instrumental witnesses signed at
the left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament
consists of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the
following observations with respect to the purpose of the requirement
that the attestation clause must state the number of pages used:
The law referred to is article 618 of the Code of
Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall
state the number of pages or sheets upon which
the win is written, which requirement has been
held to be mandatory as an effective safeguard
against the possibility of interpolation or omission
of some of the pages of the will to the prejudice of
the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180;
Uy Coque vs. Navas L. Sioca, 43 Phil. 405;
Gumban vs. Gorecho, 50 Phil. 30; Quinto vs.
Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66
Phil. 611). The ratio decidendi of these cases
seems to be that the attestation clause must
contain a statement of the number of sheets or
pages composing the will and that if this is missing
or is omitted, it will have the effect of invalidating
the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or
examination of the will itself. But here the
situation is different. While the attestation clause
does not state the number of sheets or pages
upon which the will is written, however, the last
part of the body of the will contains a statement
that it is composed of eight pages, which
circumstance in our opinion takes this case out of
the rigid rule of construction and places it within
the realm of similar cases where a broad and
more liberal view has been adopted to prevent the
will of the testator from being defeated by purely
technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which
applies a similar liberal approach:
... Impossibility of substitution of this page is
assured not only (sic) the fact that the testatrix
and two other witnesses did sign the defective
page, but also by its bearing the coincident imprint
of the seal of the notary public before whom the
testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness
over whose conduct she had no control where the
purpose of the law to guarantee the Identity of
the testament and its component pages is
sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record
attests to the fun observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. Vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) 'witnesses may sabotage the will
by muddling or bungling it or the attestation
clause.
WHEREFORE, the present petition is hereby granted. The orders of the
respondent court which denied the probate of tile will, the motion for
reconsideration of the denial of probate, and the motion for
appointment of a special administrator are set aside. The respondent
court is ordered to allow the probate of the wig and to conduct further
96
 Wills and Succession Case Digests
proceedings in accordance with this decision. No pronouncement on
costs.
SO ORDERED.
EN BANC
G.R. No. L-27440 December 24, 1927
JOSE VILLAFLOR, petitioner-appellant,
vs.
DEOGRACIAS TOBIAS, ET AL., oppositors-appellees.
OSTRAND, J.:
This is an appeal from the judgment denying a petition for the probate
of a will alleged to have been executed by one Gregoria Villaflor who
died in the municipality of Santo Domingo, Province of Ilocos Sur on
October 7, 1925. The petition was presented by Jose Villaflor, one of
the testamentary heirs of the deceased. Pilar Villaflor, Deogracias
Tobias, and several others whose names do not appear in the record,
contested the will upon the following grounds: (1) That it was not
signed by the alleged testatrix personally though she was able to do so
at the time of the execution of the document; (2) that said testatrix
did not authorize any one to sign the alleged will in her name; (3) that
both before and after the execution of the document, Gregoria Villaflor
signed various documents by thumb marks; (4) that although it is true
that the testatrix requested that the will be prepared, she nevertheless
refused to sign it because it was contrary to her desires and
instructions; (5) that subsequent to the date upon which the alleged
will was executed, Gregoria Villaflor on several occasions stated that it
was not her testament; (6) that the alleged will was not executed or
signed in conformity of the law.
The grounds upon which the court below based the rejection of the
document are thus stated in this decision.
After a careful examination of all the evidence of record, this
court is of opinion that it has been sufficiently proved that
Claro Lazo, the person who is alleged to have written the
name of the testatrix in her behalf and by her express
direction, subscribed the name and surname of the testatrix
and signed the will in question without Rufino D. Soliven,
one of the attesting witnesses, signed it; and lastly, when
Rufino D. Soliven signed the will the witness Vicente
Tacderas was not present.
Besides the foregoing defect, which the court believes fatal,
it also finds that the will in question, marked Exhibit B of the
applicant, was typewritten on eight catalan sheets, one
separated from the others; that the attestation clause was
written on a separate sheet, marked page 9, when said
clause could not have been written totally or partially on
page 8, since one-half of this latter page is blank.lawphi1.net
In the opinion of the court, all this circumstances tend to
make the authenticity and due execution of the will in
question very doubtful and suspicious. And if the testimony
of the witnesses for the opposition should be taken into
account as well as the circumstance that the testatrix
Gregoria Villaflor has neither signed or subscribed the
alleged will, notwithstanding the fact that it has been proven
in the record, that on July 12, 1923, the day in which it is
alleged that said will was executed, the testatrix was, in
good and sound health, although she could not walk on her
own feet inasmuch as she was then suffering from
rheumatism or partial paralysis of the lower extremities, and
that on July 27, and May 25, 1923, the testatrix Gregoria
Villaflor used to mark with her thumb, if she did not sign, the
document she executed, as it was proven during the trials by
Exhibit 1 and 2 of the opponents, the doubt and suspicion
which this court entertains in regard to the authenticity of
the will in question, becomes a certainty that said testament
is false.
We are reluctant to set aside the findings of the court below but they
are, in our opinion, so clearly without sufficient support in the record
that we are constrained to reject them. The will in question is dated
July 12, 1923, and was prepared by a lawyer, Eustaquio Gallardo, and
as far as appearances go, was executed in strict compliance with the
provisions of section 618 of the Code of Civil Procedure for the
execution of wills. The testatrix's name was signed by one Claro Lazo,
a clerk in the office of municipal treasurer of Santo Domingo, and the
attesting witnesses were Vicente Tacderas, municipal president, Rufino
D. Soliven, chief of police, and Mariano Pizarro, municipal treasurer, all
of the town of Santo Domingo. The finding of the court below that the
witness Soliven was not present when Claro Lazo signed the name of
testatrix and when Vicente Tacderas signed as witness, is based on the
fact that, in testifying in this case, Claro Lazo upon being asked to
enumerate the names of the persons present at the time of signing of
the document, omitted the name of Soliven. But it appears from the
transcript of the testimony that he afterwards corrected his original
statement and testified that Soliven, as well as the other witnesses to
the will, was present while all of the signatures were fixed. This is in
harmony with the testimony of all of the instrumental witnesses and is
undoubtfully true; there is, indeed, nothing strange or unusual in a
mistake such as that made by Lazo. It may be noted that it is not
disputed that the lawyer Gallardo was present during the whole
proceeding and as he appears to have possessed full knowledge of the
formal requirements for the execution of the will, it is highly
improbable that he would have allowed the will in question to be
signed without the presence of a testatrix and of all the witnesses.
That the attestation clause of the will is written on a separate page
and not on the last page of the body of the document is, in our
opinion, a matter of minor importance and is explained by the fact that
if the clause had been written on the eight page of the will in direction
continuation of the body thereof, there would have been sufficient
space on that page for the signatures of the witnesses to the clause. It
is also to be observed that all of the pages, including that upon which
the attestation clause is written, bear the signatures of all the
witnesses and that there is no question whatever as to the
genuineness of said signatures.
The fact that the name of the testatrix was written by another person,
and that she did not sign by thumb mark, is easily explained and is
evidently due to an attempt on the part of the lawyer Gallardo to
comply strictly with the following clause in the Spanish text of section
618 of the Code of Civil Procedure: "Excepto en el caso a que se
refiere el articulo anterior, no sera valido para la transmision de bienes
muebles e inmuebles, ni los gravara y afectara, ningun testamento a
menos que este escrito y que haya sido firmado por el testador, o que
lleve el nombre de este, escrito por otra persona en su presencia y
bajo su direccion expresa, . . . ." The making of a finger mark is not
"escribir" and it may be noted that Gallardo apparently is a good
Spanish scholar, that it does not appear that he knows the English
language;. and that he therefore probably used the Spanish text of the
Code.
There is some testimony on the part of the contestants to the effect
that the testatrix on various occasions, subsequent to the execution of
the will, had stated that it was not in conformity with her instructions
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 Wills and Succession Case Digests
and that it was not her will. Assuming that such statements were
made, we can give them but little importance. The testatrix was an old
woman and might have well made the statements by way of
justification in conversation with persons who considered themselves
wronged by the provisions of her will, but expressions of that kind
cannot, of course, work the revocation of the document. The testatrix
lived for over two years after the will was made and had ample
opportunity to make another will if she was dissatisfied with the first.
For the reasons stated the appealed judgment is hereby reversed and
it is ordered that the document in question be admitted to probate as
the last will and testament of the deceased Gregoria Villaflor. No costs
will be allowed. So ordered.
Caneda vs. CA – go to Article 805
ARTICLE 810
FIRST DIVISION
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE
JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS &
PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent
Hon. Jose C. Colayco, Presiding Judge Court of First Instance of
Manila, Branch XXI disallowing the probate of the holographic Will of
the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are
undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de
Jesus, Special Proceeding No. 81503 entitled "In the Matter of the
Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus"
was filed by petitioner Simeon R. Roxas, the brother of the deceased
Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to be
the holographic Will of the deceased Bibiana Roxas de Jesus. On May
26, 1973, respondent Judge Jose Colayco set the hearing of the
probate of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana
R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win
addressed to her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found. The will is
dated "FEB./61 " and states: "This is my win which I want to be
respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who
likewise testified that the letter dated "FEB./61 " is the holographic Will
of their deceased mother, Bibiana R. de Jesus. Both recognized the
handwriting of their mother and positively Identified her signature.
They further testified that their deceased mother understood English,
the language in which the holographic Will is written, and that the date
"FEB./61 " was the date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an
"opposition to probate" assailing the purported holographic Will of
Bibiana R. de Jesus because a it was not executed in accordance with
law, (b) it was executed through force, intimidation and/or under
duress, undue influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor could have
intended the said Will to be her last Will and testament at the time of
its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an
order allowing the probate of the holographic Will which he found to
have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration
alleging inter alia that the alleged holographic Will of the deceased
Bibiana R. de Jesus was not dated as required by Article 810 of the
Civil Code. She contends that the law requires that the Will should
contain the day, month and year of its execution and that this should
be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his
earlier order and disallowed the probate of the holographic Will on the
ground that the word "dated" has generally been held to include the
month, day, and year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the
holographic Will of Bibiana Roxas de Jesus, is
hereby disallowed for not having been executed as
required by the law. The order of August 24, 1973
is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will
which must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to
no other form, and may be made in or out of the
Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code
and Article 688 of the Old Civil Code require the testator to state in his
holographic Win the "year, month, and day of its execution," the
present Civil Code omitted the phrase Año mes y dia and simply
requires that the holographic Will should be dated. The petitioners
submit that the liberal construction of the holographic Will should
prevail.
Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New
Civil Code in that the date must contain the year, month, and day of
its execution. The respondent contends that Article 810 of the Civil
Code was patterned after Section 1277 of the California Code and
Section 1588 of the Louisiana Code whose Supreme Courts had
consistently ruled that the required date includes the year, month, and
day, and that if any of these is wanting, the holographic Will is invalid.
The respondent further contends that the petitioner cannot plead
liberal construction of Article 810 of the Civil Code because statutes
98
 Wills and Succession Case Digests
prescribing the formalities to be observed in the execution of
holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and
literal application of the statutory requirements regarding the due
execution of Wills. We should not overlook the liberal trend of the Civil
Code in the manner of execution of Wills, the purpose of which, in
case of doubt is to prevent intestacy —
The underlying and fundamental objectives
permeating the provisions of the law on wigs in
this Project consists in the liberalization of the
manner of their execution with the end in view of
giving the testator more freedom in expressing his
last wishes, but with sufficien safeguards and
restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure
and influence upon the testator.
This objective is in accord with the modem
tendency with respect to the formalities in the
execution of wills. (Report of the Code
Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro
v. Bustos (27 SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the
testator expressed in his last will and testament on
the ground that any disposition made by the
testator is better than that which the law can
make. For this reason, intestate succession is
nothing more than a disposition based upon the
presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal
requirements in order to guard against fraud and bad faith but without
undue or unnecessary curtailment of testamentary privilege Icasiano v.
Icasiano, 11 SCRA 422). If a Will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad
faith and fraud in the exercise thereof is obviated, said Win should be
admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and
circumstances of record are to be considered in
the application of any given rule. If the
surrounding circumstances point to a regular
execution of the wilt and the instrument appears
to have been executed substantially in accordance
with the requirements of the law, the inclination
should, in the absence of any suggestion of bad
faith, forgery or fraud, lean towards its admission
to probate, although the document may suffer
from some imperfection of language, or other
non-essential defect. ... (Leynez v. Leynez 68 Phil.
745).
If the testator, in executing his Will, attempts to comply with all the
requisites, although compliance is not literal, it is sufficient if the
objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has
been expounded by this Court in Abangan v. Abanga 40 Phil. 476,
where we ruled that:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. ...
In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the same
day, or of a testator becoming insane on the day on which a Will was
executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency
in this case.
We have carefully reviewed the records of this case and found no
evidence of bad faith and fraud in its execution nor was there any
substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely
written, dated, and signed by the testatrix herself and in a language
known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of
the holographic Will of their mother and that she had the testamentary
capacity at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that the
holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to be
entertained.
As a general rule, the "date" in a holographic Will should include the
day, month, and year of its execution. However, when as in the case
at bar, there is no appearance of fraud, bad faith, undue influence and
pressure and the authenticity of the Will is established and the only
issue is whether or not the date "FEB./61" appearing on the
holographic Will is a valid compliance with Article 810 of the Civil Code,
probate of the holographic Will should be allowed under the principle
of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed
from is REVERSED and SET ASIDE and the order allowing the probate
of the holographic Will of the deceased Bibiana Roxas de Jesus is
reinstated.
SO ORDERED.
THIRD DIVISION
G.R. No. 58168 December 19, 1989
CONCEPCION MAGSAYSAY-LABRADOR, SOLEDAD
MAGSAYSAY-CABRERA, LUISA MAGSAYSAY-CORPUZ, assisted
be her husband, Dr. Jose Corpuz, FELICIDAD P. MAGSAYSAY,
and MERCEDES MAGSAYSAY-DIAZ, petitioners,
vs.
THE COURT OF APPEALS and ADELAIDA RODRIGUEZ-
MAGSAYSAY, Special Administratrix of the Estate of the late
Genaro F. Magsaysay respondents.
99
 Wills and Succession Case Digests
the late Senator or against SUBIC for that matter can be ventilated in a
separate proceeding, such that with the denial of the motion for
intervention, they are not left without any remedy or judicial relief
FERNAN, C.J.:
under existing law.

In this petition for review on certiorari, petitioners seek to reverse and

Petitioners' motion for reconsideration was denied. Hence, the instant
set aside [1] the decision of the Court of Appeals dated July l3,
recourse.
1981, 1 affirming that of the Court of First Instance of Zambales and
Olongapo City which denied petitioners' motion to intervene in an
annulment suit filed by herein private respondent, and [2] its Petitioners anchor their right to intervene on the purported assignment
resolution dated September 7, 1981, denying their motion for made by the late Senator of a certain portion of his shareholdings to
reconsideration. them as evidenced by a Deed of Sale dated June 20, 1978. 2 Such
transfer, petitioners posit, clothes them with an interest, protected by
law, in the matter of litigation.
Petitioners are raising a purely legal question; whether or not
respondent Court of Appeals correctly denied their motion for
intervention. Invoking the principle enunciated in the case of PNB v. Phil. Veg. Oil
Co., 49 Phil. 857,862 & 853 (1927), 3petitioners strongly argue that
their ownership of 41.66% of the entire outstanding capital stock of
The facts are not controverted.
SUBIC entitles them to a significant vote in the corporate affairs; that
they are affected by the action of the widow of their late brother for it
On February 9, 1979, Adelaida Rodriguez-Magsaysay, widow and concerns the only tangible asset of the corporation and that it appears
special administratix of the estate of the late Senator Genaro that they are more vitally interested in the outcome of the case than
Magsaysay, brought before the then Court of First Instance of SUBIC.
Olongapo an action against Artemio Panganiban, Subic Land
Corporation (SUBIC), Filipinas Manufacturer's Bank (FILMANBANK) and
Viewed in the light of Section 2, Rule 12 of the Revised Rules of Court,
the Register of Deeds of Zambales. In her complaint, she alleged that
this Court affirms the respondent court's holding that petitioners herein
in 1958, she and her husband acquired, thru conjugal funds, a parcel
have no legal interest in the subject matter in litigation so as to entitle
of land with improvements, known as "Pequena Island", covered by
them to intervene in the proceedings below. In the case of Batama
TCT No. 3258; that after the death of her husband, she discovered [a]
Farmers' Cooperative Marketing Association, Inc. v. Rosal, 4 we held:
an annotation at the back of TCT No. 3258 that "the land was acquired
"As clearly stated in Section 2 of Rule 12 of the Rules of Court, to be
by her husband from his separate capital;" [b] the registration of a
permitted to intervene in a pending action, the party must have a legal
Deed of Assignment dated June 25, 1976 purportedly executed by the
interest in the matter in litigation, or in the success of either of the
late Senator in favor of SUBIC, as a result of which TCT No. 3258 was
parties or an interest against both, or he must be so situated as to be
cancelled and TCT No. 22431 issued in the name of SUBIC; and [c] the
adversely affected by a distribution or other disposition of the property
registration of Deed of Mortgage dated April 28, 1977 in the amount of
in the custody of the court or an officer thereof ."
P 2,700,000.00 executed by SUBIC in favor of FILMANBANK; that the
foregoing acts were void and done in an attempt to defraud the
conjugal partnership considering that the land is conjugal, her marital To allow intervention, [a] it must be shown that the movant has legal
consent to the annotation on TCT No. 3258 was not obtained, the interest in the matter in litigation, or otherwise qualified; and [b]
change made by the Register of Deeds of the titleholders was effected consideration must be given as to whether the adjudication of the
without the approval of the Commissioner of Land Registration and rights of the original parties may be delayed or prejudiced, or whether
that the late Senator did not execute the purported Deed of the intervenor's rights may be protected in a separate proceeding or
Assignment or his consent thereto, if obtained, was secured by not. Both requirements must concur as the first is not more important
mistake, violence and intimidation. She further alleged that the than the second. 5
assignment in favor of SUBIC was without consideration and
consequently null and void. She prayed that the Deed of Assignment
The interest which entitles a person to intervene in a suit between
and the Deed of Mortgage be annulled and that the Register of Deeds
other parties must be in the matter in litigation and of such direct and
be ordered to cancel TCT No. 22431 and to issue a new title in her
immediate character that the intervenor will either gain or lose by the
favor.
direct legal operation and effect of the judgment. Otherwise, if persons
not parties of the action could be allowed to intervene, proceedings
On March 7, 1979, herein petitioners, sisters of the late senator, filed a will become unnecessarily complicated, expensive and interminable.
motion for intervention on the ground that on June 20, 1978, their And this is not the policy of the law. 6
brother conveyed to them one-half (1/2 ) of his shareholdings in
SUBIC or a total of 416,566.6 shares and as assignees of around 41 %
The words "an interest in the subject" mean a direct interest in the
of the total outstanding shares of such stocks of SUBIC, they have a
cause of action as pleaded, and which would put the intervenor in a
substantial and legal interest in the subject matter of litigation and that
legal position to litigate a fact alleged in the complaint, without the
they have a legal interest in the success of the suit with respect to
establishment of which plaintiff could not recover. 7
SUBIC.

Here, the interest, if it exists at all, of petitioners-movants is indirect,

On July 26, 1979, the court denied the motion for intervention, and
contingent, remote, conjectural, consequential and collateral. At the
ruled that petitioners have no legal interest whatsoever in the matter
very least, their interest is purely inchoate, or in sheer expectancy of a
in litigation and their being alleged assignees or transferees of certain
right in the management of the corporation and to share in the profits
shares in SUBIC cannot legally entitle them to intervene because
thereof and in the properties and assets thereof on dissolution, after
SUBIC has a personality separate and distinct from its stockholders.
payment of the corporate debts and obligations.

On appeal, respondent Court of Appeals found no factual or legal

While a share of stock represents a proportionate or aliquot interest in
justification to disturb the findings of the lower court. The appellate
the property of the corporation, it does not vest the owner thereof
court further stated that whatever claims the petitioners have against
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with any legal right or title to any of the property, his interest in the
corporate property being equitable or beneficial in nature.
Shareholders are in no legal sense the owners of corporate property,
which is owned by the corporation as a distinct legal person. 8
Petitioners further contend that the availability of other remedies, as
declared by the Court of appeals, is totally immaterial to the availability
of the remedy of intervention.
We cannot give credit to such averment. As earlier stated, that the
movant's interest may be protected in a separate proceeding is a
factor to be considered in allowing or disallowing a motion for
intervention. It is significant to note at this juncture that as per
records, there are four pending cases involving the parties herein,
enumerated as follows: [1] Special Proceedings No. 122122 before the
CFI of Manila, Branch XXII, entitled "Concepcion Magsaysay-Labrador,
et al. v. Subic Land Corp., et al.", involving the validity of the transfer
by the late Genaro Magsaysay of one-half of his shareholdings in Subic
Land Corporation; [2] Civil Case No. 2577-0 before the CFI of
Zambales, Branch III, "Adelaida Rodriguez-Magsaysay v. Panganiban,
etc.; Concepcion Labrador, et al. Intervenors", seeking to annul the
purported Deed of Assignment in favor of SUBIC and its annotation at
the back of TCT No. 3258 in the name of respondent's deceased
husband; [3] SEC Case No. 001770, filed by respondent praying,
among other things that she be declared in her capacity as the
surviving spouse and administratrix of the estate of Genaro Magsaysay
as the sole subscriber and stockholder of SUBIC. There, petitioners, by
motion, sought to intervene. Their motion to reconsider the denial of
their motion to intervene was granted; [4] SP No. Q-26739 before the
CFI of Rizal, Branch IV, petitioners herein filing a contingent claim
pursuant to Section 5, Rule 86, Revised Rules of Court. 9 Petitioners'
interests are no doubt amply protected in these cases.
Neither do we lend credence to petitioners' argument that they are
more interested in the outcome of the case than the corporation-
assignee, owing to the fact that the latter is willing to compromise with
widow-respondent and since a compromise involves the giving of
reciprocal concessions, the only conceivable concession the
corporation may give is a total or partial relinquishment of the
corporate assets. 10
Such claim all the more bolsters the contingent nature of petitioners'
interest in the subject of litigation.
The factual findings of the trial court are clear on this point. The
petitioners cannot claim the right to intervene on the strength of the
transfer of shares allegedly executed by the late Senator. The
corporation did not keep books and records. 11 Perforce, no transfer
was ever recorded, much less effected as to prejudice third parties.
The transfer must be registered in the books of the corporation to
affect third persons. The law on corporations is explicit. Section 63 of
the Corporation Code provides, thus: "No transfer, however, shall be
valid, except as between the parties, until the transfer is recorded in
the books of the corporation showing the names of the parties to the
transaction, the date of the transfer, the number of the certificate or
certificates and the number of shares transferred."
And even assuming arguendo that there was a valid transfer,
petitioners are nonetheless barred from intervening inasmuch as their
rights can be ventilated and amply protected in another proceeding.
WHEREFORE, the instant petition is hereby DENIED. Costs against
petitioners.
SO ORDERED.
ARTICLE 811
EN BANC
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15
January 1958 by the Court of First Instance of Quezon City in its
Special Proceedings No. Q-2640, involves the determination of the
quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed
from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the
petitioner; that on September 9, 1957, Fortunata S. Vda. de
Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner
herein for probate of the holographic will, submitted the said
holographic will (Exh. C) whereby Maria Milagros Azaola was
made the sole heir as against the nephew of deceased
Cesario Singson; that witness Francisco Azaola testified that
he saw the holographic will (Exh. C) one month, more or
less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also
that he recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the testatrix
and to reinforce said statement, witness presented the
mortgage (Exh. E), the special power of the attorney (Exh.
F), and the general power of attorney (Exh. F-1), besides
the deeds of sale (Exhs. G and G-1) including an affidavit
(Exh. G-2), and that there were further exhibited in court
two residence certificates (Exhs. H and H-1) to show the
signatures of the testatrix, for comparison purposes; that
said witness, Azaola, testified that the penmanship
appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures
appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures
appearing therein are the signatures of the testatrix; that
said witness, in answer to a question of his counsel admitted
that the holographic will was handed to him by the testatrix.
"apparently it must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of the
stenographic notes, when the same witness was asked by
counsel if he was familiar with the penmanship and
handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was
asked again whether the penmanship referred to in the
previous answer as appearing in the holographic will (Exh.
C) was hers (testatrix'), he answered, "I would definitely say
it is hers"; that it was also established in the proceedings
that the assessed value of the property of the deceased in
Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the
execution of the will was procured by undue and improper pressure
and influence on the part of the petitioner and his wife, and (2) that
the testatrix did not seriously intend the instrument to be her last will,
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and that the same was actually written either on the 5th or 6th day of
August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently that the body of
the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to
produce more than one witness because the will's authenticity was not
questioned; and second, that Article 811 does not mandatorily require
the production of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity should be denied
by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witnesses referred to in
the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was
not contested, he was not required to produce more than one witness;
but even if the genuineness of the holographic will were contested, we
are of the opinion that Article 811 of our present Civil Code can not be
interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at
the execution of a holographic will, none being required by law (Art.
810, new Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond the control of
the proponent. For it is not merely a question of finding and producing
any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare
(truthfully, of course, even if the law does not so express) "that the
will and the signature are in the handwriting of the testator". There
may be no available witness of the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus
become an impossibility. That is evidently the reason why the second
paragraph of Article 811 prescribes that —
in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified
witness may be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the
will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). But it can not be ignored that the
requirement can be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three witnesses
at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be
present (Art. 10), and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned
by the words "if the Court deem it necessary", which reveal that what
the law deems essential is that the Court should be convinced of the
will's authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the ill is
genuine, it may consider it unnecessary to call for expert evidence. On
the other hand, if no competent witness is available, or none of those
produced is convincing, the Court may still, and in fact it should, resort
to handwriting experts. The duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil
Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd
Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo
apartado de dicho precepto induce la conclusion de que
siempre o por lo menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que le ilustre acerca
de la autenticidad del testamento olografo, aunque ya esten
insertas en los autos del expediente las declaraciones
testificales. La prudencia con que el Juez debe de proceder
en resoluciones de transcendencia asi lo exige, y la indole
delicada y peligrosa del testamento olografo lo hace
necesario para mayor garantia de todos los interes
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una
confirmacion facultativa del dicho profano de los testigos y
un modo de desvanecer las ultimas dudas que pudieran
ocurrir al Juez acerca de la autenticidad que trata de
averigaur y declarar. Para eso se ha escrito la frase del
citado ultimo apartado, (siempre que el Juez lo estime
conveniente), haya habido o no testigos y dudaran o no
estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con
independencia de los sucesos y de su significacion, para
responder debidamente de las resoluciones que haya de
dictar.
And because the law leaves it to the trial court if experts are still
needed, no unfavourable inference can be drawn from a party's failure
to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of
the Civil Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court
has been called upon to construe the import of said article, the interest
of justice would be better served, in our opinion, by giving the parties
ample opportunity to adduce additional evidence, including expert
witnesses, should the Court deem them necessary.
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 Wills and Succession Case Digests
In view of the foregoing, the decision appealed from is set aside, and
the records ordered remanded to the Court of origin, with instructions
to hold a new trial in conformity with this opinion. But evidence
already on record shall not be retaken. No costs.
EN BANC
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-
appellants.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting
to probate the document and its duplicate, marked as Exhibits "A" and
"A-1", as the true last will and testament of Josefa Villacorte,
deceased, and appointing as executor Celso Icasiano, the person
named therein as such.
This special proceeding was begun on October 2, 1958 by a petition
for the allowance and admission to probate of the original, Exhibit "A"
as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958,
and caused notice thereof to be published for three (3) successive
weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the
known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix,
filed her opposition; and on November 10, 1958, she petitioned to
have herself appointed as a special administrator, to which proponent
objected. Hence, on November 18, 1958, the court issued an order
appointing the Philippine Trust Company as special
administrator.1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also
filed a manifestation adopting as his own Natividad's opposition to the
probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the
introduction of his evidence; but on June 1, 1959, he filed a motion for
the admission of an amended and supplemental petition, alleging that
the decedent left a will executed in duplicate with all the legal
requirements, and that he was, on that date, submitting the signed
duplicate (Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de
Gomez and Enrique Icasiano filed their joint opposition to the
admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959,
oppositor Natividad Icasiano filed her amended opposition. Thereafter,
the parties presented their respective evidence, and after several
hearings the court issued the order admitting the will and its duplicate
to probate. From this order, the oppositors appealed directly to this
Court, the amount involved being over P200,000.00, on the ground
that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on
June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and
attested by three instrumental witnesses, namely: attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will
was acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong,
Notary Public in and for the City of Manila; and that the will was
actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and
testament, together with former Governor Emilio Rustia of Bulacan,
Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament,
attorneys Torres and Natividad were in the Philippines at the time of
the hearing, and both testified as to the due execution and authenticity
of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The
latter also testified upon cross examination that he prepared one
original and two copies of Josefa Villacorte last will and testament at
his house in Baliuag, Bulacan, but he brought only one original and
one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page,
it does not contain the signature of one of the attesting witnesses,
Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate
copy attached to the amended and supplemental petition and marked
as Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to show
that the original of the will and its duplicate were subscribed at the
end and on the left margin of each and every page thereof by the
testatrix herself and attested and subscribed by the three mentioned
witnesses in the testatrix's presence and in that of one another as
witnesses (except for the missing signature of attorney Natividad on
page three (3) of the original); that pages of the original and duplicate
of said will were duly numbered; that the attestation clause thereof
contains all the facts required by law to be recited therein and is
signed by the aforesaid attesting witnesses; that the will is written in
the language known to and spoken by the testatrix that the attestation
clause is in a language also known to and spoken by the witnesses;
that the will was executed on one single occasion in duplicate copies;
and that both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on the
same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of
the original, admits that he may have lifted two pages instead of one
when he signed the same, but affirmed that page three (3) was signed
in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect
that the signatures of the testatrix in the duplicate (Exhibit "A-1") are
not genuine nor were they written or affixed on the same occasion as
the original, and further aver that granting that the documents were
genuine, they were executed through mistake and with undue
influence and pressure because the testatrix was deceived into
adopting as her last will and testament the wishes of those who will
stand to benefit from the provisions of the will, as may be inferred
from the facts and circumstances surrounding the execution of the will
and the provisions and dispositions thereof, whereby proponents-
appellees stand to profit from properties held by them as attorneys-in-
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 Wills and Succession Case Digests
fact of the deceased and not enumerated or mentioned therein, while witnesses did sign the defective page, but also by its bearing the
oppositors-appellants are enjoined not to look for other properties not coincident imprint of the seal of the notary public before whom the
mentioned in the will, and not to oppose the probate of it, on penalty testament was ratified by testatrix and all three witnesses. The law
of forfeiting their share in the portion of free disposal. should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law to
We have examined the record and are satisfied, as the trial court was,
guarantee the identity of the testament and its component pages is
that the testatrix signed both original and duplicate copies (Exhibits
sufficiently attained, no intentional or deliberate deviation existed, and
"A" and "A-1", respectively) of the will spontaneously, on the same in
the evidence on record attests to the full observance of the statutory
the presence of the three attesting witnesses, the notary public who
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off.
acknowledged the will; and Atty. Samson, who actually prepared the
Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may
documents; that the will and its duplicate were executed in Tagalog, a
sabotage the will by muddling or bungling it or the attestation clause".
language known to and spoken by both the testator and the witnesses,
and read to and by the testatrix and Atty. Fermin Samson, together
before they were actually signed; that the attestation clause is also in That the failure of witness Natividad to sign page three (3) was
a language known to and spoken by the testatrix and the witnesses. entirely through pure oversight is shown by his own testimony as well
The opinion of expert for oppositors, Mr. Felipe Logan, that the as by the duplicate copy of the will, which bears a complete set of
signatures of the testatrix appearing in the duplicate original were not signatures in every page. The text of the attestation clause and the
written by the same had which wrote the signatures in the original will acknowledgment before the Notary Public likewise evidence that no
leaves us unconvinced, not merely because it is directly contradicted one was aware of the defect at the time.
by expert Martin Ramos for the proponents, but principally because of
the paucity of the standards used by him to support the conclusion
This would not be the first time that this Court departs from a strict
that the differences between the standard and questioned signatures
and literal application of the statutory requirements, where the
are beyond the writer's range of normal scriptural variation. The expert
purposes of the law are otherwise satisfied. Thus, despite the literal
has, in fact, used as standards only three other signatures of the
tenor of the law, this Court has held that a testament, with the only
testatrix besides those affixed to the original of the testament (Exh.
page signed at its foot by testator and witnesses, but not in the left
A); and we feel that with so few standards the expert's opinion and
margin, could nevertheless be probated (Abangan vs. Abangan, 41
the signatures in the duplicate could not be those of the testatrix
Phil. 476); and that despite the requirement for the correlative
becomes extremely hazardous. This is particularly so since the
lettering of the pages of a will, the failure to make the first page either
comparison charts Nos. 3 and 4 fail to show convincingly that the are
by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil.
radical differences that would justify the charge of forgery, taking into
429). These precedents exemplify the Court's policy to require
account the advanced age of the testatrix, the evident variability of her
satisfaction of the legal requirements in order to guard against fraud
signatures, and the effect of writing fatigue, the duplicate being signed
and bid faith but without undue or unnecessary curtailment of the
right the original. These, factors were not discussed by the expert.
testamentary privilege.

Similarly, the alleged slight variance in blueness of the ink in the

The appellants also argue that since the original of the will is in
admitted and questioned signatures does not appear reliable,
existence and available, the duplicate (Exh. A-1) is not entitled to
considering the standard and challenged writings were affixed to
probate. Since they opposed probate of original because it lacked one
different kinds of paper, with different surfaces and reflecting power.
signature in its third page, it is easily discerned that oppositors-
On the whole, therefore, we do not find the testimony of the
appellants run here into a dilemma; if the original is defective and
oppositor's expert sufficient to overcome that of the notary and the
invalid, then in law there is no other will but the duly signed carbon
two instrumental witnesses, Torres and Natividad (Dr. Diy being in the
duplicate (Exh. A-1), and the same is probatable. If the original is valid
United States during the trial, did not testify).
and can be probated, then the objection to the signed duplicate need
not be considered, being superfluous and irrelevant. At any rate, said
Nor do we find adequate evidence of fraud or undue influence. The duplicate, Exhibit A-1, serves to prove that the omission of one
fact that some heirs are more favored than others is proof of neither signature in the third page of the original testament was inadvertent
(see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson and not intentional.
vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual
reason for making a testament; otherwise, the decedent might as well
That the carbon duplicate, Exhibit A-1, was produced and admitted
die intestate. The testamentary dispositions that the heirs should not
without a new publication does not affect the jurisdiction of the
inquire into other property and that they should respect the
probate court, already conferred by the original publication of the
distribution made in the will, under penalty of forfeiture of their shares
petition for probate. The amended petition did not substantially alter
in the free part do not suffice to prove fraud or undue influence. They
the one first filed, but merely supplemented it by disclosing the
appear motivated by the desire to prevent prolonged litigation which,
existence of the duplicate, and no showing is made that new interests
as shown by ordinary experience, often results in a sizeable portion of
were involved (the contents of Exhibit A and A-1 are admittedly
the estate being diverted into the hands of non-heirs and speculators.
identical); and appellants were duly notified of the proposed
Whether these clauses are valid or not is a matter to be litigated on
amendment. It is nowhere proved or claimed that the amendment
another occassion. It is also well to note that, as remarked by the
deprived the appellants of any substantial right, and we see no error in
Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and
admitting the amended petition.
undue influence are mutually repugnant and exclude each other; their
joining as grounds for opposing probate shows absence of definite
evidence against the validity of the will. IN VIEW OF THE FOREGOING, the decision appealed from is affirmed,
with costs against appellants.
On the question of law, we hold that the inadvertent failure of one
witness to affix his signature to one page of a testament, due to the EN BANC
simultaneous lifting of two pages in the course of signing, is not per se
sufficient to justify denial of probate. Impossibility of substitution of G.R. No. L-14003 August 5, 1960
this page is assured not only the fact that the testatrix and two other

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FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15
January 1958 by the Court of First Instance of Quezon City in its
Special Proceedings No. Q-2640, involves the determination of the
quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed
from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the
petitioner; that on September 9, 1957, Fortunata S. Vda. de
Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner
herein for probate of the holographic will, submitted the said
holographic will (Exh. C) whereby Maria Milagros Azaola was
made the sole heir as against the nephew of deceased
Cesario Singson; that witness Francisco Azaola testified that
he saw the holographic will (Exh. C) one month, more or
less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also
that he recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the testatrix
and to reinforce said statement, witness presented the
mortgage (Exh. E), the special power of the attorney (Exh.
F), and the general power of attorney (Exh. F-1), besides
the deeds of sale (Exhs. G and G-1) including an affidavit
(Exh. G-2), and that there were further exhibited in court
two residence certificates (Exhs. H and H-1) to show the
signatures of the testatrix, for comparison purposes; that
said witness, Azaola, testified that the penmanship
appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures
appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures
appearing therein are the signatures of the testatrix; that
said witness, in answer to a question of his counsel admitted
that the holographic will was handed to him by the testatrix.
"apparently it must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of the
stenographic notes, when the same witness was asked by
counsel if he was familiar with the penmanship and
handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was
asked again whether the penmanship referred to in the
previous answer as appearing in the holographic will (Exh.
C) was hers (testatrix'), he answered, "I would definitely say
it is hers"; that it was also established in the proceedings
that the assessed value of the property of the deceased in
Luskot, Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the
execution of the will was procured by undue and improper pressure
and influence on the part of the petitioner and his wife, and (2) that
the testatrix did not seriously intend the instrument to be her last will,
and that the same was actually written either on the 5th or 6th day of
August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently that the body of
the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to
produce more than one witness because the will's authenticity was not
questioned; and second, that Article 811 does not mandatorily require
the production of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity should be denied
by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witnesses referred to in
the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was
not contested, he was not required to produce more than one witness;
but even if the genuineness of the holographic will were contested, we
are of the opinion that Article 811 of our present Civil Code can not be
interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at
the execution of a holographic will, none being required by law (Art.
810, new Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond the control of
the proponent. For it is not merely a question of finding and producing
any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare
(truthfully, of course, even if the law does not so express) "that the
will and the signature are in the handwriting of the testator". There
may be no available witness of the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus
become an impossibility. That is evidently the reason why the second
paragraph of Article 811 prescribes that —
in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified
witness may be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the
will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). But it can not be ignored that the
requirement can be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three witnesses
at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be
present (Art. 10), and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results are to be avoided.
105
 Wills and Succession Case Digests
Again, under Article 811, the resort to expert evidence is conditioned
by the words "if the Court deem it necessary", which reveal that what
the law deems essential is that the Court should be convinced of the
will's authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the ill is
genuine, it may consider it unnecessary to call for expert evidence. On
the other hand, if no competent witness is available, or none of those
produced is convincing, the Court may still, and in fact it should, resort
to handwriting experts. The duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil
Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd
Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo
apartado de dicho precepto induce la conclusion de que
siempre o por lo menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que le ilustre acerca
de la autenticidad del testamento olografo, aunque ya esten
insertas en los autos del expediente las declaraciones
testificales. La prudencia con que el Juez debe de proceder
en resoluciones de transcendencia asi lo exige, y la indole
delicada y peligrosa del testamento olografo lo hace
necesario para mayor garantia de todos los interes
comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una
confirmacion facultativa del dicho profano de los testigos y
un modo de desvanecer las ultimas dudas que pudieran
ocurrir al Juez acerca de la autenticidad que trata de
averigaur y declarar. Para eso se ha escrito la frase del
citado ultimo apartado, (siempre que el Juez lo estime
conveniente), haya habido o no testigos y dudaran o no
estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con
independencia de los sucesos y de su significacion, para
responder debidamente de las resoluciones que haya de
dictar.
And because the law leaves it to the trial court if experts are still
needed, no unfavourable inference can be drawn from a party's failure
to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of
the Civil Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court
has been called upon to construe the import of said article, the interest
of justice would be better served, in our opinion, by giving the parties
ample opportunity to adduce additional evidence, including expert
witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and
the records ordered remanded to the Court of origin, with instructions
to hold a new trial in conformity with this opinion. But evidence
already on record shall not be retaken. No costs.
FIRST DIVISION
G.R. No. 123486 August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL
RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and
UEFEMIA PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the
Court of Appeals1 and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the
authenticity of testators holographic will has been
established and the handwriting and signature therein
(exhibit S) are hers, enough to probate said will. Reversal of
the judgment appealed from and the probate of the
holographic will in question be called for. The rule is that
after plaintiff has completed presentation of his evidence
and the defendant files a motion for judgment on demurrer
to evidence on the ground that upon the facts and the law
plaintiff has shown no right to relief, if the motion is granted
and the order to dismissal is reversed on appeal, the movant
loses his right to present evidence in his behalf (Sec, 1 Rule
35 Revised Rules of Court). Judgment may, therefore, be
rendered for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and
judgment rendered allowing the probate of the holographic
will of the testator Matilde Seño Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the deceased
Matilde Seño Vda. de Ramonal, filed with the Regional Trial Court,
Misamis Oriental, Branch 18, a petition3 for probate of the holographic
will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seño
Vda. de Ramonal, was of sound and disposing mind when she
executed the will on August 30, 1978, that there was no fraud, undue
influence, and duress employed in the person of the testator, and will
was written voluntarily.
The assessed value of the decedent's property, including all real and
personal property was about P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed
an opposition5 to the petition for probate, alleging that the holographic
will was a forgery and that the same is even illegible. This gives an
impression that a "third hand" of an interested party other than the
"true hand" of Matilde Seño Vda. de Ramonal executed the
holographic will.
Petitioners argued that the repeated dates incorporated or appearing
on will after every disposition is out of the ordinary. If the deceased
was the one who executed the will, and was not forced, the dates and
the signature should appear at the bottom after the dispositions, as
regularly done and not after every disposition. And assuming that the
holographic will is in the handwriting of the deceased, it was procured
by undue and improper pressure and influence on the part of the
beneficiaries, or through fraud and trickery.1âwphi1.nêt
106
 Wills and Succession Case Digests
Respondents presented six (6) witnesses and various documentary The fifth witness presented was Mrs. Teresita Vedad, an employee of
evidence. Petitioners instead of presenting their evidence, filed a the Department of Environment and Natural Resources, Region 10.
demurrer6 to evidence, claiming that respondents failed to establish She testified that she processed the application of the deceased for
sufficient factual and legal basis for the probate of the holographic will pasture permit and was familiar with the signature of the deceased,
of the deceased Matilde Seño Vda. de Ramonal. since the signed documents in her presence, when the latter was
applying for pasture permit.
On November 26, 1990, the lower Court issued an order, the
dispositive portion of which reads: Finally, Evangeline Calugay, one of the respondents, testified that she
had lived with the deceased since birth, and was in fact adopted by
the latter. That after a long period of time she became familiar with
WHEREFORE, in view of the foregoing consideration, the
the signature of the deceased. She testified that the signature
Demurrer to Evidence having being well taken, same is
appearing in the holographic will is the true and genuine signature of
granted, and the petition for probate of the document
Matilde Seño Vda. de Ramonal.
(Exhibit "S") on the purported Holographic Will of the late
Matilde Seño Vda. de Ramonal, is denied for insufficiency of
evidence and lack of merits.7 The holographic will which was written in Visayan, is translated in
English as follows:
On December 12, 1990, respondents filed a notice of appeal,8 and in
support of their appeal, the respondents once again reiterated the Instruction
testimony of the following witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5)
August 30, 1978
Fiscal Rodolfo Waga; and (6) Evangeline Calugay.

1. My share at Cogon, Raminal Street, for Evangeline

To have a clear understanding of the testimonies of the witnesses, we
Calugay.
recite an account of their testimonies.

(Sgd) Matilde Vda de Ramonal

Augusto Neri, Clerk of Court, Court of First Instance of Misamis
Oriental, where the special proceedings for the probate of the
holographic will of the deceased was filed. He produced and identified August 30, 1978
the records of the case. The documents presented bear the signature
of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of 2. Josefina Salcedo must be given 1,500 square meters at
laying the basis for comparison of the handwriting of the testatrix, with Pinikan Street.
the writing treated or admitted as genuine by the party against whom
the evidence is offered.
(Sgd) Matilde Vda de Ramonal
Generosa Senon, election registrar of Cagayan de Oro, was presented
to produced and identify the voter's affidavit of the decedent. August 30, 1978
However, the voters' affidavit was not produced for the same was
already destroyed and no longer available. 3. My jewelry's shall be divided among:

Matilde Ramonal Binanay, testified that the deceased Matilde Seño 1. Eufemia Patigas
Vda. de Ramonal was her aunt, and that after the death of Matilde's
husband, the latter lived with her in her parent's house for eleven (11)
years from 1958 to 1969. During those eleven (11) years of close 2. Josefina Salcedo
association the deceased, she acquired familiarity with her signature
and handwriting as she used to accompany her (deceased Matilde 3. Evangeline Calugay
Seño Vda. de Ramonal) in collecting rentals from her various tenants
of commercial buildings, and deceased always issued receipts. In
addition to this, she (witness Matilde Binanay) assisted the deceased in (Sgd) Matilde Vda de Ramonal
posting the records of the accounts, and carried personal letters of the
deceased to her creditors. August 30, 1978

Matilde Ramonal Binanay further testified that at the time of the death 4. I bequeath my one (1) hectare land at Mandumol,
of Matilde Vda. de Ramonal, she left a holographic will dated August Indahag to Evangeline R. Calugay
30, 1978, which was personally and entirely written, dated and signed,
by the deceased and that all the dispositions therein, the dates, and
(Sgd) Matilde Vda de Ramonal
the signatures in said will, were that of the deceased.

August 30, 1978

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal
of Cagayan de Oro, he was a practicing lawyer, and handled all the
pleadings and documents signed by the deceased in connection with 5. Give the 2,500 Square Meters at Sta. Cruz Ramonal
the proceedings of her late husband, as a result of which he is familiar Village in favor of Evangeline R. Calugay, Helen must
with the handwriting of the latter. He testified that the signature continue with the Sta. Cruz, once I am no longer around.
appearing in the holographic will was similar to that of the deceased,
Matilde Seño Vda. de Ramonal, but he can not be sure. (Sgd) Matilde Vda de Ramonal

107
 Wills and Succession Case Digests
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision9 ruling
that the appeal was meritorious. Citing the decision in the case
of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L.
Reyes, a recognized authority in civil law, the Court of Appeals held:
. . . even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our
present civil code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the
probate denied. Since no witness may have been present at
the execution of the holographic will, none being required by
law (art. 810, new civil code), it becomes obvious that the
existence of witnesses possessing the requisite qualifications
is a matter beyond the control of the proponent. For it is not
merely a question of finding and producing any three
witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can
declare (truthfully, of course, even if the law does not
express) "that the will and the signature are in the
handwriting of the testator." There may be no available
witness acquainted with the testator's hand; or even if so
familiarized, the witness maybe unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of article
811 may thus become an impossibility. That is evidently the
reason why the second paragraph of article 811 prescribes
that —
in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
As can be see, the law foresees, the possibility that no
qualified witness ma be found (or what amounts to the same
thing, that no competent witness may be willing to testify to
the authenticity of the will), and provides for resort to expert
evidence to supply the deficiency.
It may be true that the rule of this article (requiring that
three witnesses be presented if the will is contested and only
one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang vs.
Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the requirement can be
considered mandatory only in case of ordinary testaments,
precisely because the presence of at least three witnesses at
the execution of ordinary wills is made by law essential to
their validity (Art. 805). Where the will is holographic, no
witness need be present (art. 10), and the rule requiring
production of three witnesses must be deemed merely
permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is
conditioned by the words "if the court deem it necessary",
which reveal that what the law deems essential is that the
court should be convinced of the will's authenticity. Where
the prescribed number of witnesses is produced and the
court is convinced by their testimony that the will is genuine,
it may consider it unnecessary to call for expert evidence.
On the other hand, if no competent witness is available, or
none of those produced is convincing, the court may still,
and in fact it should resort to handwriting experts. The duty
of the court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent
that the true intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of
the holographic will were contested, Article 811 of the civil
code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting
of the testator, under penalty of the having the probate
denied. No witness need be present in the execution of the
holographic will. And the rule requiring the production of
three witnesses is merely permissive. What the law deems
essential is that the court is convinced of the authenticity of
the will. Its duty is to exhaust all available lines of inquiry,
for the state is as much interested in the proponent that the
true intention of the testator be carried into effect. And
because the law leaves it to the trial court to decide if
experts are still needed, no unfavorable inference can be
drawn from a party's failure to offer expert evidence, until
and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde
Ramonal Binanay and other witnesses definitely and in no uncertain
terms testified that the handwriting and signature in the holographic
will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay
and witness Matilde Ramonal Binanay, the Court of Appeals sustained
the authenticity of the holographic will and the handwriting and
signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola
vs. Singson, 109 Phil. 102, relied upon by the respondent
Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding
that private respondents had been able to present credible
evidence to that the date, text, and signature on the
holographic will written entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not
analyzing the signatures in the holographic will of Matilde
Seño Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article
811 of the Civil Code are permissive or mandatory. The article
108
 Wills and Succession Case Digests
provides, as a requirement for the probate of a contested holographic Q. Showing to you the receipt dated 23 October 1979, is
will, that at least three witnesses explicitly declare that the signature in this the one you are referring to as one of the receipts which
the will is the genuine signature of the testator.1âwphi1.nêt she issued to them?

We are convinced, based on the language used, that Article 811 of the A. Yes, sir.
Civil Code is mandatory. The word "shall" connotes a mandatory order.
We have ruled that "shall" in a statute commonly denotes an
Q. Now there is that signature of Matilde vda. De Ramonal,
imperative obligation and is inconsistent with the idea of discretion and
whose signature is that Mrs. Binanay?
that the presumption is that the word "shall," when used in a statute is
mandatory.11
A. Matilde vda. De Ramonal.
Laws are enacted to achieve a goal intended and to guide against an
evil or mischief that aims to prevent. In the case at bar, the goal to Q. Why do you say that is the signature of Matilde Vda. De
achieve is to give effect to the wishes of the deceased and the evil to Ramonal?
be prevented is the possibility that unscrupulous individuals who for
their benefit will employ means to defeat the wishes of the testator. A. I am familiar with her signature.

So, we believe that the paramount consideration in the present Q. Now, you tell the court Mrs. Binanay, whether you know
petition is to determine the true intent of the deceased. An exhaustive Matilde vda de Ramonal kept records of the accounts of her
and objective consideration of the evidence is imperative to establish tenants?
the true intent of the testator.

A. Yes, sir.
It will be noted that not all the witnesses presented by the
respondents testified explicitly that they were familiar with the
handwriting of testator. In the case of Augusto Neri, clerk of court, Q. Why do you say so?
Court of First Instance, Misamis Oriental, he merely identified the
record of Special Proceedings No. 427 before said court. He was not A. Because we sometimes post a record of accounts in
presented to declare explicitly that the signature appearing in the behalf of Matilde Vda. De Ramonal.
holographic was that of the deceased.

Q. How is this record of accounts made? How is this

Generosa E. Senon, the election registrar of Cagayan de Oro City, was reflected?
presented to identify the signature of the deceased in the voter's
affidavit, which was not even produced as it was no longer available.
A. In handwritten.14

Matilde Ramonal Binanay, on the other hand, testified that:

xxx xxx xxx

Q. And you said for eleven (11) years Matilde Vda de

Ramonal resided with your parents at Pinikitan, Cagayan de Q. In addition to collection of rentals, posting records of
Oro City. Would you tell the court what was your occupation accounts of tenants and deed of sale which you said what
or how did Matilde Vda de Ramonal keep herself busy that else did you do to acquire familiarity of the signature of
time? Matilde Vda De Ramonal?

A. Collecting rentals. A. Posting records.

Q. From where? Q. Aside from that?

A. From the land rentals and commercial buildings at A. Carrying letters.

Pabayo-Gomez streets.12
Q. Letters of whom?
xxx xxx xxx
A. Matilde.
Q. Who sometime accompany her?
Q. To whom?
A. I sometimes accompany her.
A. To her creditors.15
Q. In collecting rentals does she issue receipts?
xxx xxx xxx
A. Yes, sir.13
Q. You testified that at time of her death she left a will. I
xxx xxx xxx am showing to you a document with its title "tugon" is this
the document you are referring to?

109
 Wills and Succession Case Digests
A. Yes, sir. Q. Advice of what?

Q. Showing to you this exhibit "S", there is that
handwritten "tugon", whose handwriting is this?
A. My Aunt.
Q. Why do you say this is the handwriting of your aunt?
A. About the will.18
In her testimony it was also evident that Ms. Binanay kept the fact
about the will from petitioners, the legally adopted children of the
deceased. Such actions put in issue her motive of keeping the will a
secret to petitioners and revealing it only after the death of Matilde
Seño Vda. de Ramonal.

A. Because I am familiar with her signature.16

In the testimony of Ms. Binanay, the following were established:

What Ms. Binanay saw were pre-prepared receipts and letters of the
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet
deceased, which she either mailed or gave to her tenants. She did not
a sickly person is that correct?
declare that she saw the deceased sign a document or write a note.

A. Yes, sir.
Further, during the cross-examination, the counsel for petitioners
elicited the fact that the will was not found in the personal belongings
of the deceased but was in the possession of Ms. Binanay. She Q. She was up and about and was still uprightly and she
testified that: could walk agilely and she could go to her building to collect
rentals, is that correct?
Q. Mrs. Binanay, when you were asked by counsel for the
petitioners if the late Matilde Seno vda de Ramonal left a will A. Yes, sir.19
you said, yes?
xxx xxx xxx
A. Yes, sir.
Q. Now, let us go to the third signature of Matilde
Q. Who was in possession of that will? Ramonal. Do you know that there are retracings in the word
Vda.?
A. I.
A. Yes, a little. The letter L is continuous.
Q. Since when did you have the possession of the will?
Q. And also in Matilde the letter L is continued to letter D?
A. It was in my mother's possession.
A. Yes, sir.
Q. So, it was not in your possession?
Q. Again the third signature of Matilde Vda de Ramonal the
letter L in Matilde is continued towards letter D.
A. Sorry, yes.

A. Yes, sir.
Q. And when did you come into possession since as you
said this was originally in the possession of your mother?
Q. And there is a retracing in the word Vda.?
A. 1985.17
A. Yes, sir.20
xxx xxx xxx
xxx xxx xxx
Q. Now, Mrs. Binanay was there any particular reason why
your mother left that will to you and therefore you have that Q. Now, that was 1979, remember one year after the
in your possession? alleged holographic will. Now, you identified a document
marked as Exhibit R. This is dated January 8, 1978 which is
only about eight months from August 30, 1978. Do you
A. It was not given to me by my mother, I took that in the
notice that the signature Matilde Vda de Ramonal is
aparador when she died.
beautifully written and legible?

Q. After taking that document you kept it with you?

A. Yes, sir the handwriting shows that she was very
exhausted.
A. I presented it to the fiscal.
Q. You just say that she was very exhausted while that in
Q. For what purpose? 1978 she was healthy was not sickly and she was agile.
Now, you said she was exhausted?
A. Just to seek advice.
110
 Wills and Succession Case Digests
A. In writing. A. Yes, sir, that is her signature.

Q. How did you know that she was exhausted when you Q. Why do you say that is her signature?
were not present and you just tried to explain yourself out
because of the apparent inconsistencies?
A. I am familiar with her signature.23

A. That was I think. (sic).

So, the only reason that Evangeline can give as to why she was
familiar with the handwriting of the deceased was because she lived
Q. Now, you already observed this signature dated 1978, with her since birth. She never declared that she saw the deceased
the same year as the alleged holographic will. In exhibit I, write a note or sign a document.
you will notice that there is no retracing; there is no
hesitancy and the signature was written on a fluid
The former lawyer of the deceased, Fiscal Waga, testified that:
movement. . . . And in fact, the name Eufemia R. Patigas
here refers to one of the petitioners?
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir.
A. Yes, sir I know her because she is my godmother the
husband is my godfather. Actually I am related to the
Q. You will also notice Mrs. Binanay that it is not only with
husband by consanguinity.
the questioned signature appearing in the alleged
holographic will marked as Exhibit X but in the handwriting
themselves, here you will notice the hesitancy and tremors, Q. Can you tell the name of the husband?
do you notice that?
A. The late husband is Justo Ramonal.24
A. Yes, sir.21
xxx xxx xxx
Evangeline Calugay declared that the holographic will was written,
dated and signed in the handwriting of the testator. She testified that: Q. Can you tell this court whether the spouses Justo
Ramonal and Matilde Ramonal have legitimate children?
Q. You testified that you stayed with the house of the
spouses Matilde and Justo Ramonal for the period of 22 A. As far as I know they have no legitimate children.25
years. Could you tell the court the services if any which you
rendered to Matilde Ramonal?
xxx xxx xxx
A. During my stay I used to go with her to the church, to
market and then to her transactions. Q. You said after becoming a lawyer you practice your
profession? Where?
Q. What else? What services that you rendered?
A. Here in Cagayan de Oro City.
A. After my college days I assisted her in going to the
bank, paying taxes and to her lawyer. Q. Do you have services rendered with the deceased
Matilde vda de Ramonal?
Q. What was your purpose of going to her lawyer?
A. I assisted her in terminating the partition, of properties.
A. I used to be her personal driver.
Q. When you said assisted, you acted as her counsel? Any
sort of counsel as in what case is that, Fiscal?
Q. In the course of your stay for 22 years did you acquire
familiarity of the handwriting of Matilde Vda de Ramonal?
A. It is about the project partition to terminate the
property, which was under the court before.26
A. Yes, sir.

xxx xxx xxx

Q. How come that you acquired familiarity?

Q. Appearing in special proceeding no. 427 is the amended

A. Because I lived with her since birth.22 inventory which is marked as exhibit N of the estate of Justo
Ramonal and there appears a signature over the type
xxx xxx xxx written word Matilde vda de Ramonal, whose signature is
this?
Q. Now, I am showing to you Exhibit S which is captioned
"tugon" dated Agosto 30, 1978 there is a signature here A. That is the signature of Matilde Vda de Ramonal.
below item No. 1, will you tell this court whose signature is
this? Q. Also in exhibit n-3, whose signature is this?

111
 Wills and Succession Case Digests
A. This one here that is the signature of Mrs. Matilde vda
de Ramonal.27
xxx xxx xxx
Q. Aside from attending as counsel in that Special
Proceeding Case No. 427 what were the other assistance
wherein you were rendering professional service to the
deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other
matters but if there are documents to show that I have
assisted then I can recall.28
xxx xxx xxx
Q. Now, I am showing to you exhibit S which is titled
"tugon", kindly go over this document, Fiscal Waga and tell
the court whether you are familiar with the handwriting
contained in that document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is
this?
A. I think this signature here it seems to be the signature
of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of
Matilde Vda de Ramonal, can you tell the court whose
signature is this?
A. Well, that is similar to that signature appearing in the
project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de
Ramonal, can you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature
of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being
written.
Q. How about this signature in item no. 4, can you tell the
court whose signature is this?
A. The same is true with the signature in item no. 4. It
seems that they are similar.29
xxx xxx xxx
Q. Mr. Prosecutor, I heard you when you said that the
signature of Matilde Vda de Ramonal Appearing in exhibit S
seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of
Matilde vda de Ramonal. You are merely supposing that it
seems to be her signature because it is similar to the
signature of the project of partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals allowed
the will to probate and disregard the requirement of three witnesses in
case of contested holographic will, citing the decision in Azaola
vs. Singson,31ruling that the requirement is merely directory and not
mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of
the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way as to attain
these primordial ends. But on the other hand, also one must not lose
sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the holographic will
is contested, that law requires three witnesses to declare that the will
was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but
with one of the respondents, who kept it even before the death of the
deceased. In the testimony of Ms. Binanay, she revealed that the will
was in her possession as early as 1985, or five years before the death
of the deceased.
There was no opportunity for an expert to compare the signature and
the handwriting of the deceased with other documents signed and
executed by her during her lifetime. The only chance at comparison
was during the cross-examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic
will and she is not a handwriting expert. Even the former lawyer of the
deceased expressed doubts as to the authenticity of the signature in
the holographic will.
A visual examination of the holographic will convince us that the
strokes are different when compared with other documents written by
the testator. The signature of the testator in some of the disposition is
not readable. There were uneven strokes, retracing and erasures on
the will.
Comparing the signature in the holographic will dated August 30,
1978,33 and the signatures in several documents such as the
application letter for pasture permit dated December 30, 1980,34 and a
letter dated June 16, 1978,35 the strokes are different. In the letters,
there are continuous flows of the strokes, evidencing that there is no
hesitation in writing unlike that of the holographic will. We, therefore,
cannot be certain that ruling holographic will was in the handwriting by
the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The
records are ordered remanded to the court of origin with instructions
to allow petitioners to adduce evidence in support of their opposition
to the probate of the holographic will of the deceased Matilde Seño
vda. de Ramonal.1âwphi1.nêt
No costs.
112
 Wills and Succession Case Digests
SO ORDERED.
FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition
with the Court of First Instance of Rizal for the
probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in
her favor. The petition, docketed as Sp. Proc. No.
8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following
grounds:
(1) Appellant was estopped from claiming that the
deceased left a will by failing to produce the will
within twenty days of the death of the testator as
required by Rule 75, section 2 of the Rules of
Court;
(2) The alleged copy of the alleged holographic
will did not contain a disposition of property after
death and was not intended to take effect after
death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an
alleged copy thereof, must be produced, otherwise
it would produce no effect, as held in Gam v. Yap,
104 Phil. 509; and
(4 ) The deceased did not leave any will,
holographic or otherwise, executed and attested
as required by law.
The appellees likewise moved for the consolidation
of the case with another case Sp. Proc. No, 8275).
Their motion was granted by the court in an order
dated April 4, 1977.
On November 13, 1978, following the
consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the
will. They argued that:
(1) The alleged holographic was not a last will but
merely an instruction as to the management and
improvement of the schools and colleges founded
by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be
proved by secondary evidence unlike ordinary
wills.
Upon opposition of the appellant, the motion to
dismiss was denied by the court in its order of
February 23, 1979.
The appellees then filed a motion for
reconsideration on the ground that the order was
contrary to law and settled pronouncements and
rulings of the Supreme Court, to which the
appellant in turn filed an opposition. On July 23,
1979, the court set aside its order of February 23,
1979 and dismissed the petition for the probate of
the will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the
original copy of the holographic will is lost, a copy
thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522,
the Supreme Court held that 'in the matter of
holographic wills the law, it is reasonable to
suppose, regards the document itself as the
material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged
holographic will was executed on January 25,
1962 while Ricardo B. Bonilla died on May 13,
1976. In view of the lapse of more than 14 years
from the time of the execution of the will to the
death of the decedent, the fact that the original of
the will could not be located shows to our mind
that the decedent had discarded before his death
his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to
the Court of Appeals in which it is contended that the dismissal of
appellant's petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on
the ground that the appeal does not involve question of fact and
alleged that the trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT
A LOST HOLOGRAPHIC WILL MAY NOT BE
PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT
THE DECEDENT HAS DISCARDED BEFORE HIS
DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING
APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or
cannot be found can be proved by means of a photostatic copy.
Pursuant to Article 811 of the Civil Code, probate of holographic wills is
the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at
113
 Wills and Succession Case Digests
least one Identifying witness is required and, if no witness is available,
experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost
or destroyed and no other copy is available, the will can not be
probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison
between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gam vs. Yap,
104 PHIL. 509, the Court ruled that "the execution and the contents of
a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by
a photographic or photostatic copy. Even a mimeographed or carbon
copy; or by other similar means, if any, whereby the authenticity of
the handwriting of the deceased may be exhibited and tested before
the probate court," Evidently, the photostatic or xerox copy of the lost
or destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be determined by
the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979,
denying appellant's motion for reconsideration dated August 9, 1979,
of the Order dated July 23, 1979, dismissing her petition to approve
the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
FIRST DIVISION
G.R. Nos. 75005-06 February 15, 1990
JOSE RIVERA petitioner,
vs.
INTERMEDIATE APPELLATE COURT and ADELAIDO J.
RIVERA, respondents.
CRUZ, J.:
Was there only one Venancio Rivera in Mabalacat, Pampanga, or were
there two?
On May 30, 1975, a prominent and wealthy resident of that town
named Venancio Rivera died. On July 28, 1975, Jose Rivera, claiming
to be the only surviving legitimate son of the deceased, filed a petition
for the issuance of letters of administration over Venancio's estate.
Docketed as SP No. 1076, this petition was opposed by Adelaido J.
Rivera, who denied that Jose was the son of the decedent. Adelaido
averred that Venancio was his father and did not die intestate but in
fact left two holographic wills. 1
On November 7, 1975, Adelaido J. Rivera filed, also with the Regional
Trial Court of Angeles City, a petition for the probate of the
holographic wills. Docketed as SP No. 1091, this petition was in turn
opposed by Jose Rivera, who reiterated that he was the sole heir of
Venancio's intestate estate. 2
On November 11, 1975, the two cases were consolidated. Adelaido J.
Rivera was later appointed special administrator. After joint trial, Judge
Eliodoro B. Guinto found that Jose Rivera was not the son of the
decedent but of a different Venancio Rivera who was married to Maria
Vital. The Venancio Rivera whose estate was in question was married
to Maria Jocson, by whom he had seven children, including Adelaido.
Jose Rivera had no claim to this estate because the decedent was not
his father. The holographic wills were also admitted to probate. 3
On appeal, the decision of the trial court was affirmed by the then
Intermediate Appellate Court. 4 Its decision is now the subject of this
petition, which urges the reversal of the respondent court.
In support of his claim that he was the sole heir of the late Venancio
Rivera, Jose sought to show that the said person was married in 1928
to Maria Vital, who was his mother. He submitted for this purpose
Exhibit A, the marriage certificate of the couple, and Exhibit B, his own
baptismal certificate where the couple was indicated as his parents.
The petitioner also presented Domingo Santos, who testified that Jose
was indeed the son of the couple and that he saw Venancio and Jose
together several times. 5 Jose himself stressed that Adelaido
considered him a half-brother and kissed his hand as a sign of respect
whenever they met. He insisted that Adelaido and his brothers and
sisters were illegitimate children, sired by Venancio with Maria
Jocson. 6
Adelaido, for his part, maintained that he and his brothers and sisters
were born to Venancio Rivera and Maria Jocson, who were legally
married and lived as such for many years. He explained that he could
not present his parents' marriage certificate because the record of
marriages for 1942 in Mabalacat were destroyed when the town was
burned during the war, as certified by Exhibit 6. 7 He also submitted
his own birth certificate and those of his sisters Zenaida and Yolanda
Rivera, who were each described therein as the legimitate children of
Venancio Rivera and Maria Jocson. 8 Atty. Regalado P. Morales, then
71 years of age, affirmed that he knew the deceased and his parents,
Magno Rivera and Gertrudes de los Reyes, and it was during the
Japanese occupation that Venancio introduced to him Maria Jocson as
his wife. 9 To prove that there were in fact two persons by the same
name of Venancio Rivera, Adelaido offered Venancio Rivera's baptismal
certificate showing that his parents were Magno Rivera and Gertrudes
de los Reyes, 10 as contrasted with the marriage certificate submitted
by Jose, which indicated that the Venancio Rivera subject thereof was
the son of Florencio Rivera and Estrudez Reyes. 11 He also denied
kissing Jose's hand or recognizing him as a brother. 12
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his parents' marriage
certificate because, as he explained it, the marriage records for 1942
in the Mabalacat civil registry were burned during the war. Even so, he
could still rely on the presumption of marriage, since it is not denied
that Venancio Rivera and Maria Jocson lived together as husband and
wife for many years, begetting seven children in all during that time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions favor the
solidarity of the family. Thus every intendment of
the law or fact leans toward the validity of
marriage, the indissolubility of the marriage
bonds, the legitimacy of children, ... .
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable presumptions. — The following
presumptions are satisfactory if uncontradicted,
but may be contradicted and overcome by other
evidence:
114
 Wills and Succession Case Digests
xxx xxx xxx 1942 was not the same person who married Maria Vital, Jose's
legitimate mother, in 1928. Jose belonged to a humbler family which
had no relation whatsoever with the family of Venancio Rivera and
(aa) That a man and woman deporting themselves
Maria Vital. This was more prosperous and prominent. Except for the
as husband and wife have entered into a lawful
curious Identity of names of the head of each, there is no evidence
contract of marriage.
linking the two families or showing that the deceased Venancio Rivera
was the head of both.
By contrast, although Jose did present his parents' marriage certificate,
Venancio was described therein as the son of Florencio Rivera.
Now for the holographic wills. The respondent court considered them
Presumably, he was not the same Venancio Rivera described in Exhibit
valid because it found them to have been written, dated and signed by
4, his baptismal certificate, as the son of Magno Rivera. While we
the testator himself in accordance with Article 810 of the Civil Code. It
realize that such baptismal certificate is not conclusive evidence of
also held there was no necessity of presenting the three witnesses
Venancio's filiation (which is not the issue here) it may nonetheless be
required under Article 811 because the authenticity of the wills had not
considered to determine his real identity. Jose insists that Magno and
been questioned.
Florencio are one and the same person, arguing that it is not
uncommon for a person to be called by different names. The Court is
not convinced. There is no evidence that Venancio's father was called The existence and therefore also the authenticity of the holographic
either Magno or Florencio. What is more likely is that two or more wills were questioned by Jose Rivera. In his own petition in SP No.
persons may live at the same time and bear the same name, even in 1076, he declared that Venancio Rivera died intestate; and in SP No.
the same community. That is what the courts below found in the cases 1091, he denied the existence of the holographic wills presented by
at bar. Adelaido Rivera for probate. In both proceedings, Jose Rivera opposed
the holographic wills submitted by Adelaido Rivera and claimed that
they were spurious. Consequently, it may be argued, the respondent
What this Court considers particularly intriguing is why, if it is true that
court should have applied Article 811 of the Civil Code, providing as
he was the legitimate son of Venancio Rivera, Jose did not assert his
follows:
right as such when his father was still alive. By his own account, Jose
supported himself — and presumably also his mother Maria Vital — as
a gasoline attendant and driver for many years. All the time, his father In the probate of a holographic will, it shall be
was residing in the same town — and obviously prospering — and necessary that at least one witness who knows the
available for support. His alleged father was openly living with another handwriting and signature of the testator explicitly
woman and raising another family, but this was apparently accepted declare that the will and the signature are in the
by Jose without protest, taking no step whatsoever to invoke his handwriting of the testator. If the will is contested,
status. If, as he insists, he and Venancio Rivera were on cordial terms, at least three of such witnesses shall be required.
there is no reason why the father did not help the son and instead left
Jose to fend for himself as a humble worker while his other children by
The flaw in this argument is that, as we have already determined, Jose
Maria Jocson enjoyed a comfortable life. Such paternal discrimination
Rivera is not the son of the deceased Venancio Rivera whose estate is
is difficult to understand, especially if it is considered — assuming the
in question. Hence, being a mere stranger, he had no personality to
claims to be true — that Jose was the oldest and, by his own account,
contest the wills and his opposition thereto did not have the legal
the only legitimate child of Venancio Rivera.
effect of requiring the three witnesses. The testimony of Zenaida and
Venancio Rivera, Jr., who authenticated the wills as having been
And there is also Maria Vital, whose attitude is no less written and signed by their father, was sufficient.
incomprehensible. As Venancio's legitimate wife — if indeed she was
— she should have objected when her husband abandoned her and
WHEREFORE, the petition is DENIED and the challenged decision is
founded another family by another woman, and in the same town at
AFFIRMED, with costs against the petitioner.
that. Seeing that the children of Maria Jocson were being raised well
while her own son Jose was practically ignored and neglected, she
nevertheless did not demand for him at least support, if not better SO ORDERED.
treatment, from his legitimate father. It is unnatural for a lawful wife
to say nothing if she is deserted in favor of another woman and for a ARTICLE 814
caring mother not to protect her son's interests from his wayward
father's neglect. The fact is that this forsaken wife never demanded
support from her wealthy if errant husband. She did not file a FIRST DIVISION
complaint for bigamy or concubinage against Venancio Rivera and
Maria Jocson, the alleged partners in crime and sin. Maria Vital was G.R. No. L-40207 September 28, 1984
completely passive and complaisant.

