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 1 Appeals 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, 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 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 As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind when he visited her during her birthday celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and the character of the testamentary act . . . The will itself shows that the testatrix even had detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise identified explicitly. And considering that she had even written a nursing book which contained the law and jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the testamentary act. In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein. Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will was procured by undue and improper pressure and influence on the part of the beneficiary or of some other person, the evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been testified to in Court, all show the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the making of a will and not as to the specific testamentary provisions therein which is the
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proper subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing reason for the disallowance of the will herein. Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over intestate succession, and the fact that no convincing grounds were presented and proven for the disallowance of the 3 holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate. (Citations omitted.) On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, 4 "the holographic will fails to meet the requirements for its validity." It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows: Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by decedent. Thus, this appeal which is impressed with merit. Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases: (a) If not executed and attested as required by law; (b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution; (c) If it was executed under duress, or the influence of fear, or threats; (d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit; (e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto. In the same vein, Article 839 of the New Civil Code reads: Art. 839: The will shall be disallowed in any of the following cases; (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the 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 6 decedent. In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous. We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the 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 7 handwritten by the testator himself, as provided under Article 810 of the New Civil Code, thus: A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)
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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 ofKalaw 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 8 la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1985." (Citations omitted.) Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's 9 10 signature, their presence does not invalidate the will itself. 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. 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 11 provisions of the will. In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her 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.chanroblesvirtualawlibrary 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. Palma, Palma & Associates for petitioners. Emilio Lumontad, Jr. for private 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 1 public, Atty. Filoteo Manigos, in the preparation of that last will. It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, 2 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 3 29, 1980, the testator passed away before his petition could finally be heard by the probate court. 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 4 value of which was P24,000.00, and he was so appointed by the probate court in its order of March 6, 1981. Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" 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 5 appointment of a special administrator for his estate. 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 6 where it remained until the conclusion of the probate proceedings. 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 7 testator therein. On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was in good health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he and the other witnesses attested and signed the will in the presence of the testator and of each other. The other two 8 attesting witnesses were not presented in the probate hearing as the had died by then. 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 9 executed in accordance with all the requisites of the law. 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 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
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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 11 formulated is in substantial compliance with the requirement of the law." Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution of 12 January 14, 1992, 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 13 to a certain degree the disposition of his estate after his death. Under the Civil Code, there are two kinds of wills which a testator may 14 execute. 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. 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. 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 16 again, by the notary public before whom it is acknowledged. 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 17 that they should be in writing and must have been executed in a language or dialect known to the testator. 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 18 need not even be known to the attesting witnesses. 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 19 before them and to the manner of the execution 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 20 required by law has been observed. 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 21 still be proved. Under the third 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 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 23 interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages; whereas the subscription of the signature of the testator and the attesting witnesses is made for the purpose of authentication and identification, and thus 24 indicates that the will is the very same instrument executed by the testator and attested to by the witnesses. Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of the will as embodied in the 25 attestation clause. The attestation clause, therefore, provide strong legal guaranties for the due execution of a will and to insure the 26 27 authenticity thereof. As it appertains only to the witnesses and not to the testator, it need be signed only by them. 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 28 the absence of the testator and its witnesses. 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:
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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. . . .
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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 30 likewise signed at the end thereof by the three attesting witnesses hereto. 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 31 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. 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 33 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. Reyes regarding Article 809, wherein he urged caution in the application of the substantial compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with similar questions:
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. . . 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 35 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. 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, 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, 37 useless and frustrative of the testator's last will, must be disregarded. The subsequent cases ofAvera vs. Garcia, Aldaba vs. 38 39 40 41 42 Roque, Unson vs. Abella, Pecson vs. Coronel, Fernandez vs. Vergel de Dios, et al., and Nayve vs. Mojal, et al. 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 43 44 45 46 47 Saguinsin, In re Will of Andrada, Uy Coque vs. Sioca, In re Estate of Neumark, and Sano vs. Quintana. Gumban vs. Gorecho, et al., 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
48 36

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 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 49 50 diversity of views that was earlier threshed out therein. The cases of Quinto vs. Morata, Rodriguez vs. Alcala, Enchevarria vs. 51 52 53 Sarmiento, and Testate Estate of Toray went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., Rey 54 55 56 57 58 vs. Cartagena, De Ticson vs. De Gorostiza, Sebastian vs. Panganiban, Rodriguez vs. Yap, Grey vs. Fabia, Leynez vs. 59 60 61 Leynez, Martir vs. Martir, Alcala vs. De Villa, Sabado vs. 62 63 64 Fernandez, Mendoza vs. Pilapil, and Lopez vs. Liboro, 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 65 compliance with all the requirements of article 829." The so-called liberal rule, the Court said in Gil vs. Murciano, "does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration into its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results." It may thus be stated that the rule, as it now stands, is that 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 67 attestation clause and ultimately, of the will itself.
66

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.

FIRST DIVISION G.R. No. 76648 February 26, 1988 THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners, vs. COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.

GANCAYCO, J.: This is a petition for review on certiorari of the decision of the Court of Appeals promulgated August 29,1986 affirming in toto the 2 decision of the Regional Trial Court of Manila, Branch XXII dated March 21, 1985, the dispositive part of which reads: WHEREFORE, the Court renders judgment declaring the holographic will marked in evidence as Exhibit "H" as one wholly written, dated, and signed freely by the late Herminia Montinola in accordance with law while in possession of full testamentary capacity, and allowing and admitting the same to probate. Upon the finality of the decision, let letters testamentary issue to the executor, Eduardo F. Hernandez, as well as the certificate of probate prescribed under Section 13 of Rule 76 of the Rules of Court. SO ORDERED.
3 1

This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22, 1981 with the Court of First Instance of Manila (now Regional Trial Court) seeking the probate of the holographic will of the late Herminia Montinola executed on 4 January 28, 1980. The testatrix, who died single, parentless and childless on March 29,1981 at the age of 70 years, devised in this will several of her real properties to specified persons. On April 29,1981, private respondent who was named executor in the will filed an urgent motion for appointment of special 5 administrator. With the conformity of all the relatives and heirs of the testatrix except oppositor, the court in its order of May 5, 6 1981 appointed private respondent as Special Administrator of the testate estate of deceased. On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased but who was not named in the said 7 win, filed her Opposition to Probate of Will, alleging inter alia: that the subject will was not entirely written, dated and signed by the testatrix herself and the same was falsely dated or antedated; that the testatrix was not in full possession of her mental faculties to make testamentary dispositions; that undue influence was exerted upon the person and mind of the testatrix by the beneficiaries named in the win; and that the will failed to institute a residual heir to the remainder of the estate. After a hearing on the merits, the probate court, finding the evidence presented in support of the petition to be conclusive and overwhelming, rendered its decision allowing the probate of the disputed will. Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed in toto the decision.
9 8

On September 24,1986, petitioner filed with the respondent court a motion for new trial. Attached to her motion was the Affidavit of Merit of Gregorio Montinola Sanson, petitioner's son, alleging that witnesses have been located whose testimonies could shed light as to the ill health of the testatrix as well as undue influence exerted on the latter. The appellate court in its resolution of October 13, 1986, denied the motion for new trial of petitioner on the following grounds: (1) the Affidavit of merit attached to the motion alleged that efforts were exerted to locate unnamed witnesses only after the court's decision was handed down, and (2) the unnamed witnesses would allegedly shed light on the fact of grave illness of the testatrix as well as the undue influence exerted on her which are merely corroborative or cumulative since these facts were brought to light during the trial. The motion for reconsideration of petitioner dated October 27, 1986 was likewise denied by the appellate court in its resolution of 12 November 20, 1986 on the ground that the affidavit of one Patricia Delgado submitted with the motion constitutes cumulative evidence and the motion being in reality a second motion for reconsideration which is prescribed by law. In the petition now before Us, petitioner assigned the following errors: I THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS' MOTION FOR NEW TRIAL ON THE GROUND THAT THE EVIDENCE SOUGHT TO BE PRESENTED IS MERELY CUMULATIVE. II THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION OF THE RESOLUTION DENYING THE AFORESAID MOTION FOR NEW TRIAL.
11 10

III AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE HOLOGRAPHIC WILL IN QUESTION WAS WHOLLY WRITTEN, DATED AND SIGNED BY THE LATE HERMINIA MONTINOLA. IV THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL DATE OF EXECUTION AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO THE TESTAMENTARY CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS ACTUAL EXECUTION. V THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA WAS NOT SUBJECTED TO UNDUE PRESSURE AND IMPROPERIMPORTUNINGS ON THE PART OF THOSE STANDING TO BENEFIT FROM THE ALLEGED WILL. VI THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN QUESTION TO PROBATE. In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs. In the first and second assigned errors, petitioners maintain that the appellate court erred in denying the motion for new trial insisting that the new evidence sought to be presented is not merely corroborative or cumulative. On the other hand, the contention of private respondent is that the motion for new trial was a pro-forma motion because it was not in accordance with Sec. 1, Rule 53 of the Rules of Court. We find merit in this contention. Section 1, Rule 53 provides Before a final order or judgment rendered by the Court of appeals becomes executory, a motion for new trial may be filed on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of the diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence. The affidavit of merit executed by Gregorio Montinola Sanson alleged the following: xxx xxx xxx 3. That in her plea for new trial in the said case, I have exerted efforts to locate witnesses whose whereabouts were not known to us during the trial in the lower court, but I have finally succeeded in tracking them down; 4. That despite their initial reluctance to testify in this case,I am convinced that they would testify under proper subpoena for purposes of shedding light on the fact that the testatrix was gravely ill at or but the time that the questioned will was allegedly executed; 5. That they had the clear opportunity to know the circumstances under which the purported will was executed; and that they know for a fact that there was 'undue influence' exerted by petitioner and other relatives to procure improper favors from the testatrix; xxx xxx xxx
13

Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone affidavit of a witness who was already presented said the hearing is hardly sufficient to justify the holding of new trial. The alleged new witnesses were unnamed without any certainty as, to their appearance before the court to testify. Affiant attests only on his belief that they would testify if and when they are subpoenaed by the court. Furthermore, the allegations in the affidavit as to the undue influence exerted on the testatrix are mere conclusions and not statement of facts. The requisite affidavits must state facts and not mere conclusions or opinions, 14 otherwise they are not valid. The affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out to be immaterial or of any evidentiary weight. Moreover, it could not be said that the evidence sought to be presented is new having been discovered only after the trial. It is apparent from the allegations of affiant that efforts to locate the witnesses were exerted only after the decision of the appellate court was handed down. The trial lasted for about four years so that petitioner had ample time to find said alleged witnesses who were admittedly known to her. The evidence which the petitioner now propose to present could have been discovered and presented during the hearing of the case, and there is no sufficient reason for concluding that had the petitioner exercised proper diligence she would not have been able to 15 discover said evidence. In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as the charges of undue influence exerted upon her had been brought to light during the trial, and new evidence on this point is merely corroborative and cumulative 16 which is generally not a ground for new trial. Accordingly, such evidence even if presented win not carry much probative weight which 17 can alter the judgment. It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the proceedings. In fact, petitioners son in his manifestation admitted that he had to request a new law firm to do everything legally possible to meet the deadline for the 18 filing of a motion for reconsideration and/or for new trial. This would explain the haphazard preparation of the motion, thus failing to

comply with the requirements of rule 53, which was filed on the last day of the reglementary period of appeal so that the veracity of the ground relied upon is questionable. The appellate court correctly denied the motion for new trial. The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal. Since petitioner's motion was filed on September 24,1986, the fifteenth or last day of the period to appeal, the decision of the respondent court became final on the following day, September 25. And when the motion for reconsideration of petitioner was filed on October 30,1986, it was obviously filed out of time. Since the questioned decision has already become final and executory, it is no longer within the province of this Court to review it. This being so, the findings of the probate court as to the due execution of the will and the testamentary capacity of testatrix are now 20 conclusive. At any rate, even assuming that We can still review this case on its merits, the petition will also have to fail. During the hearing before the probate court, not only were three (3) close relatives of the testatrix presented but also two (2) expert witnesses who declared that the contested will and signature are in the handwriting of the testatrix. These testimonies more than satisfy 21 22 the requirements of Art. 811 of the Civil Code in conjunction with Section 11 of Rule 76, Revised Rules of Court, or the probate of holographic wills. As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was actually executed sometime in June 1980 when the testatrix was already seriously ill and dying of terminal lung cancer. She relied only on the supposed inconsistencies in the testimony of Asuncion Gemperle, niece and constant companion of testatrix, which upon careful examination did not prove such claim of antedating. The factual findings of the probate court and the Court of Appeals that the will in question was executed according to the formalities 23 required by law are conclusive on the Supreme Court when supported by evidence. We have examined the records of this case and find no error in the conclusion arrived at by the respondent court that the contested will was duly executed in accordance with law. Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being the only surviving sister of the testatrix with whom she shares an intimate relationship, thus demonstrating the lack of testamentary capacity of testatrix. In the case of Pecson v. Coronel,
24 19

it was held

The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of a relative from one's estate is an exceptional case. It is true that the ties of relationship in the Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced heirs is rendered sacred by the Civil Code in force in the Philippines since 1889... Article 842 of the Civil Code provides that 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. It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will. Nevertheless, per testimony of Asuncion Gemperle, the latter had reserved two boxes of jewelry worth P850,000.00 for petitioner. Furthermore, petitioner's son Francis was instituted as an heir in the contested will. Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her estate is an indication of the unsoundness of her mind. We cannot subscribe to this contention. Art. 841 of the Civil Code provides A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases, the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does not invalidate the will, or is it an indication that the testatrix was of unsound mind. The portion of the estate undisposed of shall pass on to the heirs of the deceased in intestate succession. Neither is undue influence present just because blood relatives, other than compulsory heirs have been omitted, for while blood ties are 25 strong in the Philippines, it is the testator's right to disregard non-compulsory heirs. The fact that some heirs are more favored than 26 others is proof of neither fraud or undue influence. Diversity of apportionment is the usual reason for making a testament, otherwise, 27 the decedent might as well die intestate. The contention of the petitioner that the will was obtained by undue influence or improper pressure exerted by the beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is not enough that there was opportunity to exercise undue influence or a 28 possibility that it may have been exercised. The exercise of improper pressure and undue influence must be supported by substantial 29 evidence that it was actually exercised. Finally, We quote with approval the observation of the respondent court There is likewise no question as to the due execution of the subject Will. To Our minds, the most authentic proof that decreased had testamentary capacity at the time of the execution of the Will, is the Will itself which according to a

report of one of the two expert witnesses (Exhibits X to X-3) reveals the existence of significant handwriting characteristics such as: 1. Spontaneity, freedom, and speed of writing xxx xxx xxx 3. good line quality. 4. presence of natural variation... (Exhibit X). The characteristics of spontaneity, freedom and good line quality could not be achieved by the testatrix if it was true that she was indeed of unsound mind and/or under undue influence or improper pressure when she the Will. IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with costs against petitioner. The decision of respondent court dated August 29, 1986 in toto the decision of the Regional Trial Court of Manila dated March 21, 1985 is hereby declared to be immediately executory. SO ORDERED.

EN BANC 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.

PARAS, J.: This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration. The dispositive portion of the questioned decision reads as follows: WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special Proceedings No. 591 ACEB No special pronouncement is made as to costs. The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows: On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will contained provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the testator's property, the will provided: THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given to me to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain. Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for 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 pretirited. (Rollo, p. 158). Said motion was denied by the trial judge. After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159). Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177). Petitioner raises the following issues (Memorandum for petitioner, p. 4): (A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the proper remedy under the premises; (B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate; (C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line," and does not apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the institution of heirs; (D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law; (E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal heir in the will would give the heir so instituted a share in the inheritance but there is a definite distinct intention of the testator in the case at bar, explicitly expressed in his will. This is what matters and should be in violable. (F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and (G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual. The pivotal issue in this case is whether or not private respondents have been pretirited. 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 including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). 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 willamounts 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. We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to the succession either by the provision of a will or by operation of law. However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed. As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in the

course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]). Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator'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. 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 (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]). The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court upheld the decision of the probate court, induced by practical considerations. The Court said: We pause to reflect. 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. After all there exists a justiciable controversy crying for solution. In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing held in connection with said motion. The Court upheld the probate court's order of dismissal. In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity of the provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on its face the will appeared to have preterited the petitioner the respondent judge should have denied its probate outright. Where circumstances demand that intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court of Appeals,supra; Nuguid v. Nuguid, supra). In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109). For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properly availed of by private respondents. Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of Appeals, supra). PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED. SO ORDERED. Separate Opinions

MELENCIO-HERRERA, J., concurring: I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence. To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability to determine how the testator would have distributed his estate if none of the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54). library The requisites of preterition are: 1. The heir omitted is a forced heir (in the direct line); 2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum supplied). On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is partial unlike in true preterition where the nullity is total. Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the existence of the compulsory heir at the time of the execution of the will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he wants such heir to receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-175). In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my concurrence in the result that total intestacy ensued.

Separate Opinions MELENCIO-HERRERA, J., concurring: I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence. To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability to determine how the testator would have distributed his estate if none of the heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54). The requisites of preterition are: 1. The heir omitted is a forced heir (in the direct line); 2. The ommission is by mistake or thru an oversight. 3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum supplied). On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is partial unlike in true preterition where the nullity is total. Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the existence of the compulsory heir at the time of the execution of the will, he would have instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he wants such heir to receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-175). In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my concurrence in the result that total intestacy ensued.

THIRD DIVISION [G.R. No. 137287. February 15, 2000] REBECCA VIADO NON, JOSE A. NON and DELIA VIADO, petitioners, vs. THE HONORABLE COURT OF APPEALS, ALICIA N. VIADO, CHERRI VIADO and FE FIDES VIADO, respondents. LEX DECISION VITUG, J.: Petitioners, in their petition for review on certiorari under Rule 45 of the Rules of Court, seek a reversal of the 29th May 1996 decision of the Court of Appeals, basically affirming that rendered on 30 April 1991 by the Regional Trial Court ("RTC") of Quezon City, Branch 23, adjudicating the property subject matter of the litigation to respondents. The case and the factual setting found by the Court of Appeals do not appear to deviate significantly from that made by the trial court. During their lifetime, the spouses Julian C. Viado and Virginia P. Viado owned several pieces of property, among them a house and lot located at 147 Isarog Street, La Loma, Quezon City, covered by Transfer Certificate of Title No. 42682. Virginia P. Viado died on 20 October 1982. Julian C. Viado died three years later on 15 November 1985. Surviving them were their children -- Nilo Viado, Leah Viado Jacobs, and herein petitioners Rebecca Viado, married to Jose Non, and Delia Viado. Nilo Viado and Leah Viado Jacobs both died on 22 April 1987. Nilo Viado left behind as his own sole heirs herein respondents --- his wife Alicia Viado and their two children Cherri Viado and Fe Fides Viado.

Petitioners and respondents shared, since 1977, a common residence at the Isarog property. Soon, however, tension would appear to have escalated between petitioner Rebecca Viado and respondent Alicia Viado after the former had asked that the property be equally divided between the two families to make room for the growing children. Respondents, forthwith, claimed absolute ownership over the entire property and demanded that petitioners vacate the portion occupied by the latter. On 01 February 1988, petitioners, asserting coownership over the property in question, filed a case for partition before the Quezon City RTC (Branch 93). Respondents predicated their claim of absolute ownership over the subject property on two documents --- a deed of donation executed by the late Julian Viado covering his one-half conjugal share of the Isarog property in favor of Nilo Viado and a deed of extrajudicial settlement in which Julian Viado, Leah Viado Jacobs (through a power of attorney in favor of Nilo Viado) and petitioner Rebecca Viado waived in favor of Nilo Viado their rights and interests over their share of the property inherited from Virginia Viado. Both instruments were executed on 26 August 1983 and registered on 07 January 1988 by virtue of which Transfer Certificate of Title No. 42682 was cancelled and new Transfer Certificate of Title No. 373646 was issued to the heirs of Nilo Viado. Petitioners, in their action for partition, attacked the validity of the foregoing instruments, contending that the late Nilo Viado employed forgery and undue influence to coerce Julian Viado to execute the deed of donation. Petitioner Rebecca Viado, in her particular case, averred that her brother Nilo Viado employed fraud to procure her signature to the deed of extrajudicial settlement. She added that the exclusion of her retardate sister, Delia Viado, in the extrajudicial settlement, resulted in the latter's preterition that should warrant its annulment. Finally, petitioners asseverated at the assailed instruments, although executed on 23 August 1983, were registered only five years later, on 07 January 1988, when the three parties thereto, namely, Julian Viado, Nilo Viado and Leah Viado Jacobs had already died. Assessing the evidence before it, 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 with modification by ordering the remand of the records of the case to the court a quo for further proceedings to determine the value of the property and the amount respondents should pay to petitioner Delia Viado for having been preterited in the deed of extrajudicial settlement. Petitioners are now before the Supreme Court to seek the reversal of the decision of the Court of Appeals. The appellate court ruled correctly. When Virginia P. Viado died intestate in 1982, her part of the conjugal property, the Isarog property in question included, was transmitted to her heirs --- her husband Julian and their children Nilo Viado, Rebecca Viado, Leah Viado and Delia Viado. The [1] [2] inheritance, which vested from the moment of death of the decedent, remained under a co-ownership regime among the heirs until [3] partition. Every act intended to put an end to indivision among co-heirs and legatees or devisees would be a partition although it [4] would purport to be a sale, an exchange, a compromise, a donation or an extrajudicial settlement. In debunking the continued existence of a co-ownership among the parties hereto, respondents rely on the deed of donation and deed of extrajudicial settlement which consolidated the title solely to Nilo Viado. Petitioners assail the due execution of the documents on the grounds heretofore expressed. Unfortunately for petitioners, the issues they have raised boil down to the appreciation of the evidence, a matter that has been resolved by both the trial court and the appellate court. The Court of Appeals, in sustaining the court a quo, has found the evidence submitted by petitioners to be utterly wanting, consisting of, by and large, self-serving testimonies. While asserting that Nilo Viado employed fraud, forgery and undue influence in procuring the signatures of the parties to the deeds of donation and of extrajudicial settlement, petitioners are vague, however, on how and in what manner those supposed vices occurred. Neither have petitioners shown proof why Julian Viado should be held incapable of exercising sufficient judgment in ceding his rights and interest over the property to Nilo Viado. The asseveration of petitioner Rebecca Viado that she has signed the deed of extrajudicial settlement on the mistaken belief that the instrument merely pertained to the administration of the property is too tenuous to accept. It is also quite difficult to believe that Rebecca Viado, a teacher by profession, could have misunderstood the tenor of the assailed document. The fact alone that the two deeds were registered five years after the date of their execution did not adversely affect their validity nor [5] would such circumstance alone be indicative of fraud. The registration of the documents was a ministerial act and merely created a [6] constructive notice of its contents against all third persons. Among the parties, the instruments remained completely valid and binding. The exclusion of petitioner Delia Viado, alleged to be a retardate, from the deed of extrajudicial settlement verily has had the effect of preterition. This kind of preterition, however, in the absence of proof of fraud and bad faith, does not justify a collateral attack on Transfer Certificate of Title No. 373646. The relief, as so correctly pointed out by the Court of Appeals, instead rests on Article 1104 of the Civil Code to the effect that where the preterition is not attended by bad faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her. Again, the appellate court has thus acted properly in ordering the remand of the case for further proceedings to make the proper valuation of the Isarog property and ascertainment of the amount due petitioner Delia Viado. WHEREFORE, the instant petition is DENIED, and the decision, dated May 29, 1996, in CA-G.R. No. 37272 of the Court of Appeals is AFFIRMED. No special pronouncement on costs. SO ORDERED.