ROSA K. KALAW, petitioner,

Significantly, as noted by the respondent court, Maria Vital was not
even presented at the trial to support her son's allegations that she
was the decedent's lawful wife. Jose says this was not done because
she was already old and bedridden then. But there was no impediment
to the taking of her deposition in her own house. No effort was made
toward this end although her testimony was vital to the petitioner's
cause. Jose dismisses such testimony as merely "cumulative," but this
Court does not agree. Having alleged that Maria Jocson's marriage to
Venancio Rivera was null and void, Jose had the burden of proving
that serious allegation.
We find from the evidence of record that the respondent court did not
err in holding that the Venancio Rivera who married Maria Jocson in
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of
Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW, respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW,
claiming to be the sole heir of his deceased sister, Natividad K. Kalaw,
filed a petition before the Court of First Instance of Batangas, Branch
VI, Lipa City, for the probate of her holographic Will executed on
December 24, 1968.
115
 Wills and Succession Case Digests
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of
Lipa City, being of sound and disposing mind and memory, do hereby
declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic
church of Lipa City. In accordance with the rights of said Church, and
that my executrix hereinafter named provide and erect at the expose
of my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of
the testatrix as her sole heir. Hence, on November 10, 1971, petitioner
ROSA K. Kalaw opposed probate alleging, in substance, that the
holographic Will contained alterations, corrections, and insertions
without the proper authentication by the full signature of the testatrix
as required by Article 814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will the
testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written, should
be given effect and probated so that she could be the sole heir
thereunder.
After trial, respondent Judge denied probate in an Order, dated
September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the
National Bureau of Investigation for examination.
The NBI reported that the handwriting, the
signature, the insertions and/or additions and the
initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of
the decedent, Natividad K. Kalaw. The only
question is whether the win, Exhibit 'C', should be
admitted to probate although the alterations
and/or insertions or additions above-mentioned
were not authenticated by the full signature of the
testatrix pursuant to Art. 814 of the Civil Code.
The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the
ground that they themselves agreed thru their
counsel to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties did
not agree, nor was it impliedly understood, that
the oppositors would be in estoppel.
The Court finds, therefore, that the provision of
Article 814 of the Civil Code is applicable to Exhibit
"C". Finding the insertions, alterations and/or
additions in Exhibit "C" not to be authenticated by
the full signature of the testatrix Natividad K.
Kalaw, the Court will deny the admission to
probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C"
as the holographic will of Natividad K. Kalaw is
hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that
since the alterations and/or insertions were the testatrix, the denial to
probate of her holographic Will would be contrary to her right of
testamentary disposition. Reconsideration was denied in an Order,
dated November 2, 1973, on the ground that "Article 814 of the Civil
Code being , clear and explicit, (it) requires no necessity for
interpretation."
From that Order, dated September 3, 1973, denying probate, and the
Order dated November 2, 1973 denying reconsideration, ROSA filed
this Petition for Review on certiorari on the sole legal question of
whether or not theoriginal unaltered text after subsequent alterations
and insertions were voided by the Trial Court for lack of authentication
by the full signature of the testatrix, should be probated or not, with
her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will litem not been noted under
his signature, ... the Will is not thereby invalidated as a whole, but at
most only as respects the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary when he said "la
omision de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only
one substantial provision, which was altered by substituting the
original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked for the simple
reason that nothing remains in the Will after that which could remain
valid. To state that the Will as first written should be given efficacy is
to disregard the seeming change of mind of the testatrix. But that
change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full
signature,
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect
only the efficacy of the altered words themselves but not the essence
and validity of the Will itself. As it is, with the erasures, cancellations
and alterations made by the testatrix herein, her real intention cannot
be determined with certitude. As Manresa had stated in his
commentary on Article 688 of the Spanish Civil Code, whence Article
814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del
Codigo (el 688) la sentencia que no declara la
nulidad de un testamento olografo que contenga
palabras tachadas, enmendadas o entre renglones
no salvadas por el testador bajo su firnia segun
previene el parrafo tercero del mismo, porque, en
realidad, tal omision solo puede afectar a la
validez o eficacia de tales palabras, y nunca al
testamento mismo, ya por estar esa disposicion en
parrafo aparte de aquel que determine las
condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a
la parte esencial y respectiva del testamento,
116
 Wills and Succession Case Digests
vinieran a anular este, y ya porque el precepto
contenido en dicho parrafo ha de entenderse en
perfecta armonia y congruencia con el art. 26 de
la ley del Notariado que declara nulas las adiciones
apostillas entrerrenglonados, raspaduras
tachados en las escrituras matrices, siempre que
no se salven en la forma prevenida, paro no el
documento que las contenga, y con mayor
motivo cuando las palabras enmendadas,
tachadas, o entrerrenglonadas no tengan
importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria,
sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de
excepcion contenida en este ultimo fallo, es
preciso que las tachaduras, enmiendas o
entrerrenglonados sin salvar saan de pala bras
que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que
declara nulo un testamento olografo por no estar
salvada por el testador la enmienda del guarismo
ultimo del año en que fue extendido 3 (Emphasis
ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in
toto. No costs.
SO ORDERED.
SECOND DIVISION
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the
dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision
of November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for
probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon
City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the
instrument submitted for probate is the holographic will of
the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners
Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam
S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand,
and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the time
of its execution, she was of sound and disposing mind, not acting
under duress, fraud or undue influence, and was in every respect
y capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither
the testament's body nor the signature therein was in decedent's
handwriting; it contained alterations and corrections which were not
duly signed by decedent; and, the will was procured by petitioners
through improper pressure and undue influence. The petition was
likewise opposed by Dr. Jose Ajero. He contested the disposition in the
will of a house and lot located in Cabadbaran, Agusan Del Norte. He
claimed that said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate. It found, inter alia:
Considering then that the probate proceedings
herein must decide only the question of identity of
the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds
no reason at all for the disallowance of the will for
its failure to comply with the formalities prescribed
by law nor for lack of testamentary capacity of the
testatrix.
For one, no evidence was presented to show that
the will in question is different from the will
actually executed by the testatrix. The only
objections raised by the oppositors . . . are that
the will was not written in the handwriting of the
testatrix which properly refers to the question of
its due execution, and not to the question of
identity of will. No other will was alleged to have
been executed by the testatrix other than the will
herein presented. Hence, in the light of the
evidence adduced, the identity of the will
presented for probate must be accepted, i.e., the
will submitted in Court must be deemed to be the
will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated
and signed in the handwriting of the testatrix has
been disputed, the petitioners, however, have
satisfactorily shown in Court that the holographic
will in question was indeed written entirely, dated
and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly shown
knowledge of the handwriting of the testatrix have
been presented and have explicitly and
categorically identified the handwriting with which
the holographic will in question was written to be
the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will be
entirely written, dated and signed in the
handwriting of the testatrix has been complied
with.
xxx xxx xxx
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 Wills and Succession Case Digests
As to the question of the testamentary capacity of that the decedent did not comply with Articles 813 and 814 of the New
the testratix, (private respondent) Clemente Sand Civil Code, which read, as follows:
himself has testified in Court that the testatrix was
completely in her sound mind when he visited her
Art. 813: When a number of dispositions
during her birthday celebration in 1981, at or
appearing in a holographic will are signed without
around which time the holographic will in question
being dated, and the last disposition has a
was executed by the testatrix. To be of sound
signature and date, such date validates the
mind, it is sufficient that the testatrix, at the time
dispositions preceding it, whatever be the time of
of making the will, knew the value of the estate to
prior dispositions.
be disposed of, the proper object of her bounty,
and thecharacter of the testamentary act . . . The
will itself shows that the testatrix even had Art. 814: In case of insertion, cancellation, erasure
detailed knowledge of the nature of her estate. or alteration in a holographic will, the testator
She even identified the lot number and square must authenticate the same by his full signature.
meters of the lots she had conveyed by will. The
objects of her bounty were likewise identified It alluded to certain dispositions in the will which were either unsigned
explicitly. And considering that she had even and undated, or signed but not dated. It also found that the erasures,
written a nursing book which contained the law alterations and cancellations made thereon had not been authenticated
and jurisprudence on will and succession, there is by decedent.
more than sufficient showing that she knows the
character of the testamentary act.
Thus, this appeal which is impressed with merit.
In this wise, the question of identity of the will, its
due execution and the testamentary capacity of Section 9, Rule 76 of the Rules of Court provides that will shall be
the testatrix has to be resolved in favor of the disallowed in any of the following cases:
allowance of probate of the will submitted herein.
(a) If not executed and attested as required by
Likewise, no evidence was presented to show law;
sufficient reason for the disallowance of herein
holographic will. While it was alleged that the said (b) If the testator was insane, or otherwise
will was procured by undue and improper pressure mentally incapable to make a will, at the time of
and influence on the part of the beneficiary or of its execution;
some other person, the evidence adduced have
not shown any instance where improper pressure
or influence was exerted on the testatrix. (Private (c) If it was executed under duress, or the
respondent) Clemente Sand has testified that the influence of fear, or threats;
testatrix was still alert at the time of the execution
of the will, i.e., at or around the time of her birth (d) If it was procured by undue and improper
anniversary celebration in 1981. It was also pressure and influence, on the part of the
established that she is a very intelligent person beneficiary, or of some other person for his
and has a mind of her own. Her independence of benefit;
character and to some extent, her sense of
superiority, which has been testified to in Court,
all show the unlikelihood of her being unduly (e) If the signature of the testator was procured
influenced or improperly pressured to make the by fraud or trick, and he did not intend that the
aforesaid will. It must be noted that the undue instrument should be his will at the time of fixing
influence or improper pressure in question herein his signature thereto.
only refer to the making of a will and not as to the
specific testamentary provisions therein which is In the same vein, Article 839 of the New Civil Code reads:
the proper subject of another proceeding. Hence,
under the circumstances, this Court cannot find
Art. 839: The will shall be disallowed in any of the
convincing reason for the disallowance of the will
following cases;
herein.

(1) If the formalities required

Considering then that it is a well-established
by law have not been
doctrine in the law on succession that in case of
complied with;
doubt, testate succession should be preferred over
intestate succession, and the fact that no
convincing grounds were presented and proven (2) If the testator was insane,
for the disallowance of the holographic will of the or otherwise mentally
late Annie Sand, the aforesaid will submitted incapable of making a will, at
herein must be admitted to probate. 3 (Citations the time of its execution;
omitted.)
(3) If it was executed through
On appeal, said Decision was reversed, and the petition for probate of force or under duress, or the
decedent's will was dismissed. The Court of Appeals found that, "the influence of fear, or threats;
holographic will fails to meet the requirements for its validity." 4 It held

118
 Wills and Succession Case Digests
(4) If it was procured by
undue and improper pressure
and influence, on the part of
the beneficiary or of some
other person;
(5) If the signature of the
testator was procured by
fraud;
(6) If the testator acted by
mistake or did not intend that
the instrument he signed
should be his will at the time
of affixing his signature
thereto.
These lists are exclusive; no other grounds can serve to disallow a
will. 5 Thus, in a petition to admit a holographic will to probate, the
only issues to be resolved are: (1) whether the instrument submitted
is, indeed, the decedent's last will and testament; (2) whether said will
was executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the
time the will was executed; and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will
of Anne Sand was not executed in accordance with the formalities
prescribed by law. It held that Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence, it disallowed the probate
of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479
(1919), that:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain
these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an
interpretation already given assures such ends,
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary, useless and frustrative of the
testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and acknowledgment
requirements under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally autographic or
handwritten by the testator himself, 7 as provided under Article 810 of
the New Civil Code, thus:
A person may execute a holographic will which
must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no
other form, and may be made in or out of the
Philippines, and need not be witnessed. (Emphasis
supplied.)
Failure to strictly observe other formalities will not result in
the disallowance of a holographic will that is unquestionably
handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in the
holographic will, but not its probate. If the testator fails to sign and
date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not
render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article 814. In
the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court
held:
Ordinarily, when a number of erasures,
corrections, and interlineations made by the
testator in a holographic Will have not been noted
under his signature, . . . the Will is not thereby
invalidated as a whole, but at most only as
respects the particular words erased, corrected or
interlined. Manresa gave an identical commentary
when he said "la omission de la salvedad no anula
el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the will
itself. 10 The lack of authentication will only result in disallowance of
such changes.
It is also proper to note that the requirements of authentication of
changes and signing and dating of dispositions appear in provisions
(Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and 688 of the
Spanish Civil Code, from which the present provisions covering
holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the
testator writes it himself in the form and with the
requisites required in Article 688.
Art. 688: Holographic wills may be executed only
by persons of full age.
In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its
execution, written in its entirety by the testator
and signed by him, and must contain a statement
of the year, month and day of its execution.
If it should contain any erased, corrected, or
interlined words, the testator must identify them
over his signature.
Foreigners may execute holographic wills in their
own language.
119
 Wills and Succession Case Digests
This separation and distinction adds support to the interpretation that
only the requirements of Article 810 of the New Civil Code — and not
those found in Articles 813 and 814 of the same Code — are essential
to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not
validly dispose of the house and lot located in Cabadbaran, Agusan del
Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass
only upon the extrinsic validity of the will sought to be probated.
However, in exceptional instances, courts are not powerless to do
what the situation constrains them to do, and pass upon certain
provisions of the will. 11 In the case at bench, decedent herself
indubitably stated in her holographic will that the Cabadbaran property
is in the name of her late father, John H. Sand (which led oppositor Dr.
Jose Ajero to question her conveyance of the same in its entirety).
Thus, as correctly held by respondent court, she cannot validly dispose
of the whole property, which she shares with her father's other heirs.
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.
Ventura vs. Ventura – cannot be located in the internet. Go to
Philippine Reports because this is an Unreported Case.
EN BANC
G.R. No. L-48840 December 29, 1943
ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO
BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.
OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural
daughter, respectively, of the deceased Victorino L. Guevara, are
litigating here over their inheritance from the latter. The action was
commenced on November 12, 1937, by Rosario Guevara to recover
from Ernesto Guevara what she claims to be her strict ligitime as an
acknowledged natural daughter of the deceased — to wit, a portion of
423,492 square meters of a large parcel of land described in original
certificate of title No. 51691 of the province of Pangasinan, issued in
the name of Ernesto M. Guervara — and to order the latter to pay her
P6,000 plus P2,000 a year as damages for withholding such legitime
from her. The defendant answered the complaint contending that
whatever right or rights the plaintiff might have had, had been barred
by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a
will (exhibit A), apparently with all the formalities of the law, wherein
he made the following bequests: To his stepdaughter Candida
Guevara, a pair of earrings worth P150 and a gold chain worth P40; to
his son Ernesto M. Guevara, a gold ring worth P180 and all the
furniture, pictures, statues, and other religious objects found in the
residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a
mi hija Rosario Guevara," a pair of earrings worth P120; to his stepson
Piuo Guevara, a ring worth P120; and to his wife by second marriage,
Angustia Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y
Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia,
Candida y Pio, apellidados Guevara," a residential lot with its
improvements situate in the town of Bayambang, Pangasinan, having
an area of 960 square meters and assessed at P540; to his wife
Angustia Posadas he confirmed the donation propter
nuptias theretofore made by him to her of a portion of 25 hectares of
the large parcel of land of 259-odd hectares described in plan Psu-
66618. He also devised to her a portion of 5 hectares of the same
parcel of land by way of complete settlement of her usufructurary
right.1awphil.net
He set aside 100 hectares of the same parcel of land to be disposed of
either by him during his lifetime or by his attorney-in-fact Ernesto M.
Guevara in order to pay all his pending debts and to degray his
expenses and those of his family us to the time of his death.
The remainder of said parcel of land his disposed of in the following
manner:
(d). — Toda la porcion restante de mi terreno arriba
descrito, de la extension superficial aproximada de ciento
veintinueve (129) hectareas setenta (70) areas, y veiticinco
(25) centiares, con todas sus mejoras existentes en la
misma, dejo y distribuyo, pro-indiviso, a mis siguientes
herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108)
hectareas, ocho (8) areas y cincuenta y cuatro (54)
centiareas, hacia la parte que colinda al Oeste de las cien
(100) hectareas referidas en el inciso (a) de este parrafo del
testamento, como su propiedad absoluta y exclusiva, en la
cual extension superficial estan incluidas cuarenta y tres (43)
hectareas, veintitres (23) areas y cuarenta y dos (42)
centiareas que le doy en concepto de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun (21)
hectareas, sesenta y un (61) areas y setenta y un (71)
centiareas, que es la parte restante.
Duodecimo. — Nombro por la presente como Albacea
Testamentario a mi hijo Ernesto M. Guevara, con relevacion
de fianza. Y una vez legalizado este testamento, y en cuanto
sea posible, es mi deseo, que los herederos y legatarios aqui
nombrados se repartan extrajudicialmente mis bienes de
conformidad con mis disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed
whereby he conveyed to him the southern half of the large parcel of
land of which he had theretofore disposed by the will above
mentioned, inconsideration of the sum of P1 and other valuable
considerations, among which were the payment of all his debts and
obligations amounting to not less than P16,500, his maintenance up to
his death, and the expenses of his last illness and funeral expenses. As
to the northern half of the same parcel of land, he declared: "Hago
120
 Wills and Succession Case Digests
constar tambien que reconozco a mi referido hijo Ernesto M. guevara
como dueño de la mitad norte de la totalidad y conjunto de los
referidos terrenos por haberlos comprado de su propio peculio del Sr.
Rafael T. Puzon a quien habia vendido con anterioridad."
On September 27, 1933, final decree of registration was issued in land
registration case No. 15174 of the Court of First Instance of
Pangasinan, and pursuant thereto original certificate of title No. 51691
of the same province was issued on October 12 of the same year in
favor of Ernesto M. Guevara over the whole parcel of land described in
the deed of sale above referred to. The registration proceeding had
been commenced on November 1, 1932, by Victorino L. Guevara and
Ernesto M. Guevara as applicants, with Rosario, among others, as
oppositor; but before the trial of the case Victorino L. Guevara
withdrew as applicant and Rosario Guevara and her co-oppositors also
withdrew their opposition, thereby facilitating the issuance of the title
in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevarra died. His last will and
testament, however, was never presented to the court for probate, nor
has any administration proceeding ever been instituted for the
settlement of his estate. Whether the various legatees mentioned in
the will have received their respective legacies or have even been
given due notice of the execution of said will and of the dispositions
therein made in their favor, does not affirmatively appear from the
record of this case. Ever since the death of Victorino L. Guevara, his
only legitimate son Ernesto M. Guevara appears to have possessed the
land adjudicated to him in the registration proceeding and to have
disposed of various portions thereof for the purpose of paying the
debts left by his father.
In the meantime Rosario Guevara, who appears to have had her
father's last will and testament in her custody, did nothing judicially to
invoke the testamentary dispositions made therein in her favor,
whereby the testator acknowledged her as his natural daughter and,
aside from certain legacies and bequests, devised to her a portion of
21.6171 hectares of the large parcel of land described in the will. But a
little over four years after the testor's demise, she (assisted by her
husband) commenced the present action against Ernesto M. Guevara
alone for the purpose hereinbefore indicated; and it was only during
the trial of this case that she presented the will to the court, not for
the purpose of having it probated but only to prove that the deceased
Victirino L. Guevara had acknowledged her as his natural daughter.
Upon that proof of acknowledgment she claimed her share of the
inheritance from him, but on the theory or assumption that he died
intestate, because the will had not been probated, for which reason,
she asserted, the betterment therein made by the testator in favor of
his legitimate son Ernesto M. Guevara should be disregarded. Both the
trial court and the Court of appeals sustained that theory.
Two principal questions are before us for determination: (1) the
legality of the procedure adopted by the plaintiff (respondent herein)
Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2 and
the effect of the certificate of title issued to the defendant (petitioner
herein) Ernesto M. Guevara.
I presentation of a will to the court for probate is mandatory and its
We cannot sanction the procedure adopted by the respondent Rosario
Guevara, it being in our opinion in violation of procedural law and an
attempt to circumvent and disregard the last will and testament of the
decedent. The Code of Civil Procedure, which was in force up to the
time this case was decided by the trial court, contains the following
pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive as to
Execution. — No will shall pass either the real or personal
estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the
allowance by the court of a will of real and personal estate
shall be conclusive as to its due execution.
Sec. 626. Custodian of Will to Deliver. — The person who
has the custody of a will shall, within thirty days after he
knows of the death of the testator, deliver the will into the
court which has jurisdiction, or to the executor named in the
will.
Sec. 627. Executor to Present Will and Accept or Refuse
Trust. — A person named as executor in a will, shall within
thirty days after he knows of the death of the testor, or
within thirty days after he knows that he is named executor,
if he obtained such knowledge after knowing of the death of
the testor, present such will to the court which has
jurisdiction, unless the will has been otherwise returned to
said court, and shall, within such period, signify to the court
his acceptance of the trust, or make known in writing his
refusal to accept it.
Sec. 628. Penalty. — A person who neglects any of the
duties required in the two proceeding sections, unless he
gives a satisfactory excuse to the court, shall be subject to a
fine not exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed. — If a
person having custody of a will after the death of the
testator neglects without reasonable cause to deliver the
same to the court having jurisdiction, after notice by the
court so to do, he may be committed to the prison of the
province by a warrant issued by the court, and there kept in
close confinement until he delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new
Rules of Court, which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by
publication to the whole world and with personal notice to each of the
known heirs, legatees, and devisees of the testator (section 630, C. c.
P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule
77), the due execution of the will and the fact that the testator at the
time of its execution was of sound and disposing mind and not acting
under duress, menace, and undue influence or fraud, must be proved
to the satisfaction of the court, and only then may the will be legalized
and given effect by means of a certificate of its allowance, signed by
the judge and attested by the seal of the court; and when the will
devises real property, attested copies thereof and of the certificate of
allowance must be recorded in the register of deeds of the province in
which the land lies. (Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the
allowance by the court is essential and indispensable to its efficacy. To
assure and compel the probate of will, the law punishes a person who
neglects his duty to present it to the court with a fine not exceeding
P2,000, and if he should persist in not presenting it, he may be
committed to prision and kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of the
law and held that a will, unless probated, is ineffective. Nevertheless it
sanctioned the procedure adopted by the respondent for the following
reasons:
121
 Wills and Succession Case Digests
The majority of the Court is of the opinion that if this case is
dismissed ordering the filing of testate proceedings, it would
cause injustice, incovenience, delay, and much expense to
the parties, and that therefore, it is preferable to leave them
in the very status which they themselves have chosen, and
to decide their controversy once and for all, since, in a
similar case, the Supreme Court applied that same criterion
(Leaño vs. Leaño, supra), which is now sanctioned by
section 1 of Rule 74 of the Rules of Court. Besides, section 6
of Rule 124 provides that, if the procedure which the court
ought to follow in the exercise of its jurisdiction is not
specifically pointed out by the Rules of Court, any suitable
process or mode of procedure may be adopted which
appears most consistent to the spirit of the said Rules.
Hence, we declare the action instituted by the plaintiff to be
in accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule
74 provides as follows:
Section 1. Extrajudicial settlement by agreement between
heirs. — If the decedent left no debts and the heirs and
legatees are all of age, or the minors are represented by
their judicial guardians, the parties may, without securing
letters of administration, divide the estate among
themselves as they see fit by means of a public instrument
filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition. If
there is only one heir or one legatee, he may adjudicate to
himself the entire estate by means of an affidavit filed in the
office of the register of deeds. It shall be presumed that the
decedent left no debts if no creditor files a petition for letters
of administration within two years after the death of the
decedent.
That is a modification of section 596 of the Code of Civil Procedure,
which reads as follows:
Sec. 596. Settlement of Certain Intestates Without Legal
Proceedings. — Whenever all the heirs of a person who died
intestate are of lawful age and legal capacity and there are
no debts due from the estate, or all the debts have been
paid the heirs may, by agreement duly executed in writing
by all of them, and not otherwise, apportion and divide the
estate among themselves, as they may see fit, without
proceedings in court.
The implication is that by the omission of the word "intestate" and the
use of the word "legatees" in section 1 of Rule 74, a summary
extrajudicial settlement of a deceased person's estate, whether he died
testate or intestate, may be made under the conditions specified. Even
if we give retroactive effect to section 1 of Rule 74 and apply it here,
as the Court of Appeals did, we do not believe it sanctions the
nonpresentation of a will for probate and much less the nullification of
such will thru the failure of its custodian to present it to the court for
probate; for such a result is precisely what Rule 76 sedulously provides
against. Section 1 of Rule 74 merely authorizes the extrajudicial or
judicial partition of the estate of a decedent "without securing letter of
administration." It does not say that in case the decedent left a will the
heirs and legatees may divide the estate among themselves without
the necessity of presenting the will to the court for probate. The
petition to probate a will and the petition to issue letters of
administration are two different things, altho both may be made in the
same case. the allowance of a will precedes the issuance of letters
testamentary or of administration (section 4, Rule 78). One can have a
will probated without necessarily securing letters testamentary or of
administration. We hold that under section 1 of Rule 74, in relation to
Rule 76, if the decedent left a will and no debts and the heirs and
legatees desire to make an extrajudicial partition of the estate, they
must first present that will to the court for probate and divide the
estate in accordance with the will. They may not disregard the
provisions of the will unless those provisions are contrary to law.
Neither may they so away with the presentation of the will to the court
for probate, because such suppression of the will is contrary to law
and public policy. The law enjoins the probate of the will and public
policy requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to dispose of
his property by will may be rendered nugatory, as is attempted to be
done in the instant case. Absent legatees and devisees, or such of
them as may have no knowledge of the will, could be cheated of their
inheritance thru the collusion of some of the heirs who might agree to
the partition of the estate among themselves to the exclusion of
others.
In the instant case there is no showing that the various legatees other
than the present litigants had received their respective legacies or that
they had knowledge of the existence and of the provisions of the will.
Their right under the will cannot be disregarded, nor may those rights
be obliterated on account of the failure or refusal of the custodian of
the will to present it to the court for probate.
Even if the decedent left no debts and nobdy raises any question as to
the authenticity and due execution of the will, none of the heirs may
sue for the partition of the estate in accordance with that will without
first securing its allowance or probate by the court, first, because the
law expressly provides that "no will shall pass either real or personal
estate unless it is proved and allowed in the proper court"; and,
second, because the probate of a will, which is a proceeding in rem,
cannot be dispensed with the substituted by any other proceeding,
judicial or extrajudicial, without offending against public policy
designed to effectuate the testator's right to dispose of his property by
will in accordance with law and to protect the rights of the heirs and
legatees under the will thru the means provided by law, among which
are the publication and the personal notices to each and all of said
heirs and legatees. Nor may the court approve and allow the will
presented in evidence in such an action for partition, which is one
in personam, any more than it could decree the registration under the
Torrens system of the land involved in an ordinary action
for reinvindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon
by the Court of Appeals, does not sanction the procedure adopted by
the respondent.
The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of
Appeals, like section 1 of Rule 74, sanctions the extrajudicial partition
by the heirs of the properties left by a decedent, but not the
nonpresentation of a will for probate. In that case one Paulina Ver
executed a will on October 11, 1902, and died on November 1, 1902.
Her will was presented for probate on November 10, 1902, and was
approved and allowed by the Court on August 16, 1904. In the
meantime, and on November 10, 1902, the heirs went ahead and
divided the properties among themselves and some of them
subsequently sold and disposed of their shares to third persons. It
does not affirmatively appear in the decision in that case that the
partition made by the heirs was not in accordance with the will or that
they in any way disregarded the will. In closing the case by its order
dated September 1, 1911, the trial court validated the partition, and
one of the heirs, Cunegunda Leaño, appealed. In deciding the appeal
this Court said:
The principal assignment of error is that the lower court
committed an error in deciding that the heirs and legatees of
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the estate of Dña. Paulina Ver had voluntarily divided the
estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower court
that there had been a voluntary partition of the estate
among the heirs and legatees, and in the absence of positive
proof to the contrary, we must conclude that the lower court
had some evidence to support its conclusion.
Thus it will be seen that as a matter of fact no question of law was
raised and decided in that case. That decision cannot be relied upon as
an authority for the unprecedented and unheard of procedure adopted
by the respondent whereby she seeks to prove her status as an
acknowledged natural child of the decedent by his will and attempts to
nullify and circumvent the testamentary dispositions made by him by
not presenting the will to the court for probate and by claiming her
legitime as an acknowledged natural child on the basis of intestacy;
and that in the face of express mandatory provisions of the law
requiring her to present the will to the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this
Court departed from the procedure sanctioned by the trial court and
impliedly approved by this Court in the Leaño case, by holding that an
extrajudicial partition is not proper in testate succession. In the Riosa
case the Court, speaking thru Chief Justice Avanceña, held:
plaintiff to nullify said will by not presenting it to the court for probate
should be sanctioned. As to the inconvenience, delay, and expense,
the plaintiff herself is to blame because she was the custodian of the
will and she violated the duty imposed upon her by sections 2, 4, and
5 of Rule 76, which command her to deliver said will to the court on
pain of a fine not exceeding P2,000 and of imprisonment for contempt
of court. As for the defendant, he is not complaining of inconvenience,
delay, and expense, but on the contrary he is insisting that the
procedure prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the
action instituted by the plaintiff to be in accordance with law. It also
erred in awarding relief to the plaintiff in this action on the basis of
intestacy of the decedent notwithstanding the proven existence of a
will left by him and solely because said will has not been probated due
to the failure of the plaintiff as custodian thereof to comply with the
duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named
executor in said will, did not take any step to have it presented to the
court for probate and did not signify his acceptance of the trust or
refusal to accept it as required by section 3 of Rule 76 (formerly
section 627 of the Code of Civil Procedure), because his contention is
that said will, insofar as the large parcel of land in litigation is
concerned, has been superseded by the deed of sale exhibit 2 and by
the subsequent issuance of the Torrens certificate of title in his favor.
II

1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE

This brings us to the consideration of the second question, referring to
SUCCESSION. — Section 596 of the Code of Civil Procedure,
the efficacy of the deed of sale exhibit 2 and the effect of the
authorizing the heirs of a person who dies intestate to make
certificate of titled issued to the defendant Ernesto M. Guevara. So
extrajudicial partition of the property of the deceased,
that the parties may not have litigated here in vain insofar as that
without going into any court of justice, makes express
question is concerned, we deem it proper to decide it now and obviate
reference to intestate succession, and therefore excludes
the necessity of a new action.
testate succession.

The deed of sale exhibit 2 executed by and between Victorino L.

2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the
Guevara and Ernesto M. Guevara before a notary public on July 12,
instant case, which is a testate succession, the heirs made
1933, may be divided into two parts: (a) insofar as it disposes of and
an extrajudicial partition of the estate and at the same time
conveys to Ernesto M. Guevara the southern half of Victorino L.
instituted proceeding for the probate of the will and the
Guevara's hacienda of 259-odd hectares in consideration of P1 and
administration of the estate. When the time came for
other valuable considerations therein mentioned; and (b) insofar as it
making the partition, they submitted to the court the
declares that Ernesto M. Guevara became the owner of the northern
extrajudicial partition previously made by them, which the
half of the same hacienda by repurchasing it with his own money from
court approved. Held: That for the purposes of the
Rafael T. Puzon.
reservation and the rights and obligations created thereby,
in connection with the relatives benefited, the property must
not be deemed transmitted to the heirs from the time the A. As to the conveyance of the southern half of the hacienda to
extrajudicial partition was made, but from the time said Ernesto M. Guevara in consideration of the latter's assumption of the
partition was approved by the court. (Syllabus.) obligation to pay all the debts of the deceased, the Court of Appeals
found it to be valid and efficacious because: "(a) it has not been
proven that the charges imposed as a condition is [are] less than the
The Court of Appeals also cites section 6 of Rule 124, which provides
value of the property; and (b) neither has it been proven that the
that if the procedure which the court ought to follow in the exercise of
defendant did not comply with the conditions imposed upon him in the
its jurisdiction is not specifically pointed out by the Rules of Court, any
deed of transfer." As a matter of fact the Court of Appeals found" "It
suitable process for mode of proceeding may be adopted which
appears that the defendant has been paying the debts left by his
appears most conformable to the spirit of the said Rules. That
father. To accomplish this, he had to alienate considerable portions of
provision is not applicable here for the simple reason that the
the above-mentioned land. And we cannot brand such alienation as
procedure which the court ought to follow in the exercise of its
anomalous unless it is proven that they have exceeded the value of
jurisdiction is specifically pointed out and prescribed in detail by Rules
what he has acquired by virtue of the deed of July 12, 1933, and that
74, 76, and 77 of the Rules of Court.
of his corresponding share in the inheritance." The finding of the Court
of Appeals on this aspect of the case is final and conclusive upon the
The Court of Appeals also said "that if this case is dismissed, ordering respondent, who did not appeal therefrom.
the filing of testate proceedings, it would cause injustice,
inconvenience, delay, and much expense to the parties." We see no
B. With regard to the northern half of the hacienda, the findings of fact
injustice in requiring the plaintiff not to violate but to comply with the
and of law made by the Court of Appeals are as follows:
law. On the contrary, an injustice might be committed against the
other heirs and legatees mentioned in the will if the attempt of the
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The defendant has tried to prove that with his own money,
he bought from Rafael Puzon one-half of the land in
question, but the Court a quo, after considering the
evidence, found it not proven; we hold that such conclusion
is well founded. The acknowledgment by the deceased,
Victorino L. Guevara, of the said transactions, which was
inserted incidentally in the document of July 12, 1933, is
clearly belied by the fact that the money paid to Rafael
Puzon came from Silvestre P. Coquia, to whom Victorino L.
Guevara had sold a parcel of land with the right of
repurchase. The defendant, acting for his father, received
the money and delivered it to Rafael Puzon to redeem the
land in question, and instead of executing a deed of
redemption in favor of Victorino L. Guevara, the latter
executed a deed of sale in favor of the defendant.
The plaintiff avers that she withdrew her opposition to the
registration of the land in the name of the defendant,
because of the latter's promise that after paying all the debt
of their father, he would deliver to her and to the widow
their corresponding shares. As their father then was still
alive, there was no reason to require the delivery of her
share and that was why she did not insist on her opposition,
trusting on the reliability and sincerity of her brother's
promise. The evidence shows that such promise was really
made. The registration of land under the Torrens system
does not have the effect of altering the laws of succession,
or the rights of partition between coparceners, joint tenants,
and other cotenants nor does it change or affect in any
other way any other rights and liabilities created by law and
applicable to unregistered land (sec. 70, Land Registration
Law). The plaintiff is not, then, in estoppel, nor can the
doctrine of res judicata be invoked against her claim. Under
these circumstances, she has the right to compel the
defendant to deliver her corresponding share in the estate
left by the deceased, Victorino L. Guevara.
In his tenth to fourteenth assignments of error the petitioner assails
the foregoing findings of the Court of Appeals. But the findings of fact
made by said court are final and not reviewable by us on certiorari.
The Court of Appeals found that the money with which the petitioner
repurchased the northern half of the land in question from Rafael
Puzon was not his own but his father's, it being the proceeds of the
sale of a parcel of land made by the latter to Silvestre P. Coquia. Said
court also found that the respondent withdrew her opposition to the
registration of the land in the name of the petitioner upon the latter's
promise that after paying all the debts of their father he would deliver
to her and to the widow their corresponding shares. From these facts,
it results that the interested parties consented to the registration of
the land in question in the name of Ernesto M. Guevara alone subject
to the implied trust on account of which he is under obligation to
deliver and convey to them their corresponding shares after all the
debts of the original owner of said land had been paid. Such finding
does not constitute a reversal of the decision and decree of
registration, which merely confirmed the petitioner's title; and in the
absence of any intervening innocent third party, the petitioner may be
compelled to fulfill the promise by virtue of which he acquired his title.
That is authorized by section 70 of the Land Registration Act, cited by
the Court of Appeals, and by the decision of this Court in Severino vs.
Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of
Appeals that the northern half of the land described in the will exhibit
A and in original certificate of title No. 51691 still belongs to the estate
of the deceased Victorino L. Guevara. In the event the petitioner
Ernesto M. Guevara has alienated any portion thereof, he is under
obligation to compensate the estate with an equivalent portion from
the southern half of said land that has not yet been sold. In other
words, to the estate of Victorino L. Guevara still belongs one half of
the total area of the land described in said original certificate of title, to
be taken from such portions as have not yet been sold by the
petitioner, the other half having been lawfully acquired by the latter in
consideration of his assuming the obligation to pay all the debts of the
deceased.
Wherefore, that part of the decision of the Court of Appeals which
declares in effect that notwithstanding exhibit 2 and the issuance of
original certificate of title No. 51691 in the name of Ernesto M.
Guevara, one half of the land described in said certificate of title
belongs to the estate of Victorino L. Guevara and the other half to
Ernesto M. Guevara in consideration of the latter's assumption of the
obligation to pay all the debts of the deceased, is hereby affirmed; but
the judgment of said court insofar as it awards any relief to the
respondent Rosario Guevara in this action is hereby reversed and set
aside, and the parties herein are hereby ordered to present the
document exhibit A to the proper court for probate in accordance with
law, without prejudice to such action as the provincial fiscal of
Pangasinan may take against the responsible party or parties under
section 4 of Rule 76. After the said document is approved and allowed
by the court as the last will and testament of the deceased Victorino L.
Guevara, the heirs and legatees therein named may take such action,
judicial or extrajudicial, as may be necessary to partition the estate of
the testator, taking into consideration the pronouncements made in
part II of this opinion. No finding as to costs in any of the three
instances.
7th Set
ARTICLE 805
In the Matter of the will of ANTERO MERCADO, deceased.
ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
FACTS:The will of Antero Mercado dated January 3, 1943, is written in
the Ilocano dialect and contains the following attestation clause:
We, the undersigned, by these presents to declare that the foregoing
testament of Antero Mercado was signed by himself and also by us
below his name and of this attestation clause and that of the left
margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken
and understood by the testator, and it bears the corresponding
number in letter which compose of three pages and all them were
signed in the presence of the testator and witnesses, and the
witnesses in the presence of the testator and all and each and every
one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of
January, one thousand nine hundred forty three, (1943) A.D.
(Sgd.) NUMERIANO EVANGELISTA
(Sgd.) "ROSENDA CORTES
(Sgd.) BIBIANA ILLEGIBLE
The will appears to have been signed by Atty. Florentino Javier who
wrote the name of Antero Mercado, followed below by "A reugo del
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 Wills and Succession Case Digests
testator" and the name of Florentino Javier. Antero Mercado is alleged
to have written a cross immediately after his name.
ISSUE: WON the will is defective
HELD: YES. The attestation clause is fatally defective for failing to
state that Antero Mercado caused Atty. Florentino Javier to write the
testator's name under his express direction, as required by section 618
of the Code of Civil Procedure. The herein petitioner (who is appealing
by way of certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the cross
written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory
is that the cross is as much a signature as a thumbmark.
It is not here pretended that the cross appearing on the will is the
usual signature of Antero Mercado or even one of the ways by which
he signed his name. After mature reflection, we are not prepared to
liken the mere sign of the cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the trustworthiness of a
thumbmark.
What has been said makes it unnecessary for us to determine there is
a sufficient recital in the attestation clause as to the signing of the will
by the testator in the presence of the witnesses, and by the latter in
the presence of the testator and of each other.
G.R. No. L-42258 January 15, 1936
In re Will of the deceased Leoncia Tolentino.
VICTORIO PAYAD, petitioner-appellant, vs.
AQUILINA TOLENTINO, oppositor-appellant.
FACTS: Victoria Payad filed for the probate of the will of the
decedent Leonicia Tolentino.
The lower court, however, denied probate on the ground that the
attestation clause was not in conformity with the requirements of law
in that it is not stated therein that the testatrix caused Attorney
Almario to write her name at her express direction.
The evidence of record established the fact that Leoncia Tolentino,
assisted by Attorney Almario, placed her thumb mark on each and
every age of time questioned will and the said attorney merely wrote
her name to indicate the place where she placed said thumb mark.
ISSUE: W/N the probate of the will must be allowed?
RULING: Yes
Attorney Almario did not sign for the testatrix. She signed for placing
her thumb mark on each and every page thereof. "A statute requiring
a will to be 'signed' is satisfied if the signature is made by the
testator's mark." It is clear, therefore, that it was not necessary that
the attestation clause in question should state that the testatrix
requested Attorney Almario to sign her name inasmuch as the
testratrix signed the will in question in accordance with law.
JALLORES vs. INTERINO (case cannot be found according to the
assigned person; please refer to SIGMA Succession Vol. 1 transcript)
FIRST DIVISION
[G.R. No. L-17430. May 31, 1922.]
In the matter of the estate of Geronima Uy Coque, deceased.
ANDREA UY COQUE ET AL., petitioners-appellees, vs. JUAN
NAVAS L. SIOCA, special administrator of the estate of
Geronima Uy Coque, deceased, opponent-appellant.
This is an appeal from an order of the Court of First Instance of
Samar, admitting a will to probate. The validity of the will is attacked
on the ground that the testatrix was mentally incapacitated at the time
of its execution and on the further ground that it was not executed in
the form prescribed by section 618 of the Code of Civil Procedure as
amended by Act No. 2645.
Whether the defect in the attestation clause of the will is fatal to its
validity
Held: Yes, it is. The will here is considered null and void and is not
admitted to probate.
Section 618 of the Code of Civil Procedure as amended by Act No.
2645 reads:
"No will, except as provided in the preceding section, shall be valid to
pass any estate, real or personal, nor charge or effect the same,
unless it be written in the language or dialect known by the testator
and signed by him, or by the testator's name written by some other
person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the
testator and of each other. The testator or the person requested by
him to write his name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof, on the left
margin, and said pages shall be numbered correlatively in letters
placed on the upper part of each sheet. The attestation shall state the
number of sheets or pages used, upon which the will is written, and
the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter witnessed
and signed the will and all pages thereof in the presence of the
testator and each other."
In this case, the defects are found in the attestation clause, as follows:
"We, the undersigned witnesses of this will, state that has been shown
to us by the testatrix as her last will and testament. And as she cannot
sign her name, she asked that Mr. Filomeno Piczon sign her name in
the presence of each of us, and each of us, the witnesses, also signed
in the presence of the testatrix."
It will be noted that the attestation clause does not state the number
of pages contained in the will nor does it state that the witnesses
signed in the presence of each other. Neither do these facts appear in
any other part of the will.
Statutes prescribing the formalities to be observed in the execution of
wills are very strictly construed
As stated in 40 Cyc., at page 1097, "A will must be executed in
accordance with the statutory requirements; otherwise it is entirely
void. All these requirements stand as of equal importance and must be
observed, and courts cannot supply the defective execution of a will.
No power or discretion is vested in them, either to superadd other
conditions or dispense with those enumerated in the statues."
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 Wills and Succession Case Digests
This court has also frequently held that a will should not be probated
unless in its execution there has been a strict compliance with all the
requisites prescribed in section 618 of the Code of Civil Procedure.
in the case of Abangan vs. Abangan (40 Phil., 476) the court upheld
the validity of a will consisting of only two pages, the first containing
all the testamentary dispositions and being signed by the testator at
the bottom and by both the testator and the witnesses in the margin,
the second page containing only the attestation clause with the
signatures of the witnesses at the bottom but without marginal
signatures.
The decision was based on the ground that it could not have been the
intention of the legislator to require, as an essential to the validity of
the will, that all the signatures appear twice on the same page as such
a requirement would be entirely purposeless. This decision is no doubt
sound.
in construing statutory provisions in regard to the formal requisites of
a will, we are seeking to ascertain the intent of the legislator and not
that of the testator; the latter's intention is frequently defeated
through non-observance of the statute.
The purpose of the Legislature in prescribing the rather strict
formalities now required in the execution of a will are clearly revealed
by comparing section 618, supra, as originally enacted with the
amended section quoted above.
The amendments or changes introduced by Act No. 2645 are:
(a) that the will must now be executed in a language or dialect known
to the testator;
(b) that the testator and witnesses must sign each page on the left
margin;
(c) that the pages be numbered correlatively;
(d) that the attestation clause shall state the number of sheets or
pages used in the will and
(e) that it must appear from the attestation clause it self that the
testator and witnesses signed in the form and manner required by law
and that this can no longer be proven by evidence aliunde.
The changes mentioned under (d) and (e) are the only ones which
need be considered in the present case.
The purpose of requiring the number of sheets to be stated in the
attestation clause is obvious; the document might easily be so
prepared that the removal of a sheet would completely change the
testamentary dispositions of the will and in the absence of a statement
of the total number of sheets such removal might be effected by
taking out the sheet and changing the numbers at the top of the
following sheets or pages.
If, on the other hand, the total number of sheets is stated in the
attestation clause the falsification of the document will involve the
inserting of new pages and the forging of the signatures of the testator
and witnesses in the margin, a matter attended with much greater
difficulty.
The purpose of the new requirement that it must appear in the
attestation clause that the testator and the witnesses signed in the
presence of each other and that the fact cannot be proved by evidence
aliunde is, perhaps, less obvious, but, in view of the well-known
unreliability of oral evidence, it is clear that a statement in the
attestation clause will afford more satisfactory evidence of the fact to
be proven.
Sano v Quintana
G.R. No. L-24556 December 18, 1925
FACTS:
The judgment appealed from allowed the probate of the will of the
deceased Victoria Quintana executed on March 22, 1924. Without
going into discussion of the points raised by the parties as to the
formalities of this will we find a sufficient reason for reversing the
judgment appealed from and denying the probate thereof.
In the attestation clause there is no statement that the witnesses to
the will have signed on the left margin of each page of the will in the
presence of the testatrix.
ISSUE: WON absence of such statement nullifies the will YES
HELD:
Section 618 of Act No. 190, as amended by Act No. 2645, provides
that he attestation clause shall state the fact that the testator signed
the will and all the pages thereof, or caused another persons to place
his name thereon at his expressed direction in the presence of the
three witnesses to the will, and that the latter signed the will and all its
pages in the presence of the testator and of each other.
In the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405), this court
has held that the requirement that the attestation clause must contain
the statement that the witnesses signed in the presence of each other
is imperative and non-comfort in said case in support of this doctrine
may be adduced for holding that the will is also null and void when in
the attestation clause it does not appear that the witnesses to the will
signed it and every page thereof on the left margin and in the
presence of the testatrix. In order to insure the authenticity of a will,
which is the object of the law, it is just as important, if not the most
important, that the witnesses should sign in the presence of the
testator and of each other.
The judgment appealed from is reversed, and the probate of the will of
Victoria Quintana is denied
Gumban v Gorecho
March 3, 1927
In re will of Eustaquio Hagoriles. PETRONILO GUMBAN,
v.INOCENCIA GORECHO, ET AL.
This is an appeal by the widow, Inocencia Gorecho, from an order of
the CFI of Iloilo probating the last will and testament of the deceased
Hagoriles. The widow said that the alleged will was not prepared in
conformity with the law as it did not contain an attestation clause
stating that the testator and the witnesses signed all the pages of the
will. She cited the case of Saño vs. Quintana. The defendant cited the
case of Nayve vs. Mojal and Aguilar.
ISSUE: WON an attestation clause which does not recite that the
testator and the witnesses signed all the pages of the will is defective.
YES, based on Saño v. Quintana. The SC adopted and reaffirmed the
decision in the case of Saño vs. Quintana and modified Nayve vs. Mojal
and Aguilar.
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In the case of Saño vs. Quintana, it was decided that an attestation
clause which does not recite that the witnesses signed the will and
each and every page thereof on the left margin in the presence of the
testator is defective, and such a defect annuls the will. In contrast, is
the decision in Nayve vs. Mojal and Aguilar, wherein it was held that
the attestation clause must state the fact that the testator and the
witnesses reciprocally saw the signing of the will, for such an act
cannot be proved by the mere exhibition of the will, if it is not stated
therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also
by the mere examination of the signatures appearing on the document
itself, and the omission to state such evident fact does not invalidate
the will.
In this case, the SC reaffirmed the decision in Saño v Quintana for the
following reasons:
In the first place, the Mojal decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting
opinions; the Quintana decisions was concurred in by seven members
of the court, a clear majority, with one formal dissent. In the second
place, the Mojal decision was promulgated in December, 1924; the
Quintana decision was thus subsequent in point of time. And in the
third place, the Quintana decision is believed more nearly to conform
to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute.
The law of the case is here found in section 618 of the Code of Civil
procedure, as amended by Act No. 2645, and in section 634 of the
same Code, as unamended. It is part provided in section 618, as
amended, that "No will . . . shall be valid . . . unless . . . ." It is further
provided in the same section that "The attestation shall state the
number of sheets or pages used, upon which the will and every page
thereof, or caused some other person to write his name, under his
express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of
the testator and of each other." Codal section 634 provides that " The
will shall be disallowed in either of the following cases: 1. If not
executed and attested as in this Act provided." The law not alone
carefully makes use of the imperative, but cautiously goes further and
makes use of the negative, to enforce legislative intention. It is not
within the province of the courts to disregard the legislative purpose so
emphatically and clearly expressed.
Quinto v Morata
G.R. No. L-31732, February 19, 1930
FACTS:
This proceeding is the probate of the will of Gregorio Pueblo which was
opposed by his brother , Mateo Pueblo, on the following grounds:
(1) That the attestation clause of said will does not state the number
of pages of which the will is composed, and (2) that the attestation
clause does not state that each and every page of the will was signed
by the testators in the presence of the witnesses, and that the latter
signed the same in the presence of the testators and in the presence
of each other.
Herein appellant contends that the defect was cured by oral evidence,
which was admitted without opposition on the part of the appellee.
ISSUE: WON the defect was cured by oral evidence. NO
HELD: The attestation clause of the will contravenes the express
requirements of section 618 of Act No. 190, as amended by Act No.
2645, in two ways: First, it fails to state that each and every page of
the will was signed by the testators and the witnesses; and, second, it
fails to state that the witnesses signed each and every page of the will
in the presence of the testators.
In the case of Saño vs. Quintana (48 Phil., 506) this court held that
"an attestation clause which does not recite that the witnesses signed
the will and each and every page thereof on the left margin in the
presence of the testator is defective, and such defect annuls the will."
The defect was not cured by oral evidence unopposed by the adverse
party. The doctrine with reference to statute of frauds is not applicable
to wills. The statue of frauds relates to contracts and agreements. The
subject of will and testaments and the formalities surrounding their
execution are governed by separate and specific provisions of Act No.
190.
An examination of section 618 of Act No. 190, prior to, and after its
amendment by Act No. 2645, shows clearly that the Legislature
intended to exclude evidence aliunde, tending to establish that the will
has been executed and attested in conformity with the requirements of
the law, where such compliance does not appear on the face of the,
will itself. Prior to its amendment, section 618 contained the following
saving clause: "But the absence of such form of attestation shall not
render the will invalid if it is proven that the will was in fact signed and
attested as in this section provided."
The most outstanding feature of the amendment of said section 618
by Act No. 2645 is the elimination of said saving clause and the
greater emphasis laid on the formalities as to signatures and the
attestation clause. There can be no doubt, therefore, that the intention
of the Legislature, in eliminating said clause, was admitted without
opposition, it should not be given effect and thus defeat the manifest
intention of the Legislature in amending said section 618.
Section 618 of Act No. 190, as amended, should be given a strict
interpretation. In the case of Uy the Court said:
Statutes prescribing the formalities to be observed in the execution of
wills are very strictly construed. As stated in 40 Cyc., at page 1097, "A
will must be executed in accordance with the statutory requirements;
otherwise it is entirely void. All these requirements stand as of equal
importance and must be observed, and courts cannot supply the
defective execution of a will. No power or discretion is vested in them,
either to superadd other conditions or dispense with those enumerated
in the statutes." (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 407.)
CANEDA vs AGRO
FACTS:
Mateo Caballero, a widower without any children, executed a last will
and testament before three attesting witnesses and he was duly
assisted by his lawyer and a notary public. It was declare therein that,
among other things, that the testator was leaving by way of legacies
and devises his real and personal properties to specific persons, all of
whom do not appear to be related to Mateo. Not long after, he himself
filed a petition before the CFI seeking the probate of his last will and
testament but the scheduled hearings were postponed, until the
testator passed away before his petition could finally be heard by the
probate court. Benoni Cabrera, one of the legatees named in the will,
sought his appointment as special administrator of the testator’s estate
but due to his death, he was succeeded by William Cabreara, who was
appointed by RTC which is already the probate court. In the course of
the hearing, herein petitioners claiming to be nephews and nieces of
the testator, appeared as oppositors and objected to the allowance of
the testator’s will on the ground that on the alleged date of its
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execution, the testator was already in the poor state of health such
that he could not have possibly executed the same; and that the
signature of the testator is not genuine. The probate court rendered a
decision that such will is the Last Will and Testament of Mateo
Caballero and that it was executed in accordance with all the requisites
of the law. Upon appeal to CA, the petitioners asserted that the will in
question is null and void for the reason that its attestation clause is
fatally defective since it fails to specifically state the instrumental
witnesses to the will witnessed the testator signing the will in their
presence and that they also signed the will and all the pages thereof in
the presence of the testator and of one another. However, CA affirmed
the decision of the trial court ruling and ruling that the attestation
clause in the Last Will substantially complies with Article 805 of the
Civil Code. Due to denial of petitioners’ motion for reconsideration,
hence this appeal before the Supreme Court.
ISSUES: whether or not the attestation clause contained in the last will
and testament of the late Mateo Caballero complies with the
requirements of Article 805
RULING:
An attestation clause refers to that part of an ordinary will whereby the
attesting witnesses certify that the instrument has been executed
before them and to the manner of the execution of the same. It is a
separate memorandum or record of the facts surrounding the conduct
of execution and once signed by the witnesses, it gives affirmation to
the fact that compliance with the essential formalities required by law
has been observed. Under the 3rd paragraph of Article 805, such a
clause, the complete lack of which would result in the invalidity of the
will, should state:
1. The number of pages used upon which the will is written;
2. That the testator signed, or expressly cause another to sign, the will
and every page thereof in the presence of the attesting witnesses; and
3. That the attesting witnesses witnessed the signing by the testator of
the will and all its pages, and that the said witnesses also signed the
will and every page thereof in the presence of the testator and of one
another.
It will be noted that Article 805 requires that the witness should both
attest and subscribe to the will in the presence of the testator and of
one another. “Attestation” and “subscription” differ in meaning.
Attestation is the act of sense, while subscription is the act of the
hand. The attestation clause herein assailed is that while it recites that
the testator indeed signed the will and all its pages in the presence of
the three attesting witnesses and states as well the number of pages
that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures
to the will in the presence of the testator and of each other. What is
then clearly lacking, is the statement that the witnesses signed the will
and every page thereof in the presence of the testator and of one
another.
The absence of the statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the
will that is here sought to be admitted to probate.
CAGRO vs CAGRO
Facts:
1. The case is an appeal interposed by the oppositors from a decision
of the CFI of Samar which admitted to probate a will allegedly
executed by Vicente Cagro who died in Pambujan, Samar on Feb. 14,
1949.
2. The appellants insisted that the will is defective because the
attestation was not signed by the witnesses at the bottom although
the page containing the same was signed by the witnesses on the left
hand margin.
3. Petitioner contended that the signatures of the 3 witnesses on the
left hand margin conform substantially to law and may be deemed as
their signatures to the attestation clause.
ISSUE: w/n the will is valid?
HELD: Will is not valid. The attestation clause is a memorandum of the
facts attending the execution of the will. It is required by law to be
made by the attesting witnesses and it must necessarily bear their
signatures.
An unsigned attestation clause cannot be considered as an act of the
witnesses since the omission of their signatures at the bottom
negatives their participation.
Moreover, the signatures affixed on the let hand margin is not
substantial conformance to the law. The said signatures were merely
in conformance with the requirement that the will must be signed on
the left-hand margin of all its pages. If the attestation clause is
unsigned by the 3 witnesses at the bottom, it would be easier to add
clauses to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.
The probate of the will is denied.
AZUELA vs. CA
A will whose attestation clause does not contain the number of pages
on which the will is written is fatally defective. A will whose attestation
clause is not signed by the instrumental witnesses is fatally defective.
And perhaps most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any one of
these defects is sufficient to deny probate. A notarial will with all three
defects is just aching for judicial rejection.
Facts: Felix Azuela filed a petition with the trial court for the
probate of a notarial will purportedly executed by Eugenia E. Igsolo on
June 10, 1981 and notarized on the same day. The will consisted of
two (2) pages and was written in Filipino. The attestation clause did
not state the number of pages and it was not signed by the attesting
witnesses at the bottom thereof. The said witnesses affixed their
signatures on the left-hand margin of both pages of the will though.
Geralda Castillo opposed the petition, claiming that the will was not
executed and attested to in accordance with law. She pointed out that
the decedent’s signature did not appear on the second page of the
will, and the will was not properly acknowledged.
The trial court held the will to be authentic and to have been executed
in accordance with law and, thus, admitted it to probate, calling to fore
“the modern tendency in respect to the formalities in the execution of
a will…with the end in view of giving the testator more freedom in
expressing his last wishes.
The Court of Appeals, however, reversed the trial court’s decision and
ordered the dismissal of the petition for probate. It noted that the
attestation clause failed to state the number of pages used in the will,
thus rendering the will void and undeserving of probate.
Azuela argues that the requirement under Article 805 of the Civil Code
that “the number of pages used in a notarial will be stated in the
attestation clause” is merely directory, rather than mandatory, and
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thus susceptible to what he termed as “the substantial compliance
rule.”
ISSUE: Whether or not the subject will complied with the requirements
of Article 805?
RULING: As to the issue of number of pages, no substantial
compliance in this case. The failure of the attestation clause to state
the number of pages on which the will was written remains a fatal
flaw, despite Art. 809. This requirement aims at safeguarding the will
against possible interpolation or omission of one or some of its pages
and thus preventing any increase or decrease in the pages.
Following Caneda, there is substantial compliance with this
requirement if the will states elsewhere in it how many pages it is
comprised of, as was the situation in Singson and Taboada. In this
case, however, there could have been no substantial compliance with
the requirements under Art. 805 of the Civil Code since there is no
statement in the attestation clause or anywhere in the will itself as to
the number of pages which comprise the will. There was an
incomplete attempt to comply with this requisite, a space having been
allotted for the insertion of the number of pages in the attestation
clause. Yet the blank was never filled in.
As to the issue of witnesses not signing under the attestation clause,
the subject will cannot be considered to have been validly attested to
by the instrumental witnesses. While the signatures of the
instrumental witnesses appear on the left-hand margin of the will, they
do not appear at the bottom of the attestation clause. Art. 805
particularly segregates the requirement that the instrumental
witnesses sign each page of the will, from the requisite that the will be
attested and subscribed by them. The signatures on the left-hand
corner of every page signify, among others, that the witnesses are
aware that the page they are signing forms part of the will. On the
other hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the attestation
clause itself. An unsigned attestation clause results in an unattested
will. Even if the instrumental witnesses signed the left-hand margin of
the page containing the unsigned attestation clause, such signatures
cannot demonstrate these witnesses’ undertakings in the clause, since
the signatures that do appear on the page were directed towards a
wholly different avowal.
ARTICLE 806
AZUELA vs. CA
FACTS: Felix Azuela filed a petition with the trial court for the
probate of a notarial will purportedly executed by Eugenia E. Igsolo on
June 10, 1981 and notarized on the same day. The will consisted of
two (2) pages and was written in Filipino. Geralda Castillo opposed the
petition, claiming that the will was not executed and attested to in
accordance with law. She pointed out that the will was not properly
acknowledged.
The RTC admitted the will to probate. According to the trial court, the
declaration at the end of the will under the sub-title, “Patunay Ng Mga
Saksi,” comprised the attestation clause and the acknowledgement,and
was a substantial compliance with the requirements of the law.
ISSUE: W/n there was observance of the requirement under Article
806 with respect to acknowledgment before a notary public?
RULING: NO. A notarial will that is not acknowledged before a notary
public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public. The importance of the
requirement of acknowledgment is highlighted by the fact that it had
been segregated from the other requirements under Art. 805 and
entrusted into a separate provision, Art. 806. The express requirement
of Art. 806 is that the will be “acknowledged”, and not merely
subscribed and sworn to. The acknowledgment coerces the testator
and the instrumental witnesses to declare before an officer of the law
that they had executed and subscribed to the will as their own free act
or deed. Such declaration is under oath and under pain of perjury,
thus allowing for the criminal prosecution of persons who participate in
the execution of spurious wills, or those executed without the free
consent of the testator. It also provides a further degree of assurance
that the testator is of certain mindset in making the testamentary
dispositions to those persons he/she had designated in the will.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista,
wrote "Nilagdaan ko at ninotario ko ngayong10 ng Hunyo 10 (sic),
1981 dito sa Lungsod ng Maynila."40 By no manner of contemplation
can those words be construed as an acknowledgment.(the statement
is considered a jurat)
GARCIA vs. GATCHALIAN
FACTS: On March 15, 1967, Gregorio Gatchalian, a widower of 71
years of age, died in the municipality of Pasig, Province of Rizal,
leaving no forced heirs. On April 2 of the same year, appellant filed a
petition with the above named court for the probate of said alleged will
(Exhibit "C") wherein he was instituted as sole heir.
After due trial, the court rendered the appealed decision finding the
document Exhibit "C" to be the authentic last will of the deceased but
disallowing it for failure to comply with the mandatory requirement of
Article 806 of the New Civil Code — that the will must be
acknowledged before a notary public by the testator and the
witnesses.
ISSUE: w/n the will complied with the requirements contained in
Article 806 of the NCC?
RULING: NO. An examination of the document (Exhibit "C")
shows that the same was acknowledged before a notary public by the
testator but not by the instrumental witnesses.
Article 806 of the New Civil Code reads as follows:
Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a
copy of the will, or file another with the office of the Clerk of Court.
Compliance with the requirement contained in the above legal
provision to the effect that a will must be acknowledged before a
notary public by the testator and also by the witnesses is indispensable
for its validity. As the document under consideration does not comply
with this requirement, it is obvious that the same may not be
probated.
JAVELLANA vs. LEDESMA (Cuabo)
CRUZ vs. VILLASOR
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G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P.
VILLASOR, Presiding Judge of Branch I, Court of First
Instance of Cebu, and MANUEL B. LUGAY, respondents.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the CFI of Cebu
allowing the probate of the last will a testament of the late Valente Z.
Cruz.
ahead of. (The New Webster Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d.
p. 245.) Consequently, if the third witness were the notary
public himself, he would have to avow assent, or admit his
having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one
will appear before the other to acknowledge his participation
in the making of the will. To permit such a situation to obtain
would be sanctioning a sheer absurdity.

FACTS: Petitioner-appellant Agapita N. Cruz, the surviving

Admittedly, there are American precedents holding that notary public
spouse of the said decease opposed the allowance of the will, alleging
may, in addition, act as a witness to the executive of the document he
the will was executed through fraud, deceit, misrepresentation and
has notarized. But these authorities do not serve the purpose of
undue influence; that the said instrument was executed without the
the law in this jurisdiction or are not decisive of the issue
testator having been fully informed of the content thereof, particularly
herein because the notaries public and witnesses referred to
as to what properties he was disposing and that the supposed last will
aforecited cases merely acted as instrumental, subscribing
and testament was not executed in accordance with law.
attesting witnesses, and not as acknowledging witnesses. He
Notwithstanding her objection, the Court allowed the probate of the
the notary public acted not only as attesting witness but also
said last will and testament Hence this appeal by certiorari which was
acknowledging witness, a situation not envisaged by Article 805 of the
given due course.
Civil Code which reads:

ISSUE: Whether the supposed last will and testament of Valente Z.

ART. 806. Every will must be acknowledged before a notary
Cruz was executed in accordance with law, particularly Articles 805
public by the testator and the witnesses. The notary public
and 806 of the new Civil Code, the first requiring at least three credible
shall not be required to retain a copy of the will or file another
witnesses to attest and subscribe to the will, and the second requiring
with the office of the Clerk of Court.
the testator and the witnesses to acknowledge the will before a notary
public.
To allow the notary public to act as third witness, or one the attesting
and acknowledging witnesses, would have the effect of having only
Of the three instrumental witnesses thereto, namely Deogracias T.
two attesting witnesses to the will which would be in contravention of
Jamaloas Jr., Dr. Francisco Pañares and Atty. Angel H. Teves, Jr., one
the provisions of Article 805 be requiring at least three credible
of them, the last named, is at the same time the Notary Public before
witnesses to act as such and of Article 806 which requires that
whom the will was supposed to have been acknowledged. Reduced to
the testator and the required number of witnesses must
simpler terms, the question was attested and subscribed by at least
appear before the notary public to acknowledge the will. The
three credible witnesses in the presence of the testator and of each
result would be, as has been said, that only two witnesses appeared
other, considering that the three attesting witnesses must appear
before the notary public for or that purpose. In the circumstances, the
before the notary public to acknowledge the same.
law would not be duly in observed.

As the third witness is the notary public himself, petitioner

CONEJOS vs YVES (case cannot be found according to the assigned
argues that the result is that only two witnesses appeared
person)
before the notary public to acknowledge the will.

On the other hand, private respondent-appellee, Manuel B.
Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of
them, bolstering up his stand with 57 American Jurisprudence, p. 227
which, insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as
against the purely technical reason that one of the witnesses required
by law signed as certifying to an acknowledgment of the testator's
signature under oath rather than as attesting the execution of the
instrument.
RULING: The SC inclined to sustain that of the appellant
that the last will and testament in question was not executed
in accordance with law.
The notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot
acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding in space or
GONZALES vs. CA
G.R. No. L-37453
May 25, 1979
GUERRERO, J.:
On June 24, 1961, herein private respondent Lutgarda Santiago filed a
petition for the probate of a will alleged to have been executed by the
deceased Isabel Gabriel and designating therein petitioner as the
principal beneficiary and executrix. The will submitted for probate,
Exhibit "F", which is typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or barely two (2)
months prior to the death of Isabel Gabriel. It consists of five (5)
pages, including the pages whereon the attestation clause and the
acknowledgment of the notary public were written. The signatures of
the deceased Isabel Gabriel appear at the end of the will on page four
and at the left margin of all the pages.
Petitioner contends that Exhibit "F" was not executed and attested as
required by law because there was absolutely no proof that the three
instrumental witnesses were credible witnesses. She argues that the
requirement in Article 806, Civil Code, that the witnesses must be
credible is an absolute requirement which must be complied with
before an alleged last will and testament may be admitted to probate
and that to be a credible witness, there must be evidence on record
that the witness has a good standing in his community, or that he is
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honest and upright, or reputed to be trustworthy and reliable.
According to petitioner, unless the qualifications of the witness are first
established, his testimony may not be favorably considered. Petitioner
contends that the term "credible" is not synonymous with "competent"
for a witness may be competent under Article 820 and 821 of the Civil
Code and still not be credible as required by Article 805 of the same
Code. It is further urged that the term "credible" as used in the Civil
Code should receive the same settled and well- known meaning it has
under the Naturalization Law, the latter being a kindred legislation with
the Civil Code provisions on wigs with respect to the qualifications of
witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of
the Civil Code provides the qualifications of a witness to the execution
of wills while Article 821 sets forth the disqualification from being a
witness to a win.
In the strict sense, the competency of a person to be an instrumental
witness to a will is determined by the statute, that is Art. 820 and 821,
Civil Code, whereas his credibility depends On the appreciation of his
testimony and arises from the belief and conclusion of the Court that
said witness is telling the truth. Thus, in the case of Vda. de Aroyo v.
El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968,
the Supreme Court held and ruled that: "Competency as a witness is
one thing, and it is another to be a credible witness, so credible that
the Court must accept what he says. Trial courts may allow a person
to testify as a witness upon a given matter because he is competent,
but may thereafter decide whether to believe or not to believe his
testimony." In fine, We state the rule that the instrumental witnesses
in Order to be competent must be shown to have the qualifications
under Article 820 of the Civil Code and none of the disqualifications
under Article 821 and for their testimony to be credible, that is worthy
of belief and entitled to credence, it is not mandatory that evidence be
first established on record that the witnesses have a good standing in
the community or that they are honest and upright or reputed to be
trustworthy and reliable, for a person is presumed to be such unless
the contrary is established otherwise. In other words, the instrumental
witnesses must be competent and their testimonies must be credible
before the court allows the probate of the will they have attested.
We, therefore, reject petitioner's position that it was fatal for
respondent not to have introduced prior and independent proof of the
fact that the witnesses were "credible witnesses that is, that they have
a good standing in the community and reputed to be trustworthy and
reliable.
GABUCAN v. JUDGE MANTA
G.R. No. L-51546 January 28, 1980
JOSE ANTONIO GABUCAN, vs. HON. JUDGE LUIS D. MANTA
JOSEFA G. VDA. DE YSALINA and NELDA G. ENCLONAR
FACTS: This case is about the dismissal of a petition for the probate of
a notarial will on the ground that it does not bear a thirty-centavo
documentary stamp.
The Court of First Instance of Camiguin in its "decision" of December
28, 1977 in SP No. 41 for the probate of the will of the late Rogaciano
Gabucan, dismissed the proceeding (erroneously characterizes as an
"action")
The proceeding was dismissed because the requisite documentary
stamp was not affixed to the notarial acknowledgment in the will and,
hence, according to respondent Judge, it was not admissible in
evidence, citing section 238 of the Tax Code, now section 250 of the
1977 Tax Code, which reads:
SEC. 238. Effect of failure to stamp taxable document. — An
instrument, document, or paper which is required by law to be
stamped and which has been signed, issued, accepted, or transferred
without being duly stamped, shall not be recorded, nor shall it or any
copy thereof or any record of transfer of the same be admitted or used
in evidence in any court until the requisite stamp or stamps shall have
been affixed thereto and cancelled.
No notary public or other officer authorized to administer oaths shall
add his jurat or acknowledgment to any document subject to
documentary stamp tax unless the proper documentary stamps are
affixed thereto and cancelled.
The probate court assumed that the notarial acknowledgment of the
said will is subject to the thirty-centavo documentary stamp tax fixed
in section 225 of the Tax Code, now section 237 of the 1977 Tax Code.
Respondent Judge refused to reconsider the dismissal in spite of
petitioner's manifestation that he had already attached the
documentary stamp to the original of the will.
The case was brought to this Court by means of a petition for
mandamus to compel the lower court to allow petitioner's appeal from
its decision. In this Court's resolution of January 21, 1980 the petition
for mandamus was treated in the interest of substantial and speedy
justice as an appeal under Republic Act No. 5440 as well as a special
civil action of certiorari under Rule 65 of the Rules of Court.
RULING: We hold that the lower court manifestly erred in declaring
that, because no documentary stamp was affixed to the will, there was
"no will and testament to probate" and, consequently, the alleged
"action must of necessity be dismissed".
What the probate court should have done was to require the petitioner
or proponent to affix the requisite thirty-centavo documentary stamp
to the notarial acknowledgment of the will which is the taxable portion
of that document.
That procedure may be implied from the provision of section 238 that
the non-admissibility of the document, which does not bear the
requisite documentary stamp, subsists only "until the requisite stamp
or stamps shall have been affixed thereto and cancelled."
Thus, it was held that the documentary stamp may be affixed at the
time the taxable document is presented in evidence (Del Castillo vs.
Madrilena 49 Phil. 749). If the promissory note does not bear a
documentary stamp, the court should have allowed plaintiff's tender of
a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67,
71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the
lack of the documentary stamp on a document does not invalidate
such document.
ARTICLE 808
ALVARADO vs GAVIOLA (Lim)
Garcia v.Vasquez
April 30,1970
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 Wills and Succession Case Digests
FACTS: On Sept. 2, 1965, Gliceria Avelino del Rosario died,leaving
no descendants, ascendants, brother or sister. She was said to be
90years old at the time of her death. On Sept. 17, 1965, her alleged
last willand testament was submitted for probate. The records of the
probate proceedingfully established that Gliceria, during her lifetime,
executed two wills:
1. One on June 9, 1965 consisting of 12 pagesand written in
Spanish, a language that she knew and spoke, witnessed byMessrs.
Cabrera, Ayala and Marquez, and acknowledge before notary public
JoseAyala;
2. Another dated December 29, 1960, consistingof 1 page and
written in Tagalog, witnessed by Messrs. Rosales, Decena, andLopez,
and acknowledged before notary public Tividad.
On Aug. 25, 1966, the Court issued an order admitting toprobate the
1960 will of Gliceria. The will, however, was questioned by
theoppositors who maintained that on December 29, 1960 the eyesight
of Gliceriawas so poor and defective that she could not have read the
provisions of thewill, contrary to the testimonies of the witnesses
Decena, Lopez and Rosales.
ISSUE:WONthe 1960 will was duly executed. NO!
HELD: The SC admitted in court the testimony of Dr. Tamesis,an
ophthalmologist, who testified that Gliceria saw him for consultation
onMarch 11, 1960. According to Dr. Tamesis, Gliceria had a cataract
on her lefteye, and that it was “above normal in pressure”, denoting a
possible glaucoma,a disease that leads to blindness. Records also show
that although Dr. Tamesisoperated on the left eye of the decedent, her
vision was only “countingfingers,” at five feet. The foregoing testimony
fully established thatGliceria’s vision was mainly for viewing distant
objects and not for readingprint.
Thus, the due execution of Gliceria’s will would haverequired
observance of the provisions of Art. 808 of the Civil Code.
“Art. 808. If the testator isblind, the will shall be read to
him twice; once, by one of the subscribingwitnesses, and again, by the
notary public before whom the will isacknowledged.”
Ratio: To makethe provisions of the will known to the testator, so that
he may be able toobject if they are not in accordance with his wishes.
In connection with the will here in question, there isnothing in the
records to show that the above requisites have been compliedwith.
Clearly, as already stated, the 1960 will sought to be probated
suffersfrom infirmity that affects its due execution.
ARTICLE 809
ALVARADO VS GAVIOLA
G.R. No. 74695 September 14, 1993
Facts: 79-year old Brigido Alvarado executed a notarial will wherein
he disinherited an illegitimate son (petitioner) and expressly revoked a
previously executed holographic will at the time awaiting probate.
As testified to by the three instrumental witnesses, the notary public
and by private respondent who were present at the execution, the
testator did not read the final draft of the will himself. Instead, private
respondent, as the lawyer, read the same aloud in the presence of the
testator, the three instrumental witnesses and the notary public. The
latter four followed the reading with their own respective copies
previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to
probate, a codicil entitled was executed changing some dispositions in
the notarial will to generate cash for the testator's eye operation.
Brigido was then suffering from glaucoma. But the disinheritance and
revocatory clauses were unchanged. As in the case of the notarial will,
the testator did not personally read the final draft of the codicil.
Petitioner filed an opposition contending that the will was not executed
and attested as required by Art. 808 (2 readings made by the notary
public and one of the subscribing witnesses)
Issue: -Whether or not Art 808 strictly applies only to persons who are
blind. NO
-Whether or not the reading requirement of said article was complied
with. YES
Ruling: As to the first issue, he was not totally blind at the time the
will and codicil were executed. However, his vision on both eyes was
only of "counting fingers at three (3) feet" by reason of the glaucoma
which he had been suffering from for several years.
Regardless of respondent's contention that the testator was still
capable of reading at the time his will and codicil were prepared, the
fact remains and this was testified to by his witnesses, that Brigido did
not do so because of his "poor," 10 "defective," 11 or "blurred" vision
making it necessary for private respondent to do the actual reading for
him.
Clear from the foregoing is that Art. 808 applies not only to blind
testators but also to those who, for one reason or another, are
"incapable of reading wills. Thus, Brigido comes within the scope of
the term "blind" as it is used in Art. 808.
Article 808 requires that the will shall be read twice; once, by one of
the instrumental witnesses and, again, by the notary public before
whom the will was acknowledged. The purpose is to make known to
the incapacitated testator the contents of the document before signing
and to give him an opportunity to object if anything is contrary to his
instructions but was not followed strictly. Instead of the notary public
and an instrumental witness, it was the lawyer (private respondent)
who drafted the eight-paged will and the five-paged codicil who read
the same aloud to the testator, and read them only once.
Substantial compliance is acceptable where the purpose of the law has
been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible
as to destroy the testamentary privilege.
In this case, private respondent read the testator's will and codicil
aloud in the presence of the testator, his three instrumental witnesses,
and the notary public. Prior and subsequent thereto, the testator
affirmed, upon being asked, that the contents read corresponded with
his instructions. Only then did the signing and acknowledgement take
place. He had expressed his last wishes in clear and unmistakable
terms in his "Huling Habilin" and the codicil attached thereto. The
court is unwilling to cast these aside from the mere reason that a legal
requirement intended for his protection was not followed strictly when
such compliance had been rendered unnecessary by the fact that the
purpose of the law, i.e., to make known to the incapacitated testator
the contents of the draft of his will, had already been accomplished. To
reiterate, substantial compliance suffices where the purpose has been
served.
CANEDA vs CA
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 Wills and Succession Case Digests
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA,
JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,
HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO,
VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO
ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA,
represented herein by his heirs, JESUS CANEDA,
NATIVIDAD CANEDA and ARTURO CANEDA,petitioners, vs. HON.
COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero,respondents.
G.R. No. 103554 May 28, 1993
Facts: On December 5, 1978, Mateo Caballero, a widower without any
children executed a last will and testament at his residence in Talisay,
Cebu before three attesting witnesses, namely, Cipriano Labuca,
Gregorio Cabando and Flaviano Toregosa. The said testator was duly
assisted by his lawyer, Atty. Emilio Lumontad, and a notary public,
Atty. Filoteo Manigos, in the preparation of that last will. 1 It was
declared therein, among other things, that the testator was leaving by
way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not
appear to be related to the testator.
Four months later, or on April 4, 1979, Mateo Caballero
himself filed a petition docketed as Special Proceeding No. 3899-R
before Branch II of the then Court of First Instance of Cebu seeking
the probate of his last will and testament. The probate court set the
petition for hearing on August 20, 1979 but the same and subsequent
scheduled hearings were postponed for one reason to another. On
May 29, 1980, the testator passed away before his petition could
finally be heard by the probate court.
Probate court declared that the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the
requisites of the law. Petitioners oppositors elevated the case to the
CA asserting that the will in question is null and void for the reason
that its attestation clause is fatally defective since it fails to specifically
state that the instrumental witnesses to the will witnessed the testator
signing the will in their presence and that they also signed the will and
all the pages thereof in the presence of the testator and of one
another. CA affirmed the probate court.
Issue: whether or not the attestation clause contained in the last will
and testament of the late Mateo Caballero complies with the
requirements of Article 805, in relation to Article 809, of the Civil Code.
Held: No. An examination of the last will and testament of
Mateo Caballero shows that it is comprised of three sheets all of which
have been numbered correlatively, with the left margin of each page
thereof bearing the respective signatures of the testator and the three
attesting witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect and is signed
at the foot thereof by the testator. The attestation clause in question,
on the other hand, is recited in the English language and is likewise
signed at the end thereof by the three attesting witnesses hereto. 30
Since it is the proverbial bone of contention, we reproduce it again for
facility of reference:
We, the undersigned attesting Witnesses, whose Residences and
postal addresses appear on the Opposite of our respective names, we
do hereby certify that the Testament was read by him and the
testator, MATEO CABALLERO; has published unto us the foregoing Will
consisting of THREE PAGES, including the Acknowledgment, each page
numbered correlatively in the letters on the upper part of each page,
as his Last Will and Testament and he has the same and every page
thereof, on the spaces provided for his signature and on the left hand
margin, in the presence of the said testator and in the presence of
each and all of us.
It will be noted that Article 805 requires that the witness
should both attest and subscribe to the will in the presence of the
testator and of one another. "Attestation" and "subscription" differ in
meaning. Attestation is the act of senses, while subscription is the act
of the hand. The former is mental, the latter mechanical, and to attest
a will is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe
a paper published as a will is only to write on the same paper the
names of the witnesses, for the sole purpose of identification.
In Taboada vs. Rizal, we clarified
that attestation consists in witnessing the testator's execution of the
will in order to see and take note mentally that those things are done
which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other
hand, subscription is the signing of the witnesses' names upon the
same paper for the purpose of identification of such paper as the will
which was executed by the testator. As it involves a mental act, there
would be no means, therefore, of ascertaining by a physical
examination of the will whether the witnesses had indeed signed in the
presence of the testator and of each other unless this is substantially
expressed in the attestation.
What is fairly apparent upon a careful reading of the
attestation clause herein assailed is the fact that while it recites that
the testator indeed signed the will and all its pages in the presence of
the three attesting witnesses and states as well the number of pages
that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of
each other.
The phrase "and he has signed the same and every page
thereof, on the spaces provided for his signature and on the left hand
margin," obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words "as his Last Will
and Testament." On the other hand, although the words "in the
presence of the testator and in the presence of each and all of us"
may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to the
testator signing in the presence of the witnesses since said phrase
immediately follows the words "he has signed the same and every
page thereof, on the spaces provided for his signature and on the left
hand margin." What is then clearly lacking, in the final logical analysis ,
is the statement that the witnesses signed the will and every page
thereof in the presence of the testator and of one another.
It is our considered view that the absence of that
statement required by law is a fatal defect or imperfection which must
necessarily result in the disallowance of the will that is here sought to
be admitted to probate. Petitioners are correct in pointing out that the
aforestated defect in the attestation clause obviously cannot be
characterized as merely involving the form of the will or the language
used therein which would warrant the application of the substantial
compliance rule under Article 809 of the New Civil Code.
While it may be true that the attestation clause is indeed
subscribed at the end thereof and at the left margin of each page by
the three attesting witnesses, it certainly cannot be conclusively
inferred therefrom that the said witness affixed their respective
signatures in the presence of the testator and of each other since, as
petitioners correctly observed, the presence of said signatures only
133
 Wills and Succession Case Digests
establishes the fact that it was indeed signed, but it does not prove
that the attesting witnesses did subscribe to the will in the presence of
the testator and of each other. The execution of a will is supposed to
be one act so that where the testator and the witnesses sign on
various days or occasions and in various combinations, the will cannot
be stamped with the imprimatur of effectivity
We believe that the further comment of former Justice J.B.L.
Reyesregarding Article 809, wherein he urged caution in the
application of the substantial compliance rule therein, is correct and
should be applied in the case under consideration, as well as to future
cases with similar questions:
. . . The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will
was notarized. All theses are facts that the will itself can reveal, and
defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and whether
all persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings. (Emphasis ours.)
We stress once more that under Article 809, the defects
and imperfections must only be with respect to the form of
the attestation or the language employed therein. Such defects
or imperfections would not render a will invalid should it be proved
that the will was really executed and attested in compliance with
Article 805. In this regard, however, the manner of proving the
due execution and attestation has been held to be limited to
merely an examination of the will itself without resorting to
evidence aliunde, whether oral or written.
The foregoing considerations do not apply where
the attestation clause totally omits the fact that the attesting
witnesses signed each and every page of the will in the
presence of the testator and of each other. In such a situation,
the defect is not only in the form or language of the attestation clause
but the total absence of a specific element required by Article 805 to
be specifically stated in the attestation clause of a will. That is
precisely the defect complained of in the present case since there is no
plausible way by which we can read into the questioned attestation
clause statement, or an implication thereof, that the attesting witness
did actually bear witness to the signing by the testator of the will and
all of its pages and that said instrumental witnesses also signed the
will and every page thereof in the presence of the testator and of one
another.
Furthermore, the rule on substantial compliance in Article
809 cannot be revoked or relied on by respondents since it
presupposes that the defects in the attestation clause can be cured or
supplied by the text of the will or a consideration of matters apparent
therefrom which would provide the data not expressed in the
attestation clause or from which it may necessarily be gleaned or
clearly inferred that the acts not stated in the omitted textual
requirements were actually complied within the execution of the will.
In other words, defects must be remedied by intrinsic evidence
supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to
have been performed by the attesting witnesses can be supplied by
only extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from with such facts
may be plausibly deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the compliance with
such requirements by the instrumental witnesses, oblivious of the fact
that he is thereby resorting to extrinsic evidence to prove the same
and would accordingly be doing by the indirection what in law he
cannot do directly.
WHEREFORE, the petition is hereby GRANTED and the
impugned decision of respondent court is hereby REVERSED and SET
ASIDE. The court a quo is accordingly directed to forthwith DISMISS
its Special Proceeding No. 3899-R (Petition for the Probate of the Last
Will and Testament of Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo
Caballero) as an active case and thereafter duly proceed with the
settlement of the estate of the said decedent.
CAGRO vs CAGRO
TESTATE ESTATE OF THE LATE VICENTE CAGRO. JESUSA
CAGRO vs. PELAGO CAGRO, ET AL.
GR NO. L-5826 April 29, 1953
Art 805. Every will, other than a holographic will, must be subscribed
at the end thereof by the testator himself or by the testator’s name
written by some other person in his presence, and by his express
direction, andattested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
FACTS:
 Pelagro Cagro, et al. (respondents) allege that the will is fatally
defective, because its attestation clause is not signed by the three
attesting witnesses.
 In the will, the page containing the attestation clause is signed by the
witnesses on the left-hand margin, but said attesting witnesses did not
sign at the bottom.
 Vicente Cagro (petitioner) contended that the signatures of the
attesting witnesses on the left-hand margin conform substantially to
the law and may be deemed as their signatures to the attestation
clause.
ISSUE:
 WON the absence of the signatures of the attesting witnesses
at the bottom of the attestation clause renders it fatally
defective? – YES.
HELD:
 Yes. The will becomes fatally defective due to failure to conform with
the requirements in Art 805.
 The signatures of the three witnesses on the left-hand margin cannot
be said to conform substantially to the law, because said signatures
are in compliance with the legal mandate that the will be signed on the
left-hand margin of all its pages.
 If an attestation clause is not signed by the three witnesses at the
bottom, and still be admitted by the courts sufficient, it would be easy
to add such clause to any will on a subsequent occasion, in the
absence of the testator and any or all of the witnesses.
 The will was fatally defective and not admitted to probate.
Dissenting Opinion
The will in question substantially complied with the formalities of the
law and, therefore, should be admitted to probate.
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TABOADA V ROSAL
G.R. No. L-36033 November 5, 1982
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE
WILL OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA,
petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance
of Southern Leyte, (Branch III, Maasin), respondent.
FACTS: In the petition for probate of the Will filed with the
respondent court, the petitioner attached the alleged last will and
testament of the late Dorotea Perez. Written in the Cebuano-Visayan
dialect, the will consists of two pages. The first page contains the
entire testamentary dispositions and is signed at the end or bottom of
the page by the testatrix alone and at the left hand margin by the
three (3) instrumental witnesses. The second page which contains the
attestation clause and the acknowledgment is signed at the end of the
attestation clause by the three (3) attesting witnesses and at the left
hand margin by the testatrix.
Petitioner submitted his evidence and presented Vicente Timkang, one
of the subscribing witnesses to the will, who testified on its
genuineness and due execution.
The trial court issued the questioned order denying the probate of the
will for want of a formality in its execution. In the same order, the
petitioner was also required to submit the names of the intestate heirs
with their corresponding addresses so that they could be properly
notified and could intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner
filed a manifestation and/or motion, ex parte praying for a thirty-day
period within which to deliberate on any step to be taken as a result of
the disallowance of the will and to hold the ten-day period required by
the court to submit the names of intestate heirs with their addresses
be held in abeyance. The petitioner also filed a motion for
reconsideration of the order denying the probate of the will.
Meanwhile, the petitioner filed a motion for the appointment of special
administrator.
All these motions were denied by the new Judge.
ISSUE (On 805): For the validity of a formal notarial will, does Article
805 of the Civil Code require that the testatrix and all the three
instrumental and attesting witnesses sign at the end of the will and in
the presence of the testatrix and of one another? YES
Undoubtedly, under Article 805 of the Civil Code, the will must be
subscribed or signed at its end by the testator himself or by the
testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed.
Attestation consists in witnessing the testator's execution of the will in
order to see and take note mentally that those things are, done which
the statute requires for the execution of a will and that the signature
of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the purpose
of Identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).
ISSUE (On 809): WON the will was subscribed in a manner which fully
satisfies the requirements; YES
Insofar as the requirement of subscription is concerned, it is our
considered view that the will in this case was subscribed in a manner
which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the
first page of the will attested not only to the genuineness of the
signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable,
unsubstantial departure from the usual forms should be ignored,
especially where the authenticity of the will is not assailed. (Gonzales
v. Gonzales, 90 Phil. 444, 449).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned
order that were not for the defect in the place of signatures of the
witnesses, he would have found the testimony sufficient to establish
the validity of the will.
The objects of attestation and of subscription were fully met and
satisfied in the present case when the instrumental witnesses signed at
the left margin of the sole page which contains all the testamentary
dispositions, especially so when the will was properly Identified by
subscribing witness Vicente Timkang to be the same will executed by
the testatrix. There was no question of fraud or substitution behind the
questioned order.
We have examined the will in question and noticed that the attestation
clause failed to state the number of pages used in writing the will. This
would have been a fatal defect were it not for the fact that, in this
case, it is discernible from the entire will that it is really and actually
composed of only two pages duly signed by the testatrix and her
instrumental witnesses. As earlier stated, the first page which contains
the entirety of the testamentary dispositions is signed by the testatrix
at the end or at the bottom while the instrumental witnesses signed at
the left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament
consists of two pages including this page".
Just in case, it will be asked: What is the purpose of the requirement
that the attestation clause must state the number of pages used?
The law referred to is article 618 of the Code of Civil Procedure, as
amended by Act No. 2645, which requires that the attestation clause
shall state the number of pages or sheets upon which the win is
written, which requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation or omission
of some of the pages of the will to the prejudice of the heirs to whom
the property is intended to be. The ratio decidendi of these cases
seems to be that the attestation clause must contain a statement of
the number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if
the deficiency cannot be supplied, not by evidence aliunde, but by a
consideration or examination of the will itself.
G.R. No. L-27440 December 24, 1927
JOSE VILLAFLOR, petitioner-appellant, vs. DEOGRACIAS TOBIAS,
ET AL., oppositors-appellees
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 Wills and Succession Case Digests
FACTS: A will was allegedly executed by one Gregoria Villaflor who
died in the municipality of Santo Domingo, Province of Ilocos Sur on
October 7, 1925. The petition for probate was presented by
(petitioner) Jose Villaflor, one of the testamentary heirs of the
deceased.
Pilar Villaflor, (respondent) Deogracias Tobias, and several others
whose names do not appear in the record, contested the will upon the
following grounds: (1) That it was not signed by the alleged testatrix
personally though she was able to do so at the time of the execution
of the document; (2) that said testatrix did not authorize any one to
sign the alleged will in her name; (3) that both before and after the
execution of the document, Gregoria Villaflor signed various
documents by thumb marks; (4) that although it is true that the
testatrix requested that the will be prepared, she nevertheless refused
to sign it because it was contrary to her desires and instructions; (5)
that subsequent to the date upon which the alleged will was executed,
Gregoria Villaflor on several occasions stated that it was not her
testament; (6) that the alleged will was not executed or signed in
conformity of the law.
The lower court denied the petition for probate of will on the grounds
that: it has been sufficiently proved that Claro Lazo, the person who is
alleged to have written the name of the testatrix in her behalf and by
her express direction, subscribed the name and surname of the
testatrix and signed the will in question without Rufino D. Soliven, one
of the attesting witnesses, signed it; and lastly, when Rufino D. Soliven
signed the will the witness Vicente Tacderas was not present. Besides
the foregoing defect, which the court believes fatal, it also finds that
the will in question, marked Exhibit B of the applicant, was typewritten
on eight catalan sheets, one separated from the others; that the
attestation clause was written on a separate sheet, marked page 9,
when said clause could not have been written totally or partially on
page 8, since one-half of this latter page is blank.
ISSUE: WON the lower court properly rejected the document on the
ground that the will in question was false.
HELD: NO.
The will in question is dated July 12, 1923, and was prepared by a
lawyer, Eustaquio Gallardo, and as far as appearances go, was
executed in strict compliance with the provisions of section 618 of the
Code of Civil Procedure for the execution of wills. The testatrix's name
was signed by one Claro Lazo, a clerk in the office of municipal
treasurer of Santo Domingo, and the attesting witnesses were Vicente
Tacderas, municipal president, Rufino D. Soliven, chief of police, and
Mariano Pizarro, municipal treasurer, all of the town of Santo Domingo.
The finding of the court below that the witness Soliven was not
present when Claro Lazo signed the name of testatrix and when
Vicente Tacderas signed as witness, is based on the fact that, in
testifying in this case, Claro Lazo upon being asked to enumerate the
names of the persons present at the time of signing of the document,
omitted the name of Soliven. But it appears from the transcript of the
testimony that he afterwards corrected his original statement and
testified that Soliven, as well as the other witnesses to the will, was
present while all of the signatures were fixed. This is in harmony with
the testimony of all of the instrumental witnesses and is undoubtfully
true; there is, indeed, nothing strange or unusual in a mistake such as
that made by Lazo. It may be noted that it is not disputed that the
lawyer Gallardo was present during the whole proceeding and as he
appears to have possessed full knowledge of the formal requirements
for the execution of the will, it is highly improbable that he would have
allowed the will in question to be signed without the presence of a
testatrix and of all the witnesses.
That the attestation clause of the will is written on a separate
page and not on the last page of the body of the document is,
in our opinion, a matter of minor importance and is explained
by the fact that if the clause had been written on the eight
page of the will in direction continuation of the body thereof,
there would have been sufficient space on that page for the
signatures of the witnesses to the clause. It is also to be
observed that all of the pages, including that upon which the
attestation clause is written, bear the signatures of all the witnesses
and that there is no question whatever as to the genuineness of said
signatures.
The fact that the name of the testatrix was written by another person,
and that she did not sign by thumb mark, is easily explained and is
evidently due to an attempt on the part of the lawyer Gallardo to
comply strictly with the following clause in the Spanish text of section
618 of the Code of Civil Procedure. The making of a finger mark is not
"escribir" and it may be noted that Gallardo apparently is a good
Spanish scholar, that it does not appear that he knows the English
language;. and that he therefore probably used the Spanish text of the
Code.
CANEDA vs CA (809)
FACTS:
On December 5, 1978, Mateo Caballero, a widower without any
children and already in the twilight years of his life, executed a last will
and testament at his residence before 3 witnesses.
He was assisted by his lawyer, Atty. Emilio Lumontad.
In the will, it was declared that the testator was leaving by way of
legacies and devises his real and personal properties to several people
all of whom do not appear to be related to the testator.
4 months later, Mateo Caballero himself filed a case seeking the
probate of his last will and testament, but numerous postponements
pushed back the initial hearing of the probate court regarding the will.
On May 29, 1980, the testator passed away before his petition could
finally be heard by the probate court.
Thereafter one of the legatees, Benoni Cabrera, sought
hisappointment as special administrator of the testator’s estate.
Thereafter, the petitioners, claiming to be nephews and nieces of the
testator, instituted a second petition for intestate proceedings. They
also opposed the probate of the testator’s will and the appointment of
a special administrator for his estate.
Benoni Cabrera died and was replaced by William Cabrera as special
administrator and gave an order that the testate proceedings for
the probate of the will had to be heard and resolved first.
In the course of the proceedings, petitioners opposed to the allowance
of the testator’s will on the ground that on the alleged date of its
execution, the testator was already in poor state of health such that he
could not have possibly executed the same. Also the genuineness of
the signature of the testator is in doubt.
On the other hand, one of the attesting witnesses and the notary
public testified that the testator executed the will in question in their
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presence while he was of sound and disposing mind and that the
testator was in good health and was not unduly influenced in any way
in the execution of his will.
Probate court then rendered a decision declaring the will in question as
the last will and testament of the late Mateo Caballero.
CA affirmed the probate court’s decision stating that it substantially
complies with Article 805. Hence this appeal.
ISSUE:
W/N the attestation clause in the will of the testator is fatally defective
or can be cured under the art. 809. NO!
HELD: It does not comply with the provisions of the law.
Ordinary or attested wills are governed by Arts. 804 to 809. The will
must be acknowledged before a notary public by the testator and the
attesting witnesses. Theattestation clause need not be written in a
language known to the testator or even to the attesting witnesses.
It is a separate memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses it gives
affirmation to the fact that compliance with the essential formalities
required by law has been observed.
The attestation clause, therefore, provides strong legal guaranties for
the due execution of a will and to insure the authenticity thereof.
It is contended by petitioners that the attestation clause in the will
failed to specifically state the fact that the attesting witnesses
witnessed the testator sign the will and all its pages in their presence
and that they, the witnesses, likewise signed the will and every page
thereof in the presence of the testator and of each other. And the
Court agrees.
The attestation clause does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures
to the will in the presence of the testator and of each other.
The phrase, “and he has signed the same and every page thereof, on
the space provided for his signature and on the left hand margin,”
obviously refers to the testator and not the instrumental witnesses as
it is immediately preceded by the words” as his last will and
testament.”
Clearly lacking is the statement that the witnesses signed the will and
every page thereof in the presence of the testator and of one another.
That the absence of the statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the
will that is here sought to be probated.
Also, Art. 809 does not apply to the present case because
the attestation clause totally omits the fact that the attesting witnesses
signed each and every page of the will in the presence of the testator
and of each other. The defect in this case is not only with respect to
the form or the language of the attestation clause. The defects must
be remedied by intrinsic evidence supplied by the will itself which is
clearly lacking in this case.
Therefore, the probate of the will is set aside and the case for the
intestate proceedings shall be revived.
Article 809 cannot be used to cure the defects of the will when it does
not pertain to the form or language of the will. This is because there is
not substantial compliance with Article 805.
ARTICLE 810
Roxas vs De Jesus, JR
Facts: After the death of spouses Andres G. de Jesus and Bibiana
Roxas de Jesus, Special Proceeding No. 81503 entitled "In the Matter
of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de
Jesus" was filed by petitioner Simeon R. Roxas, the brother of the
deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to be
the holographic Will of the deceased Bibiana Roxas de Jesus. On May
26, 1973, respondent Judge Jose Colayco set the hearing of the
probate of the holographic Will on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana
R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-will
addressed to her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found. The will is
dated "FEB./61 " and states: "This is my win which I want to be
respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who
likewise testified that the letter dated "FEB./61 " is the holographic Will
of their deceased mother, Bibiana R. de Jesus. Both recognized the
handwriting of their mother and positively Identified her signature.
They further testified that their deceased mother understood English,
the language in which the holographic Will is written, and that the date
"FEB./61 " was the date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an
"opposition to probate" assailing the purported holographic Will of
Bibiana R. de Jesus because it was not executed in accordance with
law alleging that the alleged holographic Will of the deceased Bibiana
R. de Jesus was not dated as required by Article 810 of the Civil Code.
She contends that the law requires that the Will should contain the
day, month and year of its execution and that this should be strictly
complied with.
Issue: whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code.
Ruling: Yes. Liberal construction was applied by the court. The court
reviewed the records of this case and found no evidence of bad faith
and fraud in its execution nor was there any substitution of Wins and
Testaments. There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written, dated, and
signed by the testatrix herself and in a language known to her. There
is also no question as to its genuineness and due execution. All the
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children of the testatrix agree on the genuineness of the holographic
Will of their mother and that she had the testamentary capacity at the
time of the execution of said Will. The objection interposed by the
oppositor-respondent Luz Henson is that the holographic Will is fatally
defective because the date "FEB./61 " appearing on the holographic
Will is not sufficient compliance with Article 810 of the Civil Code. This
objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the
day, month, and year of its execution. However, when as in the case
at bar, there is no appearance of fraud, bad faith, undue influence and
pressure and the authenticity of the Will is established and the only
issue is whether or not the date "FEB./61" appearing on the
holographic Will is a valid compliance with Article 810 of the Civil Code,
probate of the holographic Will should be allowed under the principle
of substantial compliance.
CONCEPCION MAGSAYSAY-LABRADOR
vs.
THE COURT OF APPEALS
FACTS: In 1958, Adelaida Rodriguez-Magsaysay and her husband, late
Senator Genaro Magsaysay, acquired, thru conjugal funds, a parcel of
land with improvements, known as "Pequena Island".after the death of
her husband, she discovered an annotation at the back of TCT No.
3258 that "the land was acquired by her husband from his separate
capital;"the registration of a Deed of Assignment dated June 25, 1976
purportedly executed by the late Senator in favor of SUBIC, as a result
of which TCT No. 3258 was cancelled and TCT No. 22431 issued in the
name of SUBIC; and the registration of Deed of Mortgage dated April
28, 1977 in the amount of P 2,700,000.00 executed by SUBIC in favor
of FILMANBANK; that the foregoing acts were void and done in an
attempt to defraud the conjugal partnership considering that the land
is conjugal, her marital consent to the annotation on TCT No. 3258
was not obtained, the change made by the Register of Deeds of the
titleholders was effected without the approval of the Commissioner of
Land Registration and that the late Senator did not execute the
purported Deed of Assignment or his consent thereto, if obtained, was
secured by mistake, violence and intimidation. She further alleged that
the assignment in favor of SUBIC was without consideration and
consequently null and void. She prayed that the Deed of Assignment
and the Deed of Mortgage be annulled and that the Register of Deeds
be ordered to cancel TCT No. 22431 and to issue a new title in her
favor.
Herein petitioners, sisters of the late senator, filed a motion for
intervention on the ground that on June 20, 1978, their brother
conveyed to them one-half (1/2 ) of his shareholdings in SUBIC or a
total of 416,566.6 shares and as assignees of around 41 % of the total
outstanding shares of such stocks of SUBIC, they have a substantial
and legal interest in the subject matter of litigation and that they have
a legal interest in the success of the suit with respect to SUBIC. This
was DENIED ruling that petitioners have no legal interest whatsoever
in the matter in litigation and their being alleged assignees or
transferees of certain shares in SUBIC cannot legally entitle them to
intervene because SUBIC has a personality separate and distinct from
its stockholders.
CA: AFFIRMED. Whatever claims the petitioners have against the late
Senator or against SUBIC for that matter can be ventilated in a
separate proceeding, such that with the denial of the motion for
intervention, they are not left without any remedy or judicial relief
under existing law
ISSUE: WON the petitoners have the right over the properties to
warrant their intervention
HELD: NO. To allow intervention, [a] it must be shown that the
movant has legal interest in the matter in litigation, or otherwise
qualified; and [b] consideration must be given as to whether the
adjudication of the rights of the original parties may be delayed or
prejudiced, or whether the intervenor's rights may be protected in a
separate proceeding or not. Both requirements must concur as the first
is not more important than the second.
The words "an interest in the subject" mean a direct interest in the
cause of action as pleaded, and which would put the intervenor in a
legal position to litigate a fact alleged in the complaint, without the
establishment of which plaintiff could not recover.
Here, the interest, if it exists at all, of petitioners-movants is indirect,
contingent, remote, conjectural, consequential and collateral. At the
very least, their interest is purely inchoate, or in sheer expectancy of a
right in the management of the corporation and to share in the profits
thereof and in the properties and assets thereof on dissolution, after
payment of the corporate debts and obligations.
While a share of stock represents a proportionate or aliquot interest in
the property of the corporation, it does not vest the owner thereof
with any legal right or title to any of the property, his interest in the
corporate property being equitable or beneficial in nature.
Shareholders are in no legal sense the owners of corporate property,
which is owned by the corporation as a distinct legal person.
The petitioners cannot claim the right to intervene on the strength of
the transfer of shares allegedly executed by the late Senator. The
corporation did not keep books and records. 11 Perforce, no transfer
was ever recorded, much less effected as to prejudice third parties.
The transfer must be registered in the books of the corporation to
affect third persons. The law on corporations is explicit. Section 63 of
the Corporation Code provides, thus: "No transfer, however, shall be
valid, except as between the parties, until the transfer is recorded in
the books of the corporation showing the names of the parties to the
transaction, the date of the transfer, the number of the certificate or
certificates and the number of shares transferred."
ARTICLE 811
AZAOLA vs. SINGSON
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
FACTS: Fortunata S. Vda. de Yance died in Quezon City,on
September 9, 1957.Francisco Azaola submitted for probate her
holographic will in which Maria Milagros Azaola was made the sole heir
as against his nephew Cesario Singson, the defendant herein.
Francisco, as the only one witness, was presented to testify on the
handwriting of the testatrix. He testified that he had seen the
holographic will one month, more or less, before the death of the
testatrix and it was in the testatrix’s handwriting.
. The probate was denied on the ground that under Article 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently that the body of
the will was written in the handwriting of the testatrix."
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ISSUE: W/N Article 811 is mandatory or permissive?
RULING:
Article 811 is merely permissive and not mandatory.
Since the authenticity of the will was not contested, he was not
required to produce more than one witness; but even if the
genuineness of the holographic will were contested Article 811 of the
Civil Code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied.
Since no witness may have been present at the execution of a
holographic will, none being required by law (Art. 810, new Civil
Code), it becomes obvious that the existence of witness possessing the
requisite qualifications is a matter beyond the control of the
proponent.
Art. 811 foresees the possibility that no qualified witness may be
found, that no competent person may be willing to testify to the
authenticity of the will, and provides for resort to expert evidence to
supply the deficiency. Such resort to expert is conditioned by the
words "if the Court deem it necessary", which reveal that what the law
deems essential is that the Court should be convinced of the will's
authenticity.
Since the law leaves it to the trial court if experts are still needed, no
unfavourable inference can be drawn from a party's failure to offer
expert evidence, until and unless the court expresses dissatisfaction
with the testimony of the lay witnesses.
ICASIANO vs. ICASIANO
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA
VILLACORTE. CELSO ICASIANO, petitioner-appellee,
vs. NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-
appellants.
On October 2, 1958, a petition for the allowance and admission to
probate of the original as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner Celso Icasiano as
executor thereof. Natividad Icasiano, a daughter of the testatrix, filed
her opposition. Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the
probate of the alleged will.
The evidence presented for the petitioner is to the effect that Josefa
Villacorte died on September 12, 1958; that on June 2, 1956, the late
Josefa Villacorte executed a last will and testament in duplicate at the
house of her daughter Mrs. Felisa Icasiano, published before and
attested by three instrumental witnesses, namely: attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will
was acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong,
Notary Public; and that the will was actually prepared by attorney
Fermin Samson, who was also present during the execution and
signing of the decedent's last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little
girl. Of the said three instrumental witnesses to the execution of the
decedent's last will and testament, attorneys Torres and Natividad
testified as to the due execution and authenticity of the said will. So
did the Notary Public before whom the will was acknowledged by the
testatrix and attesting witnesses, and also attorneys Fermin Samson,
who actually prepared the document. The latter also testified upon
cross examination that he prepared one original and two copies of
Josefa Villacorte last will and testament at his house in Baliuag,
Bulacan, but he brought only one original and one signed copy to
Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A"
consists of five pages, and while signed at the end and in every page,
it does not contain the signature of one of the attesting witnesses,
Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate
copy attached to the amended and supplemental petition and marked
as Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to show
that the original of the will and its duplicate were subscribed at the
end and on the left margin of each and every page thereof by the
testatrix herself and attested and subscribed by the three mentioned
witnesses in the testatrix's presence and in that of one another as
witnesses (except for the missing signature of attorney Natividad on
page three (3) of the original); that pages of the original and duplicate
of said will were duly numbered; that the attestation clause thereof
contains all the facts required by law to be recited therein and is
signed by the aforesaid attesting witnesses; that the will is written in
the language known to and spoken by the testatrix that the attestation
clause is in a language also known to and spoken by the witnesses;
that the will was executed on one single occasion in duplicate copies;
and that both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on the
same date June 2, 1956.
Witness Jose Natividad who testified on his failure to sign page three
(3) of the original, admits that he may have lifted two pages instead of
one when he signed the same, but affirmed that page three (3) was
signed in his presence.
Oppositors – appellants (Natividad and Enrique Icasiano) in turn
introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate are not genuine nor were they written or
affixed on the same occasion as the original.
Issue: Whether the court is bound by the expert testimony as to the
authenticity of the signatures. No.
We have examined the record and are satisfied that the testatrix
signed both original and duplicate copies of the will spontaneously, on
the same in the presence of the three attesting witnesses, the notary
public who acknowledged the will; and Atty. Samson, who actually
prepared the documents.
The opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were not
written by the same had which wrote the signatures in the original will
leaves us unconvinced, not merely because it is directly contradicted
by expert Martin Ramos for the proponents, but principally because of
the paucity of the standards used by him to support the conclusion
that the differences between the standard and questioned signatures
are beyond the writer's range of normal scriptural variation. The expert
has, in fact, used as standards only three other signatures of the
testatrix besides those affixed to the original of the testament (Exh.
A); and we feel that with so few standards the expert's opinion and
the signatures in the duplicate could not be those of the testatrix
becomes extremely hazardous. This is particularly so since the
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comparison charts Nos. 3 and 4 fail to show convincingly that the are
radical differences that would justify the charge of forgery, taking into
account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed
right the original. These, factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the
admitted and questioned signatures does not appear reliable,
considering the standard and challenged writings were affixed to
different kinds of paper, with different surfaces and reflecting power.
On the whole, therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and the
two instrumental witnesses, Torres and Natividad (Dr. Diy being in the
United States during the trial, did not testify).
8th Set
Article 811
Azaola vs Singson
FEDERICO AZAOLA, petitioner-appellant, vs. CESARIO SINGSON,
oppositor-appellee.
FACTS: On September 9, 1957, Fortunata S. Vda. de Yance died at 13
Luskot, Quezon City, known to be the last residence of said testatrix
Francisco Azaola, petitioner herein for probate of the holographic will,
submitted the said holographic will (Exh. C) whereby Maria Milagros
Azaola was made the sole heir as against the nephew of the deceased
Cesario Singson
witness Francisco Azaola testified that he saw the holographic will
(Exh. C) one month, more or less, before the death of the testatrix, as
the same was handed to him and his wife
He testified also that he recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the testatrix and to
reinforce said statement, witness presented the mortgage (Exh. E), the
special power of attorney (Exh. F), and the general power of attorney
(Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an
affidavit (Exh. G-2), and that there were further exhibited in court two
residence certificates (Exhs. H and H-1) to show the signatures of the
testatrix, for comparison
Azaola, testified that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well as
the signatures appearing therein are the signatures of the testatrix
when the same witness was asked by counsel if he was familiar with
the penmanship and handwriting of the deceased Fortunata Vda. de
Yance, he answered positively in the affirmative and when he was
asked again whether the penmanship referred to in the previous
answer as appearing in the holographic will (Exh. C) was hers
(testatrix'), he answered, "I would definitely say it is hers"
The opposition to the probate was on the ground that (1) the
execution of the will was procured by undue and improper pressure
and influence on the part of the petitioner and his wife, and (2) that
the testatrix did not seriously intend the instrument to be her last will,
and that the same was actually written either on the 5th or 6th day of
August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently that the body of
the will was written in the handwriting of the testatrix."
ISSUE: WON the probate should be allowed for having complied with
the requisites under Art. 811 of the Civil Code.
Held: Yes, it should be.
Article 811 of the Civil Code of the Philippines is to the following effect:
"ART. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is contested,
at least three of such witnesses shall be required.
In the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may
be resorted to. (691a)"
we are of the opinion that Article 811 of our present Civil Code cannot
be interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of
having the probate denied.
Since no witness may have been present at the execution of a
holographic will, none being required by law (Art. 810, new Civil
Code), it becomes obvious that the existence of witnesses possessing
the requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and producing any
three witnesses; they must be witnesses "who know the handwriting
and signature of the testator" and who can declare (truthfully, of
course, even if the law does not so express) "that the will and the
signature are in the handwriting of the testator". There may be no
available witness acquainted with the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus
become an impossibility
That is evidently the reason why the second paragraph of Article 811
prescribes that "in the absence of any competent witness referred to in
the preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to."
As can be seen, the law foresees the possibility that no qualified
witness may be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the
will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
Francisco, 57 Phil. 742). But it can not be ignored that the requirement
can be considered mandatory only in the case of ordinary testaments,
precisely because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to their validity
(Art. 805)
Where the will is holographic, no witness need be present (Art. 10),
and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned
by the words "if the Court deem it necessary", which reveal that what
the law deems essential is that the Court should be convinced of the
will's authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert evidence. On
the other hand, if no competent witness is available, or none of those
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produced is convincing, the Court may still, and in fact it should, resort
to handwriting experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
And because the law leaves it to the trial court to decide if experts are
still needed, no unfavourable inference can be drawn from a party's
failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of
the Civil Code is merely directory and is not mandatory.
Codoy vs Calugay
[G.R. No. 123486. August 12, 1999]
Facts:
The deceased Matilde Seno Vda de Ramonal executed a holographic
will on August 30, 1978. Herein respondents Eugenia Calugay,
Josephine Salcedo and Eufemia Patigas are devisees and legatees of
the holographic will of the deceased. They filed with the RTC of
Misamis a petition for probate of the holographic will of Matilde who
died on 16 January 1990.
Petitioners Eugenia Codoy and Manuel Ramonal filed an opposition to
the probate stating that the holographic will was a forgery and the
same was illegible. Respondents however contend that the deceased
was of sound and disposing mind when she executed the will and that
no fraud or undue influence and duress happened and that the will
was written voluntarily.
They presented six witnesses with various documentary evidence.
Petitioners on their part filed a demurrer to evidence claiming that
respondents failed to establish to establish sufficient factual and legal
basis for the probate of the holographic will of the deceased Matilde
Seño Vda. de Ramonal. All the 6 witnesses that respondents presented
expressed familiarity with the deceased’s signature. But there was no
mention of the fact that there were witnesses at the time Matilde
executed the will. The lower court denied the probate.
On appeal, respondents again reiterated the testimony of the
witnesses Augusto, Generosa, Matilde Binanay, Teresita, Fiscal Waga,
and Evangeline. The CA sustained the authenticity of the holographic
will and allowed the probate. Hence, this petition.
Issue: Whether or not the provisions of Article 811 of the Civil Code
are permissive or mandatory
Held
The Court ruled that it is mandatory. The article provides, as a
requirement for the probate of a contested holographic will, that at
least three witnesses explicitly declare that the signature in the will is
the genuine signature of the testator. The word “shall” connotes a
mandatory order. We have ruled that “shall” in a statute commonly
denotes an imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word “shall,” when
used in a statute is mandatory.”
Laws are enacted to achieve a goal intended and to guide against an
evil or mischief that aims to prevent. In the case at bar, the goal to
achieve is to give effect to the wishes of the deceased and the evil to
be prevented is the possibility that unscrupulous individuals who for
their benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present
petition is to determine the true intent of the deceased. An exhaustive
and objective consideration of the evidence is imperative to establish
the true intent of the testator.
Fiscal Waga, one of the witnesses, expressed doubts as to the
signature of the deceased. Evangeline, on her part, testified that as to
why she was familiar with the handwriting of the deceased was
because she lived with her since birth. She never declared that she
saw the deceased write a note or sign a document. In Matilde’s
testimony, she saw pre-prepared receipts and letters of the deceased,
which she either mailed or gave to her tenants. She did not declare
that she saw the deceased sign a document or write a note.
Furthermore, in her testimony it was also evident that Ms. Binanay
kept the fact about the will from petitioners, the legally adopted
children of the deceased.
The will was also not found in the possession of the deceased when
she died. Such actions put in issue her motive of keeping the will a
secret to petitioners and revealing it only after the death of Matilde
Seño Vda. de Ramonal. Comparing the signature in the holographic
will dated August 30, 1978, and the signatures in several documents
such as the application letter for pasture permit dated December
30,1980 and a letter dated June 16, 1978 the strokes are different. In
the letters, there are continuous flows of the strokes, evidencing that
there is no hesitation in writing unlike that of the holographic will. We,
therefore, cannot be certain that the holographic will was in the
handwriting by the deceased.
Rodelas vs Aranza
Rivera vs CA
Article 814
Kalaw vs Relova
Ajero vs CA
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
PUNO, J.:
FACTS: In the will, decedent (Annie Sand) named as devisees, the
following: petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand,
Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will.
Private respondent opposed the petition on the grounds that: neither
the testament's body nor the signature therein was in decedent's
handwriting; it contained alterations and corrections which were not
duly signed by decedent; and, the will was procured by petitioners
through improper pressure and undue influence. The petition was
likewise opposed by Dr. Jose Ajero. He contested the disposition in the
will of a house and lot located in Cabadbaran, Agusan Del Norte. He
claimed that said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate.
On appeal, said Decision was reversed, and the petition for probate of
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decedent's will was dismissed. The Court of Appeals found that, "the those found in Articles 813 and 814 of the same Code — are essential
holographic will fails to meet the requirements for its validity." 4 It to the probate of a holographic will.
held that the decedent did not comply with Articles 813 and 814 of the The Court of Appeals further held that decedent Annie Sand could not
New Civil Code, which read, as follows: validly dispose of the house and lot located in Cabadbaran, Agusan del
Norte, in its entirety. This is correct and must be affirmed.
Art. 813: When a number of dispositions appearing in a holographic
will are signed without being dated, and the last disposition has a
Venura vs Ventura
signature and date, such date validates the dispositions preceding it,
whatever be the time of prior dispositions.
Guevarra vs Guevarra ( NO RELATION accdg to ADAM)
Art. 814: In case of insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature.
Article 817
It alluded to certain dispositions in the will which were either unsigned
and undated, or signed but not dated. It also found that the erasures, Miciano vs Brimo
alterations and cancellations made thereon had not been authenticated
by decedent. Testate Estate of Joseph G. Brimo, JUAN MICIANO,
administrator, petitioner-appellee, vs.ANDRE BRIMO, opponent-
Issue: Whether said will was executed in accordance with the appellant.(G.R. No. L-22595 November 1, 1927)
formalities prescribed by law. YES!
FACTS: The judicial administrator of this estate filed a scheme of
partition. Andre Brimo, one of the brothers of the deceased, opposed
HELD: The CA is wrong. it. The court, however, approved it.
In the case at bench, respondent court held that the holographic will
of Anne Sand was not executed in accordance with the formalities The errors which the oppositor-appellant assigns are:
prescribed by law. It held that Articles 813 and 814 of the New Civil xxx (5) the declaration that the Turkish laws are impertinent to this
Code, ante, were not complied with, hence, it disallowed the probate cause, and the failure not to postpone the approval of the scheme of
of said will. This is erroneous. partition and the delivery of the deceased's business to Pietro Lanza
Ruling: A reading of Article 813 of the New Civil Code shows that its until the receipt of the depositions requested in reference to the
requirement affects the validity of the dispositions contained in the Turkish laws.
holographic will, but not its probate. If the testator fails to sign and The appellant's opposition is based on the fact that the partition in
date some of the dispositions, the result is that these dispositions question puts into effect the provisions of Joseph G. Brimo's will which
cannot be effectuated. Such failure, however, does not render the are not in accordance with the laws of his Turkish nationality, for
whole testament void. which reason they are void as being in violation or article 10 of the
Likewise, a holographic will can still be admitted to probate, Civil Code which, among other things, provides the following:
notwithstanding non-compliance with the provisions of Article 814. In
the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court
held: Nevertheless, legal and testamentary successions, in respect to the
Ordinarily, when a number of erasures, corrections, and interlineations order of succession as well as to the amount of the successional rights
made by the testator in a holographic Will have not been noted under and the intrinsic validity of their provisions, shall be regulated by the
his signature, . . . the Will is not thereby invalidated as a whole, but at national law of the person whose succession is in question, whatever
most only as respects the particular words erased, corrected or may be the nature of the property or the country in which it may be
interlined. situated.
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the will itself. ISSUE: W/N the national law of the testator was violated in the
10 The lack of authentication will only result in disallowance of such testamentary dispositions.
changes.
It is also proper to note that the requirements of authentication of
RULING: But the fact is that the oppositor did not prove that said
changes and signing and dating of dispositions appear in provisions
testimentary dispositions are not in accordance with the Turkish laws,
(Articles 813 and 814) separate from that which provides for the
inasmuch as he did not present any evidence showing what the
necessary conditions for the validity of the holographic will (Article
Turkish laws are on the matter, and in the absence of evidence on
810). The distinction can be traced to Articles 678 and 688 of the
such laws, they are presumed to be the same as those of the
Spanish Civil Code, from which the present provisions covering
Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
holographic wills are taken. They read as follows:
Art. 678: A will is called holographic when the testator writes it himself It has not been proved in these proceedings what the Turkish laws
in the form and with the requisites required in Article 688. are. He, himself, acknowledges it when he desires to be given an
Art. 688: Holographic wills may be executed only by persons of full opportunity to present evidence on this point; so much so that he
age. assigns as an error of the court in not having deferred the approval of
In order that the will be valid it must be drawn on stamped paper the scheme of partition until the receipt of certain testimony requested
corresponding to the year of its execution, written in its entirety by the regarding the Turkish laws on the matter.
testator and signed by him, and must contain a statement of the year,
month and day of its execution.
There is, therefore, no evidence in the record that the national law of
If it should contain any erased, corrected, or interlined words, the
the testator Joseph G. Brimo was violated in the testamentary
testator must identify them over his signature.
dispositions in question which, not being contrary to our laws in force,
Foreigners may execute holographic wills in their own language.
must be complied with and executed. lawphil.net
This separation and distinction adds support to the interpretation that
only the requirements of Article 810 of the New Civil Code — and not
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 Wills and Succession Case Digests
Therefore, the approval of the scheme of partition in this respect was
not erroneous.
In regard to the first assignment of error which deals with the
exclusion of the herein appellant as a legatee, inasmuch as he is one
of the persons designated as such in will, it must be taken into
consideration that such exclusion is based on the last part of the
second clause of the will, which says:
Second. I like desire to state that although by law, I am a Turkish
citizen, this citizenship having been conferred upon me by conquest
and not by free choice, nor by nationality and, on the other hand,
having resided for a considerable length of time in the Philippine
Islands where I succeeded in acquiring all of the property that I now
possess, it is my wish that the distribution of my property and
everything in connection with this, my will, be made and disposed of in
accordance with the laws in force in the Philippine islands, requesting
all of my relatives to respect this wish, otherwise, I annul and cancel
beforehand whatever disposition found in this will favorable to the
person or persons who fail to comply with this request.
The institution of legatees in this will is conditional, and the condition
is that the instituted legatees must respect the testator's will to
distribute his property, not in accordance with the laws of his
nationality, but in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee
who fails to comply with it, as the herein oppositor who, by his attitude
in these proceedings has not respected the will of the testator, as
expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to
law, for article 792 of the civil Code provides the following:
Impossible conditions and those contrary to law or good morals shall
be considered as not imposed and shall not prejudice the heir or
legatee in any manner whatsoever, even should the testator otherwise
provide.
And said condition is contrary to law because it expressly ignores the
testator's national law when, according to article 10 of the civil Code
above quoted, such national law of the testator is the one to govern
his testamentary dispositions.
It results from all this that the second clause of the will regarding the
law which shall govern it, and to the condition imposed upon the
legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and
requests are perfectly valid and effective it not appearing that said
clauses are contrary to the testator's national law.
Testate Estate of Suntay
Article 818
Dela Cerna vs Potot
PAULA DE LA CERNA, ET AL., petitioners, vs. MANUELA REBACA
POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
FACTS:
On May 9, 1939, Sps. Bernabe and Gervasia de la Serna executed a
joint last will and testament in favor of their niece, Manuela Rebaca.
On Aug. 30, 1989, Bernabe died and the aforesaid will was submitted
for probate before the CFI of Cebu. By error of the Judge, the will was
admitted to probate although that admission to probate was
erroneous.
On Oct. 14, 1952, Gervasia died. Another petition for probate of the
same will was filed on Nov. 6, 1952 before the CFI of Cebu. CFI
declared the testament null and void for being executed contrary to
the prohibition of joint wills in the Civil Code. CA, however, reversed
the decision of the CFI on the ground that the decree of probate in
1939 was issued by a court of probate jurisdiction and is conclusive on
the due execution of the testament despite the fact that the Civil Code
already decreed the invalidity of joint wills.
ISSUE: WON the two wills may be probated jointly. NO!
HELD:
The Court of Appeals should have taken into account that the probate
decree in 1939 could only affect the share of the deceased husband. It
could not include the disposition of the share of the wife who was then
still alive, and over whose interest in the conjugal properties the
probate court could acquire no jurisdiction, precisely because her
estate could not then be in issue. Be it remembered that prior to the
new Civil Code, a will could not be probated during the testator’s
lifetime.
It follows that the validity of the joint will, in so far as the estate of the
wife was concerned, must be, on her death, reexamined and
adjudicated de novo, since a joint will is considered a separate will of
each testator. Therefore, the undivided interest of Gervasia should
pass upon her death to her heirs intestate, and not exclusively to the
testamentary heir, unless some other valid will in her favor is shown to
exist, or unless she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be
in common usage could not make them valid when our Civil Codes
consistently invalidated them, because laws are only repealed by other
subsequent laws, and no usage to the contrary may prevail against
their observance.
Article 821
Cruz vs Villasor
Facts:
Of the three instrumental witnesses, one of them, Atty Teves, Jr., is at
the same time the Notary Public before whom the will was supposed to
have been acknowledged. As the third witness is the notary public
himself, petitioner argues that the result is that only two witnesses
appeared before the notary public to acknowledge the will. On the
other hand, Lugay, who is the supposed executor of the will maintains
that there is substantial compliance with the legal requirement of
having at least three attesting witnesses even if the notary public
acted as one of them, bolstering up his stand with American
Jurisprudence.
Issue:
Whether the supposed last will and testament was executed in
accordance with law requiring at least three credible witnesses to
attest and subscribe to the will, and requiring the testator and the
witnesses to acknowledge the will before a notary public. NO
Ruling:
The last will and testament in question was not executed in
accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness
since he cannot acknowledge before himself his having signed the will.
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If the third witness were the notary public himself, he would have to
avow assent, or admit his having signed the will in front of himself.
This cannot be done because he cannot split his personality into two
so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to
obtain would be sanctioning a sheer absurdity.
The function of a notary public to guard against any illegal or immoral
arrangement would be defeated if the notary public were one of the
attesting instrumental witnesses for them he would be interested
sustaining the validity of the will as it directly involves him and the
validity of his own act. It would place him in inconsistent.
Although there are American precedents holding that notary public
may act as a witness to the execution of the document he has
notarized but the notaries public and witnesses referred to the cases
merely acted as instrumental, subscribing attesting witnesses, and not
as acknowledging witnesses.
The result would be that only two witnesses appeared before the
notary public for or that purpose. The law then would not be duly in
observed.
Article 824
Caluya vs Domingo
DOMINGO CALUYA, petitioner-appellant, vs. LUCINA DOMINGO,
respondent-appellee.
March 27, 1914 G.R. No. L-7647
Facts: This is an appealed case. (Believe me, mao ra jud ni facts.
Huhu)
The learned court below based its judgment upon three grounds. The
first one was that, although the testator had signed by mark, it
nowhere appeared in the will who had written the signature or that it
had been written at his request. The second, that the witness Antonino
Pandaraoan could not really have signed the attestation clause
because, at the time it was executed, he was attending a session of
the municipal council of Piddig as a member thereof. Third: That as to
the other witness, Segundino Asis, the will mentioned and confirmed a
sale of land to him by the testator, and he being thereby an interested
party his testimony could not be believed.
Issue: Whether the will having mentioned and confirmed a sale of
land to Segundino Asis, one of the witnesses to the will, while not
rendering the will entirely invalid, throws great doubt upon the legality
of its execution and especially the testimony of said witness relating
thereto.
Held: No. The fact that the testator in his will mentioned a sale of real
estate, fully consummated before his death, which he had made to
one of the witnesses to his will, does not make such person an
incompetent witness; nor does the fact that he signed the will as one
of the attesting witnesses render the will invalid under section 622 of
the Code of Civil Procedure.
"If a person attests the execution of a will, to whom or to whose wife
or husband, or parent, or child, a beneficial devise, legacy, or interest,
of or affecting real or personal estate, is given by such will, such
devise, legacy, or interest shall, so far only as concerns such person,
or the wife or husband, or parent or child of such person, or anyone
claiming under such person or such wife or husband, or parent or
child, be void, unless there are three other competent witnesses to
such will, and such person so attesting shall be admitted as a witness
as if such devise, legacy, or interest had not been made or given. But
a mere charge on the real or personal estate of the testator, for the
payment of debts, shall not prevent his creditors from being
competent witnesses to his will."
As will readily be seen on reading this section, nothing in the will
before us relative to the sale of land to Segundino Asis creates such an
interest therein as falls within the provisions thereof. Indeed, no
interest of any kind was created by the will in favor of Segundino Asis,
nor did it convey or transfer any interest to him. It simply mentioned a
fact already consummated, a sale already made. Even if, however, the
will had conveyed an interest Segundino Asis, it would not have been
for that reason void. Only that clause of the will conveying and interest
to him would have been void; the remainder could have stood and
would have stood as a valid testament.
We are confident from a thorough examination of the record that a fair
preponderance of the evidence is in favor of the proponents, and there
being no legal impediment to the probate the court erred in refusing it.
MIDTERM
Article 828
Testate Estate of Adriana Maloto vs CA
FACTS:
 In 1963, Adriana Maloto died leaving behind her niece and nephews as
heirs.
 Believing that the deceased left no will, an intestate proceeding to
settle their aunt’s estate was commenced.
 While the case was in progress, the parties executed an agreement of
extrajudicial settlement of the estate into 4 parts
 However, in 1967, Atty. Sulpicio Palma discovered a document
purporting to be the last will and testament of the deceased.
 The division of the inheritance in the will was different from the
extrajudicial settlement. There were also legatees and devisees named
in the will.
 The will was allegedly burned by Guadalupe, the househelp of the
deceased, per her instructions, which may draw the conclusion that
the deceased effectively revoked such will before her death.
ISSUE:
 WON the will was validly revoked by the testator before his
death? – NO.
HELD:
 No. There was no valid revocation of he will before the death of the
testator.
 The physical act of destruction of a will, like burning in this case, does
not per se constitute an effective revocation, unless the destruction is
coupled with animus revocandi on the part of the testator.
 It is not imperative that the physical destruction be done by the
testator himself. It may be performed by another person but under
the express direction and in the presence of the testator. Of course, it
goes without saying that the document destroyed must be the will
itself.
 In this case, while animus revocandi or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would
not suffice.
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 Wills and Succession Case Digests
 In Art. 1830, Animus revocandi is only one of the necessary elements
for the effective revocation of a last will and testament. The intention
to revoke must be accompanied by the overt physical act of burning,
tearing, obliterating, or cancelling the will carried out by the testator or
by another person in his presence and under his express direction.
 There is insufficient evidence to show compliance with these
requirements.
1. The document or papers burned by Adriana's maid,
Guadalupe, was not satisfactorily established to be a will at
all, much less the will of Adriana Maloto.
2. The burning was not proven to have been done under the
express direction of Adriana. And then, the burning was not
in her presence. Both witnesses, Guadalupe and Eladio, were
one in stating that they were the only ones present at the
place where the stove (presumably in the kitchen) was
located in which the papers proffered as a will were burned.
Article 832
Molo vs Molo
FACTS:
Mariano Molo y Legaspi died on January 24, 1941, in the Pasay, Rizal,
without leaving any forced heir. He was survived, however, by his
wife, petitioner Juana Juan Vda. de Molo, and by his nieces and
nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all
surnamed Molo, who were the legitimate children of Candido Molo y
Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left
two wills, one executed on August 17, 1918 (first will), and another
executed on June 20, 1939 (second will).
On February 7, 1941, Juana Juan Vda de Molo filed a petition seeking
the probate of the second will. There being no opposition, the will was
probated. However, upon petition filed by the herein oppositors, the
order of the court admitting the will to probate was set aside and the
case was reopened. Court rendered decision denying the probate of
said will on the ground that the petitioner failed to prove that the same
was executed in accordance with law.
The widow filed another petition for the probate of the first will. Again,
the same oppositors filed an opposition to the petition based on three
grounds: (3) that the will has been subsequently revoked.
Oppositors contend that the revocatory clause contained in 1939 will of
the deceased, notwithstanding the disallowance of said will, is valid
and still has the effect of nullifying the prior of 1918.
Court issued an order admitting the will to probate.
ISSUE: WON the probate court erred in not holding that the alleged
will of 1918 was deliberately revoked by Molo himself
HELD:
There is no evidence which may directly indicate that the testator
deliberately destroyed the original of the 1918 will because of his
knowledge of the revocatory clause contained in the will he executed
in 1939. The only evidence we have is that when the first will was
executed in 1918, Juan Salcedo, who prepared it, gave the original and
copies to the testator himself and apparently they remained in his
possession until he executed his second will in 1939. And when the
1939 will was denied probate on November 29, 1943, and petitioner
was asked by her attorney to look for another will, she found the
duplicate copy (Exhibit A) among the papers or files of the testator.
She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918
will because of his knowledge of the revocatory clause of the 1939 will,
and it is true that he gave a duplicate copy thereof to his wife, the
herein petitioner, the most logical step for the testator to take is to
recall said duplicate copy in order that it may likewise be destroyed.
But this was not done as shown by the fact that said duplicate copy
remained in the possession of petitioner. It is possible that because of
the long lapse of twenty-one (21) years since the first will was
executed, the original of the will had been misplaced or lost, and
forgetting that there was a copy, the testator deemed it wise to
execute another will containing exactly the same testamentary
dispositions. Whatever may be the conclusion we may draw from this
chain of circumstances, the stubborn fact is that there is no direct
evidence of voluntary or deliberate destruction of the first will by the
testator. This matter cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily
destroyed by the testator after the execution of the second will, which
revoked the first, could there be any doubt, under this theory, that
said earlier will was destroyed by the testator in the honest belief that
it was no longer necessary because he had expressly revoked it in his
will of 1939? In other words, can we not say that the destruction of
the earlier will was but the necessary consequence of the testator's
belief that the revocatory clause contained in the subsequent will was
valid and the latter would be given effect? If such is the case, then it is
our opinion that the earlier will can still be admitted to probate under
the principle of "dependent relative revocation".
This is the doctrine of dependent relative revocation. The failure of a
new testamentary disposition upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a suspensive
conditions, and hence prevents the revocation of the original will. But a
mere intent to make at some time a will in the place of that destroyed
will not render the destruction conditional. It must appear that the
revocation is dependent upon the valid execution of a new will. (1
Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of
the original will by the testator could be presumed from the failure of
the petitioner to produce it in court, such destruction cannot have the
effect of defeating the prior will of 1918 because of the fact that it is
founded on the mistaken belief that the will of 1939 has been validly
executed and would be given due effect. The theory on which this
principle is predicated is that the testator did not intend to die
intestate. And this intention is clearly manifest when he executed two
wills on two different occasion and instituted his wife as his universal
heir. There can therefore be no mistake as to his intention of dying
testate.
Naval vs Naval
Article 838
Spouses Pascual vs CA
SPOUSES RICARDO PASCUAL and CONSOLACION
SIOSON, petitioners, vs. COURT OF APPEALS and REMEDIOS
S. EUGENIO-GINO, respondents.
FACTS: Petitioner Consolacion and respondent Remedios are the niece
and granddaughter, respectively, of the late Canuto Sioson. CANUTO
and 11 other individuals, including his sister Catalina Sioson and his
brother Victoriano Sioson were co-owners of a parcel of land in Tanza,
Navotas, Metro Manila. CATALINA, CANUTO, and VICTORIANO each
owned an aliquot 10/70 share or 1,335 square meters of Lot 2.
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 Wills and Succession Case Digests
CANUTO had Lot 2 surveyed and subdivided into eight lots through
Subdivision Plan Psd 34713 which the Director of Lands approved Lot
No. 2-A, were placed under CANUTO’s name. Three other individuals
took the remaining lots
CANUTO and CONSOLACION executed a Kasulatan ng Bilihang
Tuluyan. Under the KASULATAN, CANUTO sold his 10/70 share in Lot 2
in favor of CONSOLACION for P2,250.00. CONSOLACION immediately
took possession of the lots and declared the land for taxation purposes
and paid the corresponding real estate taxes.
On 23 October 1968, the surviving children of CANUTO, namely,
Felicidad and Beatriz, executed a joint affidavit affirming the
KASULATAN in favor of CONSOLACION. They also attested that the
lots their father had sold to CONSOLACION.
On 28 October 1968, CONSOLACION registered the KASULATAN
and the JOINT AFFIDAVIT with the Office of the Register of Deeds of
Rizal. Based on these documents, the Register of Deeds issued to
CONSOLACION Transfer Certificate of Title of the lots.
On 4 February 1988, REMEDIOS filed a complaint against
CONSOLACION and her spouse Ricardo Pascual in the Regional Trial
Court of Malabon, Branch 165, for “Annulment or Cancellation of
Transfer Certificate [of Title] and Damages.” REMEDIOS claimed that
she is the owner of Lot Nos. 2-A and 2-E because CATALINA devised
these lots to her in CATALINA’s last will and testament ]dated 29 May
1964. REMEDIOS added that CONSOLACION obtained title to these
lots through fraudulent means since the area covered by TCT (232252)
1321 is twice the size of CANUTO’s share in Lot 2. REMEDIOS prayed
for the cancellation of CONSOLACION’s title, the issuance of another
title in her name, and the payment to her of damages.
Petitioners sought to dismiss the complaint on the ground of
prescription.
Issue:
WON prescription bars the action filed by REMEDIOS? YES
WON Remedios has a right of action against Petitioners? NO
Held:
What REMEDIOS filed was an action to enforce an implied trust but
the same is already barred by prescription. TC actually based the
prescriptive period in actions for fraud.
 Prescriptive Period is 10 Years Counted From
Registration of Adverse Title
The four-year prescriptive period relied upon by the trial court
applies only if the fraud does not give rise to an implied trust, and the
action is to annul a voidable contract under Article 1390 of the Civil
Code. In such a case, the prescriptive period]begins to run from the
time of discovery of the mistake, violence, intimidation, undue
influence or fraud.
In the present case, REMEDIOS does not seek to annul the
KASULATAN. REMEDIOS does not assail the KASULATAN as a voidable
contract. In fact, REMEDIOS admits the validity of the sale of 1,335
square meters of land under the KASULATAN.
REMEDIOS’ action is based on an implied trust under Article
1456 since she claims that the inclusion of the additional 1,335 square
meters in TCT No. (232252) 1321 was without basis. In effect,
REMEDIOS asserts that CONSOLACION acquired the additional 1,335
square meters through mistake or fraud and thus CONSOLACION
should be considered a trustee of an implied trust for the benefit of the
rightful owner of the property. Clearly, the applicable prescriptive
period is ten years under Article 1144 and not four years under Articles
1389 and 1391.
This ten-year prescriptive period begins to run from the date the
adverse party repudiates the implied trust, which repudiation takes
place when the adverse party registers the land
REMEDIOS filed her complaint on 4 February 1988 or more than
19 years after CONSOLACION registered her title over Lot Nos. 2-A
and 2-E on 28 October 1968. Unquestionably, REMEDIOS filed the
complaint late thus warranting its dismissal.
 Respondent is Not a Real Party-in-Interest
Not only does prescription bar REMEDIOS’
complaint. REMEDIOS is also not a real party-in-interest who can file
the complaint, as the trial court correctly ruled.
REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or
over its one-half portion) on the devise of these lots to her under
CATALINA’s LAST WILL. However, the trial court found that the
probate court did not issue any order admitting the LAST WILL to
probate. REMEDIOS does not contest this finding. Indeed, during the
trial, REMEDIOS admitted that Special Proceedings Case No. C-208 is
still pending.
Article 838 of the Civil Code states that “[N]o will shall pass
either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.” This Court has interpreted this
provision to mean, “until admitted to probate, [a will] has no effect
whatever and no right can be claimed thereunder.”] REMEDIOS
anchors her right in filing this suit on her being a devisee of
CATALINA’s LAST WILL. However, since the probate court has not
admitted CATALINA’s LAST WILL, REMEDIOS has not acquired any
right under the LAST WILL. REMEDIOS is thus without any cause of
action either to seek reconveyance of Lot Nos. 2-A and 2-E or to
enforce an implied trust over these lots.
Maninang Vs CA
Facts:
On May 21, 1977, Clemencia Aseneta, single, died at the Manila
Sanitarium Hospital at age 81. She left a holographic will, the pertinent
portions of which are quoted hereunder:
xxx xxx xxx
It is my will that all my real properties located in Manila, Makati,
Quezon City, Albay and Legaspi City and all my personal properties
shagllbe inherited upon my death by Dra. Soledad L. Maninang with
whose family I have lived continuously for around the last 30 years
now. Dra. Maninang and her husband Pamping have been kind to me.
... I have found peace and happiness with them even during the time
when my sisters were still alive and especially now when I am now
being troubled by my nephew Bernardo and niece Salvacion. I am not
incompetent as Nonoy would like me to appear. I know what is right
and wrong. I can decide for myself. I do not consider Nonoy as my
adopted son. He has made me do things against my will.
xxx xxx xxx
On June 9, 1977, petitioner Soledad Maninang filed a Petition for
146
 Wills and Succession Case Digests
probate of the Will of the decedent with the Court of First Instance- the controversy" was the intrinsic validity of the Will; in fact, the
Branch IV, Quezon City. parties in that case "shunted aside the question of whether or not the
On July 25, 1977, herein respondent Bernardo Aseneta, who, as the Will should be allowed probate." Not so in the case before us now
adopted son, claims to be the sole heir of decedent Clemencia where the probate of the Will is insisted on by petitioners and a
Aseneta, instituted intestate proceedings with the Court of First resolution on the extrinsic validity of the Will demanded.
Instance-Branch XI, Pasig, Rizal.
On December 23, 1977, the Testate and Intestate Cases were ordered
consolidated before Branch XI, presided by respondent Judge. Moreover, in the Nuguid case, this Court ruled that the Will was
Respondent Bernardo then filed a Motion to Dismiss the Testate Case intrinsically invalid as it completely preterited the parents of the
on the ground that the holographic will was null and void because he, testator. In the instant case, a crucial issue that calls for resolution is
as the only compulsory heir, was preterited and, therefore, intestacy whether under the terms of the decedent's Will, private respondent
should ensue. had been preterited or disinherited, and if the latter, whether it was a
In her Opposition to said Motion to Dismiss, petitioner Soledad averred valid disinheritance. Preterition and disinheritance are two diverse
that it is still the rule that in a case for probate of a Will, the Court's concepts.
area of inquiry is limited to an examination of and resolution on the ... Preterition "consists in the omission in the testator's will of the
extrinsic validity of the will; and that respondent Bernardo was forced heirs or anyone of them, either because they are not mentioned
effectively disinherited by the decedent. therein, or, though mentioned, they are neither instituted as heirs nor
are expressly disinherited." (Neri vs. Akutin, 72 Phil. 325).
Disinheritance, in turn, "is a testamentary disposition depriving any
Issue: WON the will should be probated. compulsory heirs of his share in the legitimate for a cause authorized
by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine
Civil Law", 1956 ed., Vol. III, p. 8, citing cases) Disinheritance is
Held: always "voluntary", preterition upon the other hand, is presumed to be
Yes. Generally, the probate of a Will is mandatory. "involuntary" (Sanchez Roman, Estudios de Derecho Civil 2nd edition,
No will shall pass either real or personal property unless it is proved Volume 2.o p. 1131).
and allowed in accordance with the Rules of Court. The effects of preterition and disinheritance are also totally different.
The law enjoins the probate of the Will and public policy requires it, ... The effects flowing from preterition are totally different from those
because unless the Will is probated and notice thereof given to the of disinheritance. Pretention under Article 854 of the New Civil Code
whole world, the right of a person to dispose of his property by Will shall annul the institution of heir. This annulment is in toto, unless in
may be rendered nugatory. the wail there are, in addition, testamentary dispositions in the form of
Normally, the probate of a Will does not look into its intrinsic validity. devises or legacies. In ineffective disinheritance under Article 918 of
... The authentication of a will decides no other question than such as the same Code, such disinheritance shall also "annul the institution of
touch upon the capacity of the testator and the compliance with those heirs", but only "insofar as it may prejudice the person disinherited",
requisites or solemnities which the law prescribes for the validity of which last phrase was omitted in the case of preterition (III Tolentino,
wills. It does not determine nor even by implication prejudge the Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet,
validity or efficiency (sic) of the provisions, these may be impugned as in disinheritance the nullity is limited to that portion of the estate of
being vicious or null, notwithstanding its authentication. The which the disinherited heirs have been illegally deprived.
que0stions relating to these points remain entirely unaffected, and
may be raised even after the will has been authenticated ....
By virtue of the dismissal of the Testate Case, the determination of
that controversial issue has not been thoroughly considered. We
Opposition to the intrinsic validity or legality of the provisions of the gather from the assailed Order of the trial Court that its conclusion was
will cannot be entertained in Probate proceeding because its only that respondent Bernardo has been preterited We are of opinion,
purpose is merely to determine if the will has been executed in however, that from the face of the Will, that conclusion is not
accordance with the requirements of the law. indubitable.
Respondent Bernardo, however, relies on the pronouncement in
Nuguid vs. Nuguid, reading:
In a proceeding for the probate of a will, the Court's area of inquiry is As held in the case of Vda. de Precilla vs. Narciso
limited to an examination of, and resolution on, the extrinsic validity of
the will, the due execution thereof, the testatrix's testamentary
capacity and the compliance with the requisites or solemnities ... it is as important a matter of public interest that a purported will is
prescribed by law. The intrinsic validity of the will normally comes only not denied legalization on dubious grounds. Otherwise, the very
after the court has declared that the will has been duly authenticated. institution of testamentary succession will be shaken to its foundation,
However, where practical considerations demand that the intrinsic ...
validity of the will be passed upon, even before it is probated, the
Court should meet that issue. (Emphasis supplied) Atilano Mercado vs Santos