EN BANC

G.R. No. L-2538 April 16, 1906 VICENTE BALPIEDAD, Plaintiff-Appellee , vs. THE INSULAR GOVERNMENT, ET AL., Defendants-Appellants. WILLARD, J.: On the 23rd of February, 1894, Vicente Balpiedad presented a petition to the Court of Land Registration asking that he be inscribed as the owner of a tract of land of 13,225 square meters situated in the Government reservation at Baguio, in the Province of Benguet. The land described in this petition be a part of the land described in the petition in the case of Cristobal Ramos vs. The Insular 1 Government (4 Off. Gaz., 391). The Solicitor-General appeared in the court below and opposed the petition on the ground that the lands described therein were public lands. Judgment was entered granting the prayer of the petitioner and ordering an inscription of the land in the name of Vicente Balpiedad. The Solicitor-General moved for a new trial, which was denied, and he has brought the case here by bill of exceptions. The questions of law presented in this case are the same as those presented in the case of Jones vs. The Insular Government, No. 2506, just decided, with the exception that there is nothing in the case to indicate that Vicente Balpiedad is not a native of the Islands. The only question that remains to be considered is one of fact, and that is whether the petitioner proved an adverse possession of the land for ten years. On the 26th of November, 1901, Vicente Balpiedad bought the land question from an Igorot named Pokay, and an instrument of sale was made and executed by Pokay on that day, which was on the 11th day of January, 1902, recorded in the registry of property at San Fernando. The Igorot, Pokay, acquired the and from his deceased father, Ampagney, and the latter acquired it from the grandfather of Pokay, Batana. The land was cultivated in the time of the grandfather and the father of Pokay, and was also cultivated by himself. During the times when the land was so occupied by these persons there was a house upon it, and it was inclosed and cultivated. The old house was destroyed, and a new house erected since the American occupation of the Islands was also destroyed by fire. There is no evidence that anyone else has never been in possession of this land, and there is no evidence of any adverse claim to the land ever having been made by anyone, except the proceedings taken in connection with the application of Ramos to buy the land, which consisted of a survey of the whole tract claimed by Ramos, in which the tract here in question is included. Testimony was presented showing that the Igorot, Pokay, knew of the survey and of its purpose, and made no objection thereto. He denied this, and there is considerable conflict in the evidence upon the point, but, however that may be, this survey did not, in our opinion, constitute an interruption of the possession nor stop the running of the statute of limitations. Ramos never was in possession of the land. Pokay was in possession before the survey, during the survey, and after. An examination of the evidence satisfies us that an adverse possession such as is required by section 41 of the Code of Civil Procedure, made applicable to this case by Acts Nos. 648 and 627, was established. The judgment of the court below is affirmed, with the costs of this instance against the appellant. After the expiration of twenty days let final judgment be entered herein and ten days thereafter let the case be remanded to the court of its origin for proper procedure. So ordered.
2

G.R. No. L-4888

May 25, 1953

JOSE MERZA, petitioner, vs. PEDRO LOPEZ PORRAS, respondent. Primicias, Abad, Mencies & Castillo for petitioner. Moises Ma. Buhain for respondent. TUAZON , J.: This is an appeal from the Court of Appeals which affirmed an order of the Court of First Instance of Zambales denying the probate of the last will and testament and so-called codicil, identified as Exhibits A and B, of Pilar Montealegre, deceased. The testatrix was survived by the husband and collateral relatives, some of whom, along with the husband, were disinherited in Exhibit B for the reasons set forth therein. The opposition to Exhibit A was predicated on alleged defects of the attestation clause. Written in the local dialect known to the testatrix, the attestation clause, as translated into English in the record on appeal, reads: The foregoing instrument consisting of three pages, on the date above-mentioned, was executed, signed and published by testatrix Pilar Montealegre and she declared that the said instrument is her last will and testament; that in our presence and also in the very presence of the said testatrix as likewise in the presence of two witnesses and the testatrix each of us three witnesses signed this a testament. The opponent objected that this clause did not estate that the tetratrix and the witnesses had signed each and every page of the will or that she had signed the instrument in the presence of the witnesses. The Appellate Court dismissed the first objection, finding that "failure to estate in the attestation clause in question that the testatrix and/or the witnesses had signed each and every page of Exhibit A were cured by the fact that each one of the page of the instrument appears to be signed by the testatrix and the three attesting witnesses (Nayve vs. Mojal, 47 Phil., 152, (1924); Ticson vs. Gorostiza, 57 Phil., (1932); Leynes vs. Leynes, 40 Off. Gaz., 3rd Suppl. (October 18, 1939), 510, 528; Rallos vs. Rallos, 44 Off. Gaz., 4938, 4940)." But granting the correctness of the premise, the court held the second objection well taken and thus concluded: "The question whether the testatrix had signed in the presence of said witnesses can not be verified upon physical examination of the instrument. Hence, the absence of the require statement in said clause may not, pursuant to the decisions of the Supreme Court, be offset by proof aliunde even if admitted without any objection." The premise of the conclusion is, in our opinion, incorrect.

It must be admitted that the attestation clause was very poor drawn, its language exceedingly ungrammatical to the point of being difficult to understand; but from a close examination of the whole context in relation to its purpose the implication seems clear that the testatrix signed in the presence of the witnesses. Considering that the witnesses' only business at hand was to sign and attest to the testatrix's signing of the document, and that the only actors of the proceeding were the maker and the witnesses acting and speaking collectively and in the first person, the phrase "in our presence," used as it was in connection with the process of signing, can not imply anything but the testatrix signed before them. No other inference is possible. The prepositional phrase "in our presence" denotes an active verb and the verb a subject. The verb could not be other than signed and the subject no other than the testatrix. The use of the word "also" is no less enlightening. It denotes that, as each of the witnesses sign in the presence of the testatrix and of one another, so the testatrix sign in similar or like manner in their presence. In consonance with the principle of the liberal interpretation, adhered to in numerous later decision of this Court and affirmed and translated into inactment in the new Civil Code (Article 827), we are constrained to hold the attestation clause under consideration sufficient and valid. "Precision of language in the drafting of the attestation clause is desirable. However, it is not imperative that a parrot-like copy of the word of the statue 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." (Ticson vs. Gorostiza, supra.) "It could 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 the testamentary disposition which the law recognizes and holds sacred." (Leynesvs. Leynes, supra.) With reference of Exhibit B the Court of Appeal agreed with the trial court that the document having been executed one day before Exhibit A could not be considered as a codicil "because a codicil, as the word implies, is only an addition to, or modification of, the will." The Court of Appeals added that "the content of Exhibit B are couched in the language of ordinarily used in a simple affidavit and as such, may not have the legal effect and force to a testamentary disposition." Furthermore, the Court of Appeals observed, disinheritance "may not be made in any instrument other than the will of Exhibit A, as expressly provided for in article 849 of the Civil Code," and, "there being no disposition as to the disinheritance of the oppositor, Pedro Lopez Porras (the surviving spouse), in the said Exhibit A, it is quite clear that he can not be disinherited in any other instrument including Exhibit B, which is, as above stated, a simple affidavit." Exhibit B does partake of the nature of a will. A will is defined in article 667 of the Civil code of Spain as "the act by which a persons dispose of all his property or a portion of it," and in article 783 of the new Civil Code as "an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. Exhibit B comes within this definition. Being of testamentary character and having been made with all the formalities of law, Exhibit B is entitled to probate as an independent testementary desposition. In the absence of any legal provision to the contrary and there is none in this jurisdiction it is the general, well-established rule that two separate and distinct wills may be probated if one does not revoke the other (68 C.J., 885) and provided that the statutory requirements relative to the execution of wills have been complied with (Id. 881). As seen, Exhibit B embodied all the requisites of a will, even free of such formal of literary imperfections as are found in Exhibit A. It also follows that Exhibit B is a legal and effective vehicle for excluding lawful heirs from testate or intestate succession. Article 849 of the Civil Code of Spain does not, as the appealed decision seems to insinuate, require that the disinheritance should be accomplished in the same instrument by which the maker provides the disposition of his or her property after his or death. This article merely provides that "disinheritance can be affected only by a will (any will) in which the legal cause upon which it is based is expressly stated." It is our judgment therefore that the instruments Exhibit A and B admitted to probate, subject of courts to the right of the disinherited person under particle 850 to contest the disinheritance, and it is so ordered, with costs against the appellee.