Our ruling in Balanay vs. Hon. Martinez had a similar thrust:

The trial court acted correctly in passing upon the will's intrinsic 9th Set
validity even before its formal validity had been established. The
probate of a will might become an Idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand
that the intrinsic validity of the will be passed upon, even before it is CONT. ART 838
probated, the court should meet the issue.
The Nuguid and the Balanay cases provide the exception rather than EN BANC
the rule. The intrinsic validity of the Wills in those cases was passed [G.R. No. 12767. November 16, 1918.]
upon even before probate because "practical considerations" so In the matter of the estate of EMIL H. JOHNSON. EBBA
demanded. Moreover, for the parties in the Nuguid case, the "meat of INGEBORG JOHNSON, applicant-appellant.
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 Wills and Succession Case Digests
On February 4, 1916, Emil H. Johnson, a native of Sweden and a
naturalized citizen of the United States, died in the city of Manila,
leaving a holographic will, dated September 9, 1915, by which he
disposed of an estate, the value of which, as estimated by him, was
P231,800.
It was written in the testator's own handwriting, and is signed by
himself and two witnesses only, instead of three witnesses
This will, therefore, was not executed in conformity with the provisions
of law generally applicable to wills executed by inhabitants of these
Islands, and hence could not have been proved under Section 618.
On February 9, 1916, however, a petition was presented in the Court
of First Instance of the city of Manila for the probate of this will, on the
ground that Johnson was at the time of his death a citizen of the State
of Illinois, United States of America; that the will was duly executed in
accordance with the laws of that State; and hence could properly be
probated here pursuant to Section 636 of the Code of Civil Procedure.
On June 12, 1916, or about three months after the will had been
probated, the attorneys for Ebba Ingeborg Johnson entered an
appearance in her behalf and noted an exception to the order
admitting the will to probate.
The purpose of the proceeding on behalf of the petitioner is to annul
the decree of probate and put the estate into intestate administration,
thus preparing the way for the establishment of the claim of the
petitioner as the sole legitimate heir of her father.
WON the decree of probate may be annulled.
Held: No.
we are of the opinion that the proceedings for the probate of the will
were regular and that the publication was sufficient to give the court
jurisdiction to entertain the proceeding and to allow the will to be
probated.
As the Court of First Instance found that the testator was a citizen of
the State of Illinois and that the will was executed in conformity with
the laws of that State, the will was necessarily and properly admitted
to probate.
In Section 625 of the Code of Civil Procedure it is declared that "the
allowance by the court of a will of real or personal property shall be
conclusive as to its due execution."
The due execution of a will involves conditions relating to a number of
matters, such as the age and mental capacity of the testator, the
signing of the document by the testator, or by someone in his behalf,
and the acknowledgment of the instrument by him in the presence of
the required number of witnesses who affix their signatures to the will
to attest the act.
The proof of all these requisites is involved in the probate; and as to
each and all of them the probate is conclusive. (Castaneda vs.
Alemany, 3 Phil. Rep., 426; Pimentel vs. Palanca, 5 Phil. Rep., 436;
Chiong Joc-Soy vs. Vano, 8 Phil. Rep., 119; Sanchez vs. Pascual, 11
Phil. Rep., 395; Montanano vs. Suesa, 14 Phil. Rep., 676.)
Our reported cases do not contain the slightest intimation that a will
which has been probated according to law, and without fraud, can be
annulled, in any other proceeding whatever, on account of any
supposed irregularity or defect in the execution of the will or on
account of any error in the action of the court upon the proof adduced
before it. This court has never been called upon to decide whether, in
case the probate of a will should be procured by fraud, relief could be
granted in some other proceeding; and no such question is now
presented. But it is readily seen that if fraud were alleged, this would
introduce an entirely different factor in the case. In Austria vs.
Ventenilla (21 Phil. Rep., 180, 184), it was suggested but not decided
that relief might be granted in case the probate of a will were procured
by fraud.
The circumstance that the judgment of the trial court recites that the
will was executed in conformity with the law of Illinois and also, in
effect, that the testator was a citizen of that State places the judgment
upon an unassailable basis so far as any supposed error apparent upon
the face of the judgment is concerned. It is, however, probable that
even if the judgment had not contained these recitals, there would
have been a presumption from the admission of the will to probate as
the will of a citizen of Illinois that the facts were as recited in the order
of probate.
Leviste v CA
G.R. No. L-29184 January 30, 1989
FACTS: On September 7, 1963, the petitioner, a practicing attorney,
entered into a written agreement with the private respondent Rosa del
Rosario to appear as her counsel in a petition for probate of the
holographic will of the late Maxima C. Reselva. Under the will, a piece
of real property at Sales Street, Quiapo, Manila, was bequeathed to
Del Rosario. It was agreed that petitioner's contingent fee would be
thirty-five per cent (35%) of the property that Rosa may receive upon
the probate of the will. In accordance with their agreement, Leviste
performed several services as del Rosario's counsel.
On August 20, 1965, Leviste received a letter from Ms. Del Rosario,
informing him that she was terminating his services as her counsel due
to "conflicting interest." This consisted, according to the letter, in
petitioner's moral obligation to protect the interest of his brother-in-
law, Gaudencio M. Llanes, whom Del Rosario and the other parties in
the probate proceeding intended to eject as lessee of the property
which was bequeathed to Del Rosario under the will.
On September 20, 1965, petitioner filed a "Motion to Intervene to
Protect His Rights to Fees for Professional Services." This was denied
by the court.
On August 28, 1967, the court disallowed the will, holding that the
legal requirements for its validity were not satisfied as only two
witnesses testified that the will and the testatrix's signature were in
the handwriting of Maxima Reselva. On August 28, 1967, the court
disallowed the will, holding that the legal requirements for its validity
were not satisfied as only two witnesses testified that the will and the
testatrix's signature were in the handwriting of Maxima Reselva.
ISSUE: WON petitioner may intervene NO
HELD:
Petitioner was not a party to the probate proceeding in the lower
court. He had no direct interest in the probate of the will. His only
interest in the estate is an indirect interest as former counsel for a
prospective heir.
In Paras vs. Narciso, 35 Phil. 244, We had occassion to rule that one
who is only indirectly interested in a will may not interfere in its
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 Wills and Succession Case Digests
probate. Thus: “the reason for the rule excluding strangers from
contesting the will, is not that thereby the court maybe prevented from
learning facts which would justify or necessitate a denial of probate,
but rather that the courts and the litigants should not be molested by
the intervention in the proceedings of persons with no interest in the
estate which would entitle them to be heard with relation thereto.”
As to petitioner’s argument that by virtue of his contract of services
with Del Rosario, he is a creditor of the latter, and that under Article
1052 of the Civil Code which provides:
ART. 1052. If the heir repudiates the inheritance to the prejudice of his
own creditors, the latter may petition the court to authorize them to
accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent sufficient
to cover the amount of their credits. The excess, should there be any,
shall in no case pertain to the renouncer, but shall be adjudicated to
the persons to whom, in accordance with the rules established in this
Code, it may belong.
he has a right to accept for his client Del Rosario to the extent of 35%
thereof the devise in her favor (which she in effect repudiated) to
protect his contigent attorney's fees.
The argument is devoid of merit. Article 1052 of the Civil Code does
not apply to this case. That legal provision protects the creditor of a
repudiating heir. Petitioner is not a creditor of Rosa del Rosario. The
payment of his fees is contingent and dependent upon the successful
probate of the holographic will. Since the petition for probate was
dismissed by the lower court, the contingency did not occur. Attorney
Leviste is not entitled to his fee.
G.R. No. 108581 December 8, 1999
LOURDES L. DOROTHEO v.COURT OF APPEALS, NILDA D.
QUINTANA, for Herself and as Attorney-in-Fact of VICENTE
DOROTHEO and JOSE DOROTHEO
FACTS: Private respondents were the legitimate children of
Alejandro Dorotheo and Aniceta Reyes. The latter died without her
estate being settled. Alejandro died thereafter. After Alejandro's death,
petitioner, who claims to have taken care of Alejandro before he died,
filed a special proceeding for the probate of the latter's last will and
testament. The court issued an order admitting Alejandro's will to
probate. Private respondents did not appeal from said order, instead,
they filed a "Motion To Declare The Will Intrinsically Void." An order
was issued byt the trial court declaring Lourdes Legaspi not the wife of
the late Alejandro Dorotheo and the provisions of the last will and
testament of Alejandro Dorotheo as intrinsically void. Such order
became final and executory.
ISSUE: May a last will and testament admitted to probate but declared
intrinsically void in an order that has become final and executory still
be given effect? NO.
A final and executory decision or order can no longer be disturbed or
reopened no matter how erroneous it may be. It has been consistently
held that if no appeal is taken in due time from a judgment or order of
the trial court, the same attains finality by mere lapse of time. Thus,
the order allowing the will became final and the question determined
by the court in such order can no longer be raised anew, either in the
same proceedings or in a different motion. The matters of due
execution of the will and the capacity of the testator acquired the
character of res judicata and cannot again be brought into question, all
juridical questions in connection therewith being for once and forever
closed. 5 Such final order makes the will conclusive against the whole
world as to its extrinsic validity and due execution.
The intrinsic validity is another matter and questions regarding the
same may still be raised even after the will has been authenticated. 12
Thus, it does not necessarily follow that an extrinsically valid last will
and testament is always intrinsically valid. Even if the will was validly
executed, if the testator provides for dispositions that deprives or
impairs the lawful heirs of their legitime or rightful inheritance
according to the laws on succession, 13 the unlawful
provisions/dispositions thereof cannot be given effect. This is specially
so when the courts had already determined in a final and executory
decision that the will is intrinsically void. Such determination having
attained that character of finality is binding on this Court which will no
longer be disturbed. Not that this Court finds the will to be intrinsically
valid, but that a final and executory decision of which the party had
the opportunity to challenge before the higher tribunals must stand
and should no longer be reevaluated. Failure to avail of the remedies
provided by law constitutes waiver. And if the party does not avail of
other remedies despite its belief that it was aggrieved by a decision or
court action, then it is deemed to have fully agreed and is satisfied
with the decision or order. As early as 1918, it has been declared that
public policy and sound practice demand that, at the risk of occasional
errors, judgments of courts must at some point of time fixed by law 14
become final otherwise there will be no end to litigation. Interes rei
publicae ut finis sit litium — the very object of which the courts were
constituted was to put an end to controversies. 15 To fulfill this
purpose and to do so speedily, certain time limits, more or less
arbitrary, have to be set up to spur on the slothful. 16 The only
instance where a party interested in a probate proceeding may have a
final liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or inadvertence
not imputable to negligence, 17 which circumstances do not concur
herein.
Maloles v Philips
[G.R. No. 129505. January 31, 2000]
[G.R. No. 133359. January 31, 2000]
FACTS: Dr. Arturo de Santos filed a petition for the probate of his will
wherein he alleged that he had no compulsory heirs. He also named,
as sole legatee and devisee ,Arturo de Los Santos Foundation Inc. This
was granted and the will was allowed.
Shortly after the probate of his will, Dr. Arturo de Santos died.
Petitioner Octavio S. Maloles II filed a motion for intervention claiming
that, as the only child of Alicia de Santos (testator’s sister) and Octavio
L. Maloles, Sr., he was the sole full-blooded nephew and nearest of kin
of Dr. De Santos. He likewise alleged that he was a creditor of the
testator. Petitioner thus prayed for the reconsideration of the order
allowing the will and the issuance of letters of administration in his
name.
ISSUE: WON Petitioner may intervene? NO
HELD: Petitioner claims the right to intervene in and oppose the
petition for issuance of letters testamentary filed by private
respondent. He argues that, as the nearest next of kin and creditor of
the testator, his interest in the matter is material and direct. In ruling
that petitioner has no right to intervene in the proceedings before
Branch 65 of RTC-Makati City, the Court of Appeals held:
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 Wills and Succession Case Digests
The private respondent herein is not an heir or legatee under the will
of the decedent Arturo de Santos. Neither is he a compulsory heir of
the latter. As the only and nearest collateral relative of the decedent,
he can inherit from the latter only in case of intestacy. Since the
decedent has left a will which has already been probated and disposes
of all his properties the private respondent can inherit only if the said
will is annulled. His interest in the decedent’s estate is, therefore, not
direct or immediate. Maniksâ
His claim to being a creditor of the estate is a belated one, having
been raised for the first time only in his reply to the opposition to his
motion to intervene, and, as far as the records show, not supported by
evidence.
. . . . [T]he opposition must come from one with a direct interest in the
estate or the will, and the private respondent has none. Moreover, the
ground cited in the private respondent’s opposition, that the petitioner
has deliberately misdeclared the truth worth and value of the estate, is
not relevant to the question of her competency to act as executor.
Section 2, Rule 76 of the Rules of Court requires only an allegation of
the probable value and character of the property of the estate. The
true value can be determined later on in the course of the settlement
of the estate.
Rule 79, §1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition
for administration. - Any person interested in a will may state in writing
the grounds why letters testamentary should not issue to the persons
named therein as executors, or any of them, and the court, after
hearing upon notice, shall pass upon the sufficiency of such grounds. A
petition may, at the same time, be filed for letters of administration
with the will annexed.
Under this provision, it has been held that an "interested person" is
one who would be benefited by the estate, such as an heir, or one
who has a claim against the estate, such as a creditor, and whose
interest is material and direct, not merely incidental or contingent.
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot
be considered an "heir" of the testator. It is a fundamental rule of
testamentary succession that one who has no compulsory or forced
heirs may dispose of his entire estate by will. Thus, Art. 842 of the
Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate
or any part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he
does not contravene the provisions of this Code with regard to the
legitimate of said heirs.
Compulsory heirs are limited to the testator’s -
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal
fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil
Code.
Petitioner, as nephew of the testator, is not a compulsory heir who
may have been preterited in the testator’s will.
Nor does he have any right to intervene in the settlement proceedings
based on his allegation that he is a creditor of the deceased. Since the
testator instituted or named an executor in his will, it is incumbent
upon the Court to respect the desires of the testator. As we stated in
Ozaeta v. Pecson:
The choice of his executor is a precious prerogative of a testator, a
necessary concomitant of his right to dispose of his property in the
manner he wishes. It is natural that the testator should desire to
appoint one of his confidence, one who can be trusted to carry out his
wishes in the disposal of his estate. The curtailment of this right may
be considered a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or
fails to give bond may the court appoint other persons to administer
the estate. None of these circumstances is present in this case.
GR No. L-23445, June 23, 1966
REMEDIOS NUGUID, petitioner and appellant, vs. FELIX
NUGUID and PAZ SALONGA NUGUID, oppositors and
appellees.
Facts: Rosario died without descendants, legitimate or illegitimate.
Surviving her were her legitimate parents – Felix and Paz, and 6
brothers and sisters.
Remedios, one of the sister filed in court a holographic will allegedly
executed by Rosario instituting the former as the sole, universal heir of
all her properties. She prayed that said will be admitted to probate and
that letter of administration be issued to her.
Felix and Paz opposed to the probate of the will on the ground that by
the institution of Remedios as universal heir of the deceased,
oppositors – who are compulsory heirs in the direct ascending line –
were illegally preterited and that in consequence, the institution is
void.
The petitioners insist that the case is for the probate of a will. That he
court's area of inquiry is limited — to an examination of, and resolution
on, the extrinsic validity of the will. The due execution thereof, the
testatrix's testamentary capacity, and the compliance with the
requisites or solemnities by law prescribed, are the questions solely to
be presented, and to be acted upon, by the court. Said court at this
stage of the proceedings — is not called upon to rule on the intrinsic
validity or efficacy of the provisions of the will, the legality of any
devise or legacy therein.
ISSUE: WON the court (in this case) should limits its examination to
the extrinsic validity only? NO
HELD: If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the event of probate or if the
court rejects the will, probability exists that the case will come up once
again before us on the same issue of the intrinsic validity or nullity of
the will. Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a belief that
we might as well meet head-on the issue of the validity of the
provisions of the will in question.3 After all, there exists a justiciable
controversy crying for solution.
In this case, SC held that the will is null and void because there is a
clear case of preterition. Such preterition in the words of Manresa
"anulara siempre la institucion de heredero, dando caracter absoluto a
este ordenamiento referring to the mandate of Article 814, now 854 of
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 Wills and Succession Case Digests
the Civil Code. The one-sentence will here institutes petitioner as the
sole, universal heir — nothing more. No specific legacies or bequests
are therein provided for. It is in this posture that we say that the
nullity is complete
G.R. No. L-56340 June 24, 1983
SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE
PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH
I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN
BARLITO QUEMADA, respondents.
PLANA, J.:
FACTS: Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in
Cebu City on June 5, 1966, survived by his Spanish wife Sofia Bossio
(who also died on October 21, 1966), their two legitimate children
Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA),
and an illegitimate child, not natural, by the name of Lewellyn Barlito
Quemada QUEMADA PASTOR, JR. is a Philippine citizen, having been
naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino
by his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and
allowance of an alleged holographic will of PASTOR, SR. with the Court
of First Instance of Cebu. The will contained only one testamentary
disposition: a legacy in favor of QUEMADA consisting of 30% of
PASTOR, SR.'s 42% share in the operation by Atlas Consolidated
Mining and Development Corporation (ATLAS) of some mining claims
in Pina-Barot, Cebu.
On November 21, 1970, the PROBATE COURT appointed QUEMADA
special administrator of the entire estate of PASTOR, SR., whether or
not covered or affected by the holographic will. He assumed office as
such on December 4, 1970 after filing a bond of P 5,000.
On December 7, 1970, QUEMADA as special administrator, instituted
against PASTOR, JR. and his wife an action for reconveyance of
alleged properties of the estate, which included the properties subject
of the legacy and which were in the names of the spouses PASTOR,
JR. and his wife, Maria Elena Achaval de Pastor, who claimed to be the
owners thereof in their own rights, and not by inheritance.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their
opposition to the petition for probate and the order appointing
QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order allowing
the will to probate.
For two years after remand of the case to the PROBATE COURT,
QUEMADA filed pleading after pleading asking for payment of his
legacy and seizure of the properties subject of said legacy. PASTOR,
JR. and SOFIA opposed these pleadings on the ground of pendency of
the reconveyance suit with another branch of the Cebu Court of First
Instance. All pleadings remained unacted upon by the PROBATE
COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the
intrinsic validity of the will for March 25, 1980, but upon objection of
PASTOR, JR. and SOFIA on the ground of pendency of the
reconveyance suit, no hearing was held on March 25. Instead, the
PROBATE COURT required the parties to submit their respective
position papers as to how much inheritance QUEMADA was entitled to
receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA
submitted their Memorandum of authorities dated April 10, which in
effect showed that determination of how much QUEMADA should
receive was still premature. QUEMADA submitted his Position paper
dated April 20, 1980. ATLAS, upon order of the Court, submitted a
sworn statement of royalties paid to the Pastor Group of tsn from June
1966 (when Pastor, Sr. died) to February 1980. The statement
revealed that of the mining claims being operated by ATLAS, 60%
pertained to the Pastor Group distributed.
ISSUES: Assailed by the petitioners in these proceedings is the validity
of the Order of execution and garnishment dated August 20, 1980 as
well as the Orders subsequently issued allegedly to implement the
Probate Order of December 5, 1972, to wit: the Order of November
11, 1980 declaring that the Probate Order of 1972 indeed resolved the
issues of ownership and intrinsic validity of the will.
Whether the Probate Order of December 5, 1972 resolved
with finality the questions of ownership and intrinsic validity.
RULING: In a special proceeding for the probate of a will, the issue by
and large is restricted to the extrinsic validity of the will, i.e., whether
the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. (Rules of Court,
Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of
ownership is an extraneous matter which the Probate Court cannot
resolve with finality. Thus, for the purpose of determining whether a
certain property should or should not be included in the inventory of
estate properties, the Probate Court may pass upon the title thereto,
but such determination is provisional, not conclusive, and is subject to
the final decision in a separate action to resolve title.
The Order sought to be executed by the assailed Order of execution is
the Probate Order of December 5, 1972 which allegedly resolved the
question of ownership of the disputed mining properties.
Nowhere in the dispositive portion is there a declaration of ownership
of specific properties. On the contrary, it is manifest therein that
ownership was not resolved. For it confined itself to the question of
extrinsic validity of the win, and the need for and propriety of
appointing a special administrator. Thus it allowed and approved the
holographic will "with respect to its extrinsic validity, the same having
been duly authenticated pursuant to the requisites or solemnities
prescribed by law." It declared that the intestate estate administration
aspect must proceed " subject to the outcome of the suit for
reconveyance of ownership and possession of real and personal
properties in Civil Case 274-T before Branch IX of the CFI of Cebu."
[Parenthetically, although the statement refers only to the "intestate"
aspect, it defies understanding how ownership by the estate of some
properties could be deemed finally resolved for purposes of testate
administration, but not so for intestate purposes. Can the estate be the
owner of a property for testate but not for intestate purposes?] Then
again, the Probate Order (while indeed it does not direct the
implementation of the legacy) conditionally stated that the intestate
administration aspect must proceed "unless . . . it is proven . . . that
the legacy to be given and delivered to the petitioner does not exceed
the free portion of the estate of the testator," which clearly implies
that the issue of impairment of legitime (an aspect of intrinsic validity)
was in fact not resolved. Finally, the Probate Order did not rule on the
propriety of allowing QUEMADA to remain as special administrator of
estate properties not covered by the holographic will, "considering that
this (Probate) Order should have been properly issued solely as a
resolution on the issue of whether or not to allow and approve the
aforestated will. "
It was, therefore, error for the assailed implementing Orders to
151
 Wills and Succession Case Digests
conclude that the Probate Order adjudged with finality the question of
ownership of the mining properties and royalties, and that, premised
on this conclusion, the dispositive portion of the said Probate Order
directed the special administrator to pay the legacy in dispute.
RUFINA LUY LIM vs. COURT OF APPEALS, AUTO TRUCK TBA
CORPORATION, SPEED DISTRIBUTING, INC., ACTIVE
DISTRIBUTORS, ALLIANCE MARKETING CORPORATION,
ACTION COMPANY, INC.
[G.R. No. 124715. January 24, 2000]
Facts: Rufina Luy Lim is the surviving spouse of the late Pastor Y. Lim
whose estate is the subject of probate proceedings in Special
Proceedings Q-95-23334, entitled, "In Re: Intestate Estate of Pastor Y.
Lim Rufina Luy Lim, represented by George Luy, Petitioner". Private
respondent corporations, whose properties were included in the
inventory of the estate of Pastor Y. Lim, then filed a motion for the
lifting of lis pendens and motion for exclusion of certain properties
from the estate of the decedent which titles are under PR corporations’
names. The probate court denied the motion.
Petitioner, in the SC, argues that the parcels of land covered under the
Torrens system and registered in the name of private respondent
corporations should be included in the inventory of the estate of the
decedent Pastor Y. Lim, alleging that after all the determination by the
probate court of whether these properties should be included or not is
merely provisional in nature, thus, not conclusive and subject to a final
determination in a separate action brought for the purpose of
adjudging once and for all the issue of title.
Issue: W/N petitioner’s contention that said properties be included in
the estate inventory is meritorious. NO
Held: The determination of which court exercises jurisdiction over
matters of probate depends upon the gross value of the estate of the
decedent.
As to the power and authority of the probate court, petitioner relies
heavily on the principle that a probate court may pass upon title to
certain properties, albeit provisionally, for the purpose of determining
whether a certain property should or should not be included in the
inventory.
A perusal of the records would reveal that no strong compelling
evidence was ever presented by petitioner to bolster her bare
assertions as to the title of the deceased Pastor Y. Lim over the
properties.
Inasmuch as the real properties included in the inventory of the estate
of the late Pastor Y. Lim are in the possession of and are registered in
the name of private respondent corporations, which under the law
possess a personality separate and distinct from their stockholders,
and in the absence of any cogency to shred the veil of corporate
fiction, the presumption of conclusiveness of said titles in favor of
private respondents should stand undisturbed.
Accordingly, the probate court was remiss in denying private
respondents’ motion for exclusion. While it may be true that the
Regional Trial Court, acting in a restricted capacity and exercising
limited jurisdiction as a probate court, is competent to issue orders
involving inclusion or exclusion of certain properties in the inventory of
the estate of the decedent, and to adjudge, albeit, provisionally the
question of title over properties, it is no less true that such authority
conferred upon by law and reinforced by jurisprudence, should be
exercised judiciously, with due regard and caution to the peculiar
circumstances of each individual case.
Notwithstanding that the real properties were duly registered under
the Torrens system in the name of private respondents, and as such
were to be afforded the presumptive conclusiveness of title, the
probate court obviously opted to shut its eyes to this gleamy fact and
still proceeded to issue the impugned orders.
By its denial of the motion for exclusion, the probate court in effect
acted in utter disregard of the presumption of conclusiveness of title in
favor of private respondents. Certainly, the probate court through
such brazen act transgressed the clear provisions of law and infringed
settled jurisprudence on this matter.
CORONADO vs. CA
191 SCRA 814
G.R. No. 78778
December 3, 1990
The property subject of this case is a parcel of land situated in
Nagcarlan, Laguna, containing 277 square meters. Leonida Coronado
and her co-petitioners claim that the property in question was
bequeathed to Leonida Coronado under a Will executed by Dr.
Dalmacio Monterola, who was allegedly in possession thereof even
before the outbreak of World War II.
Parenthetically, said will was probated under Sp. Proc. No. SC-283,
entitled "Testate Estate of the Deceased Monterola Leonida F.
Coronado, petitioner (Ibid., p. 105). JUANA, together with her
husband, opposed the said probate. Despite their opposition, however,
the Will was allowed by the then Court of First Instance of Laguna,
Sta. Cruz Branch (Ibid., p. 106). On appeal, said decision was affirmed
by the Court of Appeals in CA-G.R. No. 40353, entitled "Leonida F.
Coronado, petitioner-appellee v. Heirs of Dr. Dalmacio Monterola,
oppositors-appellants" (Ibid.). It is not apparent, however, from the
record whether or not said decision has already become final and
executory.
As a result of the conflicting claims over the property in question,
JUANA filed an action for quieting of title, declaratory relief and
damages against CORONADO.
Now, CORONADO claims that the will under which JUANA inherited the
property in question from her grandfather, Melecio Artiaga, was never
probated; hence, said transfer for ownership was ineffectual
considering that under Rule 75, Sec. 1 of the Rules of Court (formerly
Sec. 125 of Act No. 190, no will shall pass either real or personal
property unless it is proved and allowed in the proper court (Ibid., p.
115).
The contention is without merit.
While it is true that no will shall pass either real or personal property
unless it is proved and allowed in the proper court (Art. 838, Civil
Code), the questioned will, however, may be sustained on the basis of
Article 1056 of the Civil Code of 1899, which was in force at the time
said document was executed by Melecio Artiaga in 1918. The said
article read as follows:
"Article 1056. If the testator should make a partition of his properties
by an act inter vivos, or by will, such partition shall stand in so far as it
152
 Wills and Succession Case Digests
does not prejudice the legitime of the forced heir." (Mang-Oy v. Court
of Appeals, 144 SCRA 33 [1986])
In this case, nowhere was it alleged nor shown that Leonida Coronado
is entitled to legitime from Melecio Artiaga. The truth of the matter is
that the record is bereft of any showing that Leonida Coronado and
the late Melecio Artiaga were related to each other.
POLLY CAYETANO, petitioner, vs. HON. TOMAS T. LEONIDAS, in
his capacity as the Presiding Judge of Branch XXXVIII, Court
of First Instance of Manila and NENITA CAMPOS
PAGUIA, respondents.(G.R. No. L-54919 May 30, 1984)
FACTS: On January 31, 1977, Adoracion C. Campos died, leaving her
father, petitioner Hermogenes Campos and her sisters, private
respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C.
Medina as the surviving heirs. As Hermogenes Campos was the only
compulsory heir, he executed an Affidavit of Adjudication under Rule
74, Section I of the Rules of Court whereby he adjudicated unto
himself the ownership of the entire estate of the deceased Adoracion
Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a
petition for the reprobate of a will of the deceased, Adoracion Campos,
which was allegedly executed in the United States and for her
appointment as administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American
citizen at the time of her death and was a permanent resident of 4633
Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix
died in Manila on January 31, 1977 while temporarily residing with her
sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the
testatrix made her last wig and testament on July 10, 1975, according
to the laws of Pennsylvania, U.S.A., that after the testatrix death, her
last will and testament was presented, probated, allowed, and
registered with the Registry of Wins at the County of Philadelphia,
U.S.A., that Clement L. McLaughlin, the administrator who was
appointed after Dr. Barzaga had declined and waived his appointment
as executor in favor of the former, is also a resident of Philadelphia,
U.S.A., and that therefore, there is an urgent need for the
appointment of an administratrix to administer and eventually
distribute the properties of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will was
filed by herein petitioner alleging among other things, that he has
every reason to believe that the will in question is a forgery; that the
intrinsic provisions of the will are null and void; and that even if
pertinent American laws on intrinsic provisions are invoked, the same
could not apply inasmuch as they would work injustice and injury to
him.
On December 1, 1978, however, the petitioner through his counsel,
Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver
of Rights or Interests) stating that he "has been able to verify the
veracity thereof (of the will) and now confirms the same to be truly the
probated will of his daughter Adoracion." Hence, an ex-
parte presentation of evidence for the reprobate of the questioned will
was made.
On January 10, 1979, the respondent judge issued an order, to wit:
the Last Will and Testament of the late Adoracion C. Campos is hereby
admitted to and allowed probate in the Philippines, and Nenita Campos
Paguia is hereby appointed Administratrix.
ISSUE: W/N the probate court can rule on the intrinsic validity of the
will.
RULING: As a general rule, the probate court's authority is limited only
to the extrinsic validity of the will, the due execution thereof, the
testatrix's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of the
will normally comes only after the court has declared that the will has
been duly authenticated. However, where practical considerations
demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue. (Maninang vs.
Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent
judge allowed the reprobate of Adoracion's will, Hermogenes C.
Campos was divested of his legitime which was reserved by the law for
him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner
and thus, the respondent judge should have denied its reprobate
outright, the private respondents have sufficiently established that
Adoracion was, at the time of her death, an American citizen and a
permanent resident of Philadelphia, Pennsylvania, U.S.A.
The law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not provide
for legitimes and that all the estate may be given away by the testatrix
to a complete stranger, the petitioner argues that such law should not
apply because it would be contrary to the sound and established public
policy and would run counter to the specific provisions of Philippine
Law.
It is a settled rule that as regards the intrinsic validity of the provisions
of the will, as provided for by Article 16(2) and 1039 of the Civil Code,
the national law of the decedent must apply.
NOTE: The SC finds the contention of the petition as to the issue of
jurisdiction utterly devoid of merit. (Read Rule 73, Section 1, of the
Rules of Court)
Therefore, the settlement of the estate of Adoracion Campos was
correctly filed with the Court of First Instance of Manila where she had
an estate since it was alleged and proven that Adoracion at the time of
her death was a citizen and permanent resident of Pennsylvania,
United States of America and not a "usual resident of Cavite" as
alleged by the petitioner. Moreover, petitioner is now estopped from
questioning the jurisdiction of the probate court in the petition for
relief. It is a settled rule that a party cannot invoke the jurisdiction of a
court to secure affirmative relief, against his opponent and after failing
to obtain such relief, repudiate or question that same jurisdiction.
SOLIVIO vs. CA 
SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE
COURT OF APPEALS AND CLEMENTE SAND, respondents.
G.R. No. 106720 September 15, 1994
FACTS: On Nov. 25, 1982, Annie Sand died. Her holographic will
named as devisees petitioners (Sps. Ajero) and private respondent
(Clemente Sand).
153
 Wills and Succession Case Digests
On Jan. 20, 1983, petitioners instituted a special proceeding for
allowance of decedent’s holographic will claiming that decedent was in
every respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither
the testament's body nor the signature therein was in decedent's
handwriting; it contained alterations and corrections which
were not duly signed by decedent; and, the will was procured by
petitioners through improper pressure and undue influence.
Trial Court admitted the decedent’s holographic will to probate. CA,
however, reversed said decision.
ISSUE: WON the alterations and corrections on Annie Sand’s
holographic will invalidate the will such that it cannot be admitted for
probate. NO!
RULING:
ETHEL GRIMM ROBERTS, petitioner, vs. JUDGE TOMAS R.
LEONIDAS, Branch 38, Court of First Instance of Manila;
MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and LINDA
GRIMM, respondents.G.R. No. L-55509 April 27, 1984
Facts: Edward M. Grimm an American resident of Manila, died at 78 in
the Makati Medical Center on November 27, 1977. He was survived by
his second wife, Maxine Tate Grimm and their two children, named
Edward Miller Grimm II (Pete) and Linda Grimm and by Juanita Grimm
Morris and Ethel Grimm Roberts (McFadden), his two children by a first
marriage which ended in divorce.
He executed on January 23, 1959 two wills in San Francisco, California.
One will disposed of his Philippine estate which he described as
conjugal property of himself and his second wife. The second win
disposed of his estate outside the Philippines.

The two wills and a codicil were presented for probate by Maxine Tate
Art. 813: When a number of dispositions appearing in a
Grimm and E. LaVar Tate on March 7, 1978 in Probate No. 3720 of the
holographic will are signed without being dated, and the last
Third Judicial District Court of Tooele County, Utah.
disposition has a signature and date, such date validates the
dispositions preceding it, whatever be the time of prior dispositions.
Maxine admitted that she received notice of the intestate petition filed
in Manila by Ethel (daughter with first wife) in January, 1978. In its
Art. 814: In case of insertion, cancellation, erasure or
order dated April 10, 1978, the Third Judicial District Court admitted to
alteration in a holographic will, the testator must authenticate the
probate the two wills and the codicil.
same by his full signature.

Two weeks later, or on April 25, 1978, Maxine and her two children
A reading of Article 813 of the New Civil Code shows that its
Linda and Pete, as the first parties, and Ethel, Juanita Grimm Morris
requirement affects the validity of the dispositions contained
and their mother Juanita Kegley Grimm as the second parties, with
in the holographic will, but not its probate. If the testator fails to
knowledge of the intestate proceeding in Manila, entered into a
sign and date some of the dispositions, the result is that these
compromise agreement in Utah regarding the estate.
dispositions cannot be effectuated. Such failure, however, does not
render the whole testament void.
On January 9, 1978, his daughter of the first marriage, Ethel, filed with
Branch 20 of the Manila Court of First Instance intestate proceeding
Likewise, a holographic will can still be admitted to probate,
No. 113024 for the settlement of his estate. This was opposed by the
notwithstanding non-compliance with the provisions of Article
second wife, Maxine, on the ground of the pendency of the probate of
814.In the case of Kalaw vs. Relova, this Court held:
Grimm's will in Utah.

Ordinarily, when a number of erasures, corrections, and interlineations

Grimm's second wife (Maxine) and two children alleged that they were
made by the testator in a holographic Will have not been noted under
defraud due to the machinations of the Roberts spouses, that the 1978
his signature, . . . the Will is not thereby invalidated as a whole, but at
Utah compromise agreement was illegal, that the intestate proceeding
most only as respects the particular words erased, corrected or
is void because Grimm died testate and that the partition was contrary
interlined.
to the decedent's wills.

Thus, unless the unauthenticated alterations, cancellations or

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it
insertions were made on the date of the holographic will or on
for lack of merit in his order of October 27, 1980.
testator's signature, their presence does not invalidate the will itself.
The lack of authentication will only result in disallowance of such
changes. Issue: whether a petition for allowance of wills and to annul a
partition, approved in an intestate proceeding by Branch 20 of the
Manila Court of First Instance, can be entertained by its Branch 38
It is also proper to note that the requirements of authentication of
(after a probate in the Utah district court).
changes and signing and dating of dispositions appear in provisions
(Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article Held: Yes. We hold that respondent judge did not commit any grave
810). The distinction can be traced to Articles 678 and 688 of the abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's
Spanish Civil Code, from which the present provisions covering motion to dismiss.
holographic wills are taken. This separation and distinction adds
support to the interpretation that only the requirements of Article 810
A testate proceeding is proper in this case because Grimm died with
of the New Civil Code — and not those found in Articles 813 and 814
two wills and "no will shall pass either real or personal property unless
of the same Code — are essential to the probate of a holographic will.
it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of
Court).
MAGALLANES vs. KAYANAN 