EN BANC G.R. No. L-23638 October 12, 1967

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners, vs. ISMAELA DIMAGIBA, respondent. ---------------------------------------G.R. No. L-23662 October 12, 1967

MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners, vs. ISMAELA DIMAGIBA, respondent. Jose D. Villena for petitioners. Antonio Barredo and Exequiel M. Zaballero for respondent. REYES, J.B.L., Actg. C.J.:

The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of the decision of the Court of Appeals (in CA-G. R. No. 31221-R) affirming that of the Court of First Instance of Bulacan, in Special Proceeding No. 831 of said Court, admitting to probate the alleged last will and testament of the deceased, and overruling the opposition to the probate. It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent, submitted to the Court of First Instance a petition for the probate of the purported will of the late Benedicta de los Reyes, executed on October 22, 1930, and annexed to the petition. The will instituted the petitioner as the sole heir of the estate of the deceased. The petition was set for hearing, and in due time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one month later, Mariano, Cesar, Leonor and Paciencia, all surnamed Reyes, all claiming to be heirs intestate of the decedent, filed oppositions to the probate asked. Grounds advanced for the opposition were forgery, vices of consent of the testatrix, estoppel by laches of the proponent and revocation of the will by two deeds of conveyance of the major portion of the estate made by the testatrix in favor of the proponent in 1943 and 1944, but which conveyances were finally set aside by this Supreme Court in a decision promulgated on August 3, 1954, in cases G.R. Nos. L-5618 and L-5620 (unpublished). After trial on the formulated issues, the Court of First Instance, by decision of June 20, 1958, found that the will was genuine and properly executed; but deferred resolution on the questions of estoppel and revocation "until such time when we shall pass upon the intrinsic validity of the provisions of the will or when the question of adjudication of the properties is opportunely presented." Oppositors Fernandez and Reyes petitioned for reconsideration, and/or new trial, insisting that the issues of estoppel and revocation be considered and resolved; whereupon, on July 27, 1959, the Court overruled the claim that proponent was in estoppel to ask for the probate of the will, but "reserving unto the parties the right to raise the issue of implied revocation at the opportune time." On January 11, 1960, the Court of First Instance appointed Ricardo Cruz as administrator for the sole purpose of submitting an inventory of the estate, and this was done on February 9, 1960. On February 27, 1962, after receiving further evidence on the issue whether the execution by the testatrix of deeds of sale of the larger portion of her estate in favor of the testamentary heir, made in 1943 and 1944, subsequent to the execution of her 1930 testament, had revoked the latter under Article 957(2) of the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the trial Court resolved against the oppositors and held the will of the late Benedicta de los Reyes "unaffected and unrevoked by the deeds of sale." Whereupon, the oppositors elevated the case to the Court of Appeals. The appellate Court held that the decree of June 20, 1958, admitting the will to probate, had become final for lack of opportune appeal; that the same was appealable independently of the issue of implied revocation; that contrary to the claim of oppositors-appellants, there had been no legal revocation by the execution of the 1943 and 1944 deeds of sale, because the latter had been made in favor of the legatee herself, and affirmed the decision of the Court of First Instance. Oppositors then appealed to this Court. In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not the decree of the Court of First Instance allowing the will to probate had become final for lack of appeal; (b) whether or not the order of the Court of origin dated July 27, 1959, overruling the estoppel invoked by oppositors-appellants had likewise become final; and (c) whether or not the 1930 will of Benedicta de los Reyes had been impliedly revoked by her execution of deeds of conveyance in favor of the proponent on March 26, 1943 and April 3, 1944. As to the first point, oppositors-appellants contend that the order allowing the will to probate should be considered interlocutory, because it fails to resolve the issues of estoppel and revocation propounded in their opposition. We agree with the Court of Appeals that the appellant's stand is untenable. It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last will and testament, irrespective of whether its provisions are valid and enforceable or otherwise. (Montaano vs. Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil. 710). As such, the probate order is final and appealable; and it is so recognized by express provisions of Section 1 of Rule 109, that specifically prescribes that "any interested person may appeal in special proceedings from an order or judgment . . . where such order or judgment: (a) allows or disallows a will." Appellants argue that they were entitled to await the trial Court's resolution on the other grounds of their opposition before taking an appeal, as otherwise there would be a multiplicity of recourses to the higher Courts. This contention is without weight, since Rule 109, section 1, expressly enumerates six different instances when appeal may be taken in special proceedings. There being no controversy that the probate decree of the Court below was not appealed on time, the same had become final and conclusive. Hence, the appellate courts may no longer revoke said decree nor review the evidence upon which it is made to rest. Thus, the appeal belatedly lodged against the decree was correctly dismissed. The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of revocation become superfluous in law, there is no such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely implied from subsequent acts of the testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise the properties concerned. As such, the revocation would not affect the will itself, but merely the particular devise or legacy. Only the total and absolute revocation can preclude probate of the revoked testament (Trillana vs. Crisostomo, supra.). As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the presentation and probate of a will are requirements of public policy, being primarily designed to protect the testator's, expressed wishes, which are entitled to respect as a consequence of the decedent's ownership and right of disposition within legal limits. Evidence of it is the duty imposed on a custodian of a will to deliver the same to the Court, and the fine and imprisonment prescribed for its violation (Revised Rule 75). It would be a non sequitur to allow public policy to be evaded on the pretext of estoppel. Whether or not the order overruling the allegation of estoppel is still appealable or not, the defense is patently unmeritorious and the Court of Appeals correctly so ruled.

The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of 1950 (Art. 869 of the Code of 1889), which recites: Art. 957. The legacy or devise shall be without effect: (1) . . . . (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase; xxx xxx xxx

It is well to note that, unlike in the French and Italian Codes, the basis of the quoted provision is a presumed change of intention on the part of the testator. As pointed out by Manresa in his Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p. 743) Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, se desprende de la cosa por titulo lucrativo u oneroso, hace desaparecer su derecho sobra ella, dando lugar a la presuncion de que ha cambiado de voluntad, y no quiere que el legado se cumpla. Mas para que pueda presumirse esa voluntad, es necesario que medien actos del testador que la indiquen. Si la perdida del derecho sobre la cosa ha sido independiente de la voluntad del testador, el legado podraquedar sin efecto, mas no en virtud del numero 2 del articulo 869, que exige siempre actos voluntarios de enajenacion por parte del mismo testador. As observed by the Court of Appeals, the existence of any such change or departure from the original intent of the testatrix, expressed in her 1930 testament, is rendered doubtful by the circumstance that the subsequent alienations in 1943 and 1944 were executed in favor of the legatee herself, appellee Dimagiba. In fact, as found by the Court of Appeals in its decision annulling these conveyances (affirmed in that point by this Supreme Court inReyes vs. Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no consideration whatever was paid by respondent Dimagiba" on account of the transfers, thereby rendering it even more doubtful whether in conveying the property to her legatee, the testatrix merely intended to comply in advance with what she had 1 ordained in her testament, rather than an alteration or departure therefrom. Revocation being an exception, we believe, with the Courts below, that in the circumstances of the particular case, Article 957 of the Civil Code of the Philippines, does not apply to the case at bar. Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily result in the revocation of the legacies, if we bear in mind that the findings made in the decision decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also that it was the moral influence, originating from their confidential relationship, which was the only cause for the execution of Exhs. A and B (the 1943 and 1944 conveyances). (Decision, L-5618 and L-5620). If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not expressing her own free will and intent in making the conveyances. Hence, it can not be concluded, either, that such conveyances established a decision on her part to abandon the original legacy. True it is that the legal provision quoted prescribes that the recovery of the alienated property "even if it be by reason of the nullity of the contract" does not revive the legacy; but as pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the 2 contract" can not be taken in an absolute sense. Certainly, it could not be maintained, for example, that if a testator's subsequent alienation were avoided because the testator was mentally deranged at the time, the revocatory effect ordained by the article should still ensue. And the same thing could be said if the alienation (posterior to the will) were avoided on account of physical or mental duress. Yet, an alienation through undue influence in no way differs from one made through violence or intimidation. In either case, the 3 transferor is not expressing his real intent, and it can not be held that there was in fact an alienation that could produce a revocation of the anterior bequest. In view of the foregoing considerations, the appealed decision of the Court of Appeals is hereby affirmed. Costs against appellants Reyes and Fernandez. So ordered. Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur. Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no part.

EN BANC G.R. No. 40445 August 17, 1934

In re estate of the deceased Leonarda Macam y Capili. NICOLASA MACAM, petitioner-appellant, vs. JUANA GATMAITAN, oppositor-appellant. Reyes and Reyes for petitioner-appellant. Magno S. Gatmaitan for oppositor-appellant. VILLA-REAL, J.: This case comprises two appeals, one taken by the petitioner Nicolasa Macam and the other by the oppositor Juana Gatmaitan, from an order of the Court of First Instance of Bulacan, the dispositive part of which reads as follows:

In view of the neglect or abandonment by the interested parties of their claims during the proceedings for the probate of the will, and it appearing that the was already become final and it appearing that the order allowing the will has already become final and executory, the court is of the opinion that it is now too late to consider the so-called codicil as well as the instrument from which Juana Gatmaitan derives her alleged right. Wherefore, the petition for the probate of the codicil as well as the opposition thereto filed by Juana Gatmaitan is dismissed, without prejudice to whatever right the latter may have in an appropriate proceeding before the committee on claims and appraisal, in accordance with law. So ordered. In support of her appeal, the petitioner Nicolasa Macam assigns the following alleged errors as having been committed by the trial court in said decision, to wit: 1. The lower court erred in holding that the parties have abandoned their respective claims during the proceedings for the probate of the will. 2. The lower court erred in declaring that it was already too late to raise the question as to the legal efficacy of the codicil executed by the deceased. 3. The lower court erred in dismissing the petition for the probate of the codicil before any of the parties had presented evidence pertinent to the matter. The oppositor Juana Gatmaitan, in turn, assigns the following alleged errors as having been committed by the court a quo in said decision, to wit: 1. The lower court erred in holding that in order for Juana Gatmaitan to preserve her rights, so far as to oppose the probate of the codicil, it was her duty to oppose to the probate of the will; and, having opposed the probate only of the codicil, she could no longer avail herself of the document in her favor, so as to affect the testamentary dispositions of the deceased Leonarda Macam. 2. The lower court erred in dismissing the opposition of Juana Gatmaitan to the probate of the alleged codicil. The appellants assignments of error, considered together, raise the following questions of law: 1. Is the probate of a will by final judgment prior to that of a codicil thereof bar to the probate of said codicil? 2. Does the failure to the file opposition to the probate of a will constitute a bar to the presentation of the codicil for probate? The following pertinent facts, which are disclosed by the pleadings, are necessary for the resolution of the questions raised in this appeal. On March 27, 1933, Nicolasa Macam filed in the Court of First Instance of Bulacan a petition for the probate of the will dated July 12, 1932, and of the codicil thereof dated February 17, 1933, executed by Leonarda Macam who died on March 18, 1933, in the municipality of Calumpit, of said Province of Bulacan, and for her appointment as executrix without bond. When the petition was called for hearing on April 24, 1933, in the absence of the judge, the clerk of the Court of First Instance of Bulacan, upon instructions of said judge to proceed to take the evidence in the absence of any opposition, took the evidence relative to the probate of the will, no opposition to the same having been filed. Inasmuch as Juana Gatmaitan filed opposition to the probate of the codicil, said clerk deemed himself unauthorized to take the evidence relative thereto and refrained from so doing. The will and the evidence for its probate having been submitted to the court the vacation Judge Hon. M. Rosauro, on April 28, 1933, entered an order allowing said will and appointing the petitioner Nicolasa Macam as executrix. On July 6, 1933, after notice to the parties, the codicil was called for hearing, opposition having been filed by Juana Gatmaitan, one of the legatees instituted in the will which had already been allowed by final and executory judgment. After hearing counsel for the respective parties, Judge Francisco Enage, then presiding over the Court of First Instance of Bulacan, entered the order the dispositive part of which has been quoted at the beginning of this decision. Section 625 of the Code of Civil Procedure provides as follows: 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. Interpreting the above legal provisions as regards the scope of the allowance of a will, this court, in numerous decisions, has laid down the doctrine that the probate of a will is conclusive as to its due execution and as to the testamentary capacity of the testator, but not as to the validity of its provisions, and in probate proceedings the courts are without jurisdiction to determine questions concerning the validity of the provisions of the will. (Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Limjuco vs. Ganara, 11 Phil., 393; Austriavs. Ventenilla, 21 Phil., 180; In re Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105.) A codicil is a written instrument wherein one declares his last will, in order to take from or add something to the will, or clarify the provisions thereof. (Spanish Cyclopedia of Law, vol. 5, page 918.) A codicil has been defined as some addition to or qualification of one's last will and testament. (28 R. C. L., 197.) The exercise of the right to make a will, as a voluntary act, implies the right to revoke, and article 737 of the Civil Code expressly provides that wills are essentially revocable, provided that the partial or total revocation is made with the formalities required for making it, in accordance with the provisions of article 738 of the same Code.