154
 Wills and Succession Case Digests
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil.
479 and 98 Phil. 249; Baluyot vs. Panio, L-42088, May 7, 1976, 71
SCRA 86). It is anomalous that the estate of a person who died testate
should be settled in an intestate proceeding. Therefore, the intestate
case should be consolidated with the testate proceeding and the judge
assigned to the testate proceeding should continue hearing the two
cases.
Ethel may file within twenty days from notice of the finality of this
judgment an opposition and answer to the petition unless she
considers her motion to dismiss and other pleadings sufficient for the
purpose. Juanita G. Morris, who appeared in the intestate case, should
be served with copies of orders, notices and other papers in the
testate case.
VDA. DE KILAYKO vs. JUDGE TENGCO
GR NO. 45425 MARCH 27, 1992
FACTS:
 In 1962, the late Maria Alunan executed a “Testamento”, leaving it in
the possession of her niece Eustaqia Lizares.
 Eustaqia filed a project of partition in the settlement of the estate of
Alunan and was appointed executrix.
 The heirs of Alunan executed an agreement of partition and
subdivision.
 Thereafter, Eustaqia filed an urgent motion to reopen the testate
proceedings so that some properties of Alunan which had been
omitted in the partition be adjudicated to her. Eustaqia died
subsequently.
 Vda. De Kilayko (petitioner) filed a motion to reopen once again the
testate estate proceedings of Alunan. They prayed among others that
a substitute administrator be appointed.
 Two sets of intestate heirs of Eustaqia opposed the motion, alleging
that the court had no more jurisdiction to reopen as the order of
closure had long become final and the testamentary provisions sought
to be enforced are null and void.
ISSUE:
 WON the testate proceedings may be reopened? – NO.
HELD:
 NO. The testate proceedings may no longer be reopened.
 The records showed that in the project of partition, subject matters of
the complaint for reconveyance were included as property of the
estate and assigned exclusively to Eustaquia as devisee of the
deceased.
 In accordance with the project of partition approved by the probate
court, the devisees and legatees named therein executed an
agreement of partition and subdivision where they, as heirs, agreed to
terminate their co-ownership over the subject properties.
 These facts taken together show that the Lizares sisters recognized the
decree of partition sanctioned by the probate court and in fact reaped
the fruits thereof.
 Hence, they are now precluded from attacking the validity of the
partition or any part of it in the guise of a complaint for reconveyance.
 Thus, where a piece of land has been included in a partition and there
is no allegation that the inclusion was affected through improper
means or without petitioner's knowledge, the partition barred any
further litigation on said title and operated to bring the property under
the control and jurisdiction of the court for its proper disposition
according to the tenor of the partition.
 In testate succession, there can be no valid partition among the heirs
until after the will has been probated. A project partition is merely a
proposal to distribute the estate which the court may accept or reject.
It is the court that makes that distribute of the estate and determines
the persons who are entitled thereto.
 When Vda. de Kilayko, et al. moved for the reopening of the testate
estate proceedings of Maria Alunan, the judicial decree of partition and
order of closure of such proceedings was already final and executory,
then reglementary period of thirty (30) days having elapsed from the
time of its issuance, with no timely appeal having been filed by them.
 All the requisites for the existence of res judicata are present.
ARANCILLO vs. PENAFLORIDA (please refer to Sigma tsn, hindi
mahanap ang case)
The Incompetent, CARMEN CAÑIZA, represented by her legal
guardian, AMPARO EVANGELISTA, petitioner, vs. COURT OF
APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and
his wife, LEONORA ESTRADA, respondents.
FACTS: On November 20, 1989, the ninety-four year old Carmen
Cañiza was declared incompetent by judgment[1] of the Regional Trial
Court of Quezon City, Branch 107,[2] in a guardianship
proceeding.[3] She was so adjudged because of her advanced age and
physical infirmities which included cataracts in both eyes and senile
dementia. Her niece, Amparo A. Evangelista, was appointed legal
guardian of her person and estate.
Amparo Evangelista commenced a suit in the Metropolitan Trial Court
(MetroTC) of Quezon City (Branch 35) to eject the spouses Pedro and
Leonora Estrada from the premises of a house and lot owned by
Cañiza on account of the urgent need of the house due to her
advanced age and failing health, "so funds could be raised to meet her
expenses for support, maintenance and medical treatment;"
In their Answer with Counterclaim, the defendants declared that they
had been living in Cañiza's house since the 1960's; that in
consideration of their faithful service they had been considered by
Cañiza as her own family, and the latter had in fact executed a
holographic will on September 4, 1988 by which she "bequeathed" to
the Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Cañiza's
favor,[6] the Estradas being ordered to vacate the premises and pay
Cañiza P5,000.00 by way of attorney's fees.
But on appeal,[7] the decision was reversed by the Quezon City
Regional Trial Court, Branch 96.[8] By judgment rendered on October
21, 1992,[9] the RTC held that the "action by which the issue of
defendants' possession should be resolved is accion publiciana, the
obtaining factual and legal situation ** demanding adjudication by
such plenary action for recovery of possession cognizable in the first
instance by the Regional Trial Court."
In a decision[10] promulgated on June 2, 1993, the Appellate
Court[11] affirmed the RTC's judgment in toto. Through her guardian,
Cañiza came to this Court praying for reversal of the Appellate Court's
judgment. In the responsive pleading filed by them on this Court's
requirement,[14] the Estradas insist that the case against them was
really not one of unlawful detainer; they argue that since possession of
the house had not been obtained by them by any "contract, express or
implied," as contemplated by Section 1, Rule 70 of the Rules of Court,
their occupancy of the premises could not be deemed one "terminable
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 Wills and Succession Case Digests
upon mere demand (and hence never became unlawful) within the
context of the law." Neither could the suit against them be deemed
one of forcible entry, they add, because they had been occupying the
property with the prior consent of the "real owner," Carmen Cañiza,
which "occupancy can even ripen into full ownership once the
holographic will of petitioner Carmen Cañiza is admitted to probate."
They conclude, on those postulates, that it is beyond the power of
Cañiza's legal guardian to oust them from the disputed premises.
Carmen Cañiza died on March 19, 1994,[15] and her heirs -- the
aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado,
her niece and nephew, respectively -- were by this Court's leave,
substituted for her.[16]
ISSUE: WON Evangelista, as Cañiza's legal guardian had authority to
bring said action.
HELD: YES. The Estradas insist that the devise of the house to them
by Cañiza clearly denotes her intention that they remain in possession
thereof, and legally incapacitated her judicial guardian, Amparo
Evangelista, from evicting them therefrom, since their ouster would be
inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the
testator's death, it may be changed or revoked;[29] and until
admitted to probate, it has no effect whatever and no right
can be claimed thereunder, the law being quite explicit: "No
will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court"
(ART. 838, id.).[30] An owner's intention to confer title in the future
to persons possessing property by his tolerance, is not inconsistent
with the former's taking back possession in the meantime for any
reason deemed sufficient. And that in this case there was sufficient
cause for the owner's resumption of possession is apparent: she
needed to generate income from the house on account of the physical
infirmities afflicting her, arising from her extreme age.
Amparo Evangelista was appointed by a competent court the general
guardian of both the person and the estate of her aunt, Carmen
Cañiza. Her Letters of Guardianship[31]dated December 19, 1989
clearly installed her as the "guardian over the person and properties of
the incompetent CARMEN CAÑIZA with full authority to take
possession of the property of said incompetent in any province or
provinces in which it may be situated and to perform all other acts
necessary for the management of her properties ** "[32] By that
appointment, it became Evangelista's duty to care for her aunt's
person, to attend to her physical and spiritual needs, to assure her
well-being, with right to custody of her person in preference to
relatives and friends.[33] It also became her right and duty to get
possession of, and exercise control over, Cañiza's property, both real
and personal, it being recognized principle that the ward has no right
to possession or control of his property during her
incompetency.[34] That right to manage the ward's estate carries with
it the right to take possession thereof and recover it from anyone who
retains it,[35] and bring and defend such actions as may be needful
for this purpose. [36]
BALANAY, Jr vs. MARTINEZ 
CRUZ vs. VILLASOR (the case is not related to art. 838)
CAROLINA CAMAYA, FERDINAND CAMAYA, EDGARDO
CAMAYA and ANSELMO MANGULABNAN, petitioners
vs.
BERNARDO PATULANDONG, respondent.
FACTS: On November 17, 1972, Rufina Reyes (testatrix) executed a
notarized will wherein she devised, among others, Lot No. 288-A to her
grandson Anselmo Mangulabnan. The pertinent portion of her will
reads:
" IKALIMA. - Aking inihahayag at ginagawa na tagapagmana, sa aking
kusang loob, ang pinalaki kong APO na si ANSELMO P.
MANGULABNAN, may sapat na gulang, kasal kay Flora Umagap, at
naninirahan sa San Lorenzo, Gapan, Nueva Ecija, at anak ng aking
anak na si SIMPLICIA, at sa aking APO na si ANSELMO ay aking
ipinagkakaloob at ipinamamana, sa aking pagkamatay, ang mga
sumusunod kong pagaari:
The testatrix' son Bernardo Patulandong, was in the will appointed as
the executor.
During her lifetime, the testatrix herself filed a petition for the probate
of her will and subsequently admitted.
However, on June 1973, the testatrix executed a codicil modifying
above-quoted paragraph five of her will in this wise:
UNA. - Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz,
Gapan, Nueva Ecija, magsukat 36,384 metro cuadrados, at
nagtataglay ng TCT No. NT-47089, na aking ipinamana sa aking apong
si ANSELMO P. MANGULABNAN, sangayon sa Pangkat IKA-LIMA, pp. 5-
6, ng aking HULING HABILIN (Testamento), ay ipinasiya kong
ipagkaloob at ipamana sa aking mga anak na sina BERNARDO,
SIMPLICIA, GUILLERMA at JUAN nagaapellidong PATULANDONG, at sa
aking apong si ANSELMO P. MANGULABNAN, sa magkakaparehong
bahagi na tig-ikalimang bahagi bawat isa sa kanila.
XXX
Mangulabnan later sought the delivery to him by executor Patulandong
of the title to Lot 288-A. Patulandong refused to heed the request,
however, in view of the codicil which modified the testator's will.
Mangulabnan then files an action for partition. The lower court orderd
the partitioning of the properties. However, in view of the case cited
by the plaintiff himself, the court holds that the partition is without
prejudice [to]... the probate of the codicil in accordance with the Rules
of Court[P]alacios vs. Catimbang Palacios cited by the plaintiff:
"After a will has been probated during the lifetime of the testator, it
does not necessarily mean that he cannot alter or revoke the same
before his death. Should he make a new will, it would also be
allowable of his petition and if he should die before he had a chance to
present such petition, the ordinary probate proceedings after the
testator?s death would be in order."
By virtue of the decision in the partition case, Mangulabnan caused the
cancellation of the title of the testatrix and a new TCT was issued in
his name.
Mangulabnan later sold to Camayas Lot No. 288-A by a Deed of Sale
dated February 19, 1991. The lower court declared null and void and
ordered the cancellation of the TCTs of petitioners and the deed of
sale.
ISSUES: 1. WON the change in the codicil after it has been admitted
shall be given effect
2.WON probate court exceeded its jurisdiction when it declared null
and void and ordered the cancellation of the TCTs of petitioners and
the deed of sale
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 Wills and Succession Case Digests
HELD: 1. YES.
Petitioners argue that by allowing the codicil to probate, it in effect
amended the final judgment in the partition case which is not allowed
by law and that petitioner Camayas are innocent purchasers for value
and enjoy the legal presumption that the transfer was lawful. This
does not persuade.
Though the judgment in the partition case had become final and
executory as it was not appealed, it specifically provided in its
dispositive portion that the decision was "without prejudice [to] ... the
probate of the codicil." The rights of the prevailing parties in said case
were thus subject to the outcome of the probate of the codicil.
2. YES. It is well-settled rule that a probate court or one in charge of
proceedings whether testate or intestate cannot adjudicate or
determine title to properties claimed to be a part of the estate and
which are equally claimed to belong to outside parties. All that said
court could do as regards said properties is to determine whether they
should or should not be included in the inventory or list of properties
to be administered by the administrator. If there is no dispute, well
and good; but if there is, then the parties, the administrator, and the
opposing parties have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate
court cannot do so.
Having been apprised of the fact that the property in question was in
the possession of third parties and more important, covered by a
transfer certificate of title issued in the name of such third parties, the
respondent court should have denied the motion of the respondent
administrator and excluded the property in question from the inventory
of the property of the estate. It had no authority to deprive such third
persons of their possession and ownership of the property. x x x
NATCHER vs.CA
FACTS: Spouses Gracianodel Rosario and Graciana Esguerra were
registered owners of a parcel of land. Upon the death of Graciana in
1951, Graciano, together with his six children entered into an
extrajudicial settlement of Graciana’s estate adjudicating and dividing
among themselves the real property subject.Under the agreement,
Graciano received 8/14 share while each of the six children received
1/14 share of the said property.
The heirs executed and forged an “Agreement of Consolidation-
Subdivision of Real Property with Waiver of Rights” where they
subdivided among themselves the parcel of land covered by TCT No.
35980 into several lots. Graciano then donated to his children, share
and share alike, a portion of his interest in the land amounting to
4,849.38 square meters leaving only 447.60 square meters registered
under Graciano’s name. The land was further subdivided into two
separate lots.Graciano sold the first lot to a third person but retained
ownership over the second lot.
Graciano married Patricia Natcher. During their marriage, Graciano
sold the 2nd lot to his wife Patricia as a result of which a title was
issued in the latter’s name.
Graciano died leaving his second wife Patricia and his six children by
his first marriage, as heirs.
The 6 children filed a complaint before the RTC against Patricia
alleging that Natcher, through the employment of fraud,
misrepresentation and forgery, acquired the 2nd lot by making it
appear that Graciano executed a Deed of Sale in her favor. They also
alleged that their legitimes have been impaired.
Natcher averred that she was legally married to Graciano on 20 March
1980 and thus, under the law, she was likewise considered a
compulsory heir of the latter.
The RTC declared that the deed of sale executed by the late Graciano
del Rosario in favor of Patricia Natcher is prohibited by law and thus a
complete nullity. There being no evidence that a separation of property
was agreed upon in the marriage settlements or that there has been
decreed a judicial separation of property between them, the spouses
are prohibited from entering (into) a contract of sale,cannot be
likewise regarded as a valid donation.It may however be regarded as
an extension of advance inheritance of Patricia Natcher being a
compulsory heir of the deceased.”
Court of Appeals reversed the lower court’s decision ratiocinating it is
the probate court that has exclusive jurisdiction to make a just and
legal distribution of the estate. The court a quo, trying an ordinary
action for reconveyance/annulment of title, went beyond its jurisdiction
when it performed the acts proper only in a special proceeding for the
settlement of estate of a deceased person.
ISSUE: May a Regional Trial Court, acting as a court of general
jurisdiction in an action for reconveyance and annulment of title with
damages, adjudicate matters relating to the settlement of the estate of
a deceased person particularly in questions as to advancement of
property made by the decedent to any of the heirs?
RULING: NO. Matters which involve settlement and distribution
of the estate of the decedent fall within the exclusive province of the
probate court in the exercise of its limited jurisdiction.
Corollarily, the Regional Trial Court in the instant case, acting in its
general jurisdiction, is devoid of authority to render an adjudication
and resolve the issue of advancement of the real property in favor of
herein petitioner Natcher, inasmuch as the complaint for reconveyance
and annulment of title with damages is not the proper vehicle to
thresh out said question. Moreover, under the present circumstances,
the RTC was not properly constituted as a probate court so as to
validly pass upon the question of advancement made by the decedent
Graciano Del Rosario to his wife Natcher.
ART. 847
G.R. No. L-8927 March 10, 1914
ASUNCION NABLE JOSE, ET AL., plaintiff-appellants, vs. MARIA
IGNACIA USON, ET AL., defendants-appellees.
Facts: The question involved herein is the proper interpretation of
the first and second clauses of a codicil to the will of Filomena Uson.
They read as follows:
First. I declare that all the property which belongs to me as conjugal
property, referred to in my said testament, shall be the property of my
aforesaid husband, Don Rafael Sison; in case all or part of said
property exists at my husband's death, it is my will that at his death
my sisters and nieces hereinafter named succeed him as heirs.
Second. I declare to be my sisters in lawful wedlock the persons
named:
1) Doña Antonia Uson, deceased, who has left two daughters called
Maria Rosario and Maria Paz
2) Maria Romualda Uson, widow of Estanislao Lengson;
3) Ignacia Uson, married to Don Vicente Puson;
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 Wills and Succession Case Digests
4) Eufemia Uson, deceased, who is survived by three daughters
called Maria Salud, Maria Amparo, and Maria Asuncion; and
5) Maria Pilar Uson;
6) Maria Manaoag Uson, unmarried, issued had by our deceased
after Don Daniel Uson with one Leonarda Fernandez, alias Andao de
Lingayen, so that they may have and enjoy it in equal parts as good
sisters and relatives.
The court below found that the children of the deceased sisters should
take only that portion which their respective mothers would have
taken if they been alive at the time the will was made; that the
property should be divided into six equal parts corresponding to the
number of sisters; that each living sister should take one-sixth, and the
children of each deceased sister should also take one-sixth, each one-
sixth to be divided among said children equally.
The appellants were asserting that under a proper construction of the
paragraphs of the codicil above-quoted the property should be divided
equally between the living sisters and the children of the deceased
sisters, share and share alike, a niece taking the same share that a
sister receives.
Issue: How should the property be divided?
Held: Equally. We find expressions which seem to indicate with fair
clearness that it was the intention of the testatrix to divide her
property equally between her sisters and nieces. The indications are:
First, that the testatrix, in the first paragraph thereof, declares that
after her husband's death she desires that "my sisters and nieces, as
hereinafter named, shall succeed him as heirs."
Second, that the testatrix, in the second paragraph of the codicil,
names and identifies each one of her heirs then living, in each one of
the persons whom she desires shall succeed her husband in the
property. Among those mentioned specially are the nieces as well as
the sisters. The nieces are referred to in no way different from the
sisters. Each one stands out in the second paragraph of the codicil as
clearly as the other and under exactly the same conditions.
Third, the last clause of the second paragraph of the codicil which, it
seems to us, taken together with the last clause of the first paragraph
of the codicil, is decisive of the intention of the testatrix. In the last
clause she says that she names all of the persons whom she desires to
take under her will be name "so that they must take and enjoy the
property in equal parts as good sisters and relatives."
We have then in the first paragraph a declaration as to who the
testatrix desires shall become the owners of her property on the death
of her husband. Among them we find the names of the nieces as well
as of the sisters. We have also the final declaration of the testatrix that
she desires that the sisters and the nieces shall take and enjoy the
property in equal parts. That being so, it appears to us that the
testatrix's intention is fairly clear, so clear in fact that it is unnecessary
to bring in extraneous arguments to reach a conclusion as to what she
intended.
10th Set
SUX 9th Batch ARTICLE 838 BALANAY Jr. Vs MARTINEZ
FACTS: Leodegaria Julian died. She was survived by her husband,
Felix Balanay, Sr., and six legitimate children.
Felix Balanay, Jr. filed a petition for the probate of his mother’s
notarial will, which was written in English. In thatwill, Leodegaria
declared that it was her desire her properties should not be divided
among her heirs during her husband's lifetime and that their legitimes
should be satisfied out of the fruits of her properties. She devised
andpartitioned the conjugal lands as if they were all owned by her. She
disposed of in the will her husband's one-half share of the conjugal
assets. This was contested by the heirs.
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the
will. Thereafter, Felix Balanay, Sr. signed an instrument waiving and
renouncing his right in Leodegaria’s estate in favor of their 6 children
ISSUE: WON the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal validity, and
in declaring it void. NO, the TC was correct
HELD: We are of the opinion that in view of certain unusual provisions
of the will, which are of dubious legality, and because of the motion to
withdraw the petition for probate (which the lower court assumed to
have been filed with the petitioner's authorization), the trial court
acted correctly in passing upon the will's intrinsic validity even before
its formal validity had been established. The probate of a will might
become an idle ceremony if on its face it appears to be intrinsically
void. Where practical considerations demand that the intrinsic validity
of the will be passed upon, even before it is probated, the court should
meet the issue.
But the probate court erred in declaring, in its order of February
28, 1974 that the will was void and in converting the testate
proceeding into an intestate proceeding notwithstanding the fact that
in its order of June 18, 1973 , it gave effect to the surviving husband's
conformity to the will and to his renunciation of his hereditary rights
which presumably included his one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained
in a will does not result in the invalidity of the other dispositions,
unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been
made" (Art. 792, Civil Code). "Where some of the provisions of a will
are valid and others invalid, the valid parts will be upheld if they can
be separated from the invalid without defeating the intention of the
testator or interfering with the general testamentary scheme, or doing
injustice to the beneficiaries"
The statement of the testatrix that she owned the "southern half of
the conjugal lands is contrary to law because, although she was a
coowner thereof, her share was inchoate and proindiviso But That
illegal declaration does not nullify the entire will. It may be
disregarded.
When practical considerations demand that intrinsic validity be passed
upon even before the will is probated, the will could do since the
probate of the will might become an idle ceremony if on its face the
will is intrinsically void.
ARTICLE 850
FIRST DIVISION
[G.R. No. L-23079. February 27, 1970.]
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO
AUSTRIA MOZO, petitioners, vs. HON. ANDRES REYES, Judge,
Court of First Instance of Rizal, PERFECTO CRUZ, BENITA
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 Wills and Succession Case Digests
CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-
SALONGA respondents.
The bulk of the estate of Basilia, admittedly, was destined under the
will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meñez,
Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had
been assumed and declared by Basilia as her own legally adopted
children.
On April 23, 1969, more than two years after her will was allowed to
probate, Basilia died. The respondent Perfecto Cruz was appointed
executor without bond by the same court in accordance with the
provisions of the decedent's will, notwithstanding the blocking attempt
pursued by the petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the same
proceedings a petition in intervention for partition alleging in substance
that they are the nearest of kin of Basilia, and that the five
respondents Perfecto Cruz, et al., had not in fact been adopted by the
decedent in accordance with law, in effect rendering these
respondents mere strangers to the decedent and without any right to
succeed as heirs.
Will the alleged adoption, which turned out to be false, cause the
invalidation of the institutions of the heirs.
Held: No.
The petitioners cite, as the controlling rule, article 850 of the Civil Code
which reads:
"The statement of a false cause for the institution of an heir shall be
considered as not written, unless it appears from the will that the
testator would not have made such institution if he had known the
falsity of such cause."
Coming closer to the center of the controversy, the petitioners have
called the attention of the lower court and this Court to the following
pertinent portions of the will of the deceased which recite:
"III
"Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang
aking itinuturing na mga anak na tunay (Hijos legalmente adoptados)
na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may
apelyidong Cruz.
xxx xxx xxx
"V
"Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang
aking mga ari-ariang maiiwan, sa kaparaanang sumusunod:
"A. — Aking ipinamamana sa aking nabanggit na limang anak na sina
Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong
Cruz, na parepareho ang kaparti ng bawa't isa at walang lamangan (en
partes iguales), bilang kanilang sapilitang mana (legiti[ma]), ang
kalahati (1/2) ng aking kaparti sa lahat ng aming ari-ariang
gananciales ng aking yumaong asawang Pedro Cruz na napapaloob sa
Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at
itinutukoy sa No. 1 ng parafo IV ng testamentong ito, ang kalahati
(1/2) ng mga lagay na lupa at palaisdaan na nasa Obando at Polo,
Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria, at
ang kalahati (1/2) ng ilang lagay na lupa na nasa Tinejeros, Malabon,
Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria."
The tenor of the language used, the petitioners argue, gives rise to the
inference that the late Basilia was deceived into believing that she was
legally bound to bequeath one-half of her entire estate to the
respondents Perfecto Cruz, et al. as the latter's legitime.
The petitioners further contend that had the deceased known the
adoption to be spurious, she would not have instituted the
respondents at all — the basis of the institution being solely her belief
that they were compulsory heirs. Proof therefore of the falsity of the
adoption would cause a nullity of the institution of heirs and the
opening of the estate wide to intestacy.
Did the lower court then abuse its discretion or act in violation of the
rights of the parties in barring the petitioners nephews and niece from
registering their claim even to properties adjudicated by the decedent
in her will?
Before the institution of heirs may be annulled under article 850 of the
Civil Code, the following requisites must concur:
First, the cause for the institution of heirs must be stated in the will;
Second, the cause must be shown to be false; and
Third, it must appear from the face of the will that the testator would
not have made such institution if he had known the falsity of the
cause.
The petitioners would have us imply, from the use of the terms,
"sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana"
(legitime), that the impelling reason or cause for the institution of the
respondents was the testatrix's belief that under the law she could not
do otherwise. If this were indeed what prompted the testatrix in
instituting the respondents, she did not make it known in her will.
Surely if she was aware that succession to the legitime takes place by
operation of law, independent of her own wishes, she would not have
found it convenient to name her supposed compulsory heirs to their
legitimes. Her express adoption of the rules on legitimes should very
well indicate her complete agreement with that statutory scheme.
But even this, like the petitioners' own proposition, is highly
speculative of what was in the mind of the testatrix when she
executed her will. One fact prevails, however, and it is that the
decedent's will does not state in a specific or unequivocal manner the
cause for such institution of heirs. We cannot annul the same on the
basis of guesswork or uncertain implications.
And even if we should accept the petitioners' theory that the decedent
instituted the respondents perfecto Cruz, et al. solely because she
believed that the law commanded her to do so, on the false
assumption that her adoption of these respondents was valid, still such
institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to
ignore whatever false cause the testator may have written in his will
for the institution of heirs. Such institution may be annulled only when
one is satisfied, after an examination of the will, that the testator
clearly would not have made the institution if he had known the cause
for it to be false.
Now, would the late Basilia have caused the revocation of the
institution of heirs if she had known that she was mistaken in treating
these heirs as her legally adopted children? Or would she have
instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute
on this point or at best is vague and uncertain. The phrases, "mga
sapilitang tagapagmana" and "sapilitang mana," were borrowed from
the language of the law on succession and were used, respectively, to
de scribe the class of heirs instituted and the abstract object of the
inheritance. They offer no absolute indication that the decedent would
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 Wills and Succession Case Digests
have willed her estate other than the way she did if she had known
that she was not bound by law to make allowance for legitimes.
Her disposition of the free portion of her estate (libre disposicion)
which largely favored the respondent Perfecto Cruz, the latter's
children, and the children of the respondent Benita Cruz, shows a
perceptible inclination on her part to give to the respondents more
than what she thought the law enjoined her to give to them.
Compare this with the relatively small devise of land which the
decedent had left for her blood relatives, including the petitioners
Consuelo Austria-Benta and Lauro Mozo and the children of the
petitioner Ruben Austria. Were we to exclude the respondents Perfecto
Cruz, et al, from the inheritance, then the petitioners and the other
nephews and nieces would succeed to the bulk of the estate by
intestacy — a result which would subvert the clear wishes of the
decedent.
Whatever doubts one entertains in his mind should be swept away by
these explicit injunctions in the Civil Code: "The words of a will are to
receive an interpretation which will give to every expression some
effect, rather than one which will render any of the expressions
inoperative; and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy."
ARTICLE 854
Maloles II v Philips
[G.R. No. 129505. January 31, 2000]
FACTS:
In 1995, Dr. Arturo De Los Santos filed a petition for probate of his
will. He declared that he has no compulsory heirs and that he is
naming as sole devisee and legatee the Arturo de Santos Foundation,
Inc. (ASF). The named executrix is Pacita De Los Reyes Phillips. The
petition was filed in RTC Makati Branch 61. Judge Fernando Gorospe of
said court determined that Arturo is of sound mind and was not acting
in duress when he signed his last will and testament and so Branch 61
allowed the last will and testament on February 16, 1996.
Ten days from the allowance, Arturo died. Thereafter, Pacita, as
executrix, filed a motion for the issuance of letters of testamentary
with Branch 61. She however withdrew the motion but later on refilled
it with RTC Makati Branch 65.
Meanwhile, a certain Octavio Maloles II filed a motion for intervention
with Branch 61 claiming that as a next of kin (him being the full
blooded nephew of Arturo) he should be appointed as the
administrator of the estate and that he is an heir.
Judge Abad Santos of Branch 65 issued an order transferring the
motion filed by Pacita to Branch 61. Judge Santos ratiocinated that
since the probate proceeding started in Branch 61, then it should be
the same court which should hear Pacita’s motion. Branch 61 however
refused to consolidate and referred the case back to Branch 65.
Branch 65 subsequently consolidated the case per refusal of Branch
61. Eventually, Branch 65 allowed the motion for intervention filed by
Octavio.
ISSUE: WON Maloles is a compulsory heir (him being the sole full-
blooded nephew) NO
HELD:
Anent the issue of Octavio being an heir, such contention has no merit.
He is not an heir. Arturo died testate. Next of kins may only inherit if a
person dies intestate. In this case, Arturo left a valid will which
expressly provided that ASF is the sole legatee and devisee of his
estate.
Petitioner claims the right to intervene in and oppose the petition for
issuance of letters testamentary filed by private respondent. He argues
that, as the nearest next of kin and creditor of the testator, his interest
in the matter is material and direct. The court ruled that petitioner has
no right to intervene in the proceedings before Branch 65 of RTC-
Makati City.
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot
be considered an "heir" of the testator. It is a fundamental rule of
testamentary succession that one who has no compulsory or forced
heirs may dispose of his entire estate by will. Thus, Art. 842 of the
Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate
or any part of it in favor of any person having capacity to succeed.
Manikanä
One who has compulsory heirs may dispose of his estate provided he
does not contravene the provisions of this Code with regard to the
legitimate of said heirs.
Compulsory heirs are limited to the testator’s -
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal
fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil
Code.
Petitioner, as nephew of the testator, is not a compulsory heir who
may have been preterited in the testator’s will.
Nor does he have any right to intervene in the settlement proceedings
based on his allegation that he is a creditor of the deceased. Since the
testator instituted or named an executor in his will, it is incumbent
upon the Court to respect the desires of the testator.
As we stated in Ozaeta v. Pecson: The choice of his executor is a
precious prerogative of a testator, a necessary concomitant of his right
to dispose of his property in the manner he wishes. It is natural that
the testator should desire to appoint one of his confidence, one who
can be trusted to carry out his wishes in the disposal of his estate. The
curtailment of this right may be considered a curtailment of the right
to dispose.
Only if the appointed executor is incompetent, refuses the trust, or
fails to give bond may the court appoint other persons to administer
the estate. None of these circumstances is present in this case.
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner, vs.HON. INTERMEDIATE
APPELLATE COURT (Third Special Cases Division), VIRGINIA
A. FERNANDEZ and ROSA DIONGSON, respondents.
F A C T S : Constantino filed a petition for the probate of the will of the
late Nemesio. The will provided that all his shares from properties he
earned with his wife shall be given to his brother Segundo (father of
Constantino). In case Segundo dies, all such property shall be given to
Segundo’s children. Segundo pre-deceased Nemesio.
The oppositors Virginia, a legally adopted daughter of the deceased,
and the latter's widow Rosa filed a motion to dismiss on the following
grounds:
(1) the petitioner has no legal capacity to institute these proceedings;
(2) he is merely a universal heir and
(3) the widow and the adopted daughter have been preterited.
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WON Rosa, the widow of the deceased, has been preterited.
NO
WON Virginia, the legally adopted daughter of the deceased,
has been preterited. YES
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul
the institution of heir; but the devisees and legacies shall be valid
insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall he effectual, without prejudice to the right of
representation.
Preterition consists in the omission in the testator's will of the forced
heirs or anyone of them either because they are not mentioned
therein, or, though mentioned, they are neither instituted as heirs nor
are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966];
Maninang v. Court of Appeals, 114 SCRA 478 [1982]).
Insofar as the widow is concerned, Article 854 of the Civil Code may
not apply as she does not ascend or descend from the testator,
although she is a compulsory heir. Stated otherwise, even if the
surviving spouse is a compulsory heir, there is no preterition even if
she is omitted from the inheritance, for she is not in the direct line.
(Art. 854, Civil code)
However, the same thing cannot be said of the other respondent
Virginia A. Fernandez, whose legal adoption by the testator has not
been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-
9). Under Article 39 of P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted person the same rights
and duties as if he were a legitimate child of the adopter and makes
the adopted person a legal heir of the adopter. It cannot be denied
that she has totally omitted and preterited in the will of the testator
and that both adopted child and the widow were deprived of at least
their legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the legally
adopted child.
Pretention annuls the institution of an heir and annulment throws open
to intestate succession the entire inheritance. The only provisions
which do not result in intestacy are the legacies and devises made in
the will for they should stand valid and respected, except insofar as
the legitimes are concerned.
The universal institution of petitioner together with his brothers and
sisters to the entire inheritance of the testator results in totally
abrogating the will because the nullification of such institution of
universal heirs-without any other testamentary disposition in the will-
amounts to a declaration that nothing at all was written. Carefully
worded and in clear terms, Article 854 of the Civil Code offers no
leeway for inferential interpretation (Nuguid v. Nuguid), supra. No
legacies nor devises having been provided in the will the whole
property of the deceased has been left by universal title to petitioner
and his brothers and sisters. The effect of annulling the "Institution of
heirs will be, necessarily, the opening of a total intestacy (Neri v.
Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises
must, as already stated above, be respected.
JLT Agro Inc v Antonio Balansag
[G.R. No. 141882. March 11, 2005]
J.L.T. AGRO, INC., represented by its Manager, JULIAN L.
TEVES, petitioner, vs. ANTONIO BALANSAG and HILARIA
CADAYDAY, respondents.
FACTS:
Don Julian contracted two marriages. The first was with Antonia with
whom he had 2 children , Josefa and Emilio. When Antonia died, Don
Julian married Milagros with whom he had 4 children.
When Antonia died, the conjugal Lot No. 63 was the subject of an
action for partition and damages among Josefa, Emilio and Don Julian.
A Compromise Agreement was had whereby the Court rendered a
decision declaring , among others , that Don Julian retains
ownership of Lot No. 63
Par. 13 of the same compromise agreement also provided that the
properties now selected and adjudicated to Julian L. Teves
shall exclusively be adjudicated to the wife in second marriage of
Julian L. Teves and his four minor children, namely, Milagros Donio
Teves, his two acknowledged natural children Milagros Reyes Teves
and Pedro Reyes Teves and his two legitimated children Maria Evelyn
Donio Teves and Jose Catalino Donio Teves.
During his lifetime, Don Julian, Emilio, and Josefa assigned and
transferred to petitioner JLT Agro Inc. Lot No. 63 through a Deed of
Assignment of Assets with Assumption of Liabilities and a
Supplemental Deed. . Petitioner successfully had the lot registered in
its name. (Note: petitioner is actually a family corporation where Don
Julian is president and Josefa the treasurer).
After Don Julian’s death, Milagros sold Lot No. 63 to herein
respondents. Upon registering the Deed of Absolute Sale with the
ROD, respondents discovered that the title was already in the name of
petitioner.
Respondents, as vendees of Lot No. 63, filed a complaint before the
RTC ,seeking the declaration of nullity and cancellation of TCT No. T-
375 in the name of petitioner and the transfer of the title to Lot No. 63
in their names, plus damages.
The trial court ruled that at the time of Don Julian’s death , Lot No. 63
was no longer a part of his estate since he had earlier assigned it to
petitioner on 31 July 1973. Consequently, the lot could not be a
proper subject of extrajudicial partition by Milagros Donio and her
children, and not being the owners they could not have sold it. Had
respondents exercised prudence before buying the subject lot by
investigating the registration of the same with the Registry of Deeds,
they would have discovered that five (5) years earlier, the title had
already been cancelled and replaced by TCT No. T-375 in the name of
petitioner.
On appeal, the CA held that the Compromise Agreement particularly
paragraph 13 thereof, determined, adjudicated and reserved to Don
Julian’s two sets of heirs their future legitimes in his estate . The two
sets of heirs acquired full ownership and possession of the properties
respectively adjudicated to them in the CFI decision which was based
on the Compromise Agreement and Don Julian himself could no
longer dispose of the same, including Lot No. 63.
ISSUE:
1st :WON Don Julian validly transferred Lot No. 63 to petitioner. YES
2nd: WON there is preterition . NO
HELD:
1st Issue
The partition inter vivos (Compromise Agreement) of the properties of
Don Julian is undoubtedly valid pursuant to Article 1347. However,
considering that it would become legally operative only upon the death
of Don Julian, the right of his heirs from the second marriage to the
properties adjudicated to him under the compromise agreement was
but a mere expectancy. It was a bare hope of succession to the
property of their father. Being the prospect of a future acquisition, the
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 Wills and Succession Case Digests
interest by its nature was inchoate. It had no attribute of property, and
the interest to which it related was at the time nonexistent and might
never exist.
Evidently, at the time of the execution of the deed of assignment
covering Lot No. 63 in favor of petitioner, Don Julian remained the
owner of the property since ownership over the subject lot would only
pass to his heirs from the second marriage at the time of his death.
Thus, as the owner of the subject lot, Don Julian retained the absolute
right to dispose of it during his lifetime. His right cannot be challenged
by Milagros Donio and her children on the ground that it had already
been adjudicated to them by virtue of the compromise agreement.
2nd Issue
Emerging as the crucial question in this case is whether Don Julian had
validly transferred ownership of the subject lot during his lifetime. The
lower court ruled that he had done so through the Supplemental
Deed. The appellate court disagreed, holding that the Supplemental
Deed is not valid, containing as it does a prohibited preterition of Don
Julian’s heirs from the second marriage. Petitioner contends that the
ruling of the Court of Appeals is erroneous. The contention is well-
founded.
Article 854 provides that the preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether living at the time
of the execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devises and legacies shall be valid
insofar as they are not inofficious. Manresa defines preterition as the
omission of the heir in the will, either by not naming him at all or,
while mentioning him as father, son, etc., by not instituting him as heir
without disinheriting him expressly, nor assigning to him some part of
the properties. It is the total omission of a compulsory heir in the
direct line from inheritance. It consists in the silence of the testator
with regard to a compulsory heir, omitting him in the testament,
either by not mentioning him at all, or by not giving him anything in
the hereditary property but without expressly disinheriting him, even if
he is mentioned in the will in the latter case. But there is no preterition
where the testator allotted to a descendant a share less than the
legitime, since there was no total omission of a forced heir.
In the case at bar, Don Julian did not execute a will since
what he resorted to was a partition inter vivos of his
properties, as evidenced by the court approved Compromise
Agreement. Thus, it is premature if not irrelevant to speak of
preterition prior to the death of Don Julian in the absence of a will
depriving a legal heir of his legitime. Besides, there are other
properties which the heirs from the second marriage could inherit from
Don Julian upon his death. A couple of provisions in the Compromise
Agreement are indicative of Don Julian’s desire along this line. Hence,
the total omission from inheritance of Don Julian’s heirs from the
second marriage, a requirement for preterition to exist, is hardly
imaginable as it is unfounded.
Despite the debunking of respondents’ argument on preterition, still
the petition would ultimately rise or fall on whether there was a valid
transfer effected by Don Julian to petitioner. Notably, Don Julian was
also the president and director of petitioner, and his daughter from the
first marriage, Josefa, was the treasurer thereof. There is of course no
legal prohibition against such a transfer to a family corporation. Yet
close scrutiny is in order, especially considering that such transfer
would remove Lot No. 63 from the estate from which Milagros and her
children could inherit. Both the alleged transfer deed and the title
which necessarily must have emanated from it have to be subjected to
incisive and detailed examination.
SEANGIO VS REYES/ Article 854
G.R. Nos. 140371-72 November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D.
SEANGIO, Petitioners, vs. HON. AMOR A. REYES, in her capacity as
Presiding Judge, Regional Trial Court, National Capital Judicial Region,
Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO,
ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D.
SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and
JAMES D. SEANGIO, Respondents.
Facts: A petition for the probate of the holographic will of Segundo
was filed by petitioners before the RTC. On July 1, 1999, private
respondents moved for the dismissal of the probate proceedings
primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the
estate of the deceased and thus does not meet the definition of a will
under Article 783 of the Civil Code.
RTC ruling: A perusal of the document termed as "will" by
oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that
there is preterition, as the only heirs mentioned thereat are Alfredo
and Virginia. [T]he other heirs being omitted, Article 854 of the New
Civil Code thus applies. However, insofar as the widow Dy Yieng
Seangio is concerned, Article 854 does not apply, she not being a
compulsory heir in the direct line. As such, this Court is bound to
dismiss this petition, for to do otherwise would amount to an abuse of
discretion.
Petitioners argue that the holographic will does not contain any
institution of an heir, but rather, as its title clearly states,Kasulatan ng
Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory
heir. Thus, there is no preterition in the decedent’s will and the
holographic will on its face is not intrinsically void.
ISSUE: Won there is preterition in the decedent’s will? NO.
HELD: the Court believes that the compulsory heirs in the direct line
were not preterited in the will. It was, in the Court’s opinion,
Segundo’s last expression to bequeath his estate to all his compulsory
heirs, with the sole exception of Alfredo. Also, Segundo did not
institute an heir to the exclusion of his other compulsory heirs. The
mere mention of the name of one of the petitioners, Virginia, in the
document did not operate to institute her as the universal heir. Her
name was included plainly as a witness to the altercation between
Segundo and his son, Alfredo.
Considering that the questioned document is Segundo’s holographic
will, and that the law favors testacy over intestacy, the probate of the
will cannot be dispensed with. Article 838 of the Civil Code provides
that no will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court. Thus,
unless the will is probated, the right of a person to dispose of his
property may be rendered nugatory.
ARTICLE 857 (Substitution of Heirs)
PCIB vs ESCOLIN
(Very loooooooong case; 78 assignment of errors TORTURE!!!! Sinali
ko lang yung tungkol sa Article 857. I would suggest you read the
fulltext. )
BARREDO, J.
Facts: On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving
a will executed on November 22, 1952 pertinently providing as follows:
SECOND: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever situated, or
located, to my beloved husband, Charles Newton Hodges, to have and
to hold unto him, my said husband, during his natural lifetime.
FOURTH: At the death of my said husband, Charles Newton Hodges, I
give, devise and bequeath all of the rest, residue and remainder of my
estate, both real and personal, wherever situated or located, to be
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 Wills and Succession Case Digests
equally divided among my brothers and sisters, share and share alike,
namely:
Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie
Rascoe, Era Roman and Nimroy Higdon.
FIFTH: In case of the death of any of my brothers and/or sisters
named in item Fourth, above, prior to the death of my husband,
Charles Newton Hodges, then it is my will and bequest that the heirs
of such deceased brother or sister shall take jointly the share which
would have gone to such brother or sister had she or he survived.
This will was subsequently probated in aforementioned Special
Proceedings No. 1307 of respondent court on June 28, 1957, with the
widower Charles Newton Hodges being appointed as Executor,
pursuant to the provisions thereof.
Ruling: The error in PCIB's position lies simply in the fact that it views
the said disposition exclusively in the light of substitutions covered by
the Civil Code section on that subject, (Section 3, Chapter 2, Title IV,
Book III) when it is obvious that substitution occurs only when another
heir is appointed in a will "so that he may enter into inheritance in
default of the heir originally instituted," (Article 857, id.) and, in the
present case, no such possible default is contemplated. The brothers
and sisters of Mrs. Hodges are not substitutes for Hodges because,
under her will, they are not to inherit what Hodges cannot, would not
or may not inherit, but what he would not dispose of from his
inheritance; rather, therefore, they are also heirs instituted
simultaneously with Hodges, subject, however, to certain conditions,
partially resolutory insofar as Hodges was concerned and
correspondingly suspensive with reference to his brothers and sisters-
in-law. It is partially resolutory, since it bequeaths unto Hodges the
whole of her estate to be owned and enjoyed by him as universal and
sole heir with absolute dominion over them 6 only during his lifetime,
which means that while he could completely and absolutely dispose of
any portion thereof inter vivos to anyone other than himself, he was
not free to do so mortis causa, and all his rights to what might remain
upon his death would cease entirely upon the occurrence of that
contingency, inasmuch as the right of his brothers and sisters-in-law to
the inheritance, although vested already upon the death of Mrs.
Hodges, would automatically become operative upon the occurrence of
the death of Hodges in the event of actual existence of any remainder
of her estate then.
ARTICLE 859
JOHNNY S. RABADILLA vs. COURT OF APPEALS AND MARIA
MARLENA COSCOLUELLA Y BELLEZA VILLACARLOS
[G.R. No. 113725. June 29, 2000]
Facts: In a Codicil appended to the Last Will and Testament of testatrix
Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein
petitioner, Johnny S. Rabadilla, was instituted as a devisee of parcel of
land, with the obligation to deliver 100 piculs of sugar to herein private
respondent every year during the latter's lifetime. The codicil provides
that the obligation is imposed not only on the instituted heir but also
to his successors-in-interest and that in case of failure to deliver,
private respondent shall seize the property and turn it over to the
testatrix's "near descendants." PR filed an action for the non-
compliance of the said conditions.Petitioner theorizes that the testatrix
intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge
Rabadilla, was to be substituted by the testatrix's "near descendants"
should the obligation to deliver the fruits to herein private respondent
be not complied with. And since the testatrix died single and without
issue, there can be no valid substitution and such testamentary
provision cannot be given any effect.
Issue: W/ N there is fudiciarycommissionary substitution. NO
Held: Substitution is the designation by the testator of a person or
persons to take the place of the heir or heirs first instituted. Under
substitutions in general, the testator may either (1) provide for the
designation of another heir to whom the property shall pass in case
the original heir should die before him/her, renounce the inheritance or
be incapacitated to inherit, as in a simple substitution, or (2) leave
his/her property to one person with the express charge that it be
transmitted subsequently to another or others, as in a fideicommissary
substitution. The Codicil sued upon contemplates neither of the two.
In simple substitutions, the second heir takes the inheritance in default
of the first heir by reason of incapacity, predecease or renunciation. In
the case under consideration, the provisions of subject Codicil do not
provide that should Dr. Jorge Rabadilla default due to predecease,
incapacity or renunciation, the testatrix's near descendants would
substitute him. What the Codicil provides is that, should Dr. Jorge
Rabadilla or his heirs not fulfill the conditions imposed in the Codicil,
the property referred to shall be seized and turned over to the
testatrix's near descendants.
Neither is there a fideicommissary substitution here and on this point,
petitioner is correct. In a fideicommissary substitution, the first heir is
strictly mandated to preserve the property and to transmit the same
later to the second heir. In the case under consideration, the instituted
heir is in fact allowed under the Codicil to alienate the property
provided the negotiation is with the near descendants or the sister of
the testatrix. Thus, a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing upon the first
heir the preservation of the property and its transmission to the
second heir. "Without this obligation to preserve clearly imposed by
the testator in his will, there is no fideicommissary substitution." Also,
the near descendants' right to inherit from the testatrix is not definite.
The property will only pass to them should Dr. Jorge Rabadilla or his
heirs not fulfill the obligation to deliver part of the usufruct to private
respondent.
Another important element of a fideicommissary substitution is also
missing here. Under Article 863, the second heir or the
fideicommissary to whom the property is transmitted must not be
beyond one degree from the first heir or the fiduciary. A
fideicommissary substitution is therefore, void if the first heir is not
related by first degree to the second heir. In the case under scrutiny,
the near descendants are not at all related to the instituted heir, Dr.
Jorge Rabadilla.
RAMIREZ vs. RAMIREZ, ET AL.
G.R. No. L-27952
February 15, 1982
ABAD SANTOS, J
Jose Eugenio Ramirez's will was admitted to probate. Testator
provided in respect of the legacies of Roberto and Jorge Ramirez "con
sustitucion vulgar a favor de sus respectivos descendientes, y, en su
defecto, con substitution vulgar reciprocal entre ambos."
The appellants question the sustitucion vulgar y fideicomisaria in
connection with Wanda's usufruct over two thirds of the estate in favor
of Juan Pablo Jankowski and Horace v. Ramirez. They allege that the
substitution in its vulgar aspect as void because Wanda survived the
testator or stated differently because she did not predecease the
testator.
Whether or not appellants contention is tenable. NO.
"Substitution is the appoint- judgment of another heir so that he may
enter into the inheritance in default of the heir originally instituted."
(Art. 857, Civil Code. And that there are several kinds of substitutions,
namely: simple or common, brief or compendious, reciprocal, and
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 Wills and Succession Case Digests
fideicommissary (Art. 858, Civil Code.) According to Tolentino,
"Although the Code enumerates four classes, there are really only two
principal classes of substitutions: the simple and the fideicommissary.
The others are merely variations of these two." (111 Civil Code, p. 185
[1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code
which reads:
ART. 859. The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or heirs should
die before him, or should not wish, or should be incapacitated to
accept the inheritance.
A simple substitution, without a statement of the cases to which it
refers, shall comprise the three mentioned in the preceding paragraph,
unless the testator has otherwise provided.
The fideicommissary substitution is described in the Civil Code as
follows:
ART. 863. A fideicommissary substitution by virtue of which the
fiduciary or first heir instituted is entrusted with the obligation to
preserve and to transmit to a second heir the whole or part of
inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally
instituted, and provided further that the fiduciary or first heir and the
second heir are living at time of the death of the testator.
It will be noted that the testator provided for a vulgar substitution in
respect of the legacies of Roberto and Jorge Ramirez, the appellants,
thus: con sustitucion vulgar a favor de sus respectivos descendientes,
y, en su defecto, con substitution vulgar reciprocal entre ambos.
The appellants do not question the legality of the substitution so
provided. The appellants question the sustitucion vulgar y
fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with
the one-third usufruct over the estate given to the widow Marcelle
However, this question has become moot because as We have ruled
above, the widow is not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in
connection with Wanda's usufruct over two thirds of the estate in favor
of Juan Pablo Jankowski and Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void because
Wanda survived the testator or stated differently because she did not
predecease the testator. But dying before the testator is not the only
case for vulgar substitution for it also includes refusal or incapacity to
accept the inheritance as provided in Art. 859 of the Civil Code, supra.
Hence, the vulgar substitution is valid.
ARTICLE 863
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA
PALACIOS, Administratrix, petitioner-appellee, vs. MARCELLE D.
VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants. G.R. No. L-27952
February 15, 1982
(Manner of partitioning the testate estate of Jose Eugenio Ramirez
among the principal beneficiaries, namely: his widow Marcelle
Demoron de Ramirez; his two grandnephews Roberto and Jorge
Ramirez; and his companion Wanda de Wrobleski. The widow Marcelle
is a French who lives in Paris, while the companion Wanda is an
Austrian who lives in Spain. Moreover, the testator provided for
substitutions.)
FACTS: Jose Eugenio Ramirez, a Filipino national, died in Spain on
December 11, 1964, with only his widow as compulsory heir. His will
was admitted to probate by the Court of First Instance of Manila,
Branch X, on July 27, 1965. Maria Luisa Palacios was appointed
administratrix of the estate. In due time she submitted an inventory of
the estate as follows:
On June 23, 1966, the administratrix submitted a project of partition
as follows: the property of the deceased is to be divided into two
parts. One part shall go to the widow 'en pleno dominio" in satisfaction
of her legitime; the other part or "free portion" shall go to Jorge and
Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3)
of the free portion is charged with the widow's usufruct and the
remaining two-thirds (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds:
xxx (b) that the provisions for fideicommissary substitutions are also
invalid because the first heirs are not related to the second heirs or
substitutes within the first degree, as provided in Article 863 of the
Civil Code; xxx
RULING: It may be useful to recall that "Substitution is the appoint-
judgment of another heir so that he may enter into the inheritance in
default of the heir originally instituted." (Art. 857, Civil Code. And that
there are several kinds of substitutions, namely: simple or common,
brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil
Code.) According to Tolentino, "Although the Code enumerates four
classes, there are really only two principal classes of substitutions:
the simple and the fideicommissary. The others are merely variations
of these two." (111 Civil Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code.
The fideicommissary substitution is described in the Civil Code as
follows:
ART. 863. A fideicommissary substitution by virtue of which the
fiduciary or first heir instituted is entrusted with the obligation to
preserve and to transmit to a second heir the whole or part of
inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally
instituted, and provided further that the fiduciary or first heir and the
second heir are living at time of the death of the testator.
It will be noted that the testator provided for a vulgar substitution in
respect of the legacies of Roberto and Jorge Ramirez, the appellants.
The appellants do not question the legality of the substitution so
provided. The appellants question the sustitucion vulgar y
fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with
the one-third usufruct over the estate given to the widow Marcelle
However, this question has become moot because as We have ruled
above, the widow is not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in
connection with Wanda's usufruct over two thirds of the estate in favor
of Juan Pablo Jankowski and Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void because
Wanda survived the testator or stated differently because she did not
predecease the testator. But dying before the testator is not the only
case for vulgar substitution for it also includes refusal or incapacity to
accept the inheritance as provided in Art. 859 of the Civil Code, supra.
Hence, the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the
appellants are correct in their claim that it is void for the following
reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are
not related to Wanda, the heir originally instituted. Art. 863 of the Civil
Code validates a fideicommissary substitution "provided such
substitution does not go beyond one degree from the heir originally
instituted."
What is meant by "one degree" from the first heir is explained by
Tolentino as follows:
Scaevola Maura, and Traviesas construe "degree" as designation,
substitution, or transmission. The Supreme Court of Spain has
decidedly adopted this construction. From this point of view, there can
be only one tranmission or substitution, and the substitute need not be
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 Wills and Succession Case Digests
related to the first heir. Manresa, Morell and Sanchez Roman,
however, construe the word "degree" as generation, and the present
Code has obviously followed this interpretation. by providing that the
substitution shall not go beyond one degree "from the heir originally
instituted." The Code thus clearly indicates that the second heir must
be related to and be one generation from the first heir.
From this, it follows that the fideicommissary can only be either a child
or a parent of the first heir. These are the only relatives who are one
generation or degree from the fiduciary (Op. cit., pp. 193-194.)
(b) There is no absolute duty imposed on Wanda to transmit the
usufruct to the substitutes as required by Arts. 865 and 867 of the Civil
Code. In fact, the appellee admits "that the testator contradicts the
establishment of a fideicommissary substitution when he permits the
properties subject of the usufruct to be sold upon mutual agreement of
the usufructuaries and the naked owners."
The estate of Jose Eugenio Ramirez is hereby ordered distributed as
follows:
One-half (1/2) thereof to his widow as her legitime;One-half (1/2)
thereof which is the free portion to Roberto and Jorge Ramirez in
naked ownership and the usufruct to Wanda de Wrobleski with a
simple substitution in favor of Juan Pablo Jankowski and Horace V.
Ramirez.
PCIB v. PABLICO 
JOHNNY S. RABADILLA, petitioner, vs. COURT OF APPEALS AND
MARIA MARLENA COSCOLUELLA Y BELLEZA VILLACARLOS,
respondents.
G.R. No. 113725. June 29, 2000
FACTS:
In a Codicil appended to the Last Will and Testament of testatrix Aleja
Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein
petitioner, Johnny S. Rabadilla, was instituted as a devisee of a parcel
of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said
Codicil contained the following provisions:
I give, leave and bequeath the following property owned by me to Dr.
Jorge Rabadilla resident of 141 P. Villanueva, Pasay City:
 First Par: That should Jorge Rabadilla die ahead of me, the
aforementioned property and the rights which I shall set forth herein
below, shall be inherited and acknowledged by the children and
spouse of Jorge Rabadilla.
 Fourth Par: It is also my command, in this my addition (Codicil), that
should I die and Jorge Rabadilla shall have already received the
ownership of the said lot, Jorge Rabadilla shall have the obligation until
he dies, every year to give to Maria Marlina Coscolluela y Belleza,
Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of
Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.
 Fifth Par: Should Jorge Rabadilla die, his heir shall have the obligation
to still give yearly, the sugar as specified in the Fourth paragraph of
his testament, to Maria Marlina Coscolluela y Belleza on the month of
December of each year.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina
and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all
surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos
brought a complaint, docketed as before Branch 52 of the Regional
Trial Court in Bacolod City, against the above-mentioned heirs of Dr.
Jorge Rabadilla, to enforce the provisions of subject Codicil.
RTC dismissed the complaint. CA reversed RTC decision and ordered
the heirs of Rabadilla to reconvey the title over the lot, together with
its fruits and interests, to the estate of Aleja Belleza.
Petitioner now contends that there Dr. Jorge Rabadilla was to be
substituted by his “near descendants” should there be noncompliance
with the obligation to deliver the piculs of sugar to private respondent.
And since the testatrix died single and without issue, there can be no
valid substitution and such testamentary provision cannot be given
effect.
ISSUE: WON there can be no valid substitution by the heirs of Dr.
Rabadilla.
RULING: There can be a valid substitution.
Substitution is the designation by the testator of a person or persons
to take the place of the heir or heirs first instituted. Under
substitutions in general, the testator may either:
(1) Provide for the designation of another heir to whom the property
shall pass in case the original heir should die before him/her, renounce
the inheritance or be incapacitated to inherit, as in a simple
substitution; or
(2) Leave his/her property to one person with the express charge that
it be transmitted subsequently to another or others, as in a
fideicommissary substitution.
The Codicil sued upon contemplates neither of the two.
In simple substitutions, the second heir takes the inheritance in default
of the first heir by reason of incapacity, predecease or renunciation. In
the case under consideration, the provisions of subject Codicil
do not provide that should Dr. Jorge Rabadilla default due to
predecease, incapacity or renunciation, the testatrix's near
descendants would substitute him. What the Codicil provides
is that, should Dr. Jorge Rabadilla or his heirs not fulfill the
conditions imposed in the Codicil, the property referred to
shall be seized and turned over to the testatrix's near
descendants.
In re: Fideicommissary Substitution
Neither is there a fideicommissary substitution here and on this point,
petitioner is correct. In a fideicommissary substitution, the first heir is
strictly mandated to preserve the property and to transmit the same
later to the second heir. In the case under consideration, the instituted
heir is in fact allowed under the Codicil to alienate the property
provided the negotiation is with the near descendants or the sister of
the testatrix. Thus, a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing upon the first
heir the preservation of the property and its transmission to the
second heir. "Without this obligation to preserve clearly imposed by
the testator in his will, there is no fideicommissary substitution."
Another important element of a fideicommissary substitution is also
missing here. Under Article 863, the second heir or the
fideicommissary to whom the property is transmitted must not be
beyond one degree from the first heir or the fiduciary. A
fideicommissary substitution is therefore, void if the first heir is not
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 Wills and Succession Case Digests
related by first degree to the second heir. In the case under scrutiny,
the near descendants are not at all related to the instituted heir, Dr.
Jorge Rabadilla.
ARTICLE 882
RABADILLA, petitioner, vs. COURT OF APPEALS,
respondents.|||
Facts:
Dr. Jorge Rabadilla, in a codicil of AlejaBelleza, was
instituted devisee of Lot No. 1392 with an area of 511,855 square
meters with the obligation to deliver 100 piculs of sugar to herein
private respondent every year during the latter's lifetime. The
codicil provides that the obligation is imposed not only on the
instituted heir but also to his successors-in-interest and that in
case of failure to deliver, private respondent shall seize the
property and turn it over to the testatrix's "near descendants."
Dr. Rabadilla died and was survived by his wife and
children, one of whom is herein petitioner. Private respondent,
alleging failure of the heirs to comply with their obligation, filed a
complaint with the RTC praying for the reconveyance of the
subject property to the surviving heirs of the testatrix. During the
pre-trial, a compromise agreement was concluded between the
parties wherein the lessee of the property assumed the
delivery of 100 piculs of sugar to private respondent. However,
only partial delivery was made.
Thereafter, the trial court dismissed the complaint for
lack of cause of action. The Court of Appeals, on appeal, reversed
the decision and held that the institution of Dr. Rabadilla is in the
nature of a modal institution and a cause of action in
favor of private respondent arose when petitioner failed to
comply with their obligation under the codicil, and in ordering the
reversion of Lot 1392 to the estate of testatrix. Aggrieved,
petitioner availed of this recourse.
Issue:Whether or not there was substitution?
Ruling:
Successional rights are transmitted from the
moment of death and compulsory heirs succeed the decedent not only
to all the property but also to his rights and obligations. Hence, the
heirs of Dr. Rabadilla is also obliged under the codicil to deliver 100
piculs of sugar to private respondent every year.
There is no substitution of heir where no substitute was
provided by the testatrix in case the instituted heir predecease her or
in case of the latter's incapacity or renunciation nor was the instituted
heir mandated to preserve the property and to transmit it to the
second heir.Substitution is the designation by the testator of a person
or persons to take the place of the heir or heirs first instituted. Under
substitutions in general, the testator may either (1) provide for the
designation of another heir to whom the property shall pass in case
the original heir should die before him/her, renounce the inheritance or
be incapacitated to inherit, as in a simple substitution, or (2) leave
his/her property to one person with the express charge that it be
transmitted subsequently to another or others, as in a fideicommissary
substitution.
In simple substitutions, the second heir takes the inheritance
in default of the first heir by reason of incapacity, predecease or
renunciation. In the case under consideration, the provisions of subject
Codicil do not provide that should Dr. Jorge Rabadilla default due to
predecease, incapacity or renunciation, the testatrix's near
descendants would substitute him. What the Codicil provides is that,
should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed
in the Codicil, the property referred to shall be seized and turned over
the testatrix's near descendants.
Neither is there a fideicommissary substitution here and on this point,
petitioner is correct. In a fideicommissary substitution, the first heir is
strictly mandated to preserve the property and to transmit the same
later to the second heir. In the case under consideration, the instituted
heir is in fact allowed under the Codicil to alienate the property
provided the negotiation is with the near descendants or the
sister of the testatrix. Thus, a very important element of a
fideicommissary substitution is lacking; the obligation clearly imposing
upon the first heir the preservation of the property and its transmission
to the second heir. Also, the near descendants' right to inherit from the
testatrix is not definite. The property will only pass to them should Dr.
Jorge Rabadilla or his heirs not fulfill the obligation to deliver
part of the usufruct to private respondent. Another important
element of a fideicommissary substitution is also missing here. Under
Article 863, the second heir or the fideicommissary to whom the
property is transmitted must not be beyond one degree from the first
heir or the fiduciary. A fideicommissary substitution is therefore, void if
the first heir is not related by first degree to the second heir. In the
case under scrutiny, the near descendants are not at all related to the
instituted heir, Dr. Jorge Rabadilla. The institution of an heir in the
manner prescribed in Article 882 is what is known in the
law of succession as an institucion sub modo or a modal institution. In
a modal institution, the testator states (1) the object of the institution,
(2) the purpose or application of the property left by the testator, or
(3) the charge imposed by the testator upon the heir. A "mode"
imposes an obligation upon the heir or legatee but it does not affect
the efficacy of his rights to the succession. On the other hand, in a
conditional testamentary disposition, the condition must happen or be
fulfilled in order for the heir to be entitled to succeed the testator. The
condition suspends but does not obligate; and the mode obligates but
does not suspend. To some extend, it is similar to a resolutory
condition
ARTICLE 888
REGINA FRANCISCO AND ZENAIDA PASCUAL, petitioners, vs.
AIDA FRANCISCO-ALFONSO, respondent.
G.R. No. 138774 March 8, 2001
Facts: Respondent Aida Francisco-Alfonso (hereafter Aida) is the only
daughter of spouses Gregorio Francisco and Cirila de la Cruz, who are
now both deceased.
Petitioners, on the other hand, are daughters of the late Gregorio
Francisco with his common law wife Julia Mendoza, with whom he
begot seven (7) children.
Gregorio Francisco owned two parcels of residential land. When
Gregorio was confined in a hospital in 1990, he confided to his
daughter Aida that the certificates of title of his property were in the
possession of Regina Francisco and Zenaida Pascual.
After Gregorio died on July 20, 1990, Aida inquired about the
certificates of title from her half sisters. They informed her that
Gregorio had sold the land to them on August 15, 1983. After
verification, Aida learned that there was indeed a deed of absolute sale
in favor of Regina Francisco and Zenaida Pascual. Thus, on August 15,
1983, Gregorio executed a "Kasulatan sa Ganap na Bilihan, whereby
for P25,000.00, he sold the two parcels of land to Regina Francisco
and Zenaida Pascual. By virtue of the sale, the Register of Deeds of
Bulacan issued TCT No. T-59.585 to Regina Francisco and TCT T-
59.586 to Zenaida Pascual.
On April 1, 1991, Aida filed with the Regional Trial Court, Bulacan a
complaint against petitioners for annulment of sale with damages. She
alleged that the signature of her late father, Gregorio Francisco, on the
Kasulatan sa Ganap na Bilihan dated August 15, 1983, was a forgery.
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 Wills and Succession Case Digests
Issue: May a legitimate daughter be deprived of her share in the
estate of her deceased father by a simulated contract transferring the
property of her father to his illegitimate children?
Held: No.
Even if the kasulatan was not simulated, it still violated the Civil
Code19 provisions insofar as the transaction affected respondent's
legitime. The sale was executed in 1983, when the applicable law was
the Civil Code, not the Family Code.
Obviously, the sale was Gregorio's way to transfer the property to his
illegitimate daughters20 at the expense of his legitimate daughter. The
sale was executed to prevent respondent Alfonso from claiming her
legitime and rightful share in said property. Before his death, Gregorio
had a change of heart and informed his daughter about the titles to
the property.
According to Article 888, Civil Code:
"The legitime of legitimate children and descendants consists of one-
half of the hereditary estate of the father and of the mother.
"The latter may freely dispose of the remaining half subject to the
rights of illegitimate children and of the surviving spouse as hereinafter
provided."
Gregorio Francisco did not own any other property. If indeed the
parcels of land involved were the only property left by their father, the
sale in fact would deprive respondent of her share in her father's
estate. By law, she is entitled to half of the estate of her father as his
only legitimate child.21
The legal heirs of the late Gregorio Francisco must be determined in
proper testate or intestate proceedings for settlement of the estate.
His compulsory heir can not be deprived of her share in the estate
save by disinheritance as prescribed by law.
ARTICLE 891
IGNACIO CHUA vS. CFI
GR NO. L-29901 AUGUST 31, 1977
FACTS:
 Jose Frias Chua had 2 marriages. First with Patricia, he had 3 children-
Ignacio, Manuel and Lorenzo.
 When Patricia died, he married Consolacion de la Torre and had one
child - Juanito Frias Chua.
 Jose Frias Chua died intestate.
 After the intestate proceeding the court adjudicated half of lot in
question to Consolacion and the other half to their only son, Juanito.
The two sons in the first marriage, Lorenzo and Ignacio, received P3k
and P1550 respectively. (Manuel already died).
 Juanito also died intestate without issue. Consolacion de la Torre
executed a declaration of heirship adjudicating in her favor the pro-
indiviso share of her son Juanito in the lot in question.
 When dela Torre died, Ignacio and the heirs of Lorenzo filed a
complaint praying that the one-half portion of the Lot be declared as a
reservable property for the reason that the lot in question was subject
to reserval troncal pursuant to Article 981 NCC.
ISSUE:
 WON property in question was acquired by Juanito Frias Chua
from his father Jose Frias Chua gratuitously (as first requisite
of Reserva Troncal)? – YES.
HELD:
 In order that a property may be impressed with a reservable character
the following requisites must exist, to wit: (1) that the property was
acquired by a descendant from an asscendant or from a brother or
sister by gratuitous title; (2) that said descendant died without an
issue; (3) that the property is inherited by another ascendant by
operation of law; and (4) that there are relatives within the third
degree belonging to the line from which said property came.
 All of the foregoing requisites are present. Thus, as borne out by the
records, Juanoito Frias Chua of the second marriage died intestate in
1952; he died withour leaving any issue; his pro-indiviso of 1/2 share
of Lot No. 399 was acquired by his mother, Consolacion de la Torre
died, Juannnito Frias Chua who died intestate had relatives within the
third degree. These relatives are Ignacio Frias Chua and Dominador
Chua and Remidios Chua, the suppose legitimate children of the
deceased Lorenzo Frias Chua, who are the petitioners herein
 According to Manresa, "The transmission is gratuitous or by gratuitous
title when the recipient does not give anything in return." It matters
not whether the property transmitted be or be not subject to any prior
charges; what is essential is that the transmission be made
gratuitously, or by an act of mere liberality of the person making it,
without imposing any obligation on the part of the recipient; and that
the person receiving the property gives or does nothing in return.
 “The essential thing is that the person who transmits it does so
gratuitously, from pure generosity, without requiring from the
transferee any prestation." It is evident from the record that the
transmission of the property in question to Juanito Frias Chua of the
second marriage upon the death of his father Jose Frias Chua was by
means of a hereditary succession and therefore gratuitous.
 As long as the transmission of the property to the heirs is free from
any condition imposed by the deceased himself and the property is
given out of pure generosity, it is gratuitous.
IT'S A LONG CASE DIGEST BECAUSE IT'S ABOUT RESERVA
TRONCAL!!!
GONZALES v CFI
FACTS:
Benito Legarda y De la Paz, the son of Benito Legarda y Tuason,
died [Manila] on June 17, 1933. He was survived by his widow,
Filomena Races, and their seven children: four daughters named
Beatriz, Rosario, Teresa and Filomena and three sons named Benito,
Alejandro and Jose.
The real properties left by Benito Legarda y Tuason (father) were
partitioned in three equal portions by his daughters, Consuelo and
Rita, and the heirs of his deceased son Benito Legarda y De la
Paz(son/husband) who were represented by Benito F. Legarda.|
Filomena Legarda y Races (daughter) died intestate and without issue
on March 19, 1943. Her sole heiress was her mother, Filomena Races
Vda. de Legarda (mother/wife).
Mrs. Legarda executed an affidavit adjudicating extrajudicially to
herself the properties which she inherited from her deceased
daughter.
These are the properties (see full text) in litigation in this case. As a
result of the affidavit of adjudication, Filomena Races succeeded her
deceased daughter Filomena Legarda as co-owner of the properties
held proindiviso by her other six children.
Mrs. Legarda executed two handwritten Identical documents wherein
she disposed of the properties, which she inherited from her daughter,
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 Wills and Succession Case Digests
in favor of the children of her sons, Benito, Alejandro and Jose (sixteen
grandchildren in all).
Mrs. Legarda and her six surviving children partitioned the properties
consisting of the one-third share in the estate of Benito Legarda y
Tuason (father) which the children inherited in representation of their
father, Benito Legarda y De la Paz (son/husband).
Mrs. Legarda died (mother/wife). Her will was admitted to probate as
a holographic will. The decree of probate was affirmed by the Court of
Appeals.
In the testate proceeding, Beatriz, a daughter of the testatrix, filed a
motion to exclude from the inventory of her mother's estate the
properties which she inherited from her deceased daughter, Filomena,
on the ground that said properties are reservable properties which
should be inherited by Filomena Legarda's three sisters and three
brothers and not by the children of Benito, Alejandro and Jose, all
surnamed Legarda. That motion was opposed by the administrator,
Benito F. Legarda.
Mrs. Beatriz Gonzales filed an ordinary civil action against her brothers,
sisters, nephews and nieces and her mother's estate for the purpose of
securing a declaration that the said properties are reservable
properties which Mrs. Legarda could not bequeath in her holographic
will to her grandchildren to the exclusion of her three daughters and
her three sons.
Lower court dismissed the action of Mrs. Gonzales.
ISSUE: WON the disputed properties are reservable properties under
article 891 of the Civil Code, formerly article 811; YES
Whether Filomena Races Vda. de Legarda could dispose of them in his
will in favor of her grandchildren to the exclusion of her six
children; NO
HELD:
NOTE: This case involves a length illustrative discussion of Reserva
Troncal so prefer to read full text.
Reserva troncal is provided for in article 811 of the Spanish Civil Code,
now article 891, which reads: 1äwphï1.ñët
ART. 891. The ascendant who inherits from his descendant any
property which the latter may have acquired by gratuitous title from
another ascendant, or a brother or sister, is obliged to reserve such
property as he may have acquired by operation of law for the benefit
of relatives who are within the third degree and who belong to the line
from which said property came.
In reserve troncal (1) a descendant inherited or acquired by gratuitous
title property from an ascendant or from a brother or sister; (2) the
same property is inherited by another ascendant or is acquired by him
by operation of law from the said descendant, and (3) the said
ascendant should reserve the said property for the benefit of relatives
who are within the third degree from the deceased descendant
(prepositus) and who belong to the line from which the said property
came.
So, three transmissions are involved: (I) a first transmission by
lucrative title (inheritance or donation) from an ascendant or brother
or sister to the deceased descendant; (2) a posterior transmission, by
operation of law (intestate succession or legitime) from the deceased
descendant (causante de la reserve) in favor of another ascendant, the
reservor or reservista, which two transmissions precede the
reservation, and (3) a third transmissions of the same property (in
consequence of the reservation) from the reservor to the reservees
(reservatarios) or the relatives within the third degree from the
deceased descendant belonging to the line of the first ascendant,
brother or sister of the deceased descendant.
If there are only two transmissions there is no reserve.
The persons involved in reserve troncal are (1) the ascendant or
brother or sister from whom the property was received by the
descendant by lucrative or gratuitous title, (2) the descendant
or prepositus (prepositus) who received the property, (3) the reservor
(reservista) the other ascendant who obtained the property from the
(prepositus) by operation of law and (4) the reserves (reservatario)
who is within the third degree from theprepositus and who belongs to
the (line o tronco) from which the property came and for whom the
property should be reserved by the reservor.
The reservees may be half-brothers and sisters.
The person from whom the degree should be reckoned is the
descendant, or the one at the end of the line from which the property
came and upon whom the property last revolved by descent. He is
called the prepositus.
Reserva troncal contemplates legitimate relationship. illegitimate
relationship and relationship by affinity are excluded.
The reserva creates two resolutory conditions, namely, (1) the death
of the ascendant obliged to reserve and (2) the survival, at the time of
his death, of relatives within the third degree belonging to the line
from which the property came.
The reservor's title has been compared with that of the vendee
a retro in a pacta de retro sale or to a fideicomiso conditional.
The reserves cannot impugn any conveyance made by the reservor but
he can require that the reservable character of the property be
recognized by the purchaser.
There is a holding that the renunciation of the reservee's right to the
reservable property is illegal for being a contract regarding future
inheritance.
APPLICATION TO THE INSTANT CASE:
In the instant case, the properties in question were indubitably
reservable properties in the hands of Mrs. Legarda. Undoubtedly, she
was a reservor. The reservation became a certainty when at the time
of her death the reservees or relatives within the third degree of
the prepositus Filomena Legarda were living or they survived Mrs.
Legarda.
We hold that Mrs. Legarda could not convey in her holographic will to
her sixteen grandchildren the reservable properties which she had
inherited from her daughter Filomena because the reservable
properties did not form part of her estate (Cabardo vs. Villanueva, 44
Phil. 186, 191). The reservor cannot make a disposition mortis
causa of the reservable properties as long as the reservees survived
the reservor.
As repeatedly held in the Cano and Padura cases, the reservees inherit
the reservable properties from theprepositus, not from the reservor.
Article 891 clearly indicates that the reservable properties should be
inherited by all the nearest relatives within the third degree from
the prepositus who in this case are the six children of Mrs. Legarda.
She could not select the reservees to whom the reservable property
should be given and deprive the other reservees of their share
therein.
To allow the reservor in this case to make a testamentary disposition
of the reservable properties in favor of the reservees in the third
degree and, consequently, to ignore the reservees in the second
degree would be a glaring violation of article 891. That testamentary
disposition cannot be allowed.
(See Full text for application of Florentino v Florentino case)
The trial court said that the disputed properties lost their reservable
character due to the non-existence of third-degree relatives of
Filomena Legarda at the time of the death of the reservor, Mrs.
Legarda, belonging to the Legarda family, "except third-degree
relatives who pertain to both" the Legarda and Races lines.
That holding is erroneous. The reservation could have been
extinguished only by the absence of reservees at the time of Mrs.
Legarda's death. Since at the time of her death, there were (and still
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 Wills and Succession Case Digests
are) reservees belonging to the second and third degrees, the disputed
properties did not lose their reservable character. The disposition of
the said properties should be made in accordance with article 891 or
the rule on reserva troncal and not in accordance with the reservor's
holographic will. The said properties did not form part of Mrs.
Legarda's estate. (Cane vs. Director of Lands, 105 Phil. l, 4).
G.R. No. L-28032 September 24, 1986
plaintiffs-appellees, vs. DALISAY TONGKO CAMACHO, PRIMO
TONGKO and GODOFREDO CAMACHO, defendants-appellants.
FACTS:
Defendant Dalisay D. Tongko-Camacho and the plaintiffs, Francisco
Tioco de Papa, Manuel Tioco and Nicolas Tioco, are legitimate
relatives, plaintiffs being said defendant's grandaunt and granduncles.
Plaintiffs and defendant Dalisay D. Tongo-Camacho have as a common
ancestor the late Balbino Tioco (who had a sister by the name of
Romana Tioco), father of plaintiffs and great grandfather of defendant.
They stipulate that Romana Tioco during her lifetime gratuitously
donated four (4) parcels of land to her niece Toribia Tioco (legitimate
sister of plaintiffs). Toribia Tioco died intestate in l9l5, survived by her
husband, Eustacio Dizon, and their two legitimate children, Faustino
Dizon and Trinidad Dizon (mother of defendant Dalisay D, Tongko-
Camacho) and leaving the afore-mentioned four (4) parcels of land as
the inheritance of her said two children in equal pro-indiviso shares.
In 1928, Balbino Tioco died intestate, survived by his legitimate
children by his wife Marciana Felix (among them plaintiffs) and
legitimate grandchildren Faustino Dizon and Trinidad Dizon. In the
partition of his estate, three (3) parcels of land now covered by
Transfer Certificates of Title Nos. 16545 and 16554 of the Registry of
Deeds of Manila were adjudicated as the inheritance of the late Toribia
Tioco, but as she had predeceased her father, Balbino Tioco, the said
three (3) parcels of land devolved upon her two legitimate children
Faustino Dizon and Trinidad Dizon in equal pro-indiviso shares.
In 1937, Faustino Dizon died intestate, single and without issue,
leaving his one-half (1/2) pro-indiviso share in the seven (7) parcels of
land above-mentioned to his father, Eustacio Dizon, as his sole
intestate heir, who received the said property subject to a reserva
troncal. In 1939 Trinidad Dizon-Tongko died intestate, and her rights
and interests in the parcels of land abovementioned were inherited by
her only legitimate child, defendant Dalisay D. Tongko-Camacho,
subject to the usufructuary right of her surviving husband, defendant
Primo Tongko.
On June 14, 1965, Eustacio Dizon died intestate, survived his only
legitimate descendant, defendant Dalisay D. Tongko-Camacho. The
parties agree that defendant Dalisay D. Tongko-Camacho now owns
one-half (1/2) of all the seven (7) parcels of land abovementioned as
her inheritance from her mother, Trinidad Dizon-Tongko.Defendant
Dalisay D. Tongko-Camacho also claims, upon legal advice, the other
half of the said seven (7) parcels of land abovementioned by virtue of
the reserva troncal imposed thereon upon the death of Faustino Dizon
and under the laws on intestate succession; but the plaintiffs, also
upon legal advice, oppose her said claim because they claim three-
fourths (3/4) of the one-half pro-indiviso interest in said parcel of land,
which interest was inherited by Eustacio Dizon from Faustino Dizon, or
three-eights (3/8) of the said parcels of land, by virtue of their being
also third degree relatives of Faustino Dizon.
The parties hereby agree to submit for judicial determination in this
case the legal issue of whether defendant Dalisay D. Tongko-Camacho
is entitled to the whole of the seven (7) parcels of land in question, or
whether the plaintiffs, as third degree relatives of Faustino Dizon are
reservatarios (together with said defendant) of the one-half pro-
indiviso share therein which was inherited by Eustacio Dizon from his
son Faustino Dizon, and entitled to three-fourths (3/4) of said one-half
pro-indiviso share, or three eights (3/8) of said seven (7) parcels of
land, and, therefore, to three-eights (3/8) of the rentals collected and
to be collected by defendant Dalisay P. Tongko Camacho from the
tenants of said parcels of land, minus the expenses and/or real estate
taxes corresponding to plaintiffs' share in the rentals.
On the basis thereof, the lower Court declared the plaintiffs Francisco
Tioco, Manuel Tioco and Nicolas Tioco, as well as the defendant
Dalisay Tongko-Camacho, entitled, as reservatarios, to one-half of the
seven parcels of land in dispute, in equal proportions.
ISSUE: whether, as contended by the plaintiffs-appellees and ruled by
the lower Court, all relatives of the praepositus within the third degree
in the appropriate line succeed without distinction to the reservable
property upon the death of the reservista, as seems to be implicit in
Art. 891 of the Civil Code or, as asserted by the defendant-appellant,
the rights of said relatives are subject to, and should be determined
by, the rules on intestate succession.
HELD: That question has already been answered in Padura vs.
Baldovino, 3 where the reservatario was survived by eleven nephews
and nieces of the praepositus in the line of origin, four of whole blood
and seven of half blood, and the claim was also made that all eleven
were entitled to the reversionary property in equal shares. This Court,
speaking through Mr. Justice J.B.L. Reyes, declared the principles of
intestacy to be controlling, and ruled that the nephews and nieces of
whole blood were each entitled to a share double that of each of the
nephews and nieces of half blood in accordance with Article 1006 of
the Civil Code.
Reversion of the reservable property being governed by the rules on
intestate succession, the plaintiffs-appellees must be held without any
right thereto because, as aunt and uncles, respectively, of Faustino
Dizon (thepraepositus), they are excluded from the succession by his
niece, the defendant-appellant, although they are related to him within
the same degree as the latter.
This conclusion is fortified by the observation, also made
in Padura, supra, that as to the reservable property,
thereservatarios do not inherit from the reservista, but from the
descendant praepositus:
... . It is likewise clear that the reservable property is no part of the
estate of the reservista, who may not dispose of it by will, as long as
there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 237). The
latter, therefore, do not inherit from the reservista, but from the
descendant prepositus, of whom the reservatarios are the heirs mortis
causa, subject to the condition that they must survive thereservista.
(Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries,
Vol. 6, 6th Ed., pp. 274, 310) ... .
Had the reversionary property passed directly from the praepositus,
there is no doubt that the plaintiffs-appellees would have been
excluded by the defendant-appellant under the rules of intestate
succession. There is no reason why a different result should obtain
simply because "the transmission of the property was delayed by the
interregnum of the reserva;" 6 i.e., the property took a "detour"
through an ascendant-thereby giving rise to the reservation before its
transmission to the reservatario.
Upon the stipulated facts, and by virtue of the rulings already cited,
the defendant-appellant Dalisay Tongko-Camacho is entitled to the
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 Wills and Succession Case Digests
entirety of the reversionary property to the exclusion of the plaintiffs-
appellees. (*NOTE: please see full text for the full discussion of the
ruling of the SC. Thanks!)
ARTICLE 898
DEL ROSARIO vs CONANAN
FACTS: On November 13, 1972, petitioner filed petition, subject of
which is the estate left by her late son, Felix L. del Rosario, who died
in a plane crash on September 12, 1969 at Antipolo, Rizal.
Respondents filed their opposition admitting that petitioner is the
legitimate mother of the late FELIX L. DEL ROSARIO. PETITIONER
admits that oppositor DOROTEA OTERA DEL ROSARIO is the.
legitimate surviving wife of the deceased FELIX L. DEL ROSARIO.
PETITIONER admits that MARILOU DEL ROSARIO, is the legally
adopted child of the late FELIX L. DEL ROSARIO and DOROTEA DEL
ROSARIO CONANAN. That the only surviving nearest relatives of
deceased FELIX L. DEL ROSARIO are the petitioner and oppositors
DOROTEO O. CONANAN and MARILOU DEL ROSARIO.
The TC issued the challenged order, pertinent portions of which said
that a perusal of the petition shows that the instant case was filed
under the provisions of Section 2, Rule 74 of the Revised Rules of
Court. The contention of the petitioner that Article 343 is applicable in
the instant case finds no basis for 'the said article is applicable in cases
where there are no other concurring intestate heirs of the adopted
child. ...Based on the foregoing, therefore, the petitioner not being
included as intestate heir of the deceased cannot be considered as a
co-owner of or have any right over the properties sought to be
partitioned and under the provisions of Section 1, Rule e 69 in re
action to Section 2, Rule 3 of the Revised Rules of Court, such action
must be commenced or instituted by the party in interest.
ISSUE: 1. Which of the following articles of the New Civil Code will
apply, Article 343 on the one hand, or Articles 341, 978 and 979 on
the other; and
2. Whether the material data rule enuciated by Rule 41, Section 6 the
New Rules of Court should be followed, ex cathedra, in the present
case:
HELD:
WE opine that the governing provision is the hereinafter quoted article
343 of the New Civil Code, in relation to Articles 893 and 1000 of said
law, which directs that:
Art. 343. If the adopter is survived by legitimate
parents or ascendants and by an adopted person.
the latter shall not have more successional rights
than an acknowledged natural child.
Article 343 of the New Civil Code is qualification to
Article 341 which gives an adopted child the same
rights and duties as though he were a legitimate
child. The reason for this is that:
(I)t is unjuest to exclude the adopter's parents
from the inheritance in facor of an adopted person
(Report of the Code Commission, p. 92).
It is most unfair to accord more successional rights to the adopted,
who is only related artificially by fiction of law to the deceased, than
those who are naturally related to him by blood in the direct ascending
line.
The applicability of Article 343 does not exclude the surviving parent of
the deceased adopter, not only because a contrary view would defeat
the intent of the framers of the law, but also because in intestate
succession, where legitimate parents or ascendants concur with the
surviving spouse of the deceased, the latter does not necessarily
exclude the former from the inheritance. This is affirmed by Article 893
of the New Civil Code which states:
If the testator leaves no legitimate descendants, but leaves legitimate
ascendants, the surviving spouse shall have a right to onefourth (only)
of the hereditary estate.
This fourth shall be taken from the free portion.
Article 343 does not require that the concurring heirs should be the
aodpted child and the legitimate parents or ascendants only. The
language of the law is clear, and a contrary view cannot be presumed.
It is, thus, OUR view that Article 343 should be made to apply,
consonant with the cardinal rule in statutory construction that
all the provisions of the New Civil Code must be reconciled
and given effect.
Under Article 343, an adopted child surviving with legitimate
parents of the deceased adopter, has the same successional
rights as an acknowledged natural child, which is
comprehended in the term "illegitimate children". Consequently
, the respective shares of the surviving spouse, ascendant and adopted
child should be determined by Article 1000 of the New Civil Code.
ARTICLE 912
DIZON-RIVERA vs. DIZON
Facts:
On January 28, 1961, the testatrix, Agripina J. Valdez, a widow, died in
Angeles, Pampanga, and was survived by seven compulsory heirs, to
wit, six legitimate children named Estela Dizon, Tomas V. Dizon,
Bernardita Dizon, Marina Dizon (herein executrix-appellee), Angelina
Dizon and Josefina Dizon, and a legitimate granddaughter named Lilia
Dizon, who is the only legitimate child and heir of Ramon Dizon, a pre-
deceased legitimate son of the said decedent. Six of these seven
compulsory heirs (except Marina Dizon, the executrix-appellee) are the
oppositors-appellants.
The deceased testatrix left a last will executed on February 2, 1960
and written in the Pampango dialect. Named beneficiaries in her will
were the above-named compulsory heirs, together with seven other
legitimate grandchildren, namely Pablo Rivera, Jr., Gilbert D. Garcia,
Cayetano Dizon, Francisco Rivera, Agripina Ayson, Jolly Jimenez and
Laureano Tiambon.
A project partition was filed reducing the share of Marina and Tomas’
share (children) as they are admittedly considered to have received in
the will more than their respective legitime. The other children
proposed their own project partition whereby they would reduce the
testamentary disposition or partition made by the testatrix to ½ and
limit the same, which they would consider as mere devises or legacies
to ½ of the estate as the disposable free portion.
Held:
Oppositors err in their premises, for the adjudications and assignments
in the testatrix' will of specific properties to specific heirs cannot be
considered all devises, for it clearly appear from the whole context of
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the will and the disposition by the testatrix of her whole estate (save
for some small properties of little value already noted at the beginning
of this opinion) that her clear intention was to partition her whole
estate through her will. The repeated use of the words "I bequeath" in
her testamentary dispositions acquire no legal significance, such as to
convert the same into devises to be taken solely from the free one-half
disposable portion of the estate. Furthermore, the testatrix' intent that
her testamentary dispositions were by way of adjudications to the
beneficiaries as heirs and not as mere devisees, and that said
dispositions were therefore on account of the respective legitimes of
the compulsory heirs is expressly borne out in the fourth paragraph of
her will, immediately following her testamentary adjudications in the
third paragraph in this wise: "FOURTH: I likewise command that in
case any of those I named as my heirs in this testament any of them
shall die before I do, his forced heirs under the law enforced at the
time of my death shall inherit the properties I bequeath to said
deceased." 17
Oppositors' conclusions necessarily are in error. The testamentary
dispositions of the testatrix, being dispositions in favor of compulsory
heirs, do not have to be taken only from the free portion of the estate,
as contended, for the second paragraph of Article 842 of the Civil Code
precisely provides that "(O)ne who has compulsory heirsmay dispose
of his estate provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs." And even going by
oppositors' own theory of bequests, the second paragraph of Article
912 Civil Code covers precisely the case of the executrix-appellee, who
admittedly was favored by the testatrix with the large bulk of her
estate in providing that "(T)he devisee who is entitled to a legitime
may retain the entire property,provided its value does not exceed that
of the disposable portion and of the share pertaining to him as
legitime." For "diversity of apportionment is the usual reason for
making a testament; otherwise, the decedent might as well die
intestate." 18 Fundamentally, of course, the dispositions by the
testatrix constituted a partition by will, which by mandate of Article
1080 of the Civil Code and of the other cited codal provisions
upholding the primacy of the testator's last will and testament, have to
be respected insofar as they do not prejudice the legitime of the other
compulsory heirs.
ARTICLE 960
TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL
RIGOR. THE PARISH PRIEST OF THE ROMAN CATHOLIC
CHURCH OF VICTORIA, TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE
RIGOR and JOVITA ESCOBAR DE FAUSTO, respondents-
appellees.
FACTS: Father Rigor, the parish priest of Pulilan, Bulacan, died on
August 9, 1935, leaving a will executed on October 29, 1933 which
was probated by the CFI of Tarlac in its order of December 5, 1935.
Named as devisees in the will were the testators nearest relatives, his
three sisters. The testator gave a devise to his cousin, Fortunato
Gamalinda.
In addition to he will contained the following controversial legacy
purported to be given to the nearest male relative who shall take the
priesthood, and in the interim to be administered by the actual
Catholic Priest of the Roman Catholic Church of Victoria, Tarlac,
Philippines, or his successors.
Judge Roman A. Cruz in his order of August 15, 1940, approving the
project of partition, directed that after payment of the obligations of
the estate the administratrix should deliver to the devisees their
respective shares.
On 1954, the parish priest of Victoria filed a petition praying for the
appointment of a new administrator who should deliver to the church
the said ricelands, and further praying that the possessors thereof be
ordered to render an accounting of the fruits. The probate court
granted the petition. On January 31, 1957 the parish priest filed
another petition for the delivery of the ricelands to the church as
trustee.
The intestate heirs of Father Rigor countered with a petition praying
that the bequest be declared inoperative and that they be adjudged as
the persons entitled to the said ricelands since, as admitted by the
parish priest of Victoria, "no nearest male relative of" the testator "has
ever studied for the priesthood".
However, it was discovered that the testator had a grandnephew
named Edgardo G. Cunanan (the grandson of his first cousin) who was
a seminarian in the San Jose Seminary of the Jesuit Fathers in Quezon
City. The administrator was directed to deliver the ricelands to the
parish priest of Victoria as trustee.
CA's ruling: Father Rigor had created a testamentary trust for his
nearest male relative who would take the holy orders but that such
trust could exist only for twenty years because to enforce it beyond
that period would violate "the rule against perpetuities. It ruled that
since no legatee claimed the ricelands within twenty years after the
testator's death, the same should pass to his legal heirs, citing articles
888 and 912(2) of the old Civil Code and article 870 of the new Civil
Code.
As refutation, the legal heirs argue that the Court of Appeals d the
bequest inoperative because no one among the testator's nearest male
relatives had studied for the priesthood and not because the trust was
a private charitable trust. According to the legal heirs, that factual
finding is binding on this Court.
ISSUE: WON the parish church has the right to the
administration of the ricelands
HELD: NO. In this case, as in cases involving the law of contracts
and statutory construction, where the intention of the contracting
parties or of the lawmaking body is to be ascertained, the primary
issue is the determination of the testator's intention which is the law of
the case.
From the foregoing testamentary provisions, it may be deduced that
the testator intended to devise the ricelands to his nearest male
relative who would become a priest, who was forbidden to sell the
ricelands, who would lose the devise if he discontinued his studies for
the priesthood, or having been ordained a priest, he was
excommunicated, and who would be obligated to say annually twenty
masses with prayers for the repose of the souls of the testator and his
parents.
On the other hand, it is clear that the parish priest of Victoria would
administer the ricelands only in two situations: one, during the interval
of time that no nearest male relative of the testator was studying for
the priesthood and two, in case the testator's nephew became a priest
and he was excommunicated.
What then did the testator mean by "el intervalo de tiempo que no
haya legatario acondicionado"? The reasonable view is that he was
referring to a situation whereby his nephew living at the time of his
death, who would like to become a priest, was still in grade school or
in high school or was not yet in the seminary. In that case, the parish
priest of Victoria would administer the ricelands before the nephew
entered the seminary. But the moment the testator's nephew entered
the seminary, then he would be entitled to enjoy and administer the
ricelands and receive the fruits thereof. In that event, the trusteeship
would be terminated.
Following that interpretation of the will the inquiry would be whether
at the time Father Rigor died in 1935 he had a nephew who was
studying for the priesthood or who had manifested his desire to follow
the ecclesiastical career. That query is categorically answered in
paragraph 4 of appellant priest's petitions of February 19, 1954 and
January 31, 1957. He unequivocally alleged therein that "not male
relative of the late (Father) Pascual Rigor has ever studied for the
priesthood"
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 Wills and Succession Case Digests
Inasmuch as the testator was not survived by any nephew who
became a priest, the unavoidable conclusion is that the bequest in
question was ineffectual or inoperative. Therefore, the administration
of the ricelands by the parish priest of Victoria, as envisaged in the wilt
was likewise inoperative.
This case is also covered by article 912(2) of the old Civil Code, now
article 960 (2), which provides that legal succession takes place when
the will "does not dispose of all that belongs to the testator." There
being no substitution nor accretion as to the said ricelands the same
should be distributed among the testator's legal heirs. The effect is as
if the testator had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate and
partly intestate, or that there may be mixed succession. The old rule
as to the indivisibility of the testator's win is no longer valid. Thus, if a
conditional legacy does not take effect, there will be intestate
succession as to the property recovered by the said legacy (Macrohon
Ong Ham vs. Saavedra, 51 Phil. 267).
ARTICLE 962
BAGUNU vs. PIEDAD
FACTS: Augusto H. Piedad died without any direct descendants or
ascendants. Pastora is the maternal aunt of the decedent, a third-
degree relative of the decedent, while Ofelia.
Ofelia asserted entitlement to a share of the estate of the late
Augusto H. Piedad and assailed the finality of the order of the trial
court awarding the entire estate to respondent Pastora Piedad.
ISSUE: Can Ofelia, a collateral relative of the fifth civil degree, inherit
alongside Pastorat, a collateral relative of the third civil degree?
RULING: NO
"ART. 962. In every inheritance, the relative nearest in
degree excludes the more distant ones, saving the right of
representation when it properly takes place.
"Relatives in the same degree shall inherit in equal shares, subject to
the provisions of article 1006 with respect to relatives of the full and
half blood, and of article 987, paragraph 2, concerning division
between the paternal and maternal lines."
By right of representation, a more distant blood relative of a
decedent is, by operation of law, "raised to the same place and
degree" of relationship as that of a closer blood relative of the same
decedent. The representative thereby steps into the shoes of the
person he represents and succeeds, not from the latter, but from the
person to whose estate the person represented would have
succeeded.
The right of representation does not apply to "other collateral
relatives within the fifth civil degree" (to which group both petitioner
and respondent belong) who are sixth in the order of preference
following, firstly, the legitimate children and descendants, secondly,
the legitimate parents and ascendants, thirdly, the illegitimate children
and descendants, fourthly, the surviving spouse, and fifthly, the
brothers and sisters/nephews and nieces, of the decedent. Among
collateral relatives, except only in the case of nephews and nieces of
the decedent concurring with their uncles or aunts, the rule of
proximity, expressed in Article 962, aforequoted, of the Code, is an
absolute rule.
Respondent, being a relative within the third civil degree, of the late
Augusto H. Piedad excludes petitioner, a relative of the fifth degree,
from succeeding ab intestato to the estate of the decedent.
ARTICLE 970
G.R. No. 140975, Promulgated December 8, 2000
OFELIA HERNANDO BAGUNU, Petitioner. vs. PASTORA
PIEDAD, Respondent.
Facts: This case involves a question of law rather than question of
fact.
In this case, there is no doubt nor difference that arise as to the truth
or falsehood on alleged facts. The question as to whether intervenor-
appellant as a collateral relative within the fifth civil degree, has legal
interest in the intestate proceeding which would justify her
intervention calls for the application and interpretation of the proper
law.
Augusto H. Piedad died without any direct descendants or
ascendants. Respondent is the maternal aunt of the decedent, a third-
degree relative of the decedent, while petitioner is the daughter of a
first cousin of the deceased, or a fifth-degree relative of the decedent.
Petitioner was asserting entitlement to a share of the estate of the late
Augusto H. Piedad.
Issue: Can petitioner, a collateral relative of the fifth civil degree,
inherit alongside respondent, a collateral relative of the third civil
degree? Elsewise stated does the rule of proximity in intestate
succession find application among collateral relatives?
Held: NO.
By right of representation, a more distant blood relative of a decedent
is, by operation of law, "raised to the same place and degree" of
relationship as that of a closer blood relative of the same
decedent. The representative thereby steps into the shoes of the
person he represents and succeeds, not from the latter, but from the
person to whose estate the person represented would have
succeeded.
In the direct line, right of representation is proper only in the
descending, never in the ascending, line. In the collateral line, the
right of representation may only take place in favor of the children of
brothers or sisters of the decedent when such children survive with
their uncles or aunts.
The right of representation does not apply to "other collateral
relatives within the fifth civil degree" (to which group both petitioner
and respondent belong) who are sixth in the order of preference
following, firstly, the legitimate children and descendants, secondly,
the legitimate parents and ascendants, thirdly, the illegitimate children
and descendants, fourthly, the surviving spouse, and fifthly, the
brothers and sisters/nephews and nieces, of the decedent. Among
collateral relatives, except only in the case of nephews and nieces of
the decedent concurring with their uncles or aunts, the rule of
proximity, expressed in Article 962, afore quoted, of the Code, is an
absolute rule.
Respondent, being a relative within the third civil degree, of the late
Augusto H. Piedad excludes petitioner, a relative of the fifth degree,
from succeeding ab intestato to the estate of the decedent.
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 Wills and Succession Case Digests
In fine, a maternal aunt can inherit alongside a paternal uncle, and a
first cousin of the full blood can inherit equally with a first cousin of the
half blood, but an uncle or an aunt, being a third-degree relative,
excludes the cousins of the decedent, being in the fourth-degree of
relationship; the latter, in turn, would have priority in succession to a
fifth-degree relative.
11th Set
ART 970
Intestate Estate of Petra V. Rosales vs Rosales
G.R. No. L-40789 February 27, 1987
(For ART 970 and 971)
FACTS:
In this petition for review, the question raised is whether the widow
whose husband predeceased his mother can inherit from the latter,
her mother-in-law.
Petra V. Rosales died intestate on Feb 26, 1971. She was survived by
her husband Fortunate Rosales and their 2 children Magna Rosales
Acebes and Antonio Rosales. Another child, Carterio Rosales,
predeceased her, leaving behind a child, Macikequerox Rosales, and
his widow Irenea C. Rosales, the herein petitioner. The estate of the
dismissed has an estimated gross value of about Thirty Thousand
Pesos (P30,000.00).
Magna Rosales Acebes instituted the proceedings for the settlement of
the estate of the deceased in the Court of First Instance of Cebu. She
was also appointed as administratrix. The trial court issued an order
declaring the following in individuals the legal heirs of the deceased
and prescribing their respective share of the estate — Fortunata T.
Rosales (husband), 1/4; Magna R. Acebes (daughter), 1/4;
Macikequerox Rosales, 1/4; and Antonio Rosales son, 1/4.
Irenea Rosales insisted in getting a share of the estate in her capacity
as the surviving spouse of the late Carterio Rosales, son of the
deceased, claiming that she is a compulsory heir of her mother-in-law
together with her son, Macikequerox Rosales. Thus, Irenea Rosales
sought the reconsideration of the aforementioned Orders. The trial
court denied her plea. Hence this petition.
ISSUE: WON a widow (surviving spouse) is an intestate heir of her
mother-in-law NO
HELD:
Intestate or legal heirs are classified into two (2) groups, namely,
those who inherit by their own right, and those who inherit by the
right of representation. Restated, an intestate heir can only inherit
either by his own right, as in the order of intestate succession provided
for in the Civil Code, or by the right of representation provided for in
Article 981 of the same law.
There is no provision in the Civil Code which states that a widow
(surviving spouse) is an intestate heir of her mother-in-law. The entire
Code is devoid of any provision which entitles her to inherit from her
mother-in- law either by her own right or by the right of
representation. The provisions of the Code which relate to the order of
intestate succession (Articles 978 to 1014) enumerate with meticulous
exactitude the intestate heirs of a decedent, with the State as the final
intestate heir. The conspicuous absence of a provision which makes a
daughter-in-law an intestate heir of the deceased all the more confirms
Our observation. If the legislature intended to make the surviving
spouse an intestate heir of the parent-in-law, it would have so
provided in the Code.
Petitioner argues that she is a compulsory heir in accordance with the
provisions of Article 887:
Art. 887. The following are compulsory heirs: xxx (3) The widow or
widower; xxx
The aforesaid provision of law refers to the estate of the deceased
spouse in which case the surviving spouse (widow or widower) is a
compulsory heir. It does not apply to the estate of a parent-in-law.
Indeed, the surviving spouse is considered a third person as regards
the estate of the parent-in-law.
By the same token, the provision of Article 999 of the Civil Code
aforecited does not support petitioner's claim. A careful examination of
the said Article confirms that the estate contemplated therein is the
estate of the deceased spouse. The estate which is the subject matter
of the intestate estate proceedings in this case is that of the deceased
Petra V. Rosales, the mother-in-law of the petitioner. It is from the
estate of Petra V. Rosales that Macikequerox Rosales draws a share of
the inheritance by the right of representation as provided by Article
981 of the Code.
The essence and nature of the right of representation is explained by
Articles 970 and 971 of the Civil Code, viz —
Art. 970. Representation is a right created by fiction of law, by virtue
of which the representative is raised to the place and the degree of the
person represented, and acquires the rights which the latter would
have if he were living or if he could have inherited.
Art. 971. The representative is called to the succession by the law and
not by the person represented. The representative does not succeed
the person represented but the one whom the person represented
would have succeeded. (Emphasis supplied.)
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Article 971 explicitly declares that Macikequerox Rosales is called to
succession by law because of his blood relationship. He does not
succeed his father, Carterio Rosales (the person represented) who
predeceased his grandmother, Petra Rosales, but the latter whom his
father would have succeeded. Petitioner cannot assert the same right
of representation as she has no filiation by blood with her mother-in-
law.
Petitioner however contends that at the time of the death of her
husband Carterio Rosales he had an inchoate or contingent right to the
properties of Petra Rosales as compulsory heir. Be that as it may, said
right of her husband was extinguished by his death that is why it is
their son Macikequerox Rosales who succeeded from Petra Rosales by
right of representation. He did not succeed from his deceased father,
Carterio Rosales.
Accordingly, it is Our considered opinion, and We so hold, that a
surviving spouse is not an intestate heir of his or her parent-in-law.
ART 975
BICOMONG v. ALMANZA (Camello)
ART 980
Heirs of Joaquin Teves v CA
(G.R. No. 109963, Ocotber 13, 1999)
FACTS:
Marcelina and Joaquin Teves had 9 children named Teotimo, Felicia,
Pedro, Andres, Asuncion, Gorgonio, Cresenciano, Arcadia and
Maria. After the death of spouses Teves (intestate), their 8 children (
Andres predeceased the parents) executed extrajudicial settlements
adjudicating unto themselves two parcels of land belonging to their
parents and alienating the same in favor of their sister Asuncion . The
first Extrajudicial Settlement covered Lot 6409 (lot 1) . The second
covered Lot 769-A (Lot 2) which was adjudicated in equal shares.
On May 9, 1984, Ricardo ( heir of Cresenciano) and Arcadia Teves filed
the present action for partition seeking the partition of the lands in
question and conveyance of their respective shares. Ricardo claims
that Cresenciano’s signature did not appear in the Settlement of Lot
769-A. Arcadia’s main contention is that the documents entitled
“Extrajudicial Settlement and Sale “ over each of the two parcels of
land is spurious since some of the signatures were forgeries. In sum,
they argue that these fraudulent documents which defendants rely in
claiming ownership to the disputed properties are all nullities and have
no force in law and could not be used as basis for any legal title.
The Trial Court and CA upheld the validity of the extrajudicial
settlements.
ISSUE: WON the extrajudicial settlement is valid . YES
HELD: For a partition pursuant to section 1 of Rule 74 to be valid, the
following conditions must concur: (1) the decedent left no will; (2) the
decedent left no debts, or if there were debts left, all had been paid;
(3) the heirs are all of age, or if they are minors, the latter are
represented by their judicial guardian or legal representatives; (4) the
partition was made by means of a public instrument or affidavit duly
filed with the Register of Deeds.
As to the claim that the Deeds are a nullity
The deeds are public documents and it has been held by this Court
that a public document executed with all the legal formalities is
entitled to a presumption of truth as to the recitals contained therein.
In order to overthrow a certificate of a notary public to the effect that
the grantor executed a certain document and acknowledged the fact of
its execution before him, mere preponderance of evidence will not
suffice. Rather, the evidence must be so clear, strong and convincing
as to exclude all reasonable dispute as to the falsity of the
certificate. When the evidence is conflicting, the certificate will be
upheld. The appellate court’s ruling that the evidence presented by
plaintiffs-appellants does not constitute the clear, strong, and
convincing evidence necessary to overcome the positive value of the
extrajudicial settlements executed by the parties, all of which are
public documents, being essentially a finding of fact, is entitled to
great respect by the appellate court and should not be disturbed on
appeal.
As to Ricardo’s claim to Lot 6409
The fact that Cresenciano predeceased Joaquin Teves does not mean
that he or, more accurately, his heirs, lose the right to share in the
partition of the property for this is a proper case for representation,
wherein the representative is raised to the place and degree of the
person represented and acquires the rights which the latter would
have if he were living.
However, notwithstanding their non-inclusion in the settlement, the
action which Cresenciano might have brought for the reconveyance of
their shares in the property has already prescribed. An action for
reconveyance based upon an implied trust pursuant to article 1456 of
the Civil Code prescribes in ten years from the registration of the deed
or from the issuance of the title. Asuncion Teves acquired title over Lot
6409 in 1972, but the present case was only filed by plaintiffs-
appellants in 1984, which is more than 10 years from the issuance of
title.
As to Ricardo’s claim over Lot 769-A
Ricardo Teves is actually in possession of an undetermined portion of
Lot 769-A and defendants-appellees It-it do not claim ownership over
his share in the land. Thus, contrary to the appellate court’s ruling,
there is no basis for an action for reconveyance of Ricardo Teves’
share since, in the first place, there has been no conveyance. Ricardo
Teves is entitled to the ownership and possession of one-eighth of Lot
769-A.
Neither does Ricardo Teves have a right to demand partition of Lot
769-A because the two extrajudicial settlements have already
effectively partitioned such property. Every act which is intended to
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 Wills and Succession Case Digests
put an end to indivision among co-heirs and legatees or devisees is
deemed to be a partition, although it should purport to be a sale, an
exchange, a compromise, or any other transaction. The extrajudicial
settlements executed in 1956 and 1959 adjudicated Lot 769-A in equal
shares unto the eight heirs of Marcelina .Such a partition, which was
legally made, confers upon each heir the exclusive ownership of the
property adjudicated to him. Although Cresenciano, Ricardo’s
predecessor-in-interest, was not a signatory to the extrajudicial
settlements, the partition of Lot 769-A among the heirs was made in
accordance with their intestate shares under the law.
What is the effect of non-registration of the Extrajudicial Settlements
(settlement of Lot 769-A was not registered)?
In the case of Vda. de Reyes vs. CA, the Court, interpreting section 1
of Rule 74 of the Rules of Court, upheld the validity of an oral partition
of the decedent’s estate and declared that the non-registration of an
extrajudicial settlement does not affect its intrinsic validity. It was held
in this case that –
[t]he requirement that a partition be put in a public document and
registered has for its purpose the protection of creditors and at the
same time the protection of the heirs themselves against tardy
claims. The object of registration is to serve as constructive notice to
others. It follows then that the intrinsic validity of partition not
executed with the prescribed formalities does not come into play when
there are no creditors or the rights of creditors are not
affected. Where no such rights are involved, it is competent for the
heirs of an estate to enter into an agreement for distribution in a
manner and upon a plan different from those provided by law.
Thus, despite its non-registration, the extrajudicial settlements
involving Lot 769-A are legally effective and binding among the heirs
of Marcelina since their mother had no creditors at the time of her
death.
Except for the portion of Lot 769-A occupied by Ricardo Teves, both
parcels of land have been and continue to be in the possession of
Asuncion Teves and her successors-in-interest. Despite this, no
explanation was offered by plaintiffs-appellants as to why they
instituted the present action questioning the extrajudicial settlements
only in 1984, which is more than 25 years after the assailed
conveyance of Lot 769-A and more than 10 years after the issuance of
a transfer certificate of title over Lot 6409, both in favor of Asuncion
Teves. Such tardiness indubitably constitutes laches, which is the
negligence or omission to assert a right within a reasonable time,
warranting a presumption that the party entitled to assert it either has
abandoned it or declined to assert it. Thus, even assuming that
plaintiffs-appellants had a defensible cause of action, they are barred
from pursuing the same by reason of their long and inexcusable
inaction.
An extrajudicial settlement is a contract and it is a well-entrenched
doctrine that the law does not relieve a party from the effects of a
contract, entered into with all the required formalities and with full
awareness of what he was doing, simply because the contract turned
out to be a foolish or unwise investment. Therefore, although
plaintiffs-appellants may regret having alienated their hereditary
shares in favor of their sister Asuncion, they must now be considered
bound by their own contractual acts.
ART 992
DIAZ v. IAC (Cuabo)
ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and
MIGUEL, all surnamed SANTERO, petitioners, and FELIXBERTA
PACURSA guardian of FEDERICO SANTERO, et al., vs.INTERMEDIATE
APPELLATE COURT and FELISA PAMUTI JARDIN, respondents.
G.R. No. L-66574 June 17, 1987
Felisa (neice) filed a petition praying among other things, that the
corresponding letters of Administration be issued in her favor and that
she be appointed as special Administratrix of the properties of the
deceased Simona Pamuti Vda. de Santero.
1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de
Santero who together with Felisa's mother Juliana were the only
legitimate children of the spouses Felipe Pamuti and Petronila
Asuncion; 2) that Juliana married Simon Jardin and out of their union
were born Felisa Pamuti and another child who died during infancy; 3)
that Simona Pamuti Vda. de Santero is the widow of Pascual Santero
and the mother of Pablo Santero; 4) that Pablo Santero was the only
legitimate son of his parents Pascual Santero and Simona Pamuti Vda.
de Santero; 5) that Pascual Santero died in 1970; Pablo Santero in
1973 and Simona Santero in 1976; 6) that Pablo Santero, at the time
of his death was survived by his mother Simona Santero and his six
minor natural children to wit: four minor children with Anselma Diaz
and two minor children with Felixberta Pacursa.
The lower court declared Felisa Pamuti Jardin (Niece) as the sole
legitimate heir of Simona Pamuti Vda. de Santero.
The petitioners opposed contending that as illegitimate children of
Pablo Santero, they could inherit from Simona Pamuti Vda. de Santero,
by right of representation of their father Pablo Santero who is a
legitimate child of Simona Pamuti Vda, de Santero.
Who are the legal heirs of Simona Pamuti Vda. de Santero — her niece
Felisa Pamuti Jardin or her grandchildren (the illegitimate children of
Pablo Santero)? Felisa (niece).
HELD: The illegitimate children are barred by Article 992 of the New
Civil Code provides a barrier or iron curtain in that it prohibits
absolutely a succession ab intestato between the illegitimate child and
the legitimate children and relatives of the father or mother of said
legitimate child.
ART. 992. An illegitimate child has no right to inherit ab intestato from
the legitimate children and relatives(including grandma) of his father
or mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child.
They may have a natural tie of blood, but this is not recognized by law
for the purposes of Art. 992, Between the legitimate family and the
illegitimate family there is presumed to be an intervening antagonism
and incompatibility. The illegitimate child is disgracefully looked down
upon by the legitimate family; the family is in turn, hated by the
illegitimate child; the latter considers the privileged condition of the
former, and the resources of which it is thereby deprived; the former,
in turn, sees in the illegitimate child nothing but the product of sin,
palpable evidence of a blemish broken in life; the law does no more
than recognize this truth, by avoiding further grounds of resentment.
Thus, petitioners herein cannot represent their father Pablo Santero in
the succession of the letter to the intestate estate of his legitimate
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mother Simona Pamuti Vda. de Santero, because of the barrier
provided for under Art. 992 of the New Civil Code.
In answer to the erroneous contention of petitioners that Article 941 of
the Spanish Civil Code is changed by Article 990 of the New Civil Code,
We are reproducing herewith the Reflections of the Illustrious Hon.
Justice Jose B.L. Reyes which also finds full support from other
civilists, to wit:
In the Spanish Civil Code of 1889 the right of representation was
admitted only within the legitimate family; so much so that Article 943
of that Code prescribed that an illegitimate child can riot inherit ab
intestato from the legitimate children and relatives of his father and
mother. The Civil Code of the Philippines apparently adhered to this
principle since it reproduced Article 943 of the Spanish Code in its own
Art. 992, but with fine inconsistency, in subsequent articles (990, 995
and 998) our Code allows the hereditary portion of the illegitimate
child to pass to his own descendants, whether legitimate or
illegitimate. So that while Art. 992 prevents the illegitimate issue of a
legitimate child from representing him in the intestate succession of
the grandparent, the illegitimates of an illegitimate child can now do
so. This difference being indefensible and unwarranted, in the future
revision of the Civil Code we shall have to make a choice and decide
either that the illegitimate issue enjoys in all cases the right of
representation, in which case Art. 992 must be suppressed; or
contrariwise maintain said article and modify Articles 995 and 998. The
first solution would be more in accord with an enlightened attitude vis-
a-vis illegitimate children. (Reflections on the Reform of Hereditary
Succession, JOURNAL of the Integrated Bar of the Philippines, First
Quater, 1976, Volume 4, Number 1, pp. 40-41).
It is therefore clear from Article 992 of the New Civil Code that the
phrase "legitimate children and relatives of his father or mother"
includes Simona Pamuti Vda. de Santero as the word "relative"
includes all the kindred of the person spoken of. 7 The record shows
that from the commencement of this case the only parties who claimed
to be the legitimate heirs of the late Simona Pamuti Vda. de Santero
are Felisa Pamuti Jardin and the six minor natural or illegitimate
children of Pablo Santero. Since petitioners herein are barred by the
provisions of Article 992, the respondent Intermediate Appellate Court
did not commit any error in holding Felisa Pamuti-Jardin to be the sole
legitimate heir to the intestate estate of the late Simona Pamuti Vda.
de Santero.
G.R. No. 84240 March 25, 1992
OLIVIA S. PASCUAL and HERMES S. PASCUAL, petitioners, vs.
ESPERANZA C. PASCUAL-BAUTISTA, MANUEL C. PASCUAL,
JOSE C. PASCUAL, SUSANA C. PASCUAL-BAUTISTA, ERLINDA
C. PASCUAL, WENCESLAO C. PASCUAL, JR., INTESTATE
ESTATE OF ELEUTERIO T. PASCUAL, AVELINO PASCUAL,
ISOCELES PASCUAL, LEIDA PASCUAL-MARTINES, VIRGINIA
PASCUAL-NER, NONA PASCUAL-FERNANDO, OCTAVIO
PASCUAL, GERANAIA PASCUAL-DUBERT, and THE
HONORABLE PRESIDING JUDGE MANUEL S. PADOLINA of Br.
162, RTC, Pasig, Metro Manila, respondents.
PARAS, J.:
FACTS: Petitioners Olivia and Hermes both surnamed Pascual
are the acknowledged natural children of the late Eligio Pascual, the
latter being the full blood brother of the decedent Don Andres Pascual.
Don Andres Pascual died intestate on October 12, 1973 without any
issue, legitimate, acknowledged natural, adopted or spurious children
and was survived by the following:
(a) Adela Soldevilla de Pascual, surviving spouses;
(b) Children of Wenceslao Pascual, Sr., a brother of the full blood of
the deceased, to wit:
Esperanza C. Pascual-Bautista Manuel C. Pascual Jose C. Pascual
Susana C. Pascual-Bautista Erlinda C. Pascual Wenceslao C. Pascual,
Jr.
(c) Children of Pedro-Bautista, brother of the half blood of the
deceased, to wit:
Avelino Pascual Isoceles Pascual Loida Pascual-Martinez Virginia
Pascual-Ner Nona Pascual-Fernando Octavio Pascual Geranaia Pascual-
Dubert;
(d) Acknowledged natural children of Eligio Pascual, brother of the full
blood of the deceased, to wit:
Olivia S. Pascual Hermes S. Pascual
(e) Intestate of Eleuterio T. Pascual, a brother of the half blood of the
deceased and represented by the following:
Dominga M. Pascual Mamerta P. Fugoso Abraham S. Sarmiento, III
Regina Sarmiento-Macaibay Eleuterio P. Sarmiento Domiga P. San
Diego Nelia P. Marquez Silvestre M. Pascual Eleuterio M. Pascual
(Rollo, pp. 46-47)
Adela Soldevilla de Pascual, the surviving spouse of the late Don
Andres Pascual, filed with the RTC, a Special Proceeding, Case No.
7554, for administration of the intestate estate of her late husband.
On October 16, 1985, all the above-mentioned heirs entered into a
COMPROMISE AGREEMENT, over the vehement objections of the
herein petitioners Olivia S. Pascual and Hermes S. Pascual, although
paragraph V of such compromise agreement provides, to wit:
This Compromise Agreement shall be without prejudice to the
continuation of the above-entitled proceedings until the final
determination thereof by the court, or by another compromise
agreement, as regards the claims of Olivia Pascual and Hermes Pascual
as legal heirs of the deceased, Don Andres Pascual.
The said Compromise Agreement had been entered into despite the
Manifestation/Motion of the petitioners Olivia Pascual and Hermes
Pascual, manifesting their hereditary rights in the intestate estate of
Don Andres Pascual, their uncle.
On September 30, 1987, petitioners filed their Motion to Reiterate
Hereditary Rights and the Memorandum in Support of Motion to
reiterate Hereditary Rights.
On December 18, 1987, the RTC, presided over by Judge Manuel S.
Padolina issued an order, the dispositive portion of which reads:
WHEREFORE, premises considered, this Court resolves as it is hereby
resolved to Deny this motion reiterating the hereditary rights of Olivia
and Hermes Pascual.
On Aril 29, 1988, the respondent CA rendered its decision dismissing
the petition.
ISSUE: Whether or not Article 992 of the Civil Code of the
Philippines, can be interpreted to exclude recognized natural
children from the inheritance of the deceased. YES!
Petitioners contend that they do not fall squarely within the purview of
Article 992 of the Civil Code of the Philippines, can be interpreted to
exclude recognized and of the doctrine laid down in Diaz v. IAC (150
SCRA 645 [1987]) because being acknowledged natural children, their
illegitimacy is not due to the subsistence of a prior marriage when
such children were under conception.
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 Wills and Succession Case Digests
Otherwise stated they say the term "illegitimate" children
as provided in Article 992 must be strictly construed to refer only to
spurious children.
On the other hand, private respondents maintain that herein
petitioners are within the prohibition of Article 992 of the Civil Code
and the doctrine laid down in Diaz v. IAC is applicable to them.
RULING: Pertinent thereto, Article 992 of the Civil Code,
provides:
An illegitimate child has no right to inherit ab intestato from
the legitimate children and relatives of his father or mother;
nor shall such children or relatives inherit in the same manner
from the illegitimate child.
The issue in the case at bar, had already been laid to rest in Diaz v.
IAC, supra, where this Court ruled that:
Article 992 of the Civil Code provides a barrier or iron curtain in that it
prohibits absolutely a succession ab intestato between the illegitimate
child and the legitimate children and relatives of the father or mother
of said legitimate child. They may have a natural tie of blood, but this
is not recognized by law for the purposes of Article 992. Between the
legitimate family and illegitimate family there is presumed to be an
intervening antagonism and incompatibility. The illegitimate child is
disgracefully looked down upon by the legitimate family; the family is
in turn hated by the illegitimate child; the latter considers the
privileged condition of the former, and the resources of which it is
thereby deprived; the former, in turn, sees in the illegitimate child
nothing but the product of sin, palpable evidence of a blemish broken
in life; the law does no more than recognize this truth, by avoiding
further grounds of resentment.
Eligio Pascual is a legitimate child but petitioners are his
illegitimate children.
Applying the above doctrine to the case at bar, respondent IAC did not
err in holding that petitioners herein cannot represent their father
Eligio Pascual in the succession of the latter to the intestate estate of
the decedent Andres Pascual, full blood brother of their father.
SUCCESSIONAL RIGHTS OF ILLEGITIMATE CHILDREN (Diaz vs
CA)
The Court held: Article 902, 989, and 990 clearly speaks of
successional rights of illegitimate children, which rights are transmitted
to their descendants upon their death. The descendants (of these
illegitimate children) who may inherit by virtue of the right of
representation may be legitimate or illegitimate. In whatever manner,
one should not overlook the fact that the persons to be represented
are themselves illegitimate. The three named provisions are very clear
on this matter. The right of representation is not available to
illegitimate descendants of legitimate children in the inheritance of a
legitimate grandparent. It may be argued, as done by petitioners, that
the illegitimate descendant of a legitimate child is entitled to represent
by virtue of the provisions of Article 982, which provides that "the
grandchildren and other descendants shall inherit by right of
representation." Such a conclusion is erroneous. It would allow
intestate succession by an illegitimate child to the legitimate parent of
his father or mother, a situation which would set at naught the
provisions of Article 992. Article 982 is inapplicable to the instant case
because Article 992 prohibits absolutely a succession ab
intestatobetween the illegitimate child and the legitimate children and
relatives of the father or mother. It may not be amiss to state Article
982 is the general rule and Article 992 the exception.
The rules laid down in Article 982 that "grandchildren and other
descendants shall inherit by right of representation" and in Article 902
that the rights of illegitimate children . . . are transmitted upon their
death to their descendants, whether legitimate or illegitimate
are subject to the limitation prescribed by Article 992 to the end that
an illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother. (Amicus
Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12).
Diaz v. Intermediate Appellate Court, 182 SCRA 427; pp. 431-432;
[1990]).
Clearly the term "illegitimate" refers to both natural and spurious.
Finally under Article 176 of the Family Code, all illegitimate children are
generally placed under one category, which undoubtedly settles the
issue as to whether or not acknowledged natural children should be
treated differently, in the negative.
It may be said that the law may be harsh but that is the law (DURA
LEX SED LEX).
TOMAS CORPUS vs.ADMINISTRATOR and/or EXECUTOR of the
Estate of Teodoro R. Yangco, RAFAEL CORPUS, AMALIA
CORPUS, JOSE A. V. CORPUS, RAMON L. CORPUS, ENRIQUE J.
CORPUS, S. W. STAGG, SOLEDAD ASPRER and CIPRIANO
NAVARRO,
G.R. No. L-22469 October 23, 1978
Facts: Teodoro R. Yangco was the son of Luis Rafael Yangco and
Ramona Arguelles, the widow of Tomas Corpus. Before her union with
Luis Rafael Yangco, Ramona had begotten five children with Tomas
Corpus, two of whom were the aforenamed Pablo Corpus and Jose
Corpus Yangco had no forced heirs. At the time of his death, his
nearest relatives were (1) his half-brother, Luis R. Yangco, (2) his half-
sister, Paz Yangco, the wife of Miguel Ossorio (3) Amalia Corpus, Jose
A. V. Corpus, and Ramon L. Corpus, the children of his half-brother,
Pablo Corpus, and (4) Juana (Juanita) Corpus, the daughter of his half-
brother Jose Corpus.
On October 5, 1951, Tomas Corpus, as the sole heir of Juanita corpus,
filed an action in the Court of First Instance of Manila to recover her
supposed share in Yangco intestate estate. TC dismissed the case.
In the appeal, one of the contentions of Corpus is that the TC erred in
holdind Teodoro R. Yangco was a natural child.
Issue: W/N Tomas Corpus a cause of action to recover his mother's
supposed intestate share in Yangco's estate. NO.
Held: The children of Ramona Arguelles and Tomas Corpus are
presumed to be legitimate. A marriage is presumed to have taken
place between Ramona and Tomas. Semper praesumitur pro
matrimonio. It is disputably presumption "That a man and a woman
deporting themselves as husband and wife have entered into a lawful
contract of marriage"; "that a child born in lawful wedlock, there being
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 Wills and Succession Case Digests
no divorce, absolute or from bed and board, is legitimate", and "that
things have happened according to the ordinary course of nature and
the ordinary habits of life" (Sec. 5[z], [bb] and cc Rule 131, Rules of
Court).
Since Teodoro R. Yangco was an acknowledged natural child or was
illegitimate and since Juanita Corpus was the legitimate child of Jose
Corpus, himself a legitimate child, we hold that appellant Tomas
Corpus has no cause of action for the recovery of the supposed
hereditary share of his mother, Juanita Corpus, as a legal heir, in
Yangco's estate. Juanita Corpus was not a legal heir of Yangco
because there is no reciprocal succession between legitimate and
illegitimate relatives. The trial court did not err in dismissing the
complaint of Tomas Corpus.
Article 943 of the old Civil code provides that "el hijo natural y el
legitimado no tienen derecho a suceder abintestato a los hijos y
parientes legitimos del padre o madre que to haya reconocido, ni ellos
al hijo natural ni al legitimado". Article 943 "prohibits all successory
reciprocity mortis causa between legitimate and illegitimate relatives" .
Appellant Corpus concedes that if 'Teodoro R. Yangco was a natural
child, he (Tomas Corpus) would have no legal personality to intervene
in the distribution of Yangco's estate (p. 8, appellant's brief).
The rule in article 943 is now found in article 992 of the Civil Code
which provides that "an illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his father or
mother; nor shall such children or relatives inherit in the same manner
from the illegitimate child".
That rule is based on the theory that the illegitimate child is
disgracefully looked upon by the legitimate family while the legitimate
family is, in turn, hated by the illegitimate child.
The law does not recognize the blood tie and seeks to avod further
grounds of resentment.
Under articles 944 and 945 of the Spanish Civil Code, "if an
acknowledged natural or legitimated child should die without issue,
either legitimate or acknowledged, the father or mother who
acknowledged such child shall succeed to its entire estate; and if both
acknowledged it and are alive, they shall inherit from it share and
share alike. In default of natural ascendants, natural and legitimated
children shall be succeeded by their natural brothers and sisters in
accordance with the rules established for legitimate brothers and
sisters." Hence, Teodoro R. Yangco's half brothers on the Corpus side,
who were legitimate, had no right to succeed to his estate under the
rules of intestacy.
IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA
AGUINALDO- SUNTAY; EMILIO A.M. SUNTAY III, vs. SUNTAY
G.R. No. 183053
June 16, 2010
NACHURA, J.:
Cristina Suntay married to Dr. Federico Suntay had a son named Emilio
I. The latter was married to Isabel Cojuangco, and they begot three
children, namely: herein respondent, Isabel; Margarita; and Emilio II,
all surnamed Cojuangco-Suntay. Emilio I’s marriage to Isabel
Cojuangco was subsequently annulled. Thereafter, Emilio I had two
children out of wedlock, Emilio III and Nenita Suntay Tañedo (Nenita),
by two different women, Concepcion Mendoza and Isabel Santos,
respectively.
In 1979, Emilio I died. In June 4, 1990, Cristina also died. Significantly,
Federico, after the death of his spouse, Cristina, adopted their
illegitimate grandchildren, Emilio III and Nenita.
On October 26, 1995, respondent Isabel Cojuangco-Suntay filed a
petition for the issuance of letters of administration in her favor.
Federico [the grandfather] filed his opposition alleging that [B]eing
the surviving spouse of Cristina, he is capable of administering her
estate and he should be the one appointed as its administrator; that
the enumeration of heirs in the petition was incomplete as it did not
mention the other children of his son[,] namely: Emilio III and Nenita
S. Tañedo;
Now, that petition was opposed on the ground that Emilio III is an
illegitimate child of Emilio I, so he cannot represent his father in the
succession in the estate of his grandmother because insofar as Emilio
III is concerned, he is an illegitimate grandson, he cannot inherit by
legal succession in this case.
Is Article 992 applicable in the case at bar
NO. Article 992 of the Civil Code, referred to as the iron curtain bar
rule,[18] is quite the opposite scenario in the facts obtaining herein for
the actual relationship between Federico and Cristina, on one hand,
and Emilio III, on the other, was akin to the normal relationship of
legitimate relatives;
As Federico’s adopted son, Emilio III’s interest in the estate of Cristina
is as much apparent to this Court as the interest therein of
respondent, considering that the CA even declared that “under the
law, [Federico], being the surviving spouse, would have the right of
succession over a portion of the exclusive property of the
decedent, aside from his share in the conjugal partnership.”
Thus, we are puzzled why the CA resorted to a strained legal
reasoning – Emilio III’s nomination was subject to a suspensive
condition and rendered inoperative by reason of Federico’s death –
wholly inapplicable to the case at bar.
178
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ART 994
Heirs of Spouses REMEDIOS R. SANDEJAS and ELIODORO P.
SANDEJAS SR. -- ROBERTO R. SANDEJAS, ANTONIO R.
SANDEJAS, CRISTINA SANDEJAS MORELAND, BENJAMIN R.
SANDEJAS, REMEDIOS R. SANDEJAS; and heirs of SIXTO S.
SANDEJAS II, RAMON R. SANDEJAS, TERESITA R. SANDEJAS,
and ELIODORO R. SANDEJAS JR., all represented by ROBERTO
R. SANDEJAS, petitioners, vs. ALEX A. LINA, respondent.
FACTS: EliodoroSandejas, Sr. filed a petition praying that letters of
administration be issued in his favor for the settlement of the estate of
his wife, REMEDIOS R. SANDEJAS. On July 1, 1981, Letters of
Administration were issued by the lower court appointing
EliodoroSandejas, Sr. as administrator.
An Omnibus Pleading for motion to intervene and petition-in-
intervention was filed by [M]ovant Alex A. Lina alleging among others
that on June 7, 1982, movant and [A]dministratorEliodoro P. Sandejas,
in his capacity as seller, bound and obligated himself, his heirs,
administrators, and assigns, to sell forever and absolutely and in their
entirety parcels of land which formed part of the estate of the late
Remedios R. Sandejas.
“The [R]eceipt of the [E]arnest [M]oney with [P]romise to [S]ell and to
[B]uy is hereunder quoted, to wit:
‘Received today from MR. ALEX A. LINA the sum of ONE HUNDRED
THOUSAND (P100,000.00) PESOS, Philippine Currency, per
Metropolitan Bank & Trust Company Chec[k] No. 319913 dated today
for P100,000.00, x xx as additional earnest money for the following:
xxx ‘3. Considering that Mrs.Remedios Reyes de Sandejas is
already deceased and as there is a pending intestate proceedings for
the settlement of her estate (Spec. Proc. No. 138393, Manila CFI,
Branch XI), wherein SELLER was appointed as administrator of said
Estate, and as SELLER, in his capacity as administrator of said Estate,
has informed BUYER that he (SELLER) already filed a [M]otion with the
Court for authority to sell the above parcels of land to herein BUYER,
but which has been delayed due to the burning of the records of said
Spec. Pro. No. 138398, which records are presently under
reconstitution, the parties shall have at least ninety (90) days from
receipt of the Order authorizing SELLER, in his capacity as
administrator, to sell all THE ABOVE DESCRIBED PARCELS OF LAND
TO HEREIN BUYER (but extendible for another period of ninety (90)
days upon the request of either of the parties upon the other), within
which to execute the deed of absolute sale covering all above parcels
of land;
‘5. Whether indicated or not, all of above terms and conditions
shall be binding on the heirs, administrators, and assigns of both the
SELLER and BUYER
The lower court issued an [O]rder granting the intervention of Alex A.
Lina.
The counsel for [A]dministratorEliodoro P. Sandejas filed a
[M]anifestation alleging among others that the administrator,
Mr.Eliodoro P. Sandejas, died sometime in November 1984 in Canada.
Intervenor Alex A. Lina filed [a] Motion for his appointment as a new
administrator of the Intestate Estate of Remedios R. Sandejas. Lower
court issued an order granting the [M]otion of Alex A. Lina as the new
[a]dministrator.
The heirs of Sandejas filed a [M]otion for [R]econsideration and the
appointment of another administrator Mr.SixtoSandejas, in lieu of
[I]ntervenor Alex A. Lina. The lower court granted the said [M]otion
and substituted Alex Lina with SixtoSandejas as petitioner in the said
[P]etitions.
The lower court rendered the questioned order granting intervenor’s
[M]otion for the [A]pproval of the Receipt of Earnest Money with
promise to buy between Alex A. Lina and EliodoroSandejas, Sr.
CA held that the contract between EliodoroSandejas Sr. and
respondent was merely a contract to sell, not a perfected contract of
sale. It ruled that the ownership of the four lots was to remain in the
intestate estate of RemediosSandejas until the approval of the sale
was obtained from the settlement court. That approval was a positive
suspensive condition, the nonfulfillment of which was not tantamount
to a breach. It was simply an event that prevented the obligation from
maturing or becoming effective. If the condition did not happen, the
obligation would not arise or come into existence.Eliodoro Sr. was
bound, as a matter of justice and good faith, to comply with his
contractual commitments as an owner and heir. When he entered into
the agreement with respondent, he bound his conjugal and
successional shares in the property.
ISSUE: 1. whether the CA erred in modifying the trial court’s Decision
and in obligating petitioners to sell 3/5 of the disputed properties to
respondent, even if the suspensive condition had not been fulfilled
Collateral issue: the computation of the decedent’s share in the realty
under administration.
RULING: Petitioners argue that the CA erred in ordering the
conveyance of the disputed 3/5 of the parcels of land, despite the
nonfulfillment of the suspensive condition -- court approval of the sale
-- as contained in the “Receipt of Earnest Money with Promise to Sell
and to Buy” (also referred to as the “Receipt”). Instead, they assert
that because this condition had not been satisfied, their obligation to
deliver the disputed parcels of land was converted into a money claim.
We disagree. Petitioners admit that the agreement between the
deceased EliodoroSandejas Sr. and respondent was a contract to
sell. Not exactly. In a contract to sell, the payment of the purchase
price is a positive suspensive condition. The vendor’s obligation to
convey the title does not become effective in case of failure to pay.[10]
On the other hand, the agreement between Eliodoro Sr. and
respondent is subject to a suspensive condition -- the procurement of
a court approval, not full payment. There was no reservation of
ownership in the agreement. In accordance with paragraph 1 of the
Receipt, petitioners were supposed to deed the disputed lots over to
respondent. This they could do upon the court’s approval, even before
full payment. Hence, their contract was a conditional sale, rather than
a contract to sell as determined by the CA.
When a contract is subject to a suspensive condition, its birth or
effectivity can take place only if and when the condition happens or is
fulfilled.[11] Thus, the intestate court’s grant of the Motion for Approval
of the sale filed by respondent resulted in petitioners’ obligation to
execute the Deed of Sale of the disputed lots in his favor. The
condition having been satisfied, the contract was
perfected. Henceforth, the parties were bound to fulfill what they had
expressly agreed upon.
Computation of Eliodoro’s Share
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 Wills and Succession Case Digests
Petitioners aver that the CA’s computation of Eliodoro Sr.’s share
in the disputed parcels of land was erroneous because, as the conjugal
partner of Remedios, he owned one half of these lots plus a further
one tenth of the remaining half, in his capacity as a one of her legal
heirs. Hence, Eliodoro’s share should be 11/20 of the entire
property. Respondent poses no objection to this computation.[22]
On the other hand, the CA held that, at the very least, the
conditional sale should cover the one half (1/2) pro indiviso conjugal
share of Eliodoro plus his one tenth (1/10) hereditary share as one of
the ten legal heirs of the decedent, or a total of three fifths (3/5) of
the lots in administration.[23]
Petitioners’ computation is correct. The CA computed Eliodoro’s
share as an heir based on one tenth of the entire disputed property. It
should be based only on the remaining half, after deducting the
conjugal share.[24]
The proper determination of the seller-heir’s shares requires further
explanation. Succession laws and jurisprudence require that when a
marriage is dissolved by the death of the husband or the wife, the
decedent’s entire estate – under the concept of conjugal properties of
gains -- must be divided equally, with one half going to the surviving
spouse and the other half to the heirs of the deceased.[25] After the
settlement of the debts and obligations, the remaining half of the
estate is then distributed to the legal heirs, legatees and devices. We
assume, however, that this preliminary determination of the
decedent’s estate has already been taken into account by the parties,
since the only issue raised in this case is whether Eliodoro’s share is
11/20 or 3/5 of the disputed lots.
ART 995
CALLISTERIO vs. CALLISTERIO
FACTS:
- On 24 April 1992, Teodorico Calisterio died intestate, leaving several
parcels of land with an estimated value of P604,750.00. Teodorico was
survived by his wife, herein respondent Marietta Calisterio.
- Teodorico was the second husband of Marietta who had previously
been married to James William Bounds on 13 January 1946 at
Caloocan City. James Bounds disappeared without a trace on 11
February 1947. Teodorico and Marietta were married eleven years
later, or on 08 May 1958, without Marietta having priorly secured a
court declaration that James was presumptively dead.
- On 09 October 1992, herein petitioner Antonia Armas y Calisterio, a
surviving sister of Teodorico, filed with the RTC a petition entitled, "In
the Matter of Intestate Estate of the Deceased Teodorico Calisterio y
Cacabelos, Antonia Armas, Petitioner," claiming to be inter alia, the
sole surviving heir of Teodorico Calisterio, the marriage between the
latter and respondent Marietta Espinosa Calisterio being allegedly
bigamous and thereby null and void. She prayed that her son
Sinfroniano C. Armas, Jr., be appointed administrator, without bond, of
the estate of the deceased and that the inheritance be adjudicated to
her after all the obligations of the estate would have been settled.
- Respondent Marietta opposed the petition. Marietta stated that her
first marriage with James Bounds had been dissolved due to the
latter's absence, his whereabouts being unknown, for more than
eleven years before she contracted her second marriage with
Teodorico. Contending to be the surviving spouse of Teodorico, she
sought priority in the administration of the estate of the decedent.
ISSUE: WON the marriage between the deceased Teodorico and
respondent Marietta is valid (that, in turn, would be determinative of
her right as a surviving spouse). YES.
RULING: The marriage between the deceased Teodorico and
respondent Marietta was solemnized on 08 May 1958. The law in force
at that time was the Civil Code, not the Family Code which took effect
only on 03 August 1988. Article 256 of the Family Code itself limited its
retroactive governance only to cases where it thereby would not
prejudice or impair vested or acquired rights in accordance with the
Civil Code or other laws. Verily, the applicable specific provision in the
instant controversy is Article 83 of the New Civil Code.
In the case at bar, it remained undisputed that respondent Marietta's
first husband, James William Bounds, had been absent or had
disappeared for more than eleven years before she entered into a
second marriage in 1958 with the deceased Teodorico Calisterio. This
second marriage, having been contracted during the regime of the Civil
Code, should thus be deemed valid notwithstanding the absence of a
judicial declaration of presumptive death of James Bounds.
The conjugal property of Teodorico and Marietta, no evidence having
been adduced to indicate another property regime between the
spouses, pertains to them in common. Upon its dissolution with the
death of Teodorico, the property should rightly be divided in two equal
portions -- one portion going to the surviving spouse and the other
portion to the estate of the deceased spouse. The successional right in
intestacy of a surviving spouse over the net estate of the deceased,
concurring with legitimate brothers and sisters or nephews and nieces
(the latter by right of representation), is one-half of the inheritance,
the brothers and sisters or nephews and nieces, being entitled to the
other half. Nephews and nieces, however, can only succeed by right of
representation in the presence of uncles and aunts; alone, upon the
other hand, nephews and nieces can succeed in their own right which
is to say that brothers or sisters exclude nephews and nieces except
only in representation by the latter of their parents who predecease or
are incapacitated to succeed. The appellate court has thus erred in
granting, in paragraph (c) of the dispositive portion of its judgment,
successional rights, to petitioner's children, along with their own
mother Antonia who herself is invoking successional rights over the
estate of her deceased brother.
ART. 1000
GERTRUDE L. DEL ROSARIO petitioner, vs. DOROTEA O.
CONANAN and MARILOU DEL ROSARIO, respondents.
G.R. No. L-37903 March 30, 1977
FACTS: Deceased, Felix Del Rosario, died in a plane crash. He was
survived by his mother, Gertrude Del Rosario (petitioner), surviving
spouse, Dorotea Conanan, and legally adopted child, Marilou Del
Rosario (respondents).
Gertrude filed a petition for the settlement and partition of the estate
of the deceased but was opposed by the respondents. The lower court
dismissed Gertrude’s petition holding that the law on intestate
succession is clear that an adopted child concurring with the surviving
spouse of the adopter excludes the legitimate ascendants from
succession.
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 Wills and Succession Case Digests
ISSUE: WON Gertrude, a legitimate ascendant, is entitled to the
estate of the deceased. YES!
HELD: WE opine that the governing provision is the hereinafter
quoted article 343 of the New Civil Code, in relation to Articles 893 and
1000 of said law, which directs that:
Art. 343. If the adopter is survived by legitimate parents or
ascendants and by an adopted person, the latter shall not have more
successional rights than an acknowledged natural child.
It is most unfair to accord more successional rights to the adopted,
who is only related artificially by fiction of law to the deceased, than
those who are naturally related to him by blood in the direct ascending
line.
The applicability of Article 343 does not exclude the surviving parent of
the deceased adopter, not only because a contrary view would defeat
the intent of the framers of the law, but also because in intestate
succession, where legitimate parents or ascendants concur with the
surviving spouse of the deceased, the latter does not necessarily
exclude the former from the inheritance. This is affirmed by Article 893
of the New Civil Code which states:
How do we divide the estate?
Under Article 343, an adopted child surviving with legitimate parents of
the deceased adopter, has the same successional rights as an
acknowledged natural child, which is comprehended in the term
"illegitimate children". Consequently, the respective shares of the
surviving spouse, ascendant and adopted child should be determined
by Article 1000 of the New Civil Code, which reads:
Art. 1000. If legitimate ascendants, the surviving spouse and
illegitimate children are left, the ascendants shall be entitled to one-
half of the inheritance, and the other half shall be divided between the
surviving spouse and the illegitimate children so that such widow or
widower shall have one-fourth of the estate, the illegitimate children
the other fourth.
Thus, the estate should be divided as follows:
 Gertrude (ascendant) – ½
 Dorotea (wife) – ¼
 Marilou (adopted child) – ¼
ART 1003
BARANDA v. BARANDA
Facts: An old woman died without issue and without a will and her
collaterals wrangling over her properties that even before the owner's
death, two of the claimants had already taken over her properties by
virtue of certain supposed transfers which are in fact that reason for
this petition.
The questioned sales were effected through three deeds
denominated "Bilihan ng Lupa" under which Paulina L. Baranda, a
widow, sold five parcels of land to her niece, Evangelina Baranda, and
a sixth parcel to her other niece, Elisa, also a daughter of
Pedro Baranda, Paulina's brother for the consideration of P105,000.00.
What made these transactions suspect was a subsequent
complaint filed by Paulina Baranda against her. She alleged that she
had signed the said deeds of sale without knowing their contents and
prayed that Evangelina and Elisa be ordered to reconvey the lands
subject thereof to her.
Issue: Whether or not the petitioners have the capacity to sue
considering that they are not the legitimate and compulsory heirs of
Paulina Baranda. YES
Held: It is not disputed that Paulina Baranda died intestate without
leaving any direct descendants or ascendants, or compulsory heirs.
She was survived, however, by two brothers, namely, Pedro and
Teodoro, and several nephews and nieces, including the private
respondents, as well as petitioners Flocerfina Baranda,
SalvacionBaranda, and Alipio Baranda Villarte, children of two
deceased brothers and a sister. The above-named persons, together
with Pedro Baranda, who was not joined as a petitioner because he is
the father of the private respondents, and the children of another
deceased sister, are the legitimate intestate heirs of
PaulinaBaranda. LibLex
The applicable provisions of the Civil Code are the following:
"Art. 1003.If there are no descendants,
ascendants, illegitimate children, or a surviving
spouse, the collateral relatives shall succeed to
the entire estate of the deceased in accordance
with the following articles.
"Art. 1005.Should brothers and sisters survive
together with nephews and nieces, who are the
children of the descendant's brothers and
sisters of the full blood, the former shall inherit
per capita, and the latter per stirpes.
As heirs, the petitioners have legal standing to challenge the
deeds of sale purportedly signed by Paulina Baranda for otherwise
property claimed to belong to her estate will be excluded therefrom to
their prejudice. Their claims are not merely contingent or expectant, as
argued by the private respondents, but are deemed to have vested in
them upon Paulina Baranda's death in 1982, as, under Article 777 of
the Civil Code, "the rights to the succession are transmitted from the
moment of the death of the decedent." While they are not compulsory
heirs, they are nonetheless legitimate heirs and so, since they "stand
to be benefited or injured by the judgment or suit," are entitled to
protect their share of successional rights.
The legal heirs of a decedent are the parties in interest to
commence ordinary actions arising out of the rights belonging to the
deceased, without separate judicial declaration as to their being heirs
of said decedent, provided that there is no pending special proceeding
for the settlement of the decedent's estate.
There being no pending special proceeding for the
settlement of Paulina Baranda's estate, the petitioners, as her intestate
heirs, had the right to sue for the reconveyance of the disputed
properties, not to them, but to the estate itself of the decedent, for
distribution later in accordance with law.
Notes:
Conveyance null and void since there was no consent from Paulina,
also there was lack of consideration.
As to prescription: Lack of consent and consideration made the
deeds of sale void altogether 27 and rendered them subject to attack
at any time, conformably to the rule in Article 1410 that an action to
declare the inexistence of void contracts "does not prescribe."
As to incontrovertibility of torrens title: Act No. 496 provided that
the action to annul a registration of land under the Torrens system
should be filed within one year; otherwise, the same shall be barred
forever. 28 This is not an absolute rule, however, as the Torrens
system is not supposed to be used as an instrument for wrongdoing or
to validate an illegal acquisition of title to the prejudice of the real
owner of the property registered.
ART 1005
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 Wills and Succession Case Digests
FLOCERFINA BARANDA, Assisted by Husband, ELIAS FABON,
HERMINIA BARANDA RECATO represented by LILIA R.
TORRENTE, as Attorney-in-Fact, TEODORO BARANDA represented
by JUANITA VICTORIA as Attorney-in-Fact, ALIPIO VILLARTA and
SALVACION BARANDA, petitioners, vs. EVANGELINA G.
BARANDA, ELISA G. BARANDA, and THE HONORABLE
INTERMEDIATE APPELLATE COURT, respondents.
G.R. No. 73275 May 20, 1987
FACTS: Paulina Baranda, a widow, sold parcels of land to her neices
Evangeline and Elisa, daughters of her brother Pedro Baranda.
Subsequently, paulina lodged a complaint against her neices alleged
that she signed the deeds of sale without knowing their contents adn
she prayed the reconveyance of her lands. However, this complaint
was withdrawn pursuant to an agreeement in Aug 2, 1977 under
which the defendant neices obligated themselves to execute absolute
deeds of sale covering the same lands in favor of Paulina.
Upon Paulina's death in 1982, the CTC over the lots were still in the
names of Evangeline and Elisa.
On April 26, 1982, petitioners herein, claiming to be the legitimate
heirs of Paulina, filed a complaint for the annulment and reconveyance
of the lots, with damages.
TC ruled in favor of petitioners but it was reversed on appeal.
ISSUE: whether or not petitioners had the capacity to sue and/or to
question the validity of the deed of sale. (Allegedly they are not the
legitimate and compulsory heirs of Paulina.
HELD: YES. It is not disputed that Paulina Baranda died intestate
without leaving any direct descendants or ascendants, or compulsory
heirs. She was survived, however, by two brothers, namely, Pedro and
Teodoro, and several nephews and nieces, including the private
respondents, as well as petitioners Flocerfina Baranda, Salvacion
Baranda, and Alipio Baranda Villarte, children of two deceased brothers
and a sister. The above- named persons, together with Pedro Baranda,
who was not joined as a petitioner because he is the father of the
private respondents, and the children of another deceased sister, are
the legitimate intestate heirs of Paulina Baranda.
The applicable provisions of the Civil Code are the following:
Art. 1003. If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives shall succeed to
the entire estate of the deceased in accordance with the following
articles.
Art. 1005. Should brothers and sisters survive together with nephews
and nieces, who are the children of the descendant's brothers and
sisters of the full blood, the former shall inherit per capita, and the
latter per stirpes
Art. 972. The right of representation takes place in the direct
descending line, but never in the ascending.
In the collateral line it takes place only in favor of the children or
brothers or sisters, whether they be of the full or half blood.
As heirs, the petitioners have legal standing to challenge the deeds of
sale purportedly signed by Paulina Baranda for otherwise property
claimed to belong to her estate will be excluded therefrom to their
prejudice. Their claims are not merely contingent or expectant, as
argued by the private respondents, but are deemed to have vested in
them upon Paulina Baranda's death in 1982, as, under Article 777 of
the Civil Code, "the rights to the succession are transmitted from the
moment of the death of the decedent." While they are not compulsory
heirs, they are nonetheless legitimate heirs and so, since they "stand
to be benefited or injured by the judgment or suit," are entitled to
protect their share of successional rights.
This Court has repeatedly held that "the legal heirs of a decedent are
the parties in interest to commence ordinary actions arising out of the
rights belonging to the deceased, without separate judicial declaration
as to their being heirs of said decedent, provided that there is no
pending special proceeding for the settlement of the decedent's
estate."
There being no pending special proceeding for the settlement of
Paulina Baranda's estate, the petitioners, as her intestate heirs, had
the right to sue for the reconveyance of the disputed properties, not to
them, but to the estate itself of the decedent, for distribution later in
accordance with law. Otherwise, no one else could question the
simulated sales and the subjects thereof would remain in the name of
the alleged vendees, who would thus have been permitted to benefit
from their deception, In fact, even if it were assumed that those suing
through attorneys-in-fact were not properly represented, the
remaining petitioners would still have sufficed to impugn the validity of
the deeds of sale.
Collateral issues: Whether the petitioners actions was barred by
reason of the prescriptive period provided by law for annulment of
contracts whose consent to the parties thereto are vitiated. NO
Paulina Baranda declared under oath in her complaint that she signed
the deeds of sale without knowing what they were, which means that
her consent was not merely marred by the above-stated vices, so as to
make the contracts voidable, but that she had not given her consent at
all. We are also satisfied that there was no valid consideration either
for the alleged transfers, for reasons already discussed. Lack of
consent and consideration made the deeds of sale void altogether and
rendered them subject to attack at any time, conformably to the rule
in Article 1410 that an action to declare the inexistence of void
contracts "does not prescribe."
Act No. 496, which was in force at the time the complaint was filed,
provided that the action to annul a registration of land under the
Torrens system should be filed within one year; otherwise, the same
shall be barred forever. This is not an absolute rule, however, as the
Torrens system is not supposed to be used as an instrument for
wrongdoing or to validate an illegal acquisition of title to the prejudice
of the real owner of the property registered. We have consistently
ruled that when there is a showing of such illegality, the property
registered is deemed to be simply held in trust for the real owner by
the person in whose name it is registered, and the former then has the
right to sue for the reconveyance of the property. The action for the
purpose is also imprescriptible.
As long as the land wrongfully registered under the Torrens system is
still in the name of the person who caused such registration, an action
in personam will lie to compel him to reconvey the property to the real
owner. Provided only that the property has, as in this case, not passed
to an innocent third person for value, such an action is permitted. We
have held that the sole remedy of the landowner whose property has
been wrongfully or erroneously registered in anothers' name is not to
set aside the decree after one year from the date thereof. Respecting
it as incontrovertible and no longer open to review, he may
nevertheless bring an ordinary action for reconvevance or for
darmages if the property has passed into the hands of an innocent
purchaser for value.
ART 1006
GAUDENCIO BICOMONG vs. GERONIMO ALMANZA
GR No. L-37365 Nov. 29, 1977
FACTS:
 Simeon Bagsic was married to Sisenanda and they had 3 children
(Perpetua, Igmedia and Ignacio).
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 Wills and Succession Case Digests
 When Sisenanda died, Simeon remarried to Silvestra and they had 2
children (Felipa and Maura).
 The plaintiffs are the grandchildren of Simeon with his children in his
first marriage.
 Respondents are the heirs of the children of Simeon in his second
marriage.
 The subject matter is the half undivided share of Maura Bagsic in 5
parcels of land which she inherited from Silvestra Glorioso.
 There are 3 sets of plaintiffs: the Bicomongs, the Tolentinos, and
Francisca Bagsic, for their shares in the properties of Maura Bagsic.
When Maura Bagsic died, the properties passed on to Cristeta
Almanza, who also died without division of the properties.
 The trial court rendered judgment in favor of plaintiffs. The Almanzas
appealed to CA. It was contended that since Maura died ahead of
Felipa, the latter succeeded to Maura’s estate, to the exclusion of the
plaintiffs. They said the relatives nearest in degree excludes the more
distant ones. The plaintiffs claim that Felipa died ahead of Maura.
ISSUE: WON Maura is succeeded by Felipa to the exclusion of
nephews and nieces of half-blood? – NO.
HELD:
 No. In the absence of descendants, ascendants, illegitimate children,
or surviving spouse, collateral relatives succeed to the entire estate of
deceased.
 It appearing that Maura Bagsic, child of the 2nd marriage in which her
share is in dispute, died intestate without an issue, and her husband
and all her ascendants had died ahead of her, she is succeeded by the
surviving collateral relatives, namely the daughter of her sister of full
blood and the 10 children of her brother and 2 sisters of half-blood in
accordance with the provision of Art. 975 of the New Civil Code.
 By virtue of said provision, the aforementioned nephews and nieces
are entitled to inherit in their own right. Nephews and nieces alone do
not inherit by right of representation (that is per stirpes) unless
concurring with brothers or sisters of the deceased.
 Article 975 makes no qualification as to whether the nephews or nieces
are on the maternal or paternal line and without preference as to
whether their relationship to the deceased is by whole or half blood,
the sole niece of whole blood of the deceased does not exclude the ten
nephews and 2 sisters of half blood.
ART 1008
BICOMONG v. ALMANZA (Morilla)
ART 1025
G.R. No. L-22036 April 30, 1979
TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL
RIGOR. THE PARISH PRIEST OF THE ROMAN CATHOLIC
CHURCH OF VICTORIA, TARLAC, petitioner-appellant, vs. BELINA
RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR
and JOVITA ESCOBAR DE FAUSTO,respondents-appellees.
FACTS: Father Pascual Rigor, the parish priest of Pulilan, Bulacan,
died on August 9, 1935, leaving a will executed on October 29, 1933
which was probated by the Court of First Instance of Tarlac in its order
of December 5, 1935. Named as devisees in the will were the testators
nearest relatives, namely, his three sisters: Florencia Rigor-Escobar,
Belina Rigor-Manaloto and Nestora Rigor-Quiambao. In addition, the
will contained the following controversial bequest (involving a devise of
ricelands):
xx
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy purported to be given to
the nearest male relative who shall take the priesthood, and in the
interim to be administered by the actual Catholic Priest of the Roman
Catholic Church of Victoria, Tarlac, Philippines, or his successors, the
real properties… xx
In as much as "no nearest male relative of" the testator " has ever
studied for the priesthood", the lower court declared the bequest
inoperative and adjudicated the ricelands to the testator's legal heirs.
The parish priest of Victoria, claiming to be a trustee of the said lands,
appealed contending that the Court of Appeals erred in not finding that
the testator created a public charitable trust and in not liberally
construing the testamentary provisions so as to render the trust
operative and to prevent intestacy.
ISSUE: Whether or not a device in favour of a person whose identity
at the time of the testator’s death cannot be ascertained, may be
efficacious.
HELD: NO. In this case, as in cases involving the law of contracts
and statutory construction, where the intention of the contracting
parties or of the lawmaking body is to be ascertained, the primary
issue is the determination of the testator's intention which is the law of
the case (dicat testor et erit lex. Santos vs. Manarang, 27 Phil. 209,
215; Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27
SCRA 546).
The will of the testator is the first and principal law in the matter of
testaments. When his intention is clearly and precisely expressed, any
interpretation must be in accord with the plain and literal meaning of
his words, except when it may certainly appear that his intention was
different from that literally expressed (In re Estate of Calderon, 26
Phil. 333).
From the foregoing testamentary provisions, it may be deduced that
the testator intended to devise the ricelands to his nearest male
relative who would become a priest, who was forbidden to sell the
ricelands, who would lose the devise if he discontinued his studies for
the priesthood, or having been ordained a priest, he was
excommunicated, and who would be obligated to say annually twenty
masses with prayers for the repose of the souls of the testator and his
parents.
On the other hand, it is clear that the parish priest of Victoria would
administer the ricelands only in two situations: one, during the interval
of time that no nearest male relative of the testator was studying for
the priesthood and two, in case the testator's nephew became a priest
and he was excommunicated.
We hold that the said bequest refers to the testator's nearest
male relative living at the time of his death and not to any
indefinite time thereafter. "In order to be capacitated to
inherit, the heir, devisee or legatee must be living at the
moment the succession opens, except in case of
representation, when it is proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or
reasonably construed. To construe them as referring to the
testator's nearest male relative at anytime after his
death would render the provisions difficult to apply and create
uncertainty as to the disposition of his estate. That could not
have been his intention.
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 Wills and Succession Case Digests
In 1935, when the testator died, his nearest leagal heirs were his three
sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and
Mrs. Quiambao. Obviously, when the testator specified his nearest
male relative, he must have had in mind his nephew or a son of his
sister, who would be his third-degree relative, or possibly a
grandnephew. But since he could not prognosticate the exact date of
his death or state with certitude what category of nearest male relative
would be living at the time of his death, he could not specify that his
nearest male relative would be his nephew or grandnephews (the son
of his nephew or niece) and so he had to use the term "nearest male
relative".
Inasmuch as the testator was not survived by any nephew who
became a priest, the unavoidable conclusion is that the bequest in
question was ineffectual or inoperative. Therefore, the administration
of the ricelands by the parish priest of Victoria, as envisaged in the wilt
was likewise inoperative.
It should be understood that the parish priest of Victoria could become
a trustee only when the testator's nephew living at the time of his
death, who desired to become a priest, had not yet entered the
seminary or, having been ordained a priest, he was excommunicated.
Those two contingencies did not arise, and could not have arisen in
this case because no nephew of the testator manifested any intention
to enter the seminary or ever became a priest.
ART 1039
CAYETANO v. LEONIDAS
FACTS: On January 31, 1977, Adoracion C. Campos died, leaving her
father, petitioner Hermogenes Campos and her sisters, private
respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C.
Medina as the surviving heirs. As Hermogenes Campos was the only
compulsory heir, he executed an Affidavit of Adjudication whereby he
adjudicated unto himself the ownership of the entire estate of the
deceased Adoracion Campos.
On November 25, 1977, Nenita C. Paguia filed a petition for the
reprobate of a will of the deceased, Adoracion Campos, which was
allegedly executed in the United States and for her appointment as
administratrix of the estate of the deceased testatrix.
Nenita alleged that the testatrix was an American citizen at the time of
her death and was a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila
while temporarily residing with her sister that during her lifetime, the
testatrix made her last will and testament on July 10, 1975, according
to the laws of Pennsylvania, after the testatrix death, her last will and
testament was presented, probated, allowed, and registered with the
Registry of Wins at the County of Philadelphia, U.S.A.,
An opposition to the reprobate of the will was filed by herein petitioner
alleging among other things, that he has every reason to believe that
the will in question is a forgery; that the intrinsic provisions of the will
are null and void; and that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply inasmuch as they
would work injustice and injury to him.
Issue: Whether or not the reprobation of the will is invalid for it
divested the father of his legitime which was reserved by the law for
him and the same would work injustice and injury to him.
Held: No, the reprobation of the will is valid. Although on its face,
the will appeared to have preterited the petitioner and thus, the
respondent judge should have denied its reprobate outright, the
private respondents have sufficiently established that Adoracion was,
at the time of her death, an American citizen and a permanent resident
of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par.
(2) and 1039 of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions,
both with respect to the order of succession and
to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person
whose succession is under consideration,
whatever may be the nature of the property and
regardless of the country wherein said property
may be found.
Art. 1039.
Capacity to succeed is governed by the law of the
nation of the decedent.
the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the decedent.
Although the parties admit that the Pennsylvania law does not provide
for legitimes and that all the estate may be given away by the testatrix
to a complete stranger, the petitioner argues that such law should not
apply because it would be contrary to the sound and established public
policy and would run counter to the specific provisions of Philippine
Law.
It is a settled rule that as regards the intrinsic validity of the provisions
of the will, as provided for by Article 16(2) and 1039 of the Civil Code,
the national law of the decedent must apply. This was squarely applied
in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy
or good customs may be involved in our system of
legitimes, Congress has not intended to extend
the same to the succession of foreign nationals.
For it has specifically chosen to leave, inter alia,
the amount of successional rights, to the
decedent's national law. Specific provisions must
prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G.
Bellis, was a citizen of the State of Texas, U.S.A.,
and under the law of Texas, there are no forced
heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the amount
of successional rights are to be determined under
Texas law, the Philippine Law on legitimes cannot
be applied to the testacy of Amos G. Bellis.
The order of succession and to the amount of successional rights and
to the intrinsic validity of testamentary provisions shall be regulated by
the national law of the person whose succession is under
184
 Wills and Succession Case Digests
consideration. It is therefore evident that whatever public policy or
good customs may be involved in our system of legitimes, Congress
has not intended to extend the same to the succession of foreign
nationals.
ART 1043
INTESTATE ESTATE OF THE LATE VITO BORROMEO,
PATROCINIO BORROMEO-HERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS,
Judge of the Court of First Instance of Cebu, Branch II,
respondents.
G.R. No. L-41171 July 23, 1987
GUTIERREZ, JR., J.:
Vito Borromeo, a widower and permanent resident of Cebu City, died
on March 13, 1952, in Paranaque, Rizal at the age of 88 years, without
forced heirs but leaving extensive properties in the province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First Instance
of Cebu a petition for the probate of a one page document as the last
will and testament left by the said deceased, devising all his properties
to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and
undivided shares, and designating Junquera as executor thereof.
After due trial, the probate court held that the document presented as
the will of the deceased was a forgery.
The testate proceedings was converted into an intestate proceedings.
After determining the intestate heirs of the decedent, the court
ordered that the assets of the intestate estate of Vito Borromeo shall
be divided into 4/9 and 5/9 groups and distributed in equal and
equitable shares among the 9 declared intestate heirs.
On August 25, 1972, respondent Fortunato Borromeo, who had earlier
claimed as heir under the forged will, filed a motion before the trial
court praying that he be declared as one of the heirs of the deceased
Vito Borromeo, alleging that he is an illegitimate son of the deceased
and that in the declaration of heirs made by the trial court, he was
omitted, in disregard of the law making him a forced heir entitled to
receive a legitime like all other forced heirs. As an acknowledged
illegitimate child, he stated that he was entitled to a legitime equal in
every case to four-fifths of the legitime of an acknowledged natural
child.
Finding that the motion of Fortunato Borromeo was already barred by
the order of the court dated April 12, 1969 declaring the persons
named therein as the legal heirs of the deceased Vito Borromeo, the
court dismissed the motion on June 25, 1973.
Fortunato Borromeo filed a motion for reconsideration. In the
memorandum he submitted to support his motion for reconsideration,
Fortunato changed the basis for his claim to a portion of the estate. He
asserted and incorporated a Waiver of Hereditary Rights dated July 31,
1967, supposedly signed by Pilar N. Borromeo, Maria B. Putong, Jose
Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo, Patrocinio
Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V.
Borromeo, Consuelo B. Morales, Remedios Alfonso and Amelinda B.
Talam In the waiver, five of the nine heirs relinquished to Fortunato
their shares in the disputed estate. The motion was opposed on the
ground that the trial court, acting as a probate court, had no
jurisdiction to take cognizance of the claim; that respondent Fortunato
Borromeo is estopped from asserting the waiver agreement; that the
waiver agreement is void as it was executed before the declaration of
heirs; that the same is void having been executed before the
distribution of the estate and before the acceptance of the inheritance;
and that it is void ab initio and inexistent for lack of subject matter.
On December 24, 1974, after due hearing, the trial court concluding
that the five declared heirs who signed the waiver agreement
assigning their hereditary rights to Fortunato Borromeo had lost the
same rights, declared the latter as entitled to 5/9 of the estate of Vito
Borromeo.
It is argued by the petitioner that the document entitled " waiver of
Hereditary Rights" executed on July 31, 1967, aside from having been
cancelled and revoked on June 29, 1968, by Tomas L. Borromeo,
Fortunato Borromeo and Amelia Borromeo, is without force and effect
because there can be no effective waiver of hereditary rights before
there has been a valid acceptance of the inheritance the heirs intend
to transfer. Pursuant to Article 1043 of the Civil Code, to make
acceptance or repudiation of inheritance valid, the person must be
certain of the death of the one from whom he is to inherit and of his
right to the inheritance. Since the petitioner and her co-heirs were not
certain of their right to the inheritance until they were declared heirs,
their rights were, therefore, uncertain. This view, according to the
petitioner, is also supported by Article 1057 of the same Code which
directs heirs, devicees, and legatees to signify their acceptance or
repudiation within thirty days after the court has issued an order for
the distribution of the estate.
Respondent Fortunato Borromeo on the other hand, contends that
under Article 1043 of the Civil Code there is no need for a person to be
first declared as heir before he can accept or repudiate an inheritance.
What is required is that he must first be certain of the death of the
person from whom he is to inherit and that he must be certain of his
right to the inheritance. He points out that at the time of the signing of
the waiver document on July 31, 1967, the signatories to the waiver
document were certain that Vito Borromeo was already dead as well as
of their rights to the inheritance as shown in the waiver document
itself.
ISSUE: Whether or not an acceptance or renunciation of inheritance,
in order to be valid, must be preceded by a court declaration that the
person making the acceptance or renunciation is indeed an heir.
RULING: No. The prevailing jurisprudence on waiver of hereditary
rights is that "the properties included in an existing inheritance cannot
be considered as belonging to third persons with respect to the heirs,
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 Wills and Succession Case Digests
who by fiction of law continue the personality of the former. Nor do
such properties have the character of future property, because the
heirs acquire a right to succession from the moment of the death of
the deceased, by principle established in article 657 and applied by
article 661 of the Civil Code, according to which the heirs succeed the
deceased by the mere fact of death. More or less, time may elapse
from the moment of the death of the deceased until the heirs enter
into possession of the hereditary property, but the acceptance in any
event retroacts to the moment of the death, in accordance with article
989 of the Civil Code. The right is vested, although conditioned upon
the adjudication of the corresponding hereditary portion." The heirs,
therefore, could waive their hereditary rights in 1967 even if the order
to partition the estate was issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights"
cannot be considered to be effective. For a waiver to exist, three
elements are essential: (1) the existence of a right; (2) the knowledge
of the existence thereof; and (3) an intention to relinquish such right.
The intention to waive a right or advantage must be shown clearly and
convincingly, and when the only proof of intention rests in what a
party does, his act should be so manifestly consistent with, and
indicative of an intent to, voluntarily relinquish the particular right or
advantage that no other reasonable explanation of his conduct is
possible.
The circumstances of this case show that the signatories to the waiver
document did not have the clear and convincing intention to relinquish
their rights, Thus: (1) On October 27, 1967. Fortunato, Tomas, and
Amelia Borromeo filed a pleading entitled "Compliance" wherein they
submitted a proposal for the amicable settlement of the case. In that
Compliance, they proposed to concede to all the eight (8) intestate
heirs of Vito Borromeo all properties, personal and real, including all
cash and sums of money in the hands of the Special Administrator, as
of October 31, 1967, not contested or claimed by them in any action
then pending in the Court of First Instance of Cebu. In turn, the heirs
would waive and concede to them all the 14 contested lots. In this
document, the respondent recognizes and concedes that the
petitioner, like the other signatories to the waiver document, is an heir
of the deceased Vito Borromeo, entitled to share in the estate. This
shows that the "Waiver of Hereditary Rights" was never meant to be
what the respondent now purports it to be. Had the intent been
otherwise, there would not be any reason for Fortunato, Tomas, and
Amelia Borromeo to mention the heirs in the offer to settle the case
amicably, and offer to concede to them parts of the estate of the
deceased; (2) On April 21 and 30, 1969, the majority of the declared
heirs executed an Agreement on how the estate they inherited shall be
distributed. This Agreement of Partition was approved by the trial court
on August 15, 1969; (3) On June 29, 1968, the petitioner, among
others, signed a document entitled Deed of Assignment" purporting to
transfer and assign in favor of the respondent and Tomas and Amelia
Borromeo all her (Patrocinio B. Herrera's) rights, interests, and
participation as an intestate heir in the estate of the deceased Vito
Borromeo. The stated consideration for said assignment was
P100,000.00; (4) On the same date, June 29, 1968, the respondent
Tomas, and Amelia Borromeo (assignees in the aforementioned deed
of assignment) in turn executed a "Deed of Reconveyance" in favor of
the heirs-assignors named in the same deed of assignment. The stated
consideration was P50,000.00; (5) A Cancellation of Deed of
Assignment and Deed of Reconveyance was signed by Tomas
Borromeo and Amelia Borromeo on October 15, 1968, while Fortunato
Borromeo signed this document on March 24, 1969.
ART 1051
IMPERIAL vs. CA
FACTS: Leoncio Imperial owns a parcel of land in Albay. Leoncio sold
the said lot for P1.00 to his acknowledged natural son,Eloy Imperial.
Petitioner and respondents admit that despite the contract’s
designation as one of “Absolute Sale”, the transaction was in fact a
donation.
Barely two years after the donation, Leoncio filed a complaint for
annulment of the said Deed of Absolute Sale on the ground that he
was deceived by petitioner herein into signing the said document. The
dispute, however, was resolved through a compromise agreement.
On January 8, 1962, Leoncio died, leaving only two heirs --- the herein
petitioner, who is his acknowledged natural son, and an adopted son,
Victor Imperial.
Fifteen years thereafter, Victor died single and without issue, survived
only by his natural father, Ricardo Villalon, who was a lessee of a
portion of the disputed land. Four years later, Ricardo died, leaving as
his only heirs his two children, Cesar and Teresa Villalon.
Five years later, Cesar and Teresa filed an amended complaint seeking
the nullification of the Deed of Absolute Sale affecting the above
property, on grounds of fraud, deceit and inofficiousness.
When Leoncio died, it was only Victor who was entitled to question the
donation. But instead of filing an action to contest the donation, Victor
asked to be substituted as plaintiff and even moved for the execution
of the judgment.
ISSUE: WON Victor's course of action constitutes a valid renunciation
of his legitime
HELD: NO. No renunciation of legitime may be presumed from the
foregoing acts. It must be remembered that at the time of the
substitution, the judgment approving the compromise agreement has
already been rendered. Victor merely participated in the execution of
the compromise judgment. He was not a party to the compromise
agreement.
More importantly, our law on succession does not countenance tacit
repudiation of inheritance. Rather, it requires an express act on the
part of the heir. (See Article 1051)
Thus, when Victor substituted Leoncio in Civil Case No. 1177 upon the
latter’s death, his act of moving for execution of the compromise
judgment cannot be considered an act of renunciation of his legitime.
He was, therefore, not precluded or estopped from subsequently
seeking the reduction of the donation.
ART 1053
IMPERIAL vs. CA
FACTS: Petitioner Eloy Imperial purchased a parcel of land from his
natural father Leoncio Imperial. Although the transaction was
denominated as a sale, both admit that it was a donation.
Subsequently, Leoncio filed a n action for the annulment of
the supp osed deed of saleon the ground that he was deceived by
Eloy into signing the said document. However, a compromise
agreement was then made by both parties. When Leoncio died, his
adopted son, Victor, substituted him in the Compromise agreement
and moved for the execution of the judgment. When Victor also died,
his heirs (priva te r espondents her ein) filed an action for
annulment of the d onation on the ground that the conveyance
186
 Wills and Succession Case Digests
of said property in favor of petitioner Eloy impaired the legitime of
Victor, their natural brother and predecessor-in-interest.
Eloy questioned the right of private respondents to contest the
donation. He sourced his argument from Article 772 of the Civil Code,
thus:
Only those who at the time of the donor’s death have a right to the
legitime and their heirs and successors in interest may ask for the
reduction of inofficious donations.
As argued by Eloy, when Leoncio died, it was only Victor who was
entitled to question the donation. However, instead of filing an action
to contest the donation, Victor asked to be substituted in the
Compromise Agreement and even moved for execution of the
compromise judgment therein.
ISSUE#1: w/n Victor was deemed to have renounced his legitime?
HELD: No renunciation of legitime may be presumed from the
foregoing acts. It must be remembered that at the time of the
substitution, the judgment approving the compromise agreement has
already been rendered. Victor merely participated in the execution of
the compromise judgment. He was not a party to the compromise
agreement.
Our law on succession does not countenance tacit repudiation of
inheritance. It requires an express act on the part of the heir. Victor’s
act moving for execution of the compromise judgment cannot be
considered an act of renunciation of his legitime. He was, therefore,
not precluded or estopped from subsequently seeking the reduction of
the donation. Nor are Victor’s heirs, upon his death, precluded from
doing so, as their right to do so is expressly recognized.
ISSUE #2: w/n the heirs of Victor, upon his death, have the right to
contest the donation?
HELD: No, their right to do so is expressly recognized under
Article 772, and also in Article 1053:If the heir should die without
having accepted or repudiated the inheritance, his right shall be
transmitted to his heirs.
ART 1058
G.R. No. 129505 January 31, 2000
OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES
PHILLIPS, respondent.
Facts: On July 20, 1995, Dr. Arturo de Santos filed a petition for
probate of his will. In his will, he alleged that he had no compulsory
heirs; that he had named in his will as sole legatee and devisee the
Arturo de Santos Foundation, Inc.; that he disposed by his will his
properties with an approximate value of not less than P2,000,000.00;
and that copies of said will were in the custody of the named
executrix, private respondent Pacita de los Reyes Phillips. The RTC
issued an order granting the petition and allowing the will. After the
probate of his will, Dr. de Santos died on February 26, 1996.
Petitioner Octavio S. Maloles II filed a motion for intervention claiming
that, as the only child of Alicia de Santos (testator's sister) and Octavio
L. Maloles, Sr., he was the sole full-blooded nephew and nearest of kin
of Dr. De Santos. Petitioner thus prayed for the reconsideration of the
order allowing the will and the issuance of letters of administration in
his name.
Private respondent Pacita de los Reyes Phillips, the designated
executrix of the will, filed a motion for the issuance of letters
testamentary. But she eventually withdrawn her motion. And then
again she refiled said petition for the same purpose :(. An order was
issued appointing her as special administrator of Dr. De Santos’s
estate.
Petitioner sought to intervene and to set aside the appointment of
private respondent as special administrator reiterating his relationship
to the deceased. The RTC denied his motion. CA upheld the denial of
petitioner’s motion for intervention.
Petitioner, now before the SC, claims the right to intervene in and
oppose the petition for issuance of letters testamentary filed by private
respondent. He argues that, as the nearest next of kin and creditor of
the testator, his interest in the matter is material and direct.Issue:
Whether or not petitioner has a right to intervene and oppose the
petition for issuance of letters testamentary filed by the respondent.
Issue: Whether or not petitioner has the right to intervene.
Held: NO. In ruling that petitioner has no right to intervene in the
proceedings, the Court of Appeals held:
The private respondent(petitioner herein) is not an heir or legatee
under the will of the decedent Arturo de Santos. Neither is he a
compulsory heir of the latter. As the only and nearest collateral relative
of the decedent, he can inherit from the latter only in case of
intestacy. Since the decedent has left a will which has already been
probated and disposes of all his properties the private respondent can
inherit only if the said will is annulled. His interest in the decedent's
estate is, therefore, not direct or immediate.
His claim to being a creditor of the estate is a belated one, having
been raised for the first time only in his reply to the opposition to his
motion to intervene, and, as far as the records show, not supported by
evidence.
. . . . [T]he opposition must come from one with a direct interest in the
estate or the will, and the private respondent has none. Moreover, the
ground cited in the private respondent's opposition, that the petitioner
has deliberately misdeclared the truth worth and value of the estate, is
not relevant to the question of her competency to act as executor.
Section 2, Rule 76 of the Rules of Court requires only an allegation of
the probable value and character of the property of the estate. The
true value can be determined later on in the course of the settlement
of the estate.
Rule 79, §1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition
for administration. — Any person interested in a will may state in
writing the grounds why letters testamentary should not issue to the
persons named therein as executors, or any of them, and the court,
after hearing upon notice, shall pass upon the sufficiency of such
grounds. A petition may, at the same time, be filed for letters of
administration with the will annexed.
Under this provision, it has been held that an "interested person" is
one who would be benefited by the estate, such as an heir, or one
187
 Wills and Succession Case Digests
who has a claim against the estate, such as a creditor, and whose
interest is material and direct, not merely incidental or contingent.
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot
be considered an "heir" of the testator. It is a fundamental rule of
testamentary succession that one who has no compulsory or forced
heirs may dispose of his entire estate by will. Thus, Art. 842 of the
Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate
or any part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he
does not contravene the provisions of this Code with regard to the
legitimate of said heirs.
Compulsory heirs are limited to the testator's —
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal
fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil
Code.
Petitioner, as nephew of the testator, is not a compulsory heir who
may have been preterited in the testator's will.
Nor does he have any right to intervene in the settlement proceedings
based on his allegation that he is a creditor of the deceased. Since the
testator instituted or named an executor in his will, it is incumbent
upon the Court to respect the desires of the testator. As we stated
in Ozaeta v. Pecson:
The choice of his executor is a precious prerogative of a testator, a
necessary concomitant of his right to dispose of his property in the
manner he wishes. It is natural that the testator should desire to
appoint one of his confidence, one who can be trusted to carry out his
wishes in the disposal of his estate. The curtailment of this right may
be considered a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or
fails to give bond may the court appoint other persons to administer
the estate. None of these circumstances is present in this case.
FIRST DIVISION
[G.R. No. L-59821. August 30, 1982.]
ROWENA F. CORONA, petitioner, vs. THE COURT OF APPEALS,
ROMARICO G. VITUG, AVELINO L. CASTILLO, NICANOR
CASTILLO, KATHLEEN D. LUCHANGCO GUILLERMO
LUCHANGCO, JR., ANTONIO LUCHANGCO, RODOLFO TORRES,
REYNALDO TORRES and PURISIMA T. POLINTAN, respondents.
On November 10, 1980, Dolores Luchangco Vitug died in New York,
U.S.A., leaving two Wills:
 one, a holographic Will dated October 3, 1980, which excluded her
husband, respondent Romarico G. Vitug, as one of her heirs, and
 the other, a formal Will sworn to on October 24, 1980, or about three
weeks thereafter, which expressly disinherited her husband Romarico
"for reason of his improper and immoral conduct amounting to
concubinage, which is a ground for legal separation under Philippine
Law";
 bequeathed her properties in equal shares to her sisters Exaltacion L.
Allarde, Vicenta L. Faustino and Gloria L. Teoxon, and her nieces
Rowena F. Corona and Jennifer F. Way; and
 appointed Rowena F. Corona, herein petitioner, as her
Executrix.
On November 21, 1980, Rowena filed a petition for the probate of the
Wills before the Court of First Instance of Rizal, Branch VI and for the
appointment of Nenita P. Alonte as Administrator because she
(Rowena) is presently employed in the United Nations in New York
City.
On December 2, 1980, upon Rowena's urgent Motion, the Probate
Court appointed Nenita P. Alonte as Special Administratrix, upon a
P100,000.00 bond.
On December 12, 1980, the surviving husband, Romarico Vitug, filed
an "Opposition and Motion" and prayed that the Petition for Probate be
denied and that the two Wills be disallowed, (basis: impairment his
legitime and will was made under duress) with Romarico further
praying for his appointment as Special Administrator because the
Special Administratrix appointed is not related to the heirs and has no
interest to be protected, besides, the surviving spouse is qualified to
administer.
On December 18, 1980, Nenita P. Alonte posted her bond and took her
oath of office before a Notary Public
On February 6, 1981, the Probate Court set aside its Order of
December 2, 1980 appointing Nenita as Special Administratrix, and
appointed instead the surviving husband, Romarico, as Special
Administrator with a bond of P200,000.00, essentially for the reasons
that under Section 6, Rule 78, of the Rules of Court, the surviving
spouse is first in the order of preference for appointment as
Administrator as he has an interest in the estate; that the
disinheritance of the surviving spouse is not among the grounds of
disqualification for appointment as Administrator; that the next of kin
is appointed only where the surviving spouse is not competent or is
unwilling to serve besides the fact that the Executrix appointed, is not
the next of kin but merely a niece, and that the decedent's estate is
nothing more than half of the unliquidated conjugal partnership
property
Petitioner moved for reconsideration with an alternate Motion for the
appointment of co-Special Administrators to which private respondents
filed their Opposition. MR was denied.
On appeal, the Court of Appeals dismissed the appeal stating:
 that the Probate Court strictly observed the order of preference
established by the Rules;
 that petitioner though named Executrix in the alleged Will, declined the
trust and instead nominated a stranger as Special Administrator;
 that the surviving husband has legitimate interests to protect which
are not adverse to the decedent's estate which is merely part of the
conjugal property; and
 that disinheritance is not a disqualification to appointment as Special
Administrator besides the fact that the legality of the disinheritance
would involve a determination of the intrinsic validity of the Will which
is decidedly premature at this stage
Hence, this appeal to the SC.
WON Nenita Alonte may be properly appointed as special
administratror
Held: Yes, she may.
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 Wills and Succession Case Digests
The executrix's choice of Special Administrator, considering her own
inability to serve and the wide latitude of discretion given her by the
testratix in her will, is entitled to the highest consideration. Objection
to Nenita Alonte's appointment on grounds of impracticality and lack of
kinship are overshadowed by the fact that justice and equality demand
that the side of the deceased wife and the faction of the surviving
husband be represented in the management of the decedent's estate.
Special Administrators, while they may have respective interests to
protect, are officers of the Court subject to the supervision and control
of the Probate Court and are expected to work for the best interests of
the entire estate, its smooth administration, and its earliest settlement
Wherefore, ... SC ordered ... to appoint Nenita F. Alonte as co-Special
Administrator, properly bonded, who shall act as such jointly with the
other Special Administrator on all matters affecting the estate.
ART 1061
Vda de Tupas vs RTC of Negros Occidental
G.R. No. L-65800 October 3, 1986
FACTS:
Epifanio Tupas died on Aug 20, 1978 childless, leaving his widow,
Partenza Lucerna, as his only surviving compulsory heir. He also left a
will dated May 18, 1976, which was admitted to probate Sept 30,
1980. Among the assets listed in his will were lots Nos. 837, 838 and
839 of the Sagay Cadastre, admittedly his private capital. However, at
the time of his death, these lots were no longer owned by him, he
having donated them the year before (on August 2, 1977) to the
Tupas Foundation, Inc., which had thereafter obtained title to said
lots.
Claiming that said donation had left her practically destitute of any
inheritance, Tupas' widow brought suit against Tupas Foundation, Inc.
in the same Court to have the donation declared inofficious insofar as
it prejudiced her legitime, therefore reducible " ... by one-half or such
proportion as ... (might be deemed) justified ... and " ... the resulting
deduction ... " restored and conveyed or delivered to her. The
complaint also prayed for attorney's fees and such other relief as might
be proper.
The trial court however, ruled against her on the following grounds: ..
(1) Article 900 relied upon by plaintiff is not applicable because the
properties which were disposed of by way of donation one year before
the death of Epifanio Tupas were no longer part of his hereditary
estate at the time of his death on August 20, 1978; (2) the donation
properties were Epifanio's capital or separate estate; and (3) Tupas
Foundation, Inc. being a stranger and not a compulsory heir, the
donation inter vivos made in its favor was not subject to collation
under Art. 106 1, C.C.
ISSUE: WON a donation inter vivos by a donor now deceased is
inofficious and should be reduced at the instance of the donor’s widow
YES
HELD:
A person's prerogative to make donations is subject to certain
limitations, one of which is that he cannot give by donation more than
he can give by will (Art. 752, Civil Code). If he does, so much of what
is donated as exceeds what he can give by will is deemed inofficious
and the donation is reducible to the extent of such excess, though
without prejudice to its taking effect in the donor's lifetime or the
donee's appropriating the fruits of the thing donated (Art. 771, Civil
Code). Such a donation is, moreover, collationable that is, its value is
imputable into the hereditary estate of the donor at the tune of his
death for the purpose of determining the legitime of the forced or
compulsory heirs and the freely disposable portion of the estate. This
is true as well of donations to strangers as of gifts to compulsory heirs,
although the language of Article 1061 of the Civil Code would seem to
limit collation to the latter class of donations. And this has been held to
be a long-established rule in Liguez vs. Honorable Court of Appeals, et
al., where this Court said:
... Hence, the forced heirs are entitled to have the donation set aside
in so far as inofficious: i.e., in excess of the portion of free disposal,
computed as provided in Articles 818 and 819, and bearing in mind
that collationable gifts' under Article 818 should include gifts made not
only in favor of the forced heirs, but even those made in favor of
stranger. So that in computing the legitimes, the value of the property
donated to herein appellant, Conchita Liguez, should be considered
part of the donor's estate. Once again, only the court of origin has the
requisite data to determine whether the donation is inofficious or not.
The fact, therefore, that the donated property no longer actually
formed part of the estate of the donor at the time of his death cannot
be asserted to prevent its being brought to collation. Indeed, it is an
obvious proposition that collation contemplates and particularly applies
to gifts inter vivos. The further fact that the lots donated were
admittedly capital or separate property of the donor is of no moment,
because a claim of inofficiousness does not assert that the donor gave
what was not his, but that he gave more than what was within his
power to give.
Since it is clear that the questioned donation is collationable and that,
having been made to a stranger (to the donor) it is, by law chargeable
to the freely disposable portion of the donor's estate, to be reduced
insofar as inofficious, i.e., it exceeds said portion and thus impairs the
legitime of the compulsory heirs, in order to find out whether it is
inofficious or not, recourse must be had to the rules established by the
Civil Code for the determination of the legitime and, by extension, of
the disposable portion. These rules are set forth in Articles 908, 909
and 910 of the Code.
Deducting the legitimes from the net value of the hereditary estate
leaves the freely disposable portion by which the donation in question
here must be measured. If the value of the donation at the time it was
made does not exceed that difference, then it must be allowed to
stand. But if it does, the donation is inofficious as to the excess and
must be reduced by the amount of said excess. In this case, if any
excess be shown, it shall be returned or reverted to the petitioner-
appellant as the sole compulsory heir of the deceased Epifanio R.
Tupas.
Zaragoza v. CA (Camello)
Arellano v Pascual
189
 Wills and Succession Case Digests
(G.R. No. 189776 , December 15, 2010)
FACTS: Angel Pascual died intestate and left as heirs his siblings
namely: petitioner Amelia Arellano represented by her daughters and
respondents Miguel Pascual and Francisco Pascual.
During the decedent’s lifetime , he donated real property to herein
petitioner. Herein respondents assiled the validity of the donation
Notwithstanding their position that the donation was invalid,
respondents filed a petition for “Judicial Settlement of Intestate
Estate and Issuance of Letters of Administration,” alleging that the
donated property (to Amelia) located in Teresa Village, Makati “may
be considered as an advance legitime” of petitioner.
Provisionally passing upon the question of title to the donated
property only for the purpose of determining whether it formed part of
the decedent’s estate, the probate court found the Deed of Donation
valid in light of the presumption of validity of notarized documents. It
thus went on to hold that it is subject to collation following Article
1061 of the New Civil Code which reads:
Every compulsory heir, who succeeds with other compulsory heirs,
must bring into the mass of the estate any property or right which he
may have received from the decedent, during the lifetime of the latter,
by way of donation, or any other gratuitous title in order that it may be
computed in the determination of the legitime of each heir, and in the
account of the partition.
ISSUE: WON the donated property formed part of decedent’s estate
and is subject to collation. NO
HELD:
Decedent left no compulsory heirs ; donations NOT subject to
collation
The term collation has two distinct concepts: first, it is a mere
mathematical operation by the addition of the value of donations made
by the testator to the value of the hereditary estate; and second, it is
the return to the hereditary estate of property disposed of by lucrative
title by the testator during his lifetime.
The purposes of collation are to secure equality among the compulsory
heirs in so far as is possible, and to determine the free portion, after
finding the legitime, so that inofficious donations may be reduced.
Collation takes place when there are compulsory heirs, one of its
purposes being to determine the legitime and the free portion. If there
is no compulsory heir, there is no legitime to be safeguarded.
The records do not show that the decedent left any primary,
secondary, or concurring compulsory heirs. He was only survived by
his siblings, who are his collateral relatives and, therefore, are not
entitled to any legitime – that part of the testator’s property which he
cannot dispose of because the law has reserved it
for compulsory heirs.
The compulsory heirs may be classified into (1) primary, (2)
secondary, and (3) concurring. The primary compulsory heirs are those
who have precedence over and exclude other compulsory heirs;
legitimate children and descendants are primary compulsory heirs. The
secondary compulsory heirs are those who succeed only in the
absence of the primary heirs; the legitimate parents and ascendants
are secondary compulsory heirs. The concurring compulsory heirs are
those who succeed together with the primary or the secondary
compulsory heirs; the illegitimate children, and the surviving spouse
are concurring compulsory heirs.
The decedent not having left any compulsory heir who is entitled to
any legitime, he was at liberty to donate all his properties, even if
nothing was left for his siblings-collateral relatives to inherit. His
donation to petitioner, assuming that it was valid, is deemed as
donation made to a “stranger,” chargeable against the free portion of
the estate. There being no compulsory heir, however, the donated
property is not subject to collation.
On the second issue:
The decedent’s remaining estate should thus be
partitioned equally among his heirs-siblings-collateral relatives, herein
petitioner and respondents, pursuant to the provisions of the Civil
Code, viz:
Art. 1003. If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives shall succeed to
the entire estate of the deceased in accordance with the following
articles.
Art. 1004. Should the only survivors be brothers and sisters of the full
blood, they shall inherit in equal shares.
ART 1062
Buhay De Roma v. CA (Cuabo)
12th Set
ART 1062
G.R. No. L-46903 July 23, 1987
BUHAY DE ROMA, petitioner, vs. THE HONORABLE COURT OF
APPEALS and FELICIDAD CARINGAL, as Guardian of Rosalinda
de Roma,respondents.
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 Wills and Succession Case Digests
Candelaria de Roma (deceased) had two legally adopted daughters,
Buhay de Roma and Rosalinda de Roma. She died intestate on April
30, 1971. Buhay was appointed administratrix and in due time filed an
inventory of the estate. This was opposed by Rosalinda on the ground
that certain properties (7 parcels of coconut land) earlier donated by
Candelaria to Buhay, and the fruits thereof, had not been included.
Rosalinda rigorously argues that it is, Buhay should subject 7 parcels
of coconut land to collation in conformity with Article 1061 of the Civil
Code. Buhay, for her part, citing Article 1062, claims she has no
obligation to collate because the decedent prohibited such collation
and the donation was not officious.
The trial court ruled in favor of Buhay holding that the deed of
donation contained no express prohibition to collate as an exception to
Article 1062.
The pertinent portions of the deed of donation are as follows:
IKALAWA. Na alang-alang sa aking pagmamahal, pagtingin at
pagsisilbi sa akin ng aking anak na si BUHAY DE ROMA, kasal kay
Arabella Castaneda, may karampatang gulang, mamamayang Pilipino
at naninirahan at may pahatirang-sulat din dito sa Lunsod ng San
Pablo sa pamamagitan ng kasulatang ito ay kusang-loob kong
ibinibigay, ipinagkakaloob at inililipat sa nabanggit na BUHAY DE
ROMA, sa kanyang mga kahalili at tagapagmana, sa pamamagitan ng
pagbibigay na di na mababawing muli, ang lahat ng mga lagay ng lupa
na sinasabi sa itaas, sa ilalim ng kasunduan na ngayon pa ay siya na
ang nagmamay-aring tunay ng mga lupang ito at kanya nang maaring
ipalipat ang mga hoja declaratoria ng mga lupang ito sa kanyang
pangalan, datapwa't samantalang ako ay nabubuhay, ay ako rin ang
makikinabang sa mga mapuputi at mamomosesion sa mga nasabing
lupa;
IKATLO. Na pinagtibay ko na ako ay marami pang ibang mga pag-aari
sa sapat pang aking ikabuhay at sa pagbibigay kong ito ay hindi
masisira ang legitimate ng mga tao na dapat magmana sa akin,
sapagkat ang mga lupang sinasabi sa itaas ay bahagui ng aking
kabuhayan na ako ay may layang ipamigay kahit na kaninong tao na
kung tawagin ay Libre Disposicion.
ISSUE: WON the 7 parcels of coconut land should be subjected to
collation? YES
HELD: there is nothing in the above provisions expressly prohibiting
the collation of the donated properties. As the said court correctly
observed, the phrase "sa pamamagitan ng pagbibigay na di na
mababawing muli" merely described the donation as "irrevocable" and
should not be construed as an express prohibition against collation.
The fact that a donation is irrevocable does not necessarily exempt the
subject thereof from the collation required under Article 1061.
We surmise from the use of such terms as "legitime" and "free
portion" in the deed of donation that it was prepared by a lawyer, and
we may also presume he understood the legal consequences of the
donation being made. It is reasonable to suppose, given the precise
language of the document, that he would have included therein an
express prohibition to collate if that had been the donor's intention.
Anything less than such express prohibition will not suffice under the
clear language of Article 1062.1awphil The suggestion that there was
an implied prohibition because the properties donated were imputable
to the free portion of the decedent's estate merits little consideration.
Imputation is not the question here, nor is it claimed that the disputed
donation is officious The sole issue is whether or not there was an
express prohibition to collate, and we see none.
The intention to exempt from collation should be expressed plainly and
unequivocally as an exception to the general rule announced in Article
1062. Absent such a clear indication of that intention, we apply not the
exception but the rule, which is categorical enough.
ART 1078
G.R. No. 119730 September 2, 1999
RODOLFO NOCEDA, petitioner, vs. COURT OF APPEALS and
AURORA ARBIZO DIRECTO, respondents.
GONZAGA-REYES, J.:
FACTS: On June 1, 1981, plaintiff Aurora Directo, defendant
Rodolfo Noceda, and Maria Arbizo, the daughter, grandson, and
widow, respectively, of the late Celestino Arbizo, who died in 1956,
extrajudicially settled a parcel of land, Lot 1121, located at Bitaog, San
Isidro, Cabangan, Zambales, which was said to have an area of 66,530
square meters.
Plaintiff Directo's share was 11,426 square meters, defendant Noceda
got 13,294 square meters, and the remaining 41,810 square meters
went to Maria Arbizo (Exhibit G). On the same date, plaintiff Directo
donated 625 square meters of her share to defendant Noceda, who is
her nephew being the son of her deceased sister, Carolina (Exhibit D).
However, on August 17, 1981, another extrajudicial settlement-
partition of Lot 1121 was executed by plaintiff Directo, defendant
Noceda, and Maria Arbizo. Three fifths of the said land went to Maria
Arbizo while plaintiff Directo and defendant Noceda got only one-fifth
each. In said extrajudicial settlement-partition as well as in the Tax
Declaration 16-0032 over Lot 1121 in the name of the late Celestino
Arbizo, the said parcel of land was said to have an area of only 29,845
square meters (Exhibit C).
Sometime in 1981, defendant Noceda constructed his house on the
land donated to him by plaintiff Directo. Plaintiff Directo fenced the
portion allotted to her in the extrajudicial settlement, excluding the
donated portion, and constructed thereon three huts. But in 1985,
defendant Noceda removed the fence earlier constructed by plaintiff
Directo, occupied the three huts (3) and fenced the entire land of
plaintiff Directo without her consent. Plaintiff Directo demanded from
defendant Noceda to vacate her land, but the latter refused. Hence,
plaintiff Directo filed the present suit, a complaint for the recovery of
possession and ownership and rescission/annulment of donation,
against defendant Noceda before the lower court.
During the trial, the lower court ordered that a relocation survey of Lot
1121 be conducted by Engr. Edilberto Quejada of the Bureau of Lands.
After the survey of Lot 1121 in the presence of both parties, Engr.
Edilberto Quejada reported that the area of Lot 1121 stated in the
extrajudicial settlement-partition of August 17, 1981 was smaller than
the actual area of Lot 1121 which is 127,298 square meters. Engr.
Quejada subdivided Lot 1121, excluding the portions occupied by third
persons, known as Lot 8, the salvage zone and the road lot, on the
basis of the actual occupancy of Lot 1121 by the heirs of the late
Celestino Arbizo and the extrajudicial settlement-partition of August
17, 1981. The portion denominated as Lot A, with an area of 12,957
square meters was the share of defendant Noceda; Lot C, with the
same area as that of Lot A, was the share of plaintiff Directo, a portion
of which was donated to defendant Noceda; and Lot B, with an area of
38,872 square meters, went to Maria Arbizo (Exhibit E).
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 Wills and Succession Case Digests
ISSUE: W/N the parties are still considered as co-owners of
the subject property. NO!
Petitioner argues that he did not usurp the property of respondent
Directo since, to date, the metes and bounds of the parcel of land left
by their predecessor in interest, Celestino Arbizo, are still
undetermined since no final determination as to the exact areas
properly pertaining to the parties herein; hence they are still
considered as co-owners thereof.
RULING: We do not agree.
In this case the source of co-ownership among the heirs was intestate
succession. Where there are two or more heirs, the whole estate of
the decedent is, before its partition, owned in common by such heirs
subject to the payment of debts of the deceased.
Partition, in general, is the separation, division and
assignment of a thing held in common among those to whom
it may belong. The purpose of partition is to put an end to co-
ownership. It seeks a severance of the individual interest of
each co-owner, vesting in each a sole estate in specific
property and giving to each one a right to enjoy his estate
without supervision or interference from the other. And one
way of effecting a partition of the decedent's estate is by the
heirs themselves extrajudicially.
The heirs of the late Celestino Arbizo namely Maria Arbizo, Aurora A.
Directo (private respondent) and Rodolfo Noceda (petitioner) entered
into an extrajudicial settlement of the estate on August 17, 1981 and
agreed to adjudicate among themselves the property left by their
predecessor-in-interest in the following manner:
To Rodolfo Noceda goes the northern one-fifth (1/5) portion
containing an area of 5,989 sq. meters;
To Maria Arbizo goes the middle three-fifths (3/5) portion; and To
Aurora Arbizo goes the southern one-fifth (1/5) portion.
In the survey plan submitted by Engineer Quejada, the portions
indicated by red lines and numbered alphabetically were based on the
percentage proportion in the extrajudicial settlement and the actual
occupancy of each heir which resulted to these divisions as follows:
Lot A; the area is 2,957 sq.m. — goes to Rodolfo A. Noceda (1/5)
Lot B; 38,872 sq.m. Maria Arbizo (3/5)
Lot C; 12,957 sq.m. Aurora Arbizo (1/5)
Thus, the areas allotted to each heir are now specifically delineated in
the survey plan. There is no co-ownership where portion owned is
concretely determined and identifiable, though not technically
described, or that said portions are still embraced in one and the same
certificate of title does not make said portions less determinable or
identifiable, or distinguishable, one from the other, nor that dominion
over each portion less exclusive, in their respective owners. A partition
legally made confers upon each heir the exclusive ownership of the
property adjudicated to him.
We also find unmeritorious petitioner's argument that since there was
no effective and real partition of the subject lot there exists no basis
for the charge of usurpation and hence there is also no basis for
finding ingratitude against him. It was established that petitioner
Noceda occupied not only the portion donated to him by private
respondent Aurora Arbizo-Directo but he also fenced the whole area of
Lot C which belongs to private respondent Directo, thus petitioner's act
of occupying the portion pertaining to private respondent Directo
without the latter's knowledge and consent is an act of usurpation
which is an offense against the property of the donor and considered
as an act of ingratitude of a donee against the donor. The law does
not require conviction of the donee; it is enough that the offense be
proved in the action for revocation.
ART 1079
HEIRS OF JOAQUIN TEVES vs. COURT OF APPEALS, et al
[G.R. No. 109963. October 13, 1999]
Synopsis: In affirming the decision of the Court of Appeals, the
Supreme Court held that the extrajudicial settlements executed by the
heirs of Joaquin Teves and Marcelina Cimafranca are legally valid and
binding. The Court upheld, finding no cogent reason to reverse, the
trial and appellate courts’ factual finding that the evidence presented
by petitioners is insufficient to overcome the evidentiary value of the
extrajudicial settlements. Moreover, even assuming that petitioners
have a defensible cause of action, they are barred from pursuing the
same by reason of their long and inexcusable inaction. In addition, an
extrajudicial settlement is a contract. Therefore, although petitioners
may regret having alienated their hereditary shares in favor of their
sister Asuncion, they must now be considered bound by their
contractual acts.
Facts: Spouses Marcelina Cimafranca and Joaquin Teves died intestate
and without debts in 1943 and 1953, respectively. During their
lifetime, the spouses own two parcels of land designated as Lot 769-A
registered in the name of Marcelina and Lot 6409 registered in the
name of Joaquin and his two sisters. However, Joaquin’s sisters died
without issue, causing the entire property to pass to him. After
Marcelina and Joaquin died, their children executed extrajudicial
settlements purporting to adjudicate unto themselves the ownership
over the two parcels of land and to alienate their shares thereto in
favor of their sister Asuncion Teves for a consideration. The division of
Lot 769-A was embodied in two deeds. The first Deed of Extrajudicial
Settlement and Sale was entered into on June 13, 1956 while the
second deed was executed on April 21, 1959. The Deed of Extrajudicial
Settlement and Sale covering Lot 6409 was executed on December 14,
1971. After the death of Asuncion Teves, her children, private
respondents It-it herein, extrajudicially settled her property,
adjudicating unto themselves said lots. On July 2, 1984, the It-it sold
Lot 6409 to Lucrecio Baylosis, Sr. and Pacita Nocete-Baylosis. On May
9, 1984, herein petitioners, heirs of Marcelina and Joaquin, filed a
complaint with the Regional Trial Court of Negros Occidental against
private respondents for the partition and reconveyance of the
aforesaid parcels of land, alleging that the extrajudicial settlements
were spurious. Private respondents, on the other hand, maintained
that the assailed documents were executed with the formalities
required by law and are therefore binding and legally effective as
bases for acquiring ownership over the lots in question. Furthermore, it
is contended that petitioners have slept on their rights and should now
be deemed to have abandoned such rights. Thereafter, the trial court
ruled in favor of private respondents and upheld the validity of the
extrajudicial settlements. The Court of Appeals affirmed the trial
court’s decision with a slight modification.
Issue: W/N the oral extrajudicial partition of the parties is valid. YES
Held: We affirm that the extrajudicial settlements executed by the
heirs of Joaquin Teves and Marcelina Cimafranca are legally valid and
binding. The extrajudicial settlement of a decedent’s estate is
192
 Wills and Succession Case Digests
authorized by Section 1 of Rule 74 of the Rules of Court. Thus, for a
partition pursuant to Section 1 of Rule 74 to be valid, the following
conditions must concur: (1) the decedent left no will; (2) the decedent
left no debts, or if there were debts left, all had been paid; (3) the
heirs are all of age, or if they are minors, the latter are represented by
their judicial guardian or legal representatives; (4) the partition was
made by means of a public instrument or affidavit duly filed with the
Register of Deeds.
Neither does Ricardo Teves have a right to demand partition of Lot
769-A because the two extrajudicial settlements have already
effectively partitioned such property. Every act which is intended to
put an end to indivision among co-heirs and legatees or devisees is
deemed to be a partition, although it should purport to be a sale, an
exchange, a compromise, or any other transaction. The extrajudicial
settlements executed in 1956 and 1959 adjudicated Lot 769-A in equal
shares unto the eight heirs of Marcelina Cimafranca. Such a partition,
which was legally made, confers upon each heir the exclusive
ownership of the property adjudicated to him. Although Cresenciano,
Ricardo’s predecessor-in-interest, was not a signatory to the
extrajudicial settlements, the partition of Lot 769-A among the heirs
was made in accordance with their intestate shares under the law.
With regards to the requisite of registration of extrajudicial
settlements, it is noted that the extrajudicial settlements covering Lot
769-A were never registered. However, in the case of Vda. de Reyes
vs. CA, the Court, interpreting Section 1 of Rule 74 of the Rules of
Court, upheld the validity of an oral partition of the decedent’s estate
and declared that the non-registration of an extrajudicial settlement
does not affect its intrinsic validity. It was held in this case that - [t]he
requirement that a partition be put in a public document and
registered has for its purpose the protection of creditors and at the
same time the protection of the heirs themselves against tardy claims.
The object of registration is to serve as constructive notice to others. It
follows then that the intrinsic validity of partition not executed with the
prescribed formalities does not come into play when there are no
creditors or the rights of creditors are not affected. Where no such
rights are involved, it is competent for the heirs of an estate to enter
into an agreement for distribution in a manner and upon a plan
different from those provided by law. Thus, despite its non-
registration, the extrajudicial settlements involving Lot 769-A are
legally effective and binding among the heirs of Marcelina Cimafranca
since their mother had no creditors at the time of her death.
An extrajudicial settlement is a contract and it is a well-entrenched
doctrine that the law does not relieve a party from the effects of a
contract, entered into with all the required formalities and with full
awareness of what he was doing, simply because the contract turned
out to be a foolish or unwise investment. Therefore, although
plaintiffs-appellants may regret having alienated their hereditary
shares in favor of their sister Asuncion, they must now be considered
bound by their own contractual acts.
HEIRS OF SERASPIvs.CA
G.R. No. 135602
April 28, 2000
MENDOZA, J.:
Marcelino Recasa was the owner of two parcels of land. During his
lifetime, Marcelino contracted three (3) marriages. At the time of his
death in 1943, he had fifteen (15) children from his three marriages.
In 1948, his intestate estate was partitioned into three parts by his
heirs, each part corresponding to the share of the heirs in each
marriage.
In the same year, Patronicio Recasa, representing the heirs of the first
marriage, sold the share of the heirs in the estate to Dominador
Recasa, an heir of the second marriage. On June 15, 1950,
Dominador, representing the heirs of the second marriage, in turn sold
the share of the heirs to Quirico and Purificacion Seraspi whose heirs
are the present petitioners. Included in this sale was the property sold
by Patronicio to Dominador.
In 1958, the Seraspis obtained a loan making the land as security.
However, they failed to pay the loan for which reason the mortgage
was foreclosed and the lands were sold to KRBI as the highest bidder.
Subsequently, the lands were sold by KRBI to Manuel Rata, brother-in-
law of Quirico Seraspi. It appears that Rara, as owner of the property,
allowed Quirico Seraspi to administer the property.
In 1974, private respondent Simeon Recasa, Marcelino's child by his
third wife, taking advantage of the illness of Quirico Seraspi, who had
been paralyzed due to a stroke, forcibly entered the lands in question
and took possession thereof.
In 1983, the Seraspis purchased the lands from Manuel Rata and
afterwards filed a complaint against Simeon Recasa for recovery of
possession of the lands.
In the case at bar, private respondent did not acquire possession of
the property through any of the modesrecognized by the Civil Code, to
wit: (1) occupation, (2) intellectual creation, (3) law, (4) donation, (5)
succession, (6) tradition in consequence of certain contracts, and (7)
prescription. 5
Private respondent could not have acquired ownership over the
property through occupation since, under Art. 714 of the Civil Code,
the ownership of a piece of land cannot be acquired by occupation.
Nor can he base his ownership on succession for the property was not
part of those distributed to the heirs of the third marriage, to which
private respondent belongs. It must be remembered that in the
partition of the intestate estate of Marcelino Recasa, the properties
were divided into three parts, each part being reserved for each group
of heirs belonging to one of the three marriages Marcelino entered
into. Since the contested parcels of land were adjudicated to the heirs
of the first and second marriages, it follows that private respondent, as
heir of the third marriage, has no right over the parcels of land. While,
as heir to the intestate estate of his father, private respondent was co-
owner of all of his father's properties, such co-ownership rights were
effectively dissolved by the partition agreed upon by the heirs of
Marcelino Recasa.
Neither can private respondent claim good faith in his
favor.1âwphi1 Good faith consists in the reasonable belief that the
person from whom the possessor received the thing was its owner but
could not transmit the ownership thereof. 6Private respondent entered
the property without the consent of the previous owner. For all intents
and purposes, he is a mere usurper.
Like private respondent, petitioners have not acquired the property
through any of the modes recognized by law for the acquisition of
ownership. The basis of petitioners' claim of ownership is the contract
of sale they had with Rata, but this by itself is insufficient to make
them owners of the property. For while a contract of sale is perfected
by the meeting of minds upon the thing which is the object of the
contract and upon the price, 7 the ownership of the thing sold is not
transferred to the vendee until actual or constructive delivery of the
property. 8 Hence, the maxim non nudis pactis, sed traditione dominia
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 Wills and Succession Case Digests
dominica rerum transferuntur (not mere agreements but tradition
transfers the ownership of things).
Consequently, petitioners are not the owners of the property since it
has not been delivered to them. At the time they bought the property
from Rata in 1983, the property was in the possession of private
respondent.
However, this does not give private respondent a right to remain in
possession of the property. Petitioners' title to the property prevails
over private respondents' possession in fact but without basis in law.
ART 1080
SPOUSES FLORENTINO ZARAGOZA and ERLINDA ENRIQUEZ-
ZARAGOZA, petitioners, vs. THE HONORABLE COURT OF
APPEALS, ALBERTA ZARAGOZA MORGAN, respondents.
FACTS:
Flavio Zaragoza Cano was the registered owner of certain parcels of
land. He had four children: Gloria, Zacariaz, Florentino and Alberta, all
surnamed Zaragoza. On December 9, 1964, he died without a will and
was survived by his four children.
Private respondent Alberta Zaragoza-Morgan filed a complaint with the
Court of First Instance of Iloilo against Spouses Florentino and Erlinda,
herein petitioners, for delivery of her inheritance share, consisting of
Lots 943 and 871, and for payment of damages. She alleged that her
father, in his lifetime, partitioned the aforecited properties among his
four children. The shares of her brothers and sister were given to them
in advance by way of deed of sale, but without valid consideration,
while her share, which consists of lots no. 871 and 943, was not
conveyed by way of deed of sale then. She averred that because of
her marriage, she became an American citizen and was prohibited to
acquire lands in the Philippines except by hereditary succession. For
this reason, no formal deed of conveyance was executed in her favor
covering these lots during her father's lifetime.
Petitioners, in their Answer, denied knowledge of an alleged
distribution by way of deeds of sale to them by their father. They said
that lot 871 is still registered in their father's name, while lot 943 was
sold by him to them for a valuable consideration. They denied
knowledge of the alleged intention of their father to convey the cited
lots to Alberta, much more, the reason for his failure to do so because
she became an American citizen. They denied that there was
partitioning of the estate of their father during his lifetime.
RTC: Adjudicated Lot 871 in the name of Flavio Zaragoza Cano to
plaintiff Alberta Zaragoza-Morgan as appertaining her share in his
estate. RTC found that Flavio partitioned his properties during his
lifetime among his three children by deeds of sales; that the
conveyance of Lot 943 to petitioners was part of his plan to distribute
his properties among his children during his lifetime; and that he
intended Lot 871 to be the share of private respondent.[4]
Both parties interposed an appeal in the Court of Appeals.
CA: reversed the decision appealed from, insofar as defendant-
appellants, spouses Florentino Zaragoza and Erlinda E. Zaragoza, were
adjudged owner of Lot 943.CA gave weight to the testimonial and
documentary evidence presented by private respondent to support its
finding that Lots 871 and 943 were inheritance share of private
respondent. Specifically, it noted the admission by petitioner in his
letter in 1981 to private respondent's counsel, that their father had
given them their inheritance.
ISSUES: 1. W/N THE COURT ERRED IN NOT CONSIDERING THAT
LOTS TRANSFERRED INTER VIVOS TO THE OTHER HEIRS SHOULD
HAVE BEEN COLLATED TO THE MASS OF THE ESTATE OF THE
DECEASED FLAVIO ZARAGOZA.
2. WHETHER THE PARTITION INTER VIVOS BY FLAVIO OF
HIS PROPERTIES, WHICH INCLUDE LOTS 871 AND 943, IS VALID.
RULING: It is the main contention of the petitioner that the
adjudication of Lots 943 and 871 in favor of private respondent, as her
inheritance share, has no legal basis since there is no will nor any
document that will support the transfer.
Both the trial court and the public respondent found that during
the lifetime of Flavio, he already partitioned and distributed his
properties among his three children, excepting private respondent,
through deeds of sale. A deed of sale was not executed in favor of
private respondent because she had become an American citizen and
the Constitution prohibited a sale in her favor. Petitioner admitted Lots
871 and 943 were inheritance shares of the private respondent. These
are factual determinations of the Court of Appeals, based on
documentary and testimonial evidence. As a rule, we are bound by
findings of facts of the Court of Appeals.[12] Was the partition done
during the lifetime of Flavio Zaragoza Cano valid? We think so. It is
basic in the law of succession that a partition inter vivos may be done
for as long as legitimes are not prejudiced. Art. 1080 of the Civil Code
is clear on this.[13] The legitime of compulsory heirs is determined after
collation, as provided for in Article 1061:
Every compulsory heir, who succeeds with other compulsory heirs,
must bring into the mass of the estate any property or right which he
may have received from the decedent, during the lifetime of the latter,
by way of donation, or any other gratuitous title in order that it may be
computed in the determination of the legitime of each heir, and in the
account of the partition.
Unfortunately, collation can not be done in this case where the original
petition for delivery of inheritance share only impleaded one of the
other compulsory heirs. The petition must therefore be dismissed
without prejudice to the institution of a new proceeding where all the
indispensable parties are present for the rightful determination of their
respective legitime and if the legitimes were prejudiced by the
partitioning inter vivos.
ART. 1080 - J.L.T. AGRO, INC. vs. BALANSAG ET. AL.
FACTS:
- Don Julian Teves contracted two marriages, first with Antonia Baena
and had two kids namely Josefa and Emilio. After her death, he
married Milagros Teves and they had four children namely: Maria
Teves, Jose Teves, Milagros Teves and Pedro Teves.
- Thereafter, the parties to the case entered into a Compromise
Agreement.
- When Antonia died an action for partition was instituted where the
parties entered into a Compromise Agreement which embodied the
partition of all the properties of Don Julian.
- On the basis of such,the CFI declared a tract of land known as
Hacienda Medalla Milagrosa as property owned in common by Don
Julian and his two children of his first marriage. The property was to
remain undivided during the lifetime of Don Julian.
- Josefa and Emilio likewise were given other properties at Bais,
including the electric plant, the “movie property,” the commercial
areas, and the house where Don Julian was living. The remainder of
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 Wills and Succession Case Digests
the properties was retained by Don Julian.
- On 16 November 1972, Don Julian, Emilio and Josefa executed a
Deed of Assignment of Assets with Assumption of Liabilities in favor of
J.L.T. Agro, Inc. (petitioner).
- Later, Don Julian, Josefa and Emilio also executed an instrument
entitled Supplemental to the Deed of Assignment of Assets with the
Assumption of Liabilities (Supplemental Deed) dated 31 July 1973. This
instrument transferred ownership over Lot No. 63, among other
properties, in favor of petitioner.
- The appellate court ruled that the supplemental deed, conveying
ownership to JLT agro is not valid because the Compromise Agreement
reserved the properties to Don Julian’s two sets of heirs their future
legitimes. The two sets of heirs acquired full ownership and possession
of the properties respectively adjudicated to them and Don Julian
himself could no longer dispose of the same. The appellate court in
holding that the Supplemental Deed is not valid, added that it
contained a prohibited preterition of Don Julian’s heirs from the second
marriage.
ISSUE:
1.) WON there was preterition in the case? NO.
2.) WON the future legitime can be determined, adjudicated and
reserved prior to the death of Don Julian. YES.
1.) Manresa defines preterition as the omission of the heir in the will.
In the case at bar, Don Julian did not execute a will since what he
resorted to was a partition inter vivos of his properties, as evidenced
by the court approved Compromise Agreement. Thus, it is premature if
not irrelevant to speak of preterition prior to the death of Don Julian in
the absence of a will depriving a legal heir of his legitime. Besides,
there are other properties which the heirs from the second marriage
could inherit from Don Julian upon his death.
2.) As a general rule, No. Well-entrenched is the rule that all things,
even future ones, which are not outside the commerce of man may be
the object of a contract. The exception is that no contract may be
entered into with respect to future inheritance, and the exception to
the exception is partition inter vivos referred to in Article 1080.
The partition inter vivos of the properties of Don Julian is undoubtedly
valid pursuant to Article 1347. However, considering that it would
become legally operative only upon the death of Don Julian, the right
of his heirs from the second marriage to the properties adjudicated to
him under the compromise agreement was but a mere expectancy. It
was a bare hope of succession to the property of their father. Being
the prospect of a future acquisition, the interest by its nature was
inchoate. Evidently, at the time of the execution of the supplemental
deed in favor of petitioner, Don Julian remained the owner of the
property since ownership over the subject lot would only pass to his
heirs from the second marriage at the time of his death.
ART 1082
CARLOMAGNO A. CRUCILLO, ADELAIDA C. PERENA, LUCIA
ROZUL, PRIMITIVA MENDOZA SUMAGUI, YOLANDA ROZUL,
PABLITA ROZUL, PETRITA ROZUL, ROSALINA ROZUL,
MAXIMINO CRUCILLO, NICASIO SARMIENTO, MARCIAL
SARMIENTO, CIPRIANO SARMIENTO, CONRADO CRUCILLO,
LOURDES CRUCILLO, MIGUEL CRUCILLO, FELICIDAD
CRUCILLO, and MIGUELA CRUCILLO, petitioners, vs. THE
INTERMEDIATE APPELLATE COURT, LUCIO PERENA, RAFAEL
A. CRUCILLO, MIGUEL R. PERLADO, FELIX NOCEDA, BENITA
GATPANDAN NOCEDA, and THE PROVINCIAL ASSESSOR OF
CAVITE, respondents.
G.R. No. 65416. October 26, 1999
FACTS:
Balbino A. Crucillo was married to Juana Aure. They were blessed with
eight (8) children, namely, Elena, Maximino, Perpetua, Santiago,
Adelaida, Miguel, Rafael, and Vicente, all surnamed Crucillo.
Balbino died intestate in 1909. Juana died on November 19, 1949.
Balbino left, among other things, two (2) parcels of unregistered land.
It is worthy to note that when the present case was commenced
below, the only surviving children of Balbino were Adelaida, Miguel,
and Rafael. The other children above-named died, and were survived
by their respective heirs.
Sometime in February 1971, respondent Rafael Crucillo presented to
the office of the Provincial Assessor of Trece Martires City, Cavite,
a“Kasulatan Sa Partihang Labas sa Hukuman”, executed by and
between petitioners Primitiva Mendoza, Carlomagno Crucillo, Adelaida
A. Crucillo, and respondent Rafael Crucillo; dividing the estate into five
(5) equal parts with the following beneficiaries:
1. Heirs of Elena A. Crucillo
2. Heirs of Maximino Crucillo
3. Adelaida A. Crucillo
4. Rafael A. Crucillo
5. Carlomagno A. Crucillo
On February 19, 1971, respondent Rafael A. Crucillo conveyed and
sold to his co-respondents, Sps. Noceda, for and in consideration of
the sum of P25,000, his share in subject parcel of land. Subsequently
the Provincial Assessor of Cavite issued a new tax declaration (Tax
Declaration No. 5417) in the name of Sps. Noceda.
On August 13, 1971, petitioners brought a complaint against the
respondents for “Annulment of Extrajudicial Partition, Deed of Sale,
and Tax Declarations, with Damages”.
RTC directed the Provincial Assessor of Cavite to cancel the tax
declaration issued in the name of Sps. Noceda. CA also rendered the
sale, between Rafael and Sps. Noceda, null and void.
ISSUE: WON the extrajudicial partition, i.e., oral partition, of the
estate of Balbino was valid and binding. YES!
HELD: It has been shown that upon the death of Juana Aure, the
petitioners and the respondent Rafael Crucillo partitioned the estate
among themselves, with each one of them possessing their respective
shares and exercising acts of ownership.
When the Court conducted an ocular inspection of the property in
dispute, it observed that Dr. Carlomagno Crucillo had erected a
building of strong materials, which he utilizes as his clinic, on the
southern portion of said land fronting Gen. Luna St., that Adelaida
Crucillo had constructed her residence, which is also of strong
materials, on the northern portion of said land fronting Gen. Luna St.;
that between the clinic of Dr. Carlomagno Crucillo and the residential
house of Adelaida Crucillo is the ancestral house’, which is erected on
that portion of the said land which Rafael Crucillo sold to the
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 Wills and Succession Case Digests
defendants-spouses; and that the Heirs of Elena Crucillo had
constructed a house of strong materials on the northern portion of said
land fronting Aure St., (of Exhs. ‘X’ and ‘Y’) The Court further observed
that a hollow block party wall separates the respective portion
occupied by the residential house of Adelaida, the ‘ancestral house’,
and the clinic of Dr. Carlomagno Crucillo, Judging from their
appearance and condition, the improvements erected by Adelaida
Crucillo, Dr. Carlomagno Crucillo, and the Heirs of Elena Crucillo are
not less than then (10) years old.”
From the foregoing facts, it can be gleaned unerringly that the heirs of
Balbino A. Crucillo agreed to orally partition subject estate among
themselves, as evinced by their possession of the inherited premises,
their construction of improvements thereon, and their having declared
in their names for taxation purposes their respective shares. These
are indications that the heirs of Balbino A. Crucillo agreed to divide
subject estate among themselves, for why should they construct
improvements thereon, pay the taxes therefor, and exercise other acts
of ownership, if they did not firmly believe that the property was
theirs. It is certainly foolhardy for petitioners to claim that no oral
partition was made when their acts showed otherwise. Moreover, it is
unbelievable that the possession of the heirs was by mere tolerance,
judging from the introduction of improvements thereon and the length
of time that such improvements have been in existence. Then too,
after exercising acts of ownership over their respective portions of the
contested estate, petitioners are estopped from denying or contesting
the existence of an oral partition
NON,petitioners, vsCOURT OF APPEALS, ALICIA N. VIADO,
CHERRI VIADO and FE FIDES VIADO, respondents.||
Facts: Petitioners and respondents shared, since 1977 a common
residence at the Isarog property. Soon, tension appeared to have
escalated between petitioner Rebecca Viado and respondent Alicia
Viado after the former had asked that the property be equally divided
between the two families to make room for the growing children.
Respondents claimed absolute ownership over the entire
property and demanded that petitioners vacate the portion occupied
by the latter. On February 1, 1988 petitioners, asserting co-ownership
over the property in question, filed a case of partition before the
RTC of Quezon City.
Respondents predicated their claim of absolute ownership
over the subject property on the deed of donation executed by the late
Julian Viado covering his 1/2 share in favor of respondent's husband,
NiloViado, and a deed of extrajudicial settlement in which Julian Viado,
Leah Viado Jacobs and petitioner Rebecca Viado waived their rights
and interests in favor of NiloViado.
The trial court found for respondents and adjudged Alicia
Viado and her children as being the true owners of the disputed
property. On appeal, the Court of Appeals affirmed the decision of the
trial court, but ordered the remand of the records of the case to
the court a quo for further proceedings to determine the value of the
property and the amount respondents should pay to petitioner Delia
Viado for having been preterited in the deed of extrajudicial
settlement. Dissatisfied therewith, petitioners filed the petition seeking
the reversal of the decision of the Court of Appeals.
Issue: Whether or not the partition should be rescinded arising from a
preteritionattended by bad faith and fraud.
Ruling: The Supreme Court found the appellate court to have ruled
correctly. The evidence submitted by petitioners were utterly wanting,
consisting of, by and large, self-serving testimonies. While asserting
that NiloViado employed fraud, forgery and undue influence in
procuring the signatures of the parties to the deed of donation
and of the extrajudicial settlement, petitioners are vague on how and
in what manner those supposed vices occurred.
With regard to the issue of preterition, the Court ruled that
the exclusion of petitioner Delia Viado, alleged to be a retardate, from
the deed of the extrajudicial settlement verily has had the
effect of preterition.
The exclusion of petitioner Delia Viado, alleged to be a retardate, from
the deed of extrajudicial settlement verily has had the
effect of preterition. This kind of preterition, however, in the
absence of proofof fraud and bad faith, does not justify a collateral
attack on Transfer Certificate of Title No. 373646. The relief, as so
correctly pointed out by the Court of Appeals, instead rests on Article
1104 of the Civil Code to the effect that where the preterition is not
attended by bad faith and fraud, the partition shall not be rescinded
but the preterited heir shall be paid the value of the share pertaining
to her. Again, the appellate court has thus acted properly in ordering
the remand of the case for further proceedings to make the proper
valuation of the Isarog property and ascertainment of the amount due
petitioner Delia Viado.||
PADA-KILARIO v. CA
January 19,2000
Facts: One Jacinto Pada had six (6) children. His estate included a
parcel of land of residential and coconut land located at Poblacion,
Matalom, Leyte, denominated as Cadastral Lot No. 5581 with an area
of 1,301.92 square meters. It is the northern portion of Cadastral Lot
No. 5581 which is the subject of the instant controversy.
During the lifetime of Jacinto Pada, his half-brother, Feliciano Pada,
obtained permission from him to build a house on the northern portion
of Cadastral Lot No. 5581. When Feliciano died, his son, Pastor,
continued living in the house together with his eight children.
Petitioner Verona Pada-Kilario, one of Pastor's children, has been living
in that house since 1960.
Sometime in May, 1951, the heirs of Jacinto Pada entered into an
extra-judicial partition of his estate. For this purpose, they executed a
private document which they, however, never registered in the Office
of the Registrar of Deeds of Leyte.
At the execution of the extra-judicial partition, Ananias was himself
present while his other brothers were represented by their children.
Their sisters, Valentina and Ruperta, both died without any issue.
Marciano was represented by his daughter, Maria; Amador was
represented by his daughter, Concordia; and Higino was represented
by his son, Silverio who is the private respondent in this case. It was
to both Ananias and Marciano, represented by his daughter, Maria,
that Cadastral Lot No. 5581 was allocated during the said partition.
When Ananias died, his daughter, Juanita, succeeded to his right as
co-owner of said property.
On June 14, 1978, Juanita Pada sold to Engr. Ernesto Paderes, the
right of his father, Ananias, as co-owner of Cadastral Lot No. 5881.
On November 17, 1993, it was the turn of Maria Pada to sell the co-
ownership right of his father, Marciano. Private respondent, who is the
first cousin of Maria, was the buyer.
196
 Wills and Succession Case Digests
Thereafter, private respondent demanded that petitioner spouses
vacate the northern portion of Cadastral Lot No. 5581 so his family can
utilize the said area.
On June 26, 1995, private respondent filed in a complaint for
ejectment with prayer for damages against petitioner spouses.
On July 24, 1995, the heirs of Amador Pada, namely, Esperanza Pada-
Pavo, Concordia Pada-Bartolome, and Angelito Pada, executed a Deed
of Donation[9] transferring to petitioner Verona Pada-Kilario, their
respective shares as co-owners of Cadastral Lot No. 5581.
Issue: WHETHER THE EXTRA JUDICIAL PARTITION IS VALID AND
VOLUNTARY, THUS CAN BE GIVEN EFFECT.
Held:
The extrajudicial partition of the estate of Jacinto Pada among his heirs
made in 1951 is valid, albeit executed in an unregistered private
document. No law requires partition among heirs to be in writing and
be registered in order to be valid.[15] The requirement in Sec. 1, Rule
74 of the Revised Rules of Court that a partition be put in a public
document and registered, has for its purpose the protection of
creditors and the heirs themselves against tardy claims.[16] The object
of registration is to serve as constructive notice to others. It follows
then that the intrinsic validity of partition not executed with the
prescribed formalities is not undermined when no creditors are
involved.[17] Without creditors to take into consideration, it is
competent for the heirs of an estate to enter into an agreement for
distribution thereof in a manner and upon a plan different from those
provided by the rules from which, in the first place, nothing can be
inferred that a writing or other formality is essential for the partition to
be valid.[18] The partition of inherited property need not be embodied
in a public document so as to be effective as regards the heirs that
participated therein.[19] The requirement of Article 1358 of the Civil
Code that acts which have for their object the creation, transmission,
modification or extinguishment of real rights over immovable property,
must appear in a public instrument, is only for convenience, non-
compliance with which does not affect the validity or enforceability of
the acts of the parties as among themselves.[20]
The 1951 extrajudicial partition of Jacinto Pada's estate being legal and
effective as among his heirs, Juanita and Maria Pada validly transferred
their ownership rights over Cadastral Lot No. 5581 to Engr. Paderes
and private respondent, respectively.
The extrajudicial partition which the heirs of Jacinto Pada executed
voluntarily and spontaneously in 1951 has produced a legal status.[23]
When they discussed and agreed on the division of the estate of
Jacinto Pada, it is presumed that they did so in furtherance of their
mutual interests. As such, their division is conclusive, unless and until
it is shown that there were debts existing against the estate which had
not been paid.[24] No showing, however, has been made of any
unpaid charges against the estate of Jacinto Pada. Thus, there is no
reason why the heirs should not be bound by their voluntary acts.
The belated act of Concordia, Esperanza and Angelito, who are the
heirs of Amador Pada, of donating the subject property to petitioners
after forty four (44) years of never having disputed the validity of the
1951 extrajudicial partition that allocated the subject property to
Marciano and Ananias, produced no legal effect. In the said partition,
what was allocated to Amador Pada was not the subject property
which was a parcel of residential land in Sto. Nino, Matalom, Leyte, but
rather, one-half of a parcel of coconut land in the interior of Sto. Nino
St., Sabang, Matalom, Leyte and one-half of a parcel of rice land in
Itum, Sta. Fe, Matalom, Leyte. The donation made by his heirs to
petitioners of the subject property, thus, is void for they were not the
owners thereof. At any rate it is too late in the day for the heirs of
Amador Pada to repudiate the legal effects of the 1951 extrajudicial
partition as prescription and laches have equally set in.
HEIRS OF JOAQUIN TEVES v. CA
UNION BANK OF THE PHILIPPINES v. SANTIBANEZ
Last Set
ARTICLE 1083
PHILIP C. SANTOS and HEIRS OF ELISEO M. SANTOS,
petitioners, vs. LADISLAO M. SANTOS represented herein by his
Attorney-In-Fact NOE M. SANTOS, respondents. G.R. No. 139524
October 12, 2000
On May 13, 1993, Ladislao Santos filed a complaint against his brother,
Eliseo Santos and the latter’s son, Philip Santos for "Judicial Partition".
The Ladislao averred in his complaint, that, when his and Eliseo
Santos’ sister, Isidra Santos, died intestate on April 1, 1967, they
inherited her parcel of land; that, on December 16, 1980, Virgilio
Santos executed a "Deed of Absolute Sale of Unregistered Residential
Land" on the basis of which Tax Declaration No. 04-0016 was issued to
the Appellee Philip Santos.
In their Answer to the complaint, the Philip Santos admitted that after
the death of Isidra Santos, on April 1, 1967, to partition Lot 1522,
under which a portion of Lot 1522, with an area of 3,387 square
meters, was adjudicated to the Ladislao, and a portion of the same lot,
with an area of 3,000 square meters, was conveyed to the Appellee
Eliseo Santos and the parcel of land left by Isidra Santos was conveyed
by Appellee Eliseo Santos to Virgilio Santos, who, from infancy had
been under the care of Isidra Santos, to approximately equalize the
share of the Appellee Eliseo Santos in the estate of Bonifacio Santos.
The Appellees further averred that Appellees had acquired the Isidra
property by acquisitive prescription.
Philip Santos insist that acquisitive prescription has already set in; and
that estoppel lies to bar the instant action for partition. According to
petitioners, Virgilio Santos was already in possession of the subject
property since after the death of Isidra Santos on April 1, 1967.
Thereafter, Philip Santos took possession of the subject property on
December 16, 1980 upon its sale on said date. They reason out that
more than 13 years had lapsed from April 1, 1967 to December 16,
1980; and that more than 12 years had lapsed from the time Philip
Santos took possession of the property on December 16, 1980 up to
the time Ladislao Santos filed the action for partition on May 13, 1993.
Petitioners conclude that the instant action is already barred by
ordinary acquisitive prescription of ten years. Further, it is argued that
the possession of Virgilio Santos could be tacked with the possession
of Philip Santos bringing to a total of 26 years the time that elapsed
before the filing of the case in 1993. They add that these 26 years of
inaction call for the application of the principle of estoppel by laches.
ISSUE: Whether or not the acquisitive prescription has already
set in.
Ruling: NO
Considering that there was no proof that Ladislao Santos executed any
"Combined Deed of Partition" in tandem with the Eliseo Santos, we
rule that a co-ownership still subsists between the brothers over the
Isidra property. This being the case, we apply Article 494 of the Civil
Code which states that, "prescription does not run in favor of a co-
owner or co-heir against his co-owners or his co-heirs so long as he
expressly or impliedly recognizes the co-ownership." In Adile vs. Court
of Appeals,14 it was held:
"x x x. Prescription, as a mode of terminating a relation of co-
ownership, must have been preceded by repudiation (of the co-
ownership). The act of repudiation, in turn, is subject to certain
conditions: (1) a co-owner repudiates the co-ownership; (2) such an
act of repudiation is clearly made known to the other co-owners; (3)
the evidence thereon is clear and conclusive; and (4) he has been in
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 Wills and Succession Case Digests
possession through open, continuous, exclusive, and notorious
possession of the property for the period required by law."
There is no showing that Eliseo Santos had complied with these
requisites.1âwphi1 We are not convinced that Eliseo had repudiated
the co-ownership, and even if he did, there is no showing that the
same had been clearly made known to Ladislao.
IN RE: PETITION FOR PROBATE OF LAST WILL AND
TESTAMENT OF BASILIO SANTIAGO, MA. PILAR SANTIAGO
and CLEMENTE SANTIAGO, Petitioners, - versus - ZOILO S.
SANTIAGO, FELICIDAD SANTIAGO-RIVERA, HEIRS OF
RICARDO SANTIAGO, HEIRS OF CIPRIANO SANTIAGO, HEIRS
OF TOMAS SANTIAGO, Respondents. August 9, 2010
Art. 1083. Every co-heir has a right to demand the division of the
estate unless the testator should have expressly forbidden its partition,
in which case the period of indivision shall not exceed twenty years as
provided in article 494. This power of the testator to prohibit division
applies to the legitime.
Even though forbidden by the testator, the co-ownership terminates
when any of the causes for which partnership is dissolved takes place,
or when the court finds for compelling reasons that division should be
ordered, upon petition of one of the co-heirs. (1051a)
Facts:
Testator: Basilio Santiago contracted 3 marriages.
1st wife: Bibiano Lopez
Children: Irene and Marta
2nd wife: Irene Santiago;
6 children Tomas, Cipriano, Ricardo, respondents Zoilo and Felicidad,
and petitioner Ma. Pilar, all surnamed Santiago.
3rd wife: Cecilia Lomotan
3 children: Eugenia herein petitioner Clemente, and Cleotilde, all
surnamed Santiago
After Basilio died testate on September 16, 1973, his daughter by the
second marriage petitioner Ma. Pilar filed before the Regional Trial
Court (RTC) of Bulacan[2] a petition for the probate of Basilio’s will,
admitted, and Pilar was appointed executrix.
The will contained:
e) Ang lupa’t bahay sa Lunsod ng Maynila na nasasaysay sa itaas na
2(c) ay ililipat at ilalagay sa pangalan nila Ma. Pilar at Clemente hindi
bilang pamana ko sa kanila kundi upang pamahalaan at pangalagaan
lamang nila at nang ang sinoman sa aking mga anak sampu ng apo at
kaapuapuhan ko sa habang panahon ay may tutuluyan kung
magnanais na mag-aral sa Maynila o kalapit na mga lunsod x x x.
f) Ang bigasan, mga makina at pagawaan ng pagkain ng hayop ay
ipinamamana ko sa aking asawa, Cecilia Lomotan, at mga anak na
Zoilo, Ma. Pilar, Ricardo, Cipriano, Felicidad, Eugenia, Clemente, at
Cleotilde nang pare-pareho. Ngunit, sa loob ng dalawampong (20)
taon mula sa araw ng aking kamatayan, hindi nila papartihin ito at
pamamahalaan ito ni Clemente at ang maghahawak ng salaping
kikitain ay si Ma. Pilar na siyang magpaparte.
g) Ang lahat ng lupa, liban sa lupa’t bahay sa Lunsod ng Maynila, ay
ipinapamana ko sa aking nasabing asawa, Cecilia Lomotan, at mga
anak na Tomas, Zoilo, Ma. Pilar, Ricardo, Cipriano, Felicidad, Eugenia,
Clemente at Cleotilde nang pare-pareho. Datapwa’t, gaya din ng mga
bigasan, makina at gawaan ng pagkain ng hayop, ito ay hindi
papartihin sa loob ng dalawampong (20) taon mula sa aking
pagpanaw, at pamamahalaan din nila Ma. Pilar at Clemente.
Petitioners object to the inclusion of the house and lot in Manila,
covered by TCT No. 131044, among those to be transferred to the
legatees-heirs as it would contravene the testator’s intent that no one
is to own the same.
Issue Article 1083: W/N provision (e) on the indivisibility of property is
valid –NO.
Ruling:
It is clear from Basilio’s will that he intended the house and lot in
Manila to be transferred in petitioners’ names for administration
purposes only, and that the property be owned by the heirs in
common, thus:
e) Ang lupa’t bahay sa Lunsod ng Maynila na nasasaysay sa itaas na
2(c) ay ililipat at ilalagay sa pangalan nila Ma. Pilar at Clemente hindi
bilang pamana ko sa kanila kundi upang pamahalaan at pangalagaan
lamang nila at nang ang sinoman sa aking mga anak sampu ng apo at
kaapuapuhan ko sa habang panahon ay may tutuluyan kung
magnanais na mag-aral sa Maynila o kalapit na mga lunsod sa
medaling salita, ang bahay at lupang ito’y walang magmamay-ari
bagkus ay gagamitin habang panahon ng sinomang magnanais sa
aking kaapuapuhan na tumuklas ng karunungan sa paaralan sa
Maynila at katabing mga lunsod x x x x[33] (emphasis and
underscoring supplied)
The condition set by the decedent on the property’s indivisibility is
subject to a statutory limitation. On this point, the Court agrees with
the ruling of the appellate court, viz:
For this Court to sustain without qualification, [petitioners]’s
contention, is to go against the provisions of law, particularly Articles
494, 870, and 1083 of the Civil Code, which provide that the
prohibition to divide a property in a co-ownership can only last for
twenty (20) years
xxxxxxxx
Although the Civil Code is silent as to the effect of the indivision of a
property for more than twenty years, it would be contrary to public
policy to sanction co-ownership beyond the period expressly mandated
by the Civil Code x x x x[34]
ARTICLE 1088
G.R. No. L-26855 April 17, 1989
FRANCISCO GARCIA, PAZ GARCIA, and MARIA GARCIA,
petitioners,
vs.
JOSE CALALIMAN, PACIENCIA TRABADILLO & HON. COURT OF
APPEALS, Third Division, respondents.
DOCTRINE:
Written notice is required for the period of one month for the other co-
heirs to redeem begins to run. Both the letter and spirit of the new
Civil Code argue against any attempt to widen the scope of the notice
specified in Article 1088 by including therein any other kind of notice,
such as verbal or by registration. Written notice is indispensable, actual
knowledge of the sale acquired in some other manners by the
redemptioner, notwithstanding. He or she is still entitled to written
notice, as exacted by the Code, to remove all uncertainty as to the
sale, its terms and its validity, and to quiet any doubt that the
alienation is not definitive. The law not having provided for any
alternative, the method of notifications remains exclusive, though the
Code does not prescribe any particular form of written notice nor any
distinctive method for written notification of redemption
Facts:
On February 11, 1946, one Gelacio Garcia died intestate, leaving a
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 Wills and Succession Case Digests
parcel of unregistered land about 372 sq. meters, situated in the
Municipality of Tubungan, Province of Iloilo. On his death the property
was inherited by his nephews, nieces, grandnephews who are the
descendants of his late brothers, Pedro, Simeon, Buenaventura and
Marcos. On December 3, 1954, the heirs, Juanita Bertomo, Joaquin
Garcia, Porfirio Garcia, Dioscoro Garcia, Flora Garcia, Consolacion
Garcia, Remedios Garcia, Trinidad Garcia, Baltazar Garcia signed a
document entitled, "Extra-judicial Partition and Deed of Sale".
On December 17, 1954 another group of heirs, Rosario Garcia,
Margarita Garcia, Dolores Rufino, Resurreccion Tagarao, Serafin
Tagarao, Buenaventura Tagarao, Fortunata Garcia and Simeon Garcia,
all residents of Isabela, Negros Occidental, also sold to the spouses
Jose Calaliman and Paciencia Trabadillo through their attorney-in-fact,
Juanito Bertomo, their shares, rights, interest and participation in the
same parcel of land. The Deed of Sale was registered in the Register
of Deeds of Iloilo also on December 22, 1954, Inscription No. 20640,
p. 88, Vol. 64 (Exhibits, p. 2122).
On May 7, 1955 the heirs Francisco Garcia, Paz Garcia, and Maria
Garcia, petitioners herein, filed against the spouses Jose Calaliman and
Paciencia Trabadillo, private respondents herein, Civil Case No. 3489
with the Court of First Instance of Iloilo, for legal redemption of the
3/4 portion of the parcel of land inherited by the heirs from the late
Gelacio Garcia, which portion was sold by their co-heirs to the
defendants. In the complaint (Record on Appeal, p. 4) plaintiffs
alleged, among others:
5. That, plaintiffs' co-owners had never offered for sale their interest
and shares over the said land to the plaintiffs prior to the sale in favor
of the defendants, nor given notice of such intention on their part; and
that, no notice in writing has been given by said co-owners to the
plaintiffs of the said sale, such that, plaintiffs came to learn of it only
from other source;
6. That, plaintiffs would have purchased the interest and shares of
their co-owners had the latter offered the same to them prior to the
sale thereof to the defendants; and that, within 30 days after learning
of the sale made to the defendants under annexes 'A', 'B' and 'B-l',
plaintiffs made repeated offer to the defendants to allow them to
redeem said interest and shares acquired by the defendants in
accordance with the right granted to the plaintiffs by law in such a
case, offering a reasonable price thereof of P300 taking into
consideration the fact that the defendants had acquired only 3/4 of the
land of 372 square meters more or less, in area with assessed value of
P110 and a fair market value of 372 at Pl per square meter, the price
actually obtaining in the locality at the time of the sale thereof under
Annexes 'A', 'B' and 'B-l'; however, the defendants refused and have
until the present refused to grant redemption thereof giving no reason
why other than challenging the plaintiffs to bring their case in court:
7. That, the circumstances surrounding the transaction between the
defendants and plaintiffs' co-owners, the vendors, were such that
defendants could not have actually paid nor the vendors actually
received the total price of P800 as stipulated in the deeds Annexes 'A',
'B' and 'B-l' while the said price fixed is grossly excessive and highly
exaggerated and prohibitive for evidently ulterior motive:
8. That, the land herein described is an ancestral property and
plaintiffs have actually a house standing thereon and having lived
thereon ever since, such that, the defendants' refusal to allow
redemption thereof has caused the plaintiffs mental torture, worry and
anxiety, forcing them to litigate and retain services of counsel,
therefore, plaintiffs demand against the defendants P500 for moral
damage, P500 for exemplary damage, P300 for attorney's fees, aside
from actual expenses incurred; and, furthermore, P5 monthly as
reasonable value of defendants' occupation of a portion of the
premises counting from the filing of this complaint.
Respondents claim that the 30-day period prescribed in Article 1088
for petitioners to exercise the right to legal redemption had already
elapsed and that the requirement of Article 1088 that notice must be
in writing is deemed satisfied because written notice would be
superfluous, the purpose of the law having been fully served when
petitioner Garcia went to the Office of the Register of Deeds and was
for himself, read and understood the contents of the Deeds of Sale.
There is no question that the provision of law applicable in the instant
case is Art. 1088 of the New Civil Code (Art. 1067, Old Civil Code) as
the matter concerns heirs and inheritance not yet distributed
(Wenceslao v. Calimon, 46 Phil. 906 [1923]). Art. 1088 states:
Article 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him for the
price of the sale, provided they do so within the period of one month
from the time they were notified in writing of the sale by the vendor.
The main issue: whether or not petitioners took all the
necessary steps to effectuate their exercise of the right of
legal redemption within the period fixed by Art. 1088 of the
Civil Code
Ruling: The Court took note of the fact that the registration of the
deed of sale as sufficient notice of sale under the provision of Section
51 of Act No. 496 applies only to registered lands and has no
application whatsoever to a case where the property involved is
unregistered land. If the intention of the law had been to include
verbal notice or nay other means of information as sufficient to give
the effect of this notice, then there would have been no necessity or
reasons to specify in Article 1088 that the said notice be made in
writing for, under the old law, a verbal notice or information was
sufficient. In the interpretation of a related provision (Article 1623),
written notice is indispensable, actual knowledge of the sale acquired
in some other manners by the redemptioner, notwithstanding. He or
she is still entitled to written notice, as exacted by the Code, to remove
all uncertainty as to the sale, its terms and its validity, and to quiet any
doubt that the alienation is not definitive. The law not having provided
for any alternative method of notifications remains exclusive, thought
the Code does not prescribed any particular form of written notice nor
any distinctive method for written notification of redemption.
Baylon v Amador
Facts: On August 26, 1987, private respondent filed an ejectment case
against petitioner at the Municipal Trial Court (MTC) of Bacon,
Sorsogon, alleging that the latter defaulted in payment of rentals and
refused to vacate the subject property owned by private respondent
despite repeated demands.
On December 28, 1990, after the parties submitted their respective
position papers, the MTC decided in favor of private respondent and
ordered petitioner to vacate the subject premises.
In retaliation, petitioner filed Civil Case No. 91-5663 before the
Sorsogon RTC for specific performance alleging that their contract of
lease also contained an option to buy through which private
respondent gave petitioner the preferential right to purchase the
subject property in the event the same was put on sale.
In the meantime, private respondent's ex parte motion for execution of
judgment in the ejectment case was granted and on April 19, 1992,
the MTC issued an alias writ of execution.
To prevent imminent ejectment, petitioner filed a petition for certiorari,
prohibition and mandamus with prayer for issuance of temporary
restraining order (TRO) at the Sorsogon RTC, docketed as Civil Case
No. 92-5747.
Meanwhile, without notice to private respondent, petitioner acquired a
"3/9 portion" of the subject property from one of the co-owners.
Held: Regarding private respondent's right of redemption, Article 1088
of the New Civil Code explicitly states that, should any of the heirs sell
his hereditary rights to a stranger before the partition, any or all of the
co-heirs may be subrogated to the rights of the purchaser by
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 Wills and Succession Case Digests
reimbursing him for the price of the sale, provided they do so within
the period of one month from the time they were notified in writing by
the vendor.
The requirement of a written notice is mandatory. This Court has long
established the rule that, notwithstanding actual knowledge of a co-
owner, the latter is still entitled to a written notice from the selling co-
owner in order to remove all uncertainties about the sale, its terms
and conditions as well as its efficacy and status.[6]c
Private respondent was never given such written notice. He thus still
has the right to redeem said one-third portion of the subject property.
On account of the lack of written notice of the sale by the other co-
heirs, the 30-day period never commenced.
Cua v Vargas
Facts: A parcel of residential land with an area of 99 square meters
located in San Juan, Virac, Catanduanes was left behind by the late
PaulinaVargas. On February 4, 1994, a notarized Extra Judicial
Settlement Among Heirs was executed by and among Paulina Vargas’
heirs, namely Ester Vargas, Visitacion Vargas, Juan Vargas, Zenaida V.
Matienzo, Rosario V. Forteza, Andres Vargas, Gloria Vargas, Antonina
Vargas and FlorentinoVargas, partitioning and adjudicating unto
themselves the lot in question, each one of them getting a share of 11
square meters. Florentino, Andres,Antonina and Gloria, however, did
not sign the document. Only Ester, Visitacion, Juan, Zenaida and
Rosario signed it. The Extra Judicial Settlement Among Heirs was
published in the Catanduanes Tribune for three consecutive weeks.[3]
On November 15, 1994, an Extra Judicial Settlement Among Heirs with
Sale[4] was again executed by and among the same heirs over the
same property and also with the same sharings. Once more, only
Ester, Visitacion, Juan, Zenaida and Rosario signed the document and
their respective shares totaling 55 square meters were sold to Joseph
Cua, petitioner herein.
According to Gloria Vargas, the widow of Santiago Vargas and one of
respondents herein, she came to know of the Extra Judicial Settlement
Among Heirs with Sale dated November 16, 1994 only when the
original house built on the lot was being demolished sometime in May
1995.[5] She likewise claimed she was unaware that an earlier Extra
Judicial Settlement Among Heirs dated February 4, 1994 involving the
same property had been published in the Catanduanes Tribune.[6]
After knowing of the sale of the 55 square meters to petitioner, Gloria
Vargas tried to redeem the property.
When the offer to redeem was refused and after having failed to reach
an amicable settlement at the barangay level,[9] Gloria Vargas filed a
case for annulment of Extra Judicial Settlement and Legal Redemption
of the lot with the Municipal Trial Court (MTC) of Virac,
Catanduanesagainst petitioner and consigned the amount of P100,000
which is the amount of the purchase with the Clerk of Court on May
20, 1996.[10] Joining her in the action were her children with
Santiago, namely, Aurora, Ramon, Marites, Edelina and Gemma, all
surnamed Vargas.
Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the alleged
primitive owner of the lot in question, Pedro Lakandula, intervened in
the case.[11]
Respondents claimed that as co-owners of the property, they may be
subrogated to the rights of the purchaser by reimbursing him the price
of the sale. They likewise alleged that the 30-day period following a
written notice by the vendors to their co-owners for them to exercise
the right of redemption of the property had not yet set in as no written
notice was sent to them. In effect, they claimed that the Extra Judicial
Settlement Among Heirs and the Extra Judicial Settlement Among
Heirs with Sale were null and void and had no legal and binding effect
on them.[12]
Issue: Whether the written notice required to be served by an
heir to his co-heirs in connection with the sale of hereditary
rights to a stranger before partition under Article 1088 of the
Civil Code[17] can be dispensed with when such co-heirs have
actual knowledge of the sale such that the 30-day period
within which a co-heir can exercise the right to be subrogated
to the rights of a purchaser shall commence from the date of
actual knowledge of the sale.
Held: Written notice is indispensable and mandatory,[20] actual
knowledge of the sale acquired in some other manner by the
redemptioner notwithstanding. It cannot be counted from the time
advance notice is given of an impending or contemplated sale. The law
gives the co-heir thirty days from the time written notice of the actual
sale within which to make up his or her mind and decide to repurchase
or effect the redemption.[21]
Though the Code does not prescribe any particular form of written
notice nor any distinctive method for written notification of
redemption, the method of notification remains exclusive, there being
no alternative provided by law.[22] This proceeds from the very
purpose of Article 1088, which is to keep strangers to the family out of
a joint ownership, if, as is often the case, the presence of outsiders be
undesirable and the other heir or heirs be willing and in a position to
repurchase the share sold.[23]
It should be kept in mind that the obligation to serve written notice
devolves upon the vendor co-heirs because the latter are in the best
position to know the other co-owners who, under the law, must be
notified of the sale.[24] This will remove all uncertainty as to the fact
of the sale, its terms and its perfection and validity, and quiet any
doubt that the alienation is not definitive.[25] As a result, the party
notified need not entertain doubt that the seller may still contest the
alienation. [26]
Considering, therefore, that respondents’ co-heirs failed to comply with
this requirement, there is no legal impediment to allowing respondents
to redeem the shares sold to petitioner given the former’s obvious
willingness and capacity to do so.
G.R. No. 72873 May 28, 1987
CARLOS ALONZO and CASIMIRA ALONZO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT and TECLA PADUA, respondents.
FACTS: The question is sometimes asked, in serious inquiry or in
curious conjecture, whether we are a court of law or a court of justice.
Do we apply the law even if it is unjust or do we administer justice
even against the law? Thus queried, we do not equivocate. The
answer is that we do neither because we are a court both of law and
of justice. We apply the law with justice for that is our mission and
purpose in the scheme of our Republic. This case is an illustration.
Five brothers and sisters inherited in equal pro indiviso shares a parcel
of land registered in ‘the name of their deceased parents. One of them
transferred his undivided share by way of absolute sale. A year later,
his sister sold her share in a “Con Pacto de Retro Sale”. By virtue of
such agreements, the petitioners occupied, after the said sales, an
area corresponding to two-fifths of the said lot, representing the
portions sold to them. The vendees subsequently enclosed the same
with a fence. With their consent, their son Eduardo Alonzo and his wife
built a semi-concrete house on a part of the enclosed area.
One of the five coheirs sought to redeem the area sold to petitioners
but was dismissed when it appeared that he was an American citizen.
Another coheir filed her own complaint invoking the same right of
redemption of her brother. Trial court dismissed the complaint, on the
ground that the right had lapsed, not having been exercised within
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 Wills and Succession Case Digests
thirty days from notice of the sales. Although there was no written
notice, it was held that actual knowledge of the sales by the co-heirs
satisfied the requirement of the law. Respondent court reversed the
decision of the Trial Court.
ISSUE:
Whether or not actual knowledge satisfied the requirement of
Art. 1088 of the New Civil Code.
HELD:
YES. Decision of respondent court was reversed and that of trial court
reinstated.
RATIO:
The co-heirs in this case were undeniably informed of the sales
although no notice in writing was given them. And there is no doubt
either that the 30-day period began and ended during the 14 years
between the sales in question and the filing of the complaint for
redemption in 1977, without the co-heirs exercising their right of
redemption. These are the justifications for this exception.
While [courts] may not read into the law a purpose that is not there,
[courts] nevertheless have the right to read out of it the reason for its
enactment. In doing so, [courts] defer not to “the letter that killeth”
but to “the spirit that vivifieth,” to give effect to the law maker’s will.
CABALES v CA
Facts: Rufino Cabales died on July 4, 1966 and left a 5,714-square
meter parcel of land located in Brgy. Rizal, Sogod, Southern Leyte,
covered by Tax Declaration No. 17270 to his surviving wife Saturnina
and children Bonifacio, Albino, Francisco, Leonora, Alberto and
petitioner Rito.
On July 26, 1971, brothers and co-owners Bonifacio, Albino and
Alberto sold the subject property to Dr. Cayetano Corrompido
forP2,000.00, with right to repurchase within eight (8) years. The
three (3) siblings divided the proceeds of the sale among themselves,
each getting a share of P666.66.
The following month or on August 18, 1971, Alberto secured a note
(“vale”) from Dr. Corrompido in the amount of P300.00.
On December 18, 1975, within the eight-year redemption period,
Bonifacio and Albino tendered their payment of P666.66 each to Dr.
Corrompido. But Dr. Corrompido only released the document of sale
with pacto de retro after Saturnina paid for the share of her deceased
son, Alberto, including his “vale” of P300.00.
On even date, Saturnina and her four (4) children Bonifacio, Albino,
Francisco and Leonora sold the subject parcel of land to respondents-
spouses Jesus and Anunciacion Feliano for P8,000.00.
n December 17, 1985, the Register of Deeds of Southern Leyte issued
Original Certificate of Title No. 17035 over the purchased land in the
names of respondents-spouses.
On December 30, 1985, Saturnina and her four (4) children executed
an affidavit to the effect that petitioner Nelson would only receive the
amount of P176.34 from respondents-spouses when he reaches the
age of 21 considering that Saturnina paid Dr. Corrompido P966.66 for
the obligation of petitioner Nelson’s late father Alberto, i.e., P666.66
for his share in the redemption of the sale with pacto de retro as well
as his “vale” of P300.00.
On July 24, 1986, 24-year old petitioner Rito Cabales acknowledged
receipt of the sum of P1,143.00 from respondent Jesus Feliano,
representing the former’s share in the proceeds of the sale of subject
property.
In 1988, Saturnina died. Petitioner Nelson, then residing in Manila,
went back to his father’s hometown in Southern Leyte. That same
year, he learned from his uncle, petitioner Rito, of the sale of subject
property. In 1993, he signified his intention to redeem the subject land
during abarangay conciliation process that he initiated.
On January 12, 1995, contending that they could not have sold their
respective shares in subject property when they were minors,
petitioners filed before the Regional Trial Court of Maasin, Southern
Leyte, a complaint for redemption of the subject land plus damages.
Issue: May petitioners redeem the subject land from
respondents-spouses?
Held: Articles 1088 and 1623 of the New Civil Code are pertinent:
Art. 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him for the
price of the sale, provided they do so within the period of one month
from the time they were notified in writing of the sale by the vendor.
Art. 1623. The right of legal pre-emption or redemption shall not be
exercised except within thirty days from the notice in writing by the
prospective vendor, or by the vendor, as the case may be. The deed of
sale shall not be recorded in the Registry of Property, unless
accompanied by an affidavit of the vendor that he has given written
notice thereof to all possible redemptioners.
The right of redemption of co-owners excludes that of adjoining
owners.
Clearly, legal redemption may only be exercised by the co-owner or
co-owners who did not part with his or their pro-indiviso share in the
property held in common. As demonstrated, the sale as to the
undivided share of petitioner Rito became valid and binding upon his
ratification onJuly 24, 1986. As a result, he lost his right to redeem
subject property.
However, as likewise established, the sale as to the undivided share of
petitioner Nelson and his mother was not valid such that they were not
divested of their ownership thereto. Necessarily, they may redeem the
subject property from respondents-spouses. But they must do so
within thirty days from notice in writing of the sale by their co-owners
vendors. In reckoning this period, we held in Alonzo v. Intermediate
Appellate Court,[13] thus:
x x x we test a law by its results; and likewise, we may add, by its
purposes. It is a cardinal rule that, in seeking the meaning of the law,
the first concern of the judge should be to discover in its provisions the
intent of the lawmaker. Unquestionably, the law should never be
interpreted in such a way as to cause injustice as this is never within
the legislative intent. An indispensable part of that intent, in fact, for
we presume the good motives of the legislature, is to render justice.
Thus, we interpret and apply the law not independently of but in
consonance with justice. Law and justice are inseparable, and we must
keep them so. x x x x
x x x x While we may not read into the law a purpose that is not there,
we nevertheless have the right to read out of it the reason for its
enactment. In doing so, we defer not to “the letter that killeth” but to
“the spirit that vivifieth,” to give effect to the lawmaker’s will.
In requiring written notice, Article 1088 (and Article 1623 for that
matter)[14] seeks to ensure that the redemptioner is properly notified
of the sale and to indicate the date of such notice as the starting time
of the 30-day period of redemption. Considering the shortness of the
period, it is really necessary, as a general rule, to pinpoint the precise
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 Wills and Succession Case Digests
date it is supposed to begin, to obviate the problem of alleged delays,
sometimes consisting of only a day or two.
In the instant case, the right of redemption was invoked not days but
years after the sale was made in 1978. We are not unmindful of the
fact that petitioner Nelson was a minor when the sale was perfected.
Nevertheless, the records show that in 1988, petitioner Nelson, then of
majority age, was informed of the sale of subject property. Moreover,
it was noted by the appellate court that petitioner Nelson was likewise
informed thereof in 1993 and he signified his intention to redeem
subject property during a barangay conciliation process. But he only
filed the complaint for legal redemption and damages on January 12,
1995, certainly more than thirty days from learning about the sale.
In the face of the established facts, petitioner Nelson cannot feign
ignorance of the sale of subject property in 1978. To require strict
proof of written notice of the sale would be to countenance an obvious
false claim of lack of knowledge thereof, thus commending the letter
of the law over its purpose, i.e., the notification of redemptioners.
PRIMARY STRUCTURES CORP. represented herein by its President
ENGR. WILLIAM C. LIU, petitioner, vs. SPS. ANTHONY S.
VALENCIA and SUSAN T. VALENCIA, respondents.
FACTS: Petitioner Primary Structures Corp. is a private corporation
based in Cebu City and the registered owner of Lot 4523 situated in
Liloan, Cebu. Adjacent to the lot of petitioner are parcels of land,
identified to be Lot 4527, Lot 4528, and Lot 4529. The three lots have
been sold by Hermogenes Mendoza to respondent Spouses Valencia
sometime in December 1994.
In January 1996, petitioner bought an adjacent lot from Mendoza.
Afterwards, it sent a letter to respondents signifying its intention to
redeem the three other adjacent lots that the latter had formerly
purchased. On 30 May 1996, petitioner sent another letter to
respondents tendering payment of the amount that the latter paid to
Mendoza. Respondents then informed petitioner that they had no
intention of selling the parcels. Thereupon, invoking the provisions of
Articles 1621 and 1623, petitioner filed an action against respondents
to compel the latter to allow the legal redemption. Petitioner claimed
that neither Mendoza, the previous owner, nor respondents gave
formal or even just a verbal notice of the sale of the lots as so required
by Article 1623 of the Civil Code.
After trial, the Regional Trial Court of Cebu dismissed petitioner’s
complaint and respondents' counterclaim; both parties appealed the
decision of the trial court to the Court of Appeals. The appellate court
affirmed the assailed decision.
ISSUE: W/N the failure of respondent to furnish petitioner
with written notice has interrupted the latter’s period for legal
redemption
HELD: YES. The written notice of sale is mandatory. This Court has
long established the rule that notwithstanding actual knowledge of a
co-owner, the latter is still entitled to a written notice from the selling
co-owner in order to remove all uncertainties about the sale, its terms
and conditions, as well as its efficacy and status.
Petitioner is not a party to the deed of sale between respondents and
Mendoza and has had no hand in the preparation and execution of the
deed of sale. Hence, such deed of sale could not be considered as a
binding equivalent of the obligatory written notice prescribed by the
Code.
Article 1623 of the Civil Code provides that the right of legal pre-
emption or redemption shall not be exercised except within thirty days
from notice in writing by the prospective vendor, or by the vendor, as
the case may be. In stressing the mandatory character of the
requirement, the law states that the deed of sale shall not be recorded
in the Registry of Property unless the same is accompanied by an
affidavit of the vendor that he has given notice thereof to all possible
redemptioners.
The Court of Appeals has equated the statement in the deed of sale to
the effect that the vendors have complied with the provisions of Article
1623 of the Civil Code, as being the written affirmation under oath, as
well as the evidence, that the required written notice to petitioner
under Article 1623 has been met.
UNION BANK vs. SANTIBAÑEZ
February 23, 2005
Facts:
• On May 31, 1980, the First Countryside Credit Corporation (FCCC)
and Efraim M. Santibañez entered into a loan agreement[3] in the
amount ofP128,000.00. The amount was intended for the payment of
the purchase price of one (1) unit Ford 6600 Agricultural All-Purpose
Diesel Tractor. In view thereof, Efraim and his son, Edmund, executed
a promissory note in favor of the FCCC, the principal sum payable in
five equal annual amortizations ofP43,745.96 due on May 31, 1981
and every May 31st thereafter up to May 31, 1985.
• On December 13, 1980, the FCCC and Efraim entered into another
loan agreement,[4] this time in the amount of P123,156.00. It was
intended to pay the balance of the purchase price of another unit of
Ford 6600 Agricultural All-Purpose Diesel Tractor, with accessories, and
one (1) unit Howard Rotamotor Model AR 60K. Again, Efraim and his
son, Edmund, executed a promissory note for the said amount in favor
of the FCCC. Aside from such promissory note, they also signed a
Continuing Guaranty Agreement[5] for the loan dated December 13,
1980.
• Sometime in February 1981, Efraim died, leaving a holographic
will.[6] Subsequently in March 1981, testate proceedings commenced
before the RTC of Iloilo City, Branch 7, docketed as Special
Proceedings No. 2706. On April 9, 1981, Edmund, as one of the heirs,
was appointed as the special administrator of the estate of the
decedent.[7] During the pendency of the testate proceedings, the
surviving heirs, Edmund and his sister Florence Santibañez Ariola,
executed a Joint Agreement[8] dated July 22, 1981, wherein they
agreed to divide between themselves and take possession of the three
(3) tractors; that is, two (2) tractors for Edmund and one (1) tractor
for Florence. Each of them was to assume the indebtedness of their
late father to FCCC, corresponding to the tractor respectively taken by
them.
• On August 20, 1981, a Deed of Assignment with Assumption of
Liabilities[9] was executed by and between FCCC and Union Savings
and Mortgage Bank, wherein the FCCC as the assignor, among others,
assigned all its assets and liabilities to Union Savings and Mortgage
Bank.
• Demand letters[10] for the settlement of his account were sent by
petitioner Union Bank of the Philippines (UBP) to Edmund, but the
latter failed to heed the same and refused to pay. Thus, on February
5, 1988, the petitioner filed a Complaint[11] for sum of money against
the heirs of Efraim Santibañez, Edmund and Florence, before the RTC
of Makati City, Branch 150, docketed as Civil Case No. 18909.
Summonses were issued against both, but the one intended for
Edmund was not served since he was in the United States and there
was no information on his address or the date of his return to the
Philippines.[12] Accordingly, the complaint was narrowed down to
respondent Florence S. Ariola.
• On December 7, 1988, respondent Florence S. Ariola filed her
Answer[13] and alleged that the loan documents did not bind her since
she was not a party thereto. Considering that the joint agreement
signed by her and her brother Edmund was not approved by the
probate court, it was null and void; hence, she was not liable to the
petitioner under the joint agreement.
HELD: The probate proceeding already acquired jurisdiction over all
the properties of the deceased, including the 3 tractors. To dispose of
them in any way without the probate court’s approval is tantamount to
divesting it with jurisdiction which the SC cannot allow. In executing
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 Wills and Succession Case Digests
any joint agreement which appears to be in the nature of an extra-
judicial partition, court approval is imperative and the heirs cannot just
divest the court of its jurisdiction over that part of the estate. It is
within the jurisdiction of the probate court to determine the identity of
the heirs of the decedent. In the instant case, there is no showing that
the signatories in the joint agreement were the only heirs of the
decedent. When it was executed, the probate court has to determine
yet who the heirs of the decedent were. Thus, for Edmund and
Florence to adjudicate unto themselves the 3 tractors was a premature
act, and prejudicial to the other possible heirs and creditors who may
have a valid claim against the estate of the deceased.
ARTICLE 1091
HEIRS OF TEVES V CA
October 13, 1999
The heirs of A executed an extrajudicial settlement of A’s estate which
was not registered. One heir who was not satisfied with his share filed
a case to declare such settlement ineffective.
b. The decedent left no debts, or if there were debts left, all had been
paid
c. The heirs are all of age or if they are minors, the latter are
represented by their judicial guardian or legal representatives
d. The partition was made by means of a public instrument or affidavit
duly filed with the Register of Deeds.
2. The requirement that a partition be put in a public document and
registered has for its purpose the protection of creditors and at the
same time the protection of the heirs themselves against the tardy
claims. The object of the registration is to serve as constructive notice
to others.
3. It follows that the intrinsic validity of partition not executed with the
prescribed formalities does not come into play when there are no
creditors or the rights of the creditors are not affected. Where no such
rights are involved, it is competent for the heirs of an estate to enter
into an agreement for distribution in a manner and upon a plan
different from those provided by law.
ARTICLE 1104