The fact that a will has been allowed without opposition and the order allowing the same has become final and executory is not a bar to the presentation and probate of a codicil, provided it complies with all the necessary formalities for executing a will required by section 614 of the Code of Civil Procedure, as amended by section 1 of Act No. 1934. It is not necessary that the will and the codicil be probated together, as the codicil may be concealed by an interested party and it may not be discovered until after the will has already been allowed; and they may be presented and probated one after the other (40 Cyc., 1228), since the purpose of the probate proceedings is merely to determine whether or not the will and the codicil meet all the statutory requirements for their extrinsic validity, leaving the validity of their provisions for further consideration. The appeal taken by the petitioner Nicolasa Macam is, therefore, well founded and the court a quo erred in flatly, denying her petition for the probate of the codicil on the erroneous ground that said codicil should have been presented at the same time as the will. With respect to the opposition of the oppositor-appellant Juana Gatmaitan, the fact that she failed to file opposition to the probate of the will does not prevent her from filing opposition to the probate of the codicil thereof, inasmuch as the will may satisfy all the external requisites necessary for its validity, but the codicil may, at the time of its execution, not be in conformity therewith. If the testator had testamentary capacity at the time of the execution of the will, and the will was executed in accordance with all the statutory requirements, opposition to its probate would not lie. On the contrary, if at the time of the execution of the codicil the testator lacked some of the subjective requisites legally capacitating him to execute the same, or all the statutory requirements were not complied with in the execution thereof, opposition to its probate would lie. The court a quo, therefore, erred in dismissing the opposition filed by the oppositor-appellant Juana Gatmaitan to the probate of the codicil of the will of the deceased Leonarda Macam. In view of the foregoing, we are of the opinion and so hold: (1) That the fact that a will has been probated and the order allowing the same has become final and executory is not a bar to the presentation and probate of a codicil, although its existence was known at the time of the probate of the will; (2) that the failure of the oppositor to the probate of a codicil to file opposition to the probate of the will, having knowledge of such proceedings, does not constitute an abandonment of a right, nor does it deprive her of the right to oppose the probate of said codicil. Wherefore, the order appealed from is reversed and it is ordered that the petition for the probate of the codicil filed by the petitioner Nicolasa Macam, as well as the opposition to said probate filed by the oppositor Juana Gatmaitan, be reinstated, without special pronouncement as to costs. So ordered.

THIRD DIVISION [G.R. No. 113725. June 29, 2000] JOHNNY S. RABADILLA, petitioner, vs. COURT OF APPEALS AND MARIA MARLENA VILLACARLOS, respondents. DECISION PURISIMA, J.: This is a petition for review of the decision of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered the defendantsappellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza. The antecedent facts are as follows: 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 511, 855 square meters of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court of First Instance of Negros Occidental, contained the following provisions: "FIRST I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City: (a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental. (b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla. xxx FOURTH (a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No.
[3] [1] [2]

COSCOLUELLA Y BELLEZA

RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies. FIFTH (a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), 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. 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 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 [4] sister." Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name. 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 Civil Case No. 5588, 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. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that: 1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatrix. 2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated demands for compliance. 3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private respondent. 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 No. 44498 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 February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly. During the pre-trial, the parties admitted that: On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant-heirs, arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect: "That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than January of 1989, more specifically, to wit: 75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar Central; and, this is considered compliance of the annuity as mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years. That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the composite price of sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00). That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before the end of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1988-89; For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1989-90; For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1990-91; and For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of [5] crop year 1991-92." 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. On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows: "WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of action against the defendants has as yet arose in favor of plaintiff. While there maybe the non-performance of the command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil. In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice. SO ORDERED."
[6]

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and ordering thus: "Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies. Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza. SO ORDERED."
[7]

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code. The petition is not impressed with merit. Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the absence or prematurity of the cause of action. Petitioner maintains that Article 882 does not find application as there was no modal institution and 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. The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not definite, as the substituted heirs are merely referred to as "near descendants" without a definite identity or reference as to who are the [8] [9] "near descendants" and therefore, under Articles 843 and 845 of the New Civil Code, the substitution should be deemed as not written. The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the petitioner. The disquisition made on modal institution was, precisely, to stress that the private respondent had a legally demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law. It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the [10] 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. Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's near descendants should there be noncompliance with the obligation to deliver the piculs of sugar to private respondent. Again, the contention is without merit. Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple [12] substitution, or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to [13] 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 [14] 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, [15] 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 [16] 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 [17] 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 Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil Code provide: Art. 882. The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. 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 [18] application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. A "mode" imposes an [19] 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 [20] testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. To some extent, it is [21] similar to a resolutory condition.

[11]

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution. Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, [22] the institution should be considered as modal and not conditional. Neither is there tenability in the other contention of petitioner 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. 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 [23] [24] it was made. Such construction as will sustain and uphold the Will in all its parts must be adopted. 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. 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 [25] 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. WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CAG.R. No. CV-35555 AFFIRMED. No pronouncement as to costs SO ORDERED.

FIRST DIVISION

G.R. No. 76714 June 2, 1994 SALUD TEODORO VDA. DE PEREZ, petitioner, vs. HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC, Bulacan, respondent. Natividad T. Perez for petitioner. Benedicto T. Librojo for private respondents.

QUIASON, J.: This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order dated November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent Judge Zotico A. Tolete, in Special Proceedings No. 1793-M. We grant the petition. II

Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens, established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14. On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the remainder" of his real and personal property at the time of his death "wheresoever situated" (Rollo, p. 35). In the event he would survive his wife, he bequeathed all his property to his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will states: If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed that I predeceased her, and my estate shall be administered and distributed, in all respects, in accordance with such presumption (Rollo, p. 41). Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament containing the same provisions as that of the will of her husband. Article VIII of her will states: If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that there is not sufficient evidence to determine the order of our deaths, then it shall be presumed that he predeceased me, and my estate shall be administered and distributed in all respects, in accordance with such presumption. (Rollo, p. 31). On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the two wills, filed separate proceedings for the probate thereof with the Surrogate Court of the County of Onondaga, New York. On April 7, these two wills were admitted to probate and letters testamentary were issued in his favor. On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner herein, filed with the Regional P. Cunanan, and petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a petition for the reprobate of the two bills ancillary to the probate proceedings in New York. She also asked that she be appointed the special administratrix of the estate of the deceased couple consisting primarily of a farm land in San Miguel, Bulacan. On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de la Llana, issued an order, directing the issuance of letters of special administration in favor of petitioner upon her filing of a P10,000.00 bond. The following day, petitioner posted the bond and took her oath as special administration. As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as beneficiaries. The trial court granted the motion. Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said company then filed a manifestation, stating that said company had delivered to petitioner the amount of P49,765.85, representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan. In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver to her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family Savings Bank time deposit certificates in the total amount of P12,412.52. On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that before receiving petitioner's motion of May 19, 1983, his clients were unaware of the filing of the testate estate case and therefore, "in the interest of simple fair play," they should be notified of the proceedings (Records, p. 110). He prayed for deferment of the hearing on the motions of May 19, 1983. Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no legal or proprietary interests to protect" and "no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in accordance with the solemnities and formalities of New York laws, and produced "effects in this jurisdiction in accordance with Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two wills, it was presumed that the husband predeceased the wife; and (4) that "the Cunanan collaterals are neither distributees, legatees or beneficiaries, much less, heirs as heirship is only by institution" under a will or by operation of the law of New York (Records, pp. 112-113). On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the probate of the separate wills of the Cunanan spouses thereby misleading the Bulacan court to believe that petitioner was the sole heir of the spouses; that such "misrepresentation" deprived them of their right to "due process in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that the "misrepresentation and concealment committed by" petitioner rendered her unfit to be a special administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney, authorized his father, Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a regular administrator "as practically all of the subject estate in the Philippines belongs to their brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the case be declared null and void; (2) that the appointment of petitioner as special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the estate of the deceased spouses. Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of all monies received by her in trust for the estate.

In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals"; hence they were complete strangers to the proceedings and were not entitled to notice; (2) that she could not have "concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned not only in the two wills but also in the decrees of the American surrogate court; (3) that the rule applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved outside of the Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being given to the executor who, by the same provision, should himself file the necessary ancillary proceedings in this country; (4) that even if the Bulacan estate came from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his American lawyer (Records, pp. 151-160). In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs had entered into an agreement in the United States "to settle and divide equally the estates," and that under Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance" (Records, pp. 184-185). Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She also alleged that she had impugned the agreement of November 24, 1982 before the Surrogate Court of Onondaga, New York which rendered a decision on April 13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanans executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52). On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs, executors, devisees and legatees must be complied with. They reiterated their prayer: (1) that the proceedings in the case be nullified; (2) that petitioner be disqualified as special administratrix; (3) that she be ordered to submit an inventory of all goods, chattels and monies which she had received and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator. Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as July 7, 1982" (Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings as she had "to attend to the settlement proceedings" of the estate of the Cunanan spouses in New York (Records, p. 242). The Cunanans heirs opposed this motion and filed a manifestation, stating that petitioner had received $215,000.00 "from the Surrogates Court as part of legacy" based on the aforesaid agreement of November 24, 1982 (Records, p. 248). On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills, recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner of an inventory of the property received by her as special administratrix and declaring all pending incidents moot and academic. Judge de la Llana reasoned out that petitioner failed to prove the law of New York on procedure and allowance of wills and the court had no way of telling whether the wills were executed in accordance with the law of New York. In the absence of such evidence, the presumption is that the law of succession of the foreign country is the same as the law of the Philippines. However, he noted, that there were only two witnesses to the wills of the Cunanan spouses and the Philippine law requires three witnesses and that the wills were not signed on each and every page, a requirement of the Philippine law. On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21, 1984, where she had sufficiently proven the applicable laws of New York governing the execution of last wills and testaments. On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the suspension of the proceedings but gave her 15 days upon arrival in the country within which to act on the other order issued that same day. Contending that the second portion of the second order left its finality to the discretion of counsel for petitioner, the Cunanans filed a motion for the reconsideration of the objectionable portion of the said order so that it would conform with the pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court. On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the reprobate case was reassigned, issued an order stating that "(W)hen the last will and testament . . . was denied probate," the case was terminated and therefore all orders theretofore issued should be given finality. The same Order amended the February 21, 1984 Order by requiring petitioner to turn over to the estate the inventoried property. It considered the proceedings for all intents and purposes, closed (Records, p. 302). On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and termination of the probate cases in New York. Three days later, petitioner filed a motion praying for the reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order granting her a period of 15 days upon arrival in the country within which to act on the denial of probate of the wills of the Cunanan spouses. On August 19, respondent Judge granted the motion and reconsidered the Order of April 30, 1985. On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to act as special administratrix, she (the counsel) should be named substitute special administratrix. She also filed a motion for the reconsideration of the Order of February 21, 1984, denying probate to the wills of the Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant probative value of the exhibits . . . which all refer to the offer and admission to probate of the last wills of the Cunanan spouses including all procedures undertaken and decrees issued in connection with the said probate" (Records, pp. 313-323). Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985, alleging lack of notice to their counsel. On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for reconsideration holding that the documents submitted by petitioner proved "that the wills of the testator domiciled abroad were properly executed, genuine and sufficient