NON vs. CA
Facts: Marcelina Cimafranca and Joaquin Teves had nine children,
February 15, 2000
namely Teotimo, Felicia, Pedro, Andres, Asuncion, Gorgonio,
Facts:
Cresenciano, Arcadia and Maria. Andres, however, predeceased both
• During their lifetime, the spouses Julian C. Viado and Virginia P.
his parents and died without issue. After Marcelina Cimafranca and
Viado owned several pieces of property, among them a house and lot
Joaquin Teves died, intestate and without debts, in 1943 and 1953,
located at 147 Isarog Street, La Loma, Quezon City, covered by
respectively, their children executed extrajudicial settlements
Transfer Certificate of Title No. 42682. Virginia P. Viado died on 20
purporting to adjudicate unto themselves the ownership over two
October 1982. Julian C. Viado died three years later on 15 November
parcels of land belonging to their deceased parents and to alienate
1985. Surviving them were their children -- Nilo Viado, Leah Viado
their shares thereto in favor of their sister Asuncion Teves. The validity
Jacobs, and herein petitioners Rebecca Viado, married to Jose Non,
of these settlements executed pursuant to section 1 of Rule 74 of the
and Delia Viado. Nilo Viado and Leah Viado Jacobs both died on 22
Rules of Court is the primary issue in the present case.
April 1987. Nilo Viado left behind as his own sole heirs herein
On May 9, 1984, plaintiffs-appellants Ricardo and Arcadia Teves filed a
respondents --- his wife Alicia Viado and their two children Cherri
complaint with the Regional Trial Court of Negros Oriental for the
Viado and Fe Fides Viado.
partition and reconveyance of two parcels of land located in
• Petitioners and respondents shared, since 1977, a common residence
Dumaguete, designated as Lots 769-A and 6409, against the heirs of
at the Isarog property. Soon, however, tension would appear to have
Asuncion Teves. The complaint was subsequently amended to include
escalated between petitioner Rebecca Viado and respondent Alicia
Maria Teves and the heirs of Teotimo, Felicia, Pedro, and Gorgonio
Viado after the former had asked that the property be equally divided
Teves as plaintiffs and the spouses Lucresio Baylosis and Pacita
between the two families to make room for the growing children.
Nocete, and Cecilia Cimafranca-Gamos and Cecilia Flor Cimafranca as
Respondents, forthwith, claimed absolute ownership over the entire
defendants.[3] Plaintiffs-appellants alleged that defendants-appellees,
property and demanded that petitioners vacate the portion occupied
without any justifiable reason, refused to partition the said parcels of
by the latter. On 01 February 1988, petitioners, asserting co-ownership
land and to convey to plaintiffs their rightful shares.[4]
over the property in question, filed a case for partition before the
Lot 769, covered by Original Certificate of Title (OCT) No. 4682-A,[5] is
Quezon City RTC (Branch 93).
registered in the names of Urbana Cimafranca, one-fourth (1/4) share,
• Respondents predicated their claim of absolute ownership over the
Marcelina Cimafranca, the wife of Joaquin Teves, one-fourth (1/4)
subject property on two documents --- a deed of donation executed by
share, Domingo Villahermosa, one-eighth (1/8) share, Antero
the late Julian Viado covering his one-half conjugal share of the Isarog
Villahermosa, one-eighth (1/8) share, Cecilia Cimafranca, one-eighth
property in favor of Nilo Viado and a deed of extrajudicial settlement in
(1/8) share and Julio Cimafranca, one-eighth (1/8) share. The present
which Julian Viado, Leah Viado Jacobs (through a power of attorney in
controversy involves only Marcelina Cimafranca’s one-fourth (1/4)
favor of Nilo Viado) and petitioner Rebecca Viado waived in favor of
share in the land, designated as Lot 769-A.
Nilo Viado their rights and interests over their share of the property
On June 13, 1956, Teotimo, Felicia, Pedro, Asuncion, Gorgonio and
inherited from Virginia Viado. Both instruments were executed on 26
Arcadia Teves executed a document entitled "Settlement of Estate and
August 1983 and registered on 07 January 1988 by virtue of which
Sale,"[6] adjudicating unto themselves, in equal shares, Lot 769-A and
Transfer Certificate of Title No. 42682 was cancelled and new Transfer
conveying their shares, interests and participations over the same in
Certificate of Title No. 373646 was issued to the heirs of Nilo Viado.
favor of Asuncion Teves for the consideration of P425.00. A similar
• Petitioners, in their action for partition, attacked the validity of the
deed denominated "Extrajudicial Settlement and Sale"[7] was signed
foregoing instruments, contending that the late Nilo Viado employed
by Maria Teves on April 21, 1959. Under such deed, Maria conveys her
forgery and undue influence to coerce Julian Viado to execute the
own share over Lot 769-A in favor of Asuncion Teves for the
deed of donation. Petitioner Rebecca Viado, in her particular case,
consideration of P80.00. The two settlements were denounced by the
averred that her brother Nilo Viado employed fraud to procure her
plaintiffs as spurious.
signature to the deed of extrajudicial settlement. She added that the
exclusion of her retardate sister, Delia Viado, in the extrajudicial
ISSUE: Whether the extra-judicial settlement is binding settlement, resulted in the latter's preterition that should warrant its
among the heirs. annulment. Finally, petitioners asseverated at the assailed instruments,
HELD: Yes. although executed on 23 August 1983, were registered only five years
1. The extra-judicial settlement is valid since the following requisites later, on 07 January 1988, when the three parties thereto, namely,
concurred: Julian Viado, Nilo Viado and Leah Viado Jacobs had already died.
a. The decedent left no will • Assessing the evidence before it, the trial court found for

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 Wills and Succession Case Digests
respondents and adjudged Alicia Viado and her children as being the Teodoro Abenojar with Florencia Bautista. They disclaimed the
true owners of the disputed property. allegation of the petitioners that their mother Guillerma Abenojar was
a legitimate daughter of Teodoro Abenojar and Florencia Bautista, the
truth being allegedly that Guillerma Abenojar, the mother of the
Landayans, was Teodoro Abenojar's spurious child with Antera Mandap
HELD: The exclusion of Delia, alleged to be a retardate, from the Deed
who was then married to another man.
of Extrajudicial Settlement verily had the effect of preterition. This kind
• As their affirmative and special defense, the private respondents
of preterition, however, in the absence of proof of fraud and bad faith,
alleged that the action of the petitioners had already prescribed, the
does not justify a collateral attack on the Transfer Certificate of Title.
same having been filed more than 18 years after the execution of the
The relief rests on Article 1104 to the effect that where the preterition
documents that they seek to annul.
is not attended by bad faith and
fraud, the partition shall not be rescinded but the preterited heir shall
be paid the value of the share HELD: The dismissal of the action is erroneous. The question if it is
pertaining to her. The appellate court has acted properly in ordering void requires a legal inquiry into the legal status of Severino. Should
the remand of the case for further proceedings to make the proper the petitioners be able to substantiate their contention that Severino is
valuation of the property and the ascertainment of the amount due to an illegitimate son of Guillerma, he is not a legal heir of Teodoro. The
Delia. right of representation is denied by law to an illegitimate child who is
disqualified to inherit ab intestato from the legitimate children and
relatives of his father. On this supposition, the subject deed of
ARTICLE 1105
extrajudicial partition is one that included a person who is not an heir
of the descendant whose estate is being partitioned. Such a deed is
LANDAYAN vs. BACANI September 30, 1982 governed by Article 1105 of the Civil Code. The Supreme Court
Facts: ordered the respondent judge to try the case on the merits and render
• An extra-judicial partition was entered into by Maxima, wife of the the corresponding judgment thereon.
deceased Teodoro, and Severino. Petitioners contended that they are
the legal heirs of the deceased since they are the children of
MENDOZA vs. IAC July 30, 1987
Guillerma, who was the only child of the deceased and his first wife
FACTS:
Florencia. They averred that Severino is an illegitimate child of
• The extra-judicial settlement of the estate of Evaristo executed
Guillerma. But Severino alleged that he is the acknowledged natural
between Buenaventura and Modesta was sought to be annulled. The
child of Teodoro and Florencia. Private respondents also alleged that
lower court ruled that such settlement is void as to as the shares of
the action of the petitioners had prescribed since it has been more
Modesta are concerned. Nicolasa and Teresa predeceased
than 18 years after the execution of the document they seek to annul.
Buenaventura. Modesta is the illegitimate child of Nicolasa.
The lower court ruled that the action is barred by prescription.
Buenaventura then died. It was prayed that Modesta be declared the
• In his lifetime, Teodoro Abenojar owned several parcels of land
legal heir of Buenaventura.
located in Urdaneta, Pangasinan, and a house and lot in Manila. The
• Buenaventura, Nicolasa and Teresa, all surnamed Gabuya, are the
said properties were all covered by Torrens Titles in his name. He died
legitimate children of the spouses Evaristo Gabuya and Susana
intestate in Urdaneta, on March 20, 1948.
Sabandija, who died intestate many years ago, the first in 1926 and
• On February 3, 1949, private respondents Maxima Andrada, the
the second in 1912
surviving spouse of Teodoro Abenojar, and Severino Abenojar,
• Both Nicolasa and Teresa died single, the first in 1943 and the
executed a public document, entitled "Extra-Judicial Agreement of
second in 1964
Partition" whereby they adjudicated between themselves the
• Modesta Gabuya is the illegitimate daughter of Nicolasa [Exhs. G &
properties left by Teodoro Abenojar. Severino Abenojar represented
7-B-Gabuya]
himself in said document as "the only forced heir and descendant" of
• Lot Nos. 3506 and 3597 of the Cebu Cadastre were some of the
the late Teodoro Abenojar.
original properties left by the late Evaristo Gabuya both located at
• On March 6, 1968, petitioners herein filed a complaint in the Court of
Pardo, Cebu City, formerly covered by Original Certificate [sic] of Title
First Instance of Pangasinan presided over by the respondent Judge
Nos. 6353 and 6597 in the name of Evaristo Gabuya and containing
seeking a judicial declaration that they are legal heirs of the deceased
2,799 square meters and 2,992 square meters, respectively
Teodoro Abenojar, and that private respondents be ordered to
• Sometime in February, 1969, Modesta Gabuya accompanied by Atty.
surrender the ownership and possession of some of the properties that
Elias S. Mendoza went to the house of Buenaventura Gabuya who
they acquired under the deed of extra-judicial settlement
wanted to see the titles of these two parcels of land and Buenaventura
corresponding to the shares of the petitioners and that the said deed
was instructed by Modesto to look for them so that they be
of extra- judicial settlement and the subsequent deed of donation
reconstituted; that some days later the two, Modesta Gabuya and Elias
executed in favor of private respondents, spouses Liberata Abenojar
S. Mendoza visited him again at his house and Mode took the titles but
and Jose Serrano, in consequence thereof be declared nun and void.
this time Buenaventura went with them to the Cebu Capitol Building
• In their complaint, petitioners Maria, Segundo, Marcial and Lucio, all
• Buenaventura and Modesto signed a document and acknowledged
surnamed LANDAYAN (the rest of the petitioners being their respective
before Atty. Salvador B. Mendoza but the latter did not read to the
spouses), alleged that they are the legitimate children of Guillerma
signatories the contents of the document; that this document dated
Abenojar, then already deceased, who was the only child of Teodoro
March 12, 1969 turned out to be an Extrajudicial settlement of the
Abenojar with his first wife named Florencia Bautista; and that while
Estate of Evaristo Gabuya [Exhs. A and 1-B-Gabuya] whereby
Teodoro Abenojar contracted a second marriage with Antera Mandap
Buenaventura and Modesto appear to have divided and partitioned
and a third with private respondent Maxima Andrada, he did not have
between themselves pro visio and share and share alike [1/2 each] Lot
any offspring in any of the said second and third marriages. They aver
Nos. 3506 and 3597
that private respondent Severino Abenojar is an illegitimate son of
• This Extrajudicial settlement of the Estate of Evaristo Gabuya was
Guillerma Abenojar. They accordingly pray that they be declared as
duly published [Exh. B] in the Morning Times and registered with the
among the legal heirs of the deceased Teodoro Abenojar entitled to
Register of Deeds [Exhs. B-1 & B-2] and the document itself was also
share in his estate
similarly registered [Exhs. A-1 and A-2]
• Private respondents, on the other hand, have alleged in their
• On December 31, 1968, prior to the execution of the Extra-Judicial
pleadings that Teodoro Abenojar married only once, and that was with
Settlement document, a Deed of Absolute Sale [Exhs. 2-B-Gabuya]
private respondent Maxima Andrada. They claimed that private
was executed by Modesta Gabuya in favor of the spouses Atty. and
respondent Severino Abenojar is an acknowledged natural child of
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 Wills and Succession Case Digests
Mrs. Elias S. Mendoza covering her alleged one-half [1/2] undivided
share in Lot No. 3597 for a consideration of P10,000.00; that pursuant
to the Deed of Extrajudicial Settlement [Exhs. A & 1-B-Gabuya], and
the Deed of Absolute Sale [Exh. 2-B-Gabuya], Original Certificates of
Title Nos. 6353 and 6597 in the name of the late Evaristo Gabuya,
father of Buenaventura Gabuya, were cancelled and in liue thereof
were issued Transfer Certificates of Title Nos. 43909 and 43910 [Exh.
C] The first in the names of spouses Buenaventura Gabuya married to
Severa Fernandez, and Modesta Gabuya married to Dominador Delima
and the second, in the names of Buenaventura Gabuya married to
Severa Fernandez and Atty. Elias S. Mendoza married to Eustiquia S.
Mendoza; that Atty. Elias S. Mendoza and Modesta Gabuya have
respectively asked from Buenaventura Gabuya the partition of the lots
which they are co-owners of the undivided one-half [1/2] portion
• Buenaventura refused to do so claiming that ModestaGabuya is not
entitled to inherit from the estate of his late father Evaristo Gabuya. 7
Ruling: The only document presented by Modesta to prove that she
was recognized by her mother was the certificate of birth and baptism
signed by the parish priest. Canonical certificate of baptism is not
sufficient to prove recognition. Neither could the alleged continuous
possession by Modesta
Gabuya of the status of a natural child improve her condition. Modesta
Gabuya, not having been acknowledged in the manner provided by law
by her mother, Nicolasa, was not entitled to succeed the latter. The
extrajudicial settlement of the estate of Evaristo, therefore, null and
void insofar as Modesta Gabuya is concerned per Article 1105 of the
New Civil Code.
AZNAR BROTHERS REALTY COMPANY vs. CA
March 7, 2000
Culled from the evidence proffered by petitioner Aznar Brothers Realty
Co. (hereafter AZNAR), it appears that Lot No. 4399 containing an area
of 34,325 square meters located at Brgy. Mactan, Lapu-Lapu City, was
acquired by AZNAR from the heirs of Crisanta Maloloy-on by virtue of
an Extrajudicial Partition of Real Estate with Deed of Absolute Sale
dated 3 March 1964. This deed was registered with the Register of
Deeds of Lapu-Lapu City on 6 March 1964 as shown on the face
thereof. After the sale, petitioner AZNAR declared this property under
its name for taxation purposes and regularly paid the taxes thereon.
Herein private respondents were allegedly allowed to occupy portions
of Lot No. 4399 by mere tolerance provided that they leave the land in
the event that the company would use the property for its purposes.
Later, AZNAR entered into a joint venture with Sta. Lucia Realty
Development Corporation for the development of the subject lot into a
multi-million peso housing subdivision and beach resort. When its
demands for the private respondents to vacate the land failed, AZNAR
filed with the Municipal Trial Court (MTCC) of Lapu-Lapu City a case for
unlawful detainer and damages, which was docketed as Civil Case No.
R-1027.
On the other hand, the private respondents alleged that they are the
successors and descendants of the eight children of the late Crisanta
Maloloy-on, whose names appear as the registered owners in the
Original Certificate of Title No. RC-2856. Private respondents set up
the defense of ownership and questioned the title of Aznar to the
subject lot, alleging that the Extrajudicial Partition with Deed of
Absolute Sale upon which petitioner bases its title is null and void for
being fraudulently made. Private respondents claim that not all the
known heirs of Crisanta participated in the extrajudicial partition and
that 2 person who participated and were made parties thereto were
not heirs of Crisanta.
Ruling in relation to Article 1105: Under Article 1104, partition made
with preterition shall not be rescinded unless it be proved that there
was bad faith or fraud. In this case, there was no evidence of bad faith
or fraud.
As to the 2 parties to the deed who were allegedly not heirs, Article
1105 is applicable. The participation of nonheirs does not render the
partition void in its entirety but only to the extent corresponding them.
FERNANDEZ vs. FERNANDEZ August 28, 2001
Rodolfo was adopted by the late spouses Jose and Generosa. When
Jose died, a Deed of Extra-judicial Partition was executed between
Rodolfo and Generosa. After learning the transaction, the nephews and
nieces of Jose filed an action to declare the Deed of Extra-judicial
Partition void ab initio.
Facts:
“The late Spouses Dr. Jose K. Fernandez, and Generosa A. de Venecia
were the registered owners of a parcel of land located at Dagupan City
covered by TCT No. T-9267 (525) consisting of 194 sq. meters, and
the two-storey building constructed thereon covered by Tax
Declaration 22-592-1. It is undisputed that Generosa gave birth to a
baby boy named Rogelio who died when he was only twelve (12) years
old as paralytic. In the testimony of Romeo Fernandez (TSN, Aug. 31,
1994, pp. 9-14) it was revealed that the late Spouses being childless
by the death of their son, purchased from a certain Miliang for P20.00
a one (1) month baby boy. The boy being referred to was later on
identified as Rodolfo Fernandez, the herein appellant. Appellant was
taken care of by the couple and was sent to school and became a
dental technician. He lived with the couple until they became old and
disabled.
The trial court found that defendant Rodolfo Fernandez was not a
legitimate nor a legally adopted child of spouses Dr. Jose Fernandez
and Generosa de Venecia Fernandez, hence Rodolfo could not inherit
from the spouses. Rodolfo’s claim as a son of the deceased spouses
Fernandez was negated by the fact that (1) he only reached high
school and was told to stop studying so that he could help in the clinic
of Dr. Fernandez, (2) he failed to present any birth certificate, (3) the
book entitled Fercolla clan which was compiled and edited by
respected people such as Ambassador Armando Fernandez, Justice
Jorge Coquia and Teresita Coquia-Sison, showed the geneology of the
family of Dr. Jose and Generosa Fernandez without a child; a pedigree
may be admitted in evidence to prove the facts of genealogy and that
entries in a family bible or other family books or charts, engravings or
rings, family portraits and the like, may be received as evidence of
pedigree,[5] (4) the certification issued by the Records Management
and Archives Office that there was no available information about the
birth of petitioner Rodolfo to the spouses Fernandez, (5) the
application of Dr. Jose Fernandez for backpay certificate naming
petitioner Rodolfo as his son was doubtful considering that there were
blemishes or alteration in the original copy; (6) that Rodolfo’s
baptismal certificate was spurious and falsified since there were no
available records of baptism with the parish from June 7, 1930 to
August 8, 1936, while Rodolfo’s baptismal certificate which was issued
in 1989 showed that he was baptized on November 24, 1934. The
court found that the extra-judicial partition and the deed of absolute
sale were prepared and executed under abnormal, unusual and
irregular circumstances which rendered the documents null and void.
Issue: The principal issue for resolution in this case concerns
the rights of the parties to the conjugal property of the
deceased spouses Fernandez.
Petitioners allege that the respondent court found the extra-judicial
partition executed by petitioner Rodolfo Fernandez and Generosa
Fernandez, widow of Dr. Jose Fernandez, null and void because the
former allegedly failed to prove legitimate filiation to his putative
father, the late Dr. Jose Fernandez. Petitioners, contend, however,
that the burden of proof lies with the respondents because they were
the ones contesting the filiation of Rodolfo Fernandez. They insist that
both lower courts had no power to pass upon the matter of filiation
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because it could not be collaterally attacked in the present action but
in a separate and independent action directly impugning such filiation.