to possess real and personal property; that letters testamentary were issued; and that proceedings were held on a foreign tribunal and proofs taken by a competent judge who inquired into all the facts and circumstances and being satisfied with his findings issued a decree admitting to probate the wills in question." However, respondent Judge said that the documents did not establish the law of New York on the procedure and allowance of wills (Records, p. 381). On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law. After the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he conceded that insufficiency of evidence to prove the foreign law was not a fatal defect and was curable by adducing additional evidence. He granted petitioner 45 days to submit the evidence to that effect. However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his order dated June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31, 1986" but allowed petitioner to "file anew the appropriate probate proceedings for each of the testator" (Records, p. 391). The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration stating that she was "ready to submit further evidence on the law obtaining in the State of New York" and praying that she be granted "the opportunity to present evidence on what the law of the State of New York has on the probate and allowance of wills" (Records, p. 393). On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a single proceeding "would be a departure from the typical and established mode of probate where one petition takes care of one will." He pointed out that even in New York "where the wills in question were first submitted for probate, they were dealt with in separate proceedings" (Records, p. 395). On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of Court, which provides that no party may institute more than one suit for a single cause of action. She pointed out that separate proceedings for the wills of the spouses which contain basically the same provisions as they even named each other as a beneficiary in their respective wills, would go against "the grain of inexpensive, just and speedy determination of the proceedings" (Records, pp. 405407). On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing Benigno v. De La Pea, 57 Phil. 305 (1932) (Records, p. 411), but respondent Judge found that this pleading had been filed out of time and that the adverse party had not been furnished with a copy thereof. In her compliance, petitioner stated that she had furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated her motion for a "final ruling on her supplemental motion" (Records, p. 421). On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by petitioner on the grounds that "the probate of separate wills of two or more different persons even if they are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378). Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April 11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills, and that the separate wills of the Cunanan spouses need not be probated in separate proceedings. II Petitioner contends that the following pieces of evidence she had submitted before respondent Judge are sufficient to warrant the allowance of the wills: (a) two certificates of authentication of the respective wills of Evelyn and Jose by the Consulate General of the Philippines (Exhs. "F" and "G"); (b) two certifications from the Secretary of State of New York and Custodian of the Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the Country of Onondaga which is a court of record, that his signature and seal of office are genuine, and that the Surrogate is duly authorized to grant copy of the respective wills of Evelyn and Jose (Exhs. "F-1" and "G-1"); (c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they have in their records and files the said wills which were recorded on April 7, 1982 (Exhs. "F-2" and "G-2"); (d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" "G-6"); (e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7"); (f) two certificates of authentication from the Consulate General of the Philippines in New York (Exh. "H" and "F"). (g) certifications from the Secretary of State that Judge Reagan is duly authorized to grant exemplified copies of the decree of probate, letters testamentary and all proceedings had and proofs duly taken (Exhs. "H-1" and "I-1"); (h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2"); (i) certification to the effect that it was during the term of Judge Reagan that a decree admitting the wills to probate had been issued and appointing Rafael G. Cunanan as alternate executor (Exhs. "H-3" and "I-10");

(j) the decrees on probate of the two wills specifying that proceedings were held and proofs duly taken (Exhs. "H-4" and "I-5"); (k) decrees on probate of the two wills stating that they were properly executed, genuine and valid and that the said instruments were admitted to probate and established as wills valid to pass real and personal property (Exhs. "H-5" and "I-5"); and (l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity of each others signatures in the exemplified copies of the decrees of probate, letters testamentary and proceedings held in their court (Exhs. "H-6" and "I-6") (Rollo, pp. 13-16). Petitioner adds that the wills had been admitted to probate in the Surrogate Courts Decision of April 13, 1983 and that the proceedings were terminated on November 29, 1984. The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provision of the Civil Code of the Philippines: Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative. The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills (III Moran Commentaries on the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610 [1930]). Except for the first and last requirements, the petitioner submitted all the needed evidence. The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them (Philippine Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]). Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent procedural and substantive New York laws but which request respondent Judge just glossed over. While the probate of a will is a special proceeding wherein courts should relax the rules on evidence, the goal is to receive the best evidence of which the matter is susceptible before a purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]). There is merit in petitioners insistence that the separate wills of the Cunanan spouses should be probated jointly. Respondent Judges view that the Rules on allowance of wills is couched in singular terms and therefore should be interpreted to mean that there should be separate probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the rules shall be "liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and proceeding." A literal application of the Rules should be avoided if they would only result in the delay in the administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]). What the law expressly prohibits is the making of joint wills either for the testators reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially the same provisions and pertain to property which in all probability are conjugal in nature, practical considerations dictate their joint probate. As this Court has held a number of times, it will always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]). This petition cannot be completely resolved without touching on a very glaring fact petitioner has always considered herself the sole heir of Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]). The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is not the petitioner, are required. The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator, . . . " WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable time within which to submit evidence needed for the joint probate of the wills of the Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings pertinent to the probate proceedings. SO ORDERED.

THIRD DIVISION

JUAN DE DIOS CARLOS, Petitioner,

G.R. No. 179922

Present:

- versus -

YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ,

FELICIDAD SANDOVAL, also known as FELICIDAD S. VDA. DE CARLOS or FELICIDAD SANDOVAL CARLOS or FELICIDAD SANDOVAL VDA. DE CARLOS, and TEOFILO CARLOS II, Respondents.

CHICO-NAZARIO, NACHURA, and REYES, JJ.

Promulgated:

December 16, 2008

x--------------------------------------------------x

DECISION

REYES, R.T., J.:

ONLY a spouse can initiate an action to sever the marital bond for marriages solemnized during the effectivity of the Family Code, except cases commenced prior to March 15, 2003. The nullity and annulment of a marriage cannot be declared in a judgment on the pleadings, summary judgment, or confession of judgment.
[1]

We pronounce these principles as We review on certiorari the Decision of the Court of Appeals (CA) which reversed and [2] set aside the summary judgment of the Regional Trial Court (RTC) in an action for declaration of nullity of marriage, status of a child, recovery of property, reconveyance, sum of money, and damages.

The Facts

The events that led to the institution of the instant suit are unveiled as follows:

Spouses Felix B. Carlos and Felipa Elemia died intestate. They left six parcels of land to their compulsory heirs, Teofilo Carlos and petitioner Juan De Dios Carlos. The lots are particularly described as follows:

Parcel No. 1

Lot No. 162 of the MUNTINLUPA ESTATE SUBDIVISION, Case No. 6137 of the Court of Land Registration.

Exemption from the provisions of Article 567 of the Civil Code is specifically reserved.

Area: 1 hectare, 06 ares, 07 centares.

Parcel No. 2

A parcel of land (Lot No. 159-B), being a portion of Lot 159, situated in the Bo. of Alabang, Municipality of Muntinlupa, Province of Rizal, x x x containing an area of Thirteen Thousand Four Hundred Forty One (13,441) square meters.

Parcel No. 3

A parcel of land (Lot 159-B-2 of the subd. plan [LRC] Psd-325903, approved as a non-subd. project), being a portion of Lot 159-B [LRC] Psd- Alabang, Mun. of Muntinlupa, Metro Manila, Island of Luzon. Bounded on the NE, points 2 to 4 by Lot 155, Muntinlupa Estate; on the SE, point 4 to 5 by Lot 159-B-5; on the S, points 5 to 1 by Lot 159-B-3; on the W, points 1 to 2 by Lot 159-B-1 (Road widening) all of the subd. plan, containing an area of ONE HUNDRED THIRTY (130) SQ. METERS, more or less.

PARCEL No. 4

A parcel of land (Lot 28-C of the subd. plan Psd-13-007090, being a portion of Lot 28, Muntinlupa Estate, L.R.C. Rec. No. 6137), situated in the Bo. of Alabang, Mun. of Muntinlupa, Metro Manila. Bounded on the NE, along lines 1-2 by Lot 27, Muntinlupa Estate; on the East & SE, along lines 2 to 6 by Mangangata River; and on the West., along line 61, by Lot 28-B of the subd. plan x x x containing an area of ONETHUSAND AND SEVENTY-SIX (1,076) SQUARE METERS.

PARCEL No. 5

PARCELA DE TERRENO No. 50, Manzana No. 18, de la subd. de Solocan. Linda por el NW, con la parcela 49; por el NE, con la parcela 36; por el SE, con la parcela 51; y por el SW, con la calle Dos Castillas. Partiendo de un punto marcado 1 en el plano, el cual se halla a S. gds. 01'W, 72.50 mts. Desde el punto 1 de esta manzana, que es un mojon de concreto de la Ciudad de Manila, situado on el esquina E. que forman las Calles Laong Laan y Dos. Castillas, continiendo un extension superficial de CIENTO CINCUENTA (150) METROS CUADRADOS.

PARCEL No. 6

PARCELA DE TERRENO No. 51, Manzana No. 18, de la subd. De Solocon. Linda por el NW, con la parcela 50; por el NE, con la parcela 37; por el SE, con la parcela 52; por el SW, con la Calle Dos Castillas. Partiendo de un punto Marcado 1 en el plano, el cual se halla at S. 43 gds. 01'E, 82.50 mts. Desde el punto 1 de esta manzana, que es un mojon de concreto de la Ciudad de Manila, situado on el esquina E. que forman las Calles Laong Laan y Dos. [3] Castillas, continiendo una extension superficial de CIENTO CINCUENTA (150) METROS CUADRADOS.

During the lifetime of Felix Carlos, he agreed to transfer his estate to Teofilo. The agreement was made in order to avoid the payment of inheritance taxes. Teofilo, in turn, undertook to deliver and turn over the share of the other legal heir, petitioner Juan De Dios Carlos.

Eventually, the first three (3) parcels of land were transferred and registered in the name of Teofilo. These three (3) lots are now covered by Transfer Certificate of Title (TCT) No. 234824 issued by the Registry of Deeds of Makati City; TCT No. 139061 issued by the Registry of Deeds of Makati City; and TCT No. 139058 issued by the Registry of Deeds of Makati City.

Parcel No. 4 was registered in the name of petitioner. The lot is now covered by TCT No. 160401 issued by the Registry of Deeds of Makati City.

On May 13, 1992, Teofilo died intestate. He was survived by respondents Felicidad and their son, Teofilo Carlos II (Teofilo II). Upon Teofilos death, Parcel Nos. 5 & 6 were registered in the name of respondent Felicidad and co-respondent, Teofilo II. The said two (2) parcels of land are covered by TCT Nos. 219877 and 210878, respectively, issued by the Registry of Deeds of Manila.

In 1994, petitioner instituted a suit against respondents before the RTC in Muntinlupa City, docketed as Civil Case No. 941964. In the said case, the parties submitted and caused the approval of a partial compromise agreement. Under the compromise, the parties acknowledged their respective shares in the proceeds from the sale of a portion of the first parcel of land. This includes the remaining 6,691-square-meter portion of said land.

On September 17, 1994, the parties executed a deed of extrajudicial partition, dividing the remaining land of the first parcel between them.
[4]

Meanwhile, in a separate case entitled Rillo v. Carlos, 2,331 square meters of the second parcel of land were adjudicated in favor of plaintiffs Rillo. The remaining 10,000-square meter portion was later divided between petitioner and respondents.

The division was incorporated in a supplemental compromise agreement executed on August 17, 1994, with respect to Civil Case No. 94-1964. The parties submitted the supplemental compromise agreement, which was approved accordingly. Petitioner and respondents entered into two more contracts in August 1994. Under the contracts, the parties equally divided between them the third and fourth parcels of land.

In August 1995, petitioner commenced an action, docketed as Civil Case No. 95-135, against respondents before the court a quo with the following causes of action: (a) declaration of nullity of marriage; (b) status of a child; (c) recovery of property; (d) reconveyance; and (e) sum of money and damages. The complaint was raffled to Branch 256 of the RTC in Muntinlupa.

In his complaint, petitioner asserted that the marriage between his late brother Teofilo and respondent Felicidad was a nullity in view of the absence of the required marriage license. He likewise maintained that his deceased brother was neither the natural nor the adoptive father of respondent Teofilo Carlos II.

Petitioner likewise sought the avoidance of the contracts he entered into with respondent Felicidad with respect to the subject real properties. He also prayed for the cancellation of the certificates of title issued in the name of respondents. He argued that the properties covered by such certificates of title, including the sums received by respondents as proceeds, should be reconveyed to him.

Finally, petitioner claimed indemnification as and by way of moral and exemplary damages, attorneys fees, litigation expenses, and costs of suit.

On October 16, 1995, respondents submitted their answer. They denied the material averments of petitioners complaint. Respondents contended that the dearth of details regarding the requisite marriage license did not invalidate Felicidads marriage to Teofilo. Respondents declared that Teofilo II was the illegitimate child of the deceased Teofilo Carlos with another woman.

On the grounds of lack of cause of action and lack of jurisdiction over the subject matter, respondents prayed for the dismissal of the case before the trial court. They also asked that their counterclaims for moral and exemplary damages, as well as attorneys fees, be granted.

But before the parties could even proceed to pre-trial, respondents moved for summary judgment. Attached to the motion was the affidavit of the justice of the peace who solemnized the marriage. Respondents also submitted the Certificate of Live Birth of respondent Teofilo II. In the certificate, the late Teofilo Carlos and respondent Felicidad were designated as parents.

On January 5, 1996, petitioner opposed the motion for summary judgment on the ground of irregularity of the contract evidencing the marriage. In the same breath, petitioner lodged his own motion for summary judgment. Petitioner presented a certification from the Local Civil Registrar of Calumpit, Bulacan, certifying that there is no record of birth of respondent Teofilo II.

Petitioner also incorporated in the counter-motion for summary judgment the testimony of respondent Felicidad in another case. Said testimony was made in Civil Case No. 89-2384, entitled Carlos v. Gorospe, before the RTC Branch 255, Las Pias. In her [5] testimony, respondent Felicidad narrated that co-respondent Teofilo II is her child with Teofilo.

Subsequently, the Office of the City Prosecutor of Muntinlupa submitted to the trial court its report and manifestation, discounting the possibility of collusion between the parties. RTC and CA Dispositions

On April 8, 1996, the RTC rendered judgment, disposing as follows:

WHEREFORE, premises considered, defendants (respondents) Motion for Summary Judgment is hereby denied. Plaintiffs (petitioners) Counter-Motion for Summary Judgment is hereby granted and summary judgment is hereby rendered in favor of plaintiff as follows:

1. Declaring the marriage between defendant Felicidad Sandoval and Teofilo Carlos solemnized at Silang, Cavite on May 14, 1962, evidenced by the Marriage Certificate submitted in this case, null and void ab initio for lack of the requisite marriage license;

2. Declaring that the defendant minor, Teofilo S. Carlos II, is not the natural, illegitimate, or legally adopted child of the late Teofilo E. Carlos;

3. Ordering defendant Sandoval to pay and restitute to plaintiff the sum of P18,924,800.00 together with the interest thereon at the legal rate from date of filing of the instant complaint until fully paid;

4. Declaring plaintiff as the sole and exclusive owner of the parcel of land, less the portion adjudicated to plaintiffs in Civil Case No. 11975, covered by TCT No. 139061 of the Register of Deeds of Makati City, and ordering said Register of Deeds to cancel said title and to issue another title in the sole name of plaintiff herein;

5. Declaring the Contract, Annex K of complaint, between plaintiff and defendant Sandoval null and void, and ordering the Register of Deeds of Makati City to cancel TCT No. 139058 in the name of Teofilo Carlos, and to issue another title in the sole name of plaintiff herein;

6. void;

Declaring the Contract, Annex M of the complaint, between plaintiff and defendant Sandoval null and

7. Ordering the cancellation of TCT No. 210877 in the names of defendant Sandoval and defendant minor Teofilo S. Carlos II and ordering the Register of Deeds of Manila to issue another title in the exclusive name of plaintiff herein;

8. Ordering the cancellation of TCT No. 210878 in the name of defendant Sandoval and defendant Minor Teofilo S. Carlos II and ordering the Register of Deeds of Manila to issue another title in the sole name of plaintiff herein.

Let this case be set for hearing for the reception of plaintiffs evidence on his claim for moral damages, exemplary damages, attorneys fees, appearance fees, and litigation expenses on June 7, 1996 at 1:30 o'clock in the afternoon.
[6]

SO ORDERED.

Dissatisfied, respondents appealed to the CA. In the appeal, respondents argued, inter alia, that the trial court acted without or in excess of jurisdiction in rendering summary judgment annulling the marriage of Teofilo, Sr. and Felicidad and in declaring Teofilo II as not an illegitimate child of Teofilo, Sr.

On October 15, 2002, the CA reversed and set aside the RTC ruling, disposing as follows:

WHEREFORE, the summary judgment appealed from is REVERSED and SET ASIDE and in lieu thereof, a new one is entered REMANDING the case to the court of origin for further proceedings.
[7]

SO ORDERED.

The CA opined:

We find the rendition of the herein appealed summary judgment by the court a quo contrary to law and public policy as ensconced in the aforesaid safeguards. The fact that it was appellants who first sought summary judgment from the trial court, did not justify the grant thereof in favor of appellee. Not being an action to recover upon a claim or to obtain a declaratory relief, the rule on summary judgment apply (sic) to an action to annul a marriage. The mere fact that no genuine issue was presented and the desire to expedite the disposition of the case cannot justify a misinterpretation of the rule. The first paragraph of Article 88 and 101 of the Civil Code expressly prohibit the rendition of decree of annulment of a marriage upon a stipulation of facts or a confession of judgment. Yet, the affidavits annexed to the petition for summary judgment practically amount to these methods explicitly proscribed by the law.

We are not unmindful of appellees argument that the foregoing safeguards have traditionally been applied to prevent collusion of spouses in the matter of dissolution of marriages and that the death of Teofilo Carlos on May 13, 1992 had effectively dissolved the marriage herein impugned. The fact, however, that appellees own brother and appellant Felicidad Sandoval lived together as husband and wife for thirty years and that the annulment of their marriage is the very means by which the latter is sought to be deprived of her participation in the estate left by the former call for a closer and more thorough inquiry into the circumstances surrounding the case. Rather that the summary nature by which the court a quo resolved the issues in the case, the rule is to the effect that the material facts alleged in the complaint for annulment of marriage should always be proved. Section 1, Rule 19 of the Revised Rules of Court provides:

Section 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. But in actions for annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. (Underscoring supplied)

Moreover, even if We were to sustain the applicability of the rules on summary judgment to the case at bench, Our perusal of the record shows that the finding of the court a quo for appellee would still not be warranted. While it may be readily conceded that a valid marriage license is among the formal requisites of marriage, the absence of which renders the marriage void ab initio pursuant to Article 80(3) in relation to Article 58 of the Civil Code the failure to reflect the serial number of the marriage license on the marriage contract evidencing the marriage between Teofilo Carlos and appellant Felicidad Sandoval, although irregular, is not as fatal as appellee represents it to be. Aside from the dearth of evidence to the contrary, appellant Felicidad Sandovals affirmation of the existence of said marriage license is corroborated by the following statement in the affidavit executed by Godofredo Fojas, then Justice of the Peace who officiated the impugned marriage, to wit:

That as far as I could remember, there was a marriage license issued at Silang, Cavite on May 14, 1962 as basis of the said marriage contract executed by Teofilo Carlos and Felicidad Sandoval, but the number of said marriage license was inadvertently not placed in the marriage contract for the reason that it was the Office Clerk who filled up the blanks in the Marriage Contract who in turn, may have overlooked the same.

Rather than the inferences merely drawn by the trial court, We are of the considered view that the veracity and credibility of the foregoing statement as well as the motivations underlying the same should be properly threshed out in a trial of the case on the merits.

If the non-presentation of the marriage contract the primary evidence of marriage is not proof that a marriage did not take place, neither should appellants non-presentation of the subject marriage license be taken as proof that the same was not procured. The burden of proof to show the nullity of the marriage, it must be emphasized, rests upon the plaintiff and any doubt should be resolved in favor of the validity of the marriage.

Considering that the burden of proof also rests on the party who disputes the legitimacy of a particular party, the same may be said of the trial courts rejection of the relationship between appellant Teofilo Carlos II and his putative father on the basis of the inconsistencies in appellant Felicidad Sandovals statements. Although it had effectively disavowed appellants prior claims regarding the legitimacy of appellant Teofilo Carlos II, the averment in the answer that he is the illegitimate son of appellees brother, to Our mind, did not altogether foreclose the possibility of the said appellants illegitimate filiation, his right to prove the same or, for that matter, his entitlement to inheritance rights as such.

Without trial on the merits having been conducted in the case, We find appellees bare allegation that appellant Teofilo Carlos II was merely purchased from an indigent couple by appellant Felicidad Sandoval, on the whole, insufficient to support what could well be a minors total forfeiture of the rights arising from his putative filiation. Inconsistent though it may be to her previous statements, appellant Felicidad Sandovals declaration regarding the illegitimate filiation of Teofilo Carlos II is more credible when considered in the light of the fact that, during the last eight years of his life, Teofilo Carlos allowed said appellant the use of his name and the shelter of his household. The least that the trial court could have done in the premises was to conduct a trial on the merits in order to be able to thoroughly resolve the issues pertaining to the filiation of appellant Teofilo Carlos [8] II.

On November 22, 2006, petitioner moved for reconsideration and for the inhibition of the ponente, Justice Rebecca De GuiaSalvador. The CA denied the twin motions.