Held: While one’s legitimacy can be questioned only in a direct action

seasonably filed by the proper party, this doctrine has no application in
the instant case considering that respondents’ claim was that petitioner
Rodolfo was not born to the deceased spouses Jose and Generosa
Fernandez. We do not have a situation wherein they (respondents)
deny that Rodolfo was a child of their uncle’s wife.
Rodolfo failed to prove his filiation with the deceased spouses
Fernandez. Such is a factual issue which has been thoroughly passed
upon and settled both by the trial court and the appellate court. There
is no record of the birth of Rodolfo. The Application for Recognition of
Back Pay Rights is a public document but it was not executed to admit
the filiation of Jose with Rodolfo. The public document
contemplated in Article 172 of the Family Code refer to the written
admission of filiation embodied in a public document purposely
executed as an admission of filiation and not as obtaining in this case
wherein the public document was executed as an application for the
recognition of rights to back pay. Possession of status of a child does
not in itself constitute an acknowledgment; it is only a ground for a
child to compel recognition by his assumed parent. While baptismal
certificates may be considered public documents, they are evidence
only to prove the administration of the sacraments on the dates
therein specified, but not the veracity of the statements or
declarations made therein with respect to his kinsfolk. Rodolfo is not a
child by nature of the spouses Fernandez and not a legal heir of Dr.
Jose Fernandez , thus the subject deed of extra-judicial settlement of
the estate of Dr. Jose Fernandez between Generosa vda. De
Fernandez and Rodolfo is null and void insofar as Rodolfo
is concerned.

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