Issues

In this petition under Rule 45, petitioner hoists the following issues:

1. That, in reversing and setting aside the Summary Judgment under the Decision, Annex A hereof, and in denying petitioners Motion for reconsideration under the Resolution, Annex F hereof, with respect to the nullity of the impugned marriage, petitioner respectfully submits that the Court of Appeals committed a grave reversible error in applying Articles 88 and 101 of the Civil Code, despite the fact that the circumstances of this case are different from that contemplated and intended by law, or has otherwise decided a question of substance not theretofore decided by the Supreme Court, or has decided it in a manner probably not in accord with law or with the applicable decisions of this Honorable Court;

2. That in setting aside and reversing the Summary Judgment and, in lieu thereof, entering another remanding the case to the court of origin for further proceedings, petitioner most respectfully submits that the Court of Appeals committed a serious reversible error in applying Section 1, Rule 19 (now Section 1, Rule 34) of the Rules of Court providing for judgment on the pleadings, instead of Rule 35 governing Summary Judgments;

3. That in reversing and setting aside the Summary Judgment and, in lieu thereof, entering another remanding the case to the court of origin for further proceedings, petitioner most respectfully submits that the Court of Appeals committed grave abuse of discretion, disregarded judicial admissions, made findings on ground of

speculations, surmises, and conjectures, or otherwise committed misapplications of the laws and misapprehension of [9] the facts. (Underscoring supplied)

Essentially, the Court is tasked to resolve whether a marriage may be declared void ab initio through a judgment on the pleadings or a summary judgment and without the benefit of a trial. But there are other procedural issues, including the capacity of one who is not a spouse in bringing the action for nullity of marriage.

Our Ruling

I. The grounds for declaration of absolute nullity of marriage must be proved. Neither judgment on the pleadings nor summary judgment is allowed. So is confession of judgment disallowed.
[10]

Petitioner faults the CA in applying Section 1, Rule 19

of the Revised Rules of Court, which provides:

SECTION 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse partys pleading, the court may, on motion of that party, direct judgment on such pleading. But in actions for annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved.

He argues that the CA should have applied Rule 35 of the Rules of Court governing summary judgment, instead of the rule on judgment on the pleadings.

Petitioner is misguided. The CA did not limit its finding solely within the provisions of the Rule on judgment on the pleadings. In disagreeing with the trial court, the CA likewise considered the provisions on summary judgments, to wit:

Moreover, even if We are to sustain the applicability of the rules on summary judgment to the case at bench, [11] Our perusal of the record shows that the finding of the court a quo for appellee would still not be warranted. x x x

But whether it is based on judgment on the pleadings or summary judgment, the CA was correct in reversing the summary judgment rendered by the trial court. Both the rules on judgment on the pleadings and summary judgments have no place in cases of declaration of absolute nullity of marriage and even in annulment of marriage.

With the advent of A.M. No. 02-11-10-SC, known as Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, the question on the application of summary judgments or even judgment on the pleadings in cases of nullity or annulment of marriage has been stamped with clarity. The significant principle laid down by the said Rule, which took effect on March [12] 15, 2003 is found in Section 17, viz.:

SEC. 17. Trial. (1) The presiding judge shall personally conduct the trial of the case. No delegation of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses.

(2) The grounds for declaration of absolute nullity or annulment of marriage must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (Underscoring supplied)
[13]

Likewise instructive is the Courts pronouncement in Republic v. Sandiganbayan. or annulment of marriage from the application of summary judgments.

In that case, We excluded actions for nullity

Prescinding from the foregoing discussion, save for annulment of marriage or declaration of its nullity or for [14] legal separation, summary judgment is applicable to all kinds of actions. (Underscoring supplied)

By issuing said summary judgment, the trial court has divested the State of its lawful right and duty to intervene in the case. The participation of the State is not terminated by the declaration of the public prosecutor that no collusion exists between the [15] parties. The State should have been given the opportunity to present controverting evidence before the judgment was rendered.

Both the Civil Code and the Family Code ordain that the court should order the prosecuting attorney to appear and intervene for the State. It is at this stage when the public prosecutor sees to it that there is no suppression of evidence. Concomitantly, even if there is no suppression of evidence, the public prosecutor has to make sure that the evidence to be presented or laid down before the court is not fabricated.

To further bolster its role towards the preservation of marriage, the Rule on Declaration of Absolute Nullity of Void Marriages reiterates the duty of the public prosecutor, viz.:

SEC. 13. Effect of failure to appear at the pre-trial. (a) x x x

(b) x x x If there is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence. (Underscoring supplied)

Truly, only the active participation of the public prosecutor or the Solicitor General will ensure that the interest of the State is represented and protected in proceedings for declaration of nullity of marriages by preventing the fabrication or suppression of [16] evidence.

II. A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or wife. Exceptions: (1) Nullity of marriage cases commenced before the effectivity of A.M. No. 02-11-10-SC; and (2) Marriages celebrated during the effectivity of the Civil Code.

Under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, the petition for declaration of absolute nullity of marriage may not be filed by any party outside of the marriage. The Rule made it exclusively a right of the spouses by stating:

SEC. 2. Petition for declaration of absolute nullity of void marriages.

(a) Who may file. A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (Underscoring supplied)

Section 2(a) of the Rule makes it the sole right of the husband or the wife to file a petition for declaration of absolute nullity of void marriage. The rationale of the Rule is enlightening,viz.:

Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and, hence,can only question the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. On the other hand, the concern of the State is to preserve marriage [17] and not to seek its dissolution. (Underscoring supplied)

The new Rule recognizes that the husband and the wife are the sole architects of a healthy, loving, peaceful marriage. They are the only ones who can decide when and how to build the foundations of marriage. The spouses alone are the engineers of their marital life. They are simultaneously the directors and actors of their matrimonial true-to-life play. Hence, they alone can and should decide when to take a cut, but only in accordance with the grounds allowed by law.

The innovation incorporated in A.M. No. 02-11-10-SC sets forth a demarcation line between marriages covered by the Family Code and those solemnized under the Civil Code. The Rule extends only to marriages entered into during the effectivity of the Family [18] Code which took effect on August 3, 1988.

The advent of the Rule on Declaration of Absolute Nullity of Void Marriages marks the beginning of the end of the right of the heirs of the deceased spouse to bring a nullity of marriage case against the surviving spouse. But the Rule never intended to deprive the compulsory or intestate heirs of their successional rights.

While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute nullity of marriage may be filed solely by the husband or the wife, it does not mean that the compulsory or intestate heirs are without any recourse under the law. They can still protect their successional right, for, as stated in the Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, compulsory or intestate heirs can still question the validity of the marriage of the spouses, not in a proceeding for declaration of nullity but upon the death of a spouse in a proceeding for the settlement of the [19] estate of the deceased spouse filed in the regular courts.

It is emphasized, however, that the Rule does not apply to cases already commenced before March 15, 2003 although the marriage involved is within the coverage of the Family Code. This is so, as the new Rule which became effective on March 15, [20] [21] 2003 is prospective in its application. Thus, the Court held in Enrico v. Heirs of Sps. Medinaceli, viz.:

As has been emphasized, A.M. No. 02-11-10-SC covers marriages under the Family Code of [22] the Philippines, and is prospective in its application. (Underscoring supplied)

Petitioner commenced the nullity of marriage case against respondent Felicidad in 1995. The marriage in controversy was [23] celebrated on May 14, 1962. Which law would govern depends upon when the marriage took place.

The marriage having been solemnized prior to the effectivity of the Family Code, the applicable law is the Civil Code [24] which was the law in effect at the time of its celebration. But the Civil Code is silent as to who may bring an action to declare the marriage void. Does this mean that any person can bring an action for the declaration of nullity of marriage?

We respond in the negative. The absence of a provision in the Civil Code cannot be construed as a license for any person to institute a nullity of marriage case. Such person must appear to be the party who stands to be benefited or injured by the judgment in [25] the suit, or the party entitled to the avails of the suit. Elsewise stated, plaintiff must be the real party-in-interest. For it is basic in [26] procedural law that every action must be prosecuted and defended in the name of the real party-in-interest.

Interest within the meaning of the rule means material interest or an interest in issue to be affected by the decree or judgment of the case, as distinguished from mere curiosity about the question involved or a mere incidental interest. One having no material interest to protect cannot invoke the jurisdiction of the court as plaintiff in an action. When plaintiff is not the real party-in-interest, the [27] case is dismissible on the ground of lack of cause of action.
[28]

Illuminating on this point is Amor-Catalan v. Court of Appeals,

where the Court held:

True, under the New Civil Code which is the law in force at the time the respondents were married, or even in the Family Code, there is no specific provision as to who can file a petition to declare the nullity of marriage; however, only a party who can demonstrate proper interest can file the same. A petition to declare the nullity of marriage, like any other actions, must be prosecuted or defended in the name of the real party-in-interest and must be based on a cause of action. Thus, in Nial v. Badayog, the Court held that the children have the personality to file the petition to declare the nullity of marriage of their deceased father to their stepmother as it affects their successional rights.

xxxx

In fine, petitioners personality to file the petition to declare the nullity of marriage cannot be ascertained because of the absence of the divorce decree and the foreign law allowing it. Hence, a remand of the case to the trial court for reception of additional evidence is necessary to determine whether respondent Orlando was granted a divorce decree and whether the foreign law which granted the same allows or restricts remarriage. If it is proved that a valid divorce decree was obtained and the same did not allow respondent Orlandos remarriage, then the trial court should declare respondents marriage as bigamous and void ab initiobut reduced the amount of moral damages from P300,000.00 to P50,000.00 and exemplary damages from P200,000.00 to P25,000.00. On the contrary, if it is proved that a valid divorce decree was obtained which allowed Orlando to remarry, then the trial court must

dismiss the instant petition to declare nullity of marriage on the ground that petitioner Felicitas Amor-Catalan lacks [29] legal personality to file the same. (Underscoring supplied)

III. The case must be remanded to determine whether or not petitioner is a real-party-in-interest to seek the declaration of nullity of the marriage in controversy.

In the case at bench, the records reveal that when Teofilo died intestate in 1992, his only surviving compulsory heirs are respondent Felicidad and their son, Teofilo II. Under the law on succession, successional rights are transmitted from the moment of [30] death of the decedent and the compulsory heirs are called to succeed by operation of law.

Upon Teofilos death in 1992, all his property, rights and obligations to the extent of the value of the inheritance are transmitted to his compulsory heirs. These heirs were respondents Felicidad and Teofilo II, as the surviving spouse and child, respectively.

Article 887 of the Civil Code outlined who are compulsory heirs, to wit:

(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;

[31]

(5) Other illegitimate children referred to in Article 287 of the Civil Code.

Clearly, a brother is not among those considered as compulsory heirs. But although a collateral relative, such as a brother, does not fall within the ambit of a compulsory heir, he still has a right to succeed to the estate. Articles 1001 and 1003 of the New Civil Code provide:

ART. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half.

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. (Underscoring supplied)

Indeed, only the presence of descendants, ascendants or illegitimate children excludes collateral relatives from succeeding to the estate of the decedent. The presence of legitimate, illegitimate, or adopted child or children of the deceased precludes succession [32] by collateral relatives. Conversely, if there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral [33] relatives shall succeed to the entire estate of the decedent.

If respondent Teofilo II is declared and finally proven not to be the legitimate, illegitimate, or adopted son of Teofilo, petitioner would then have a personality to seek the nullity of marriage of his deceased brother with respondent Felicidad. This is so, considering that collateral relatives, like a brother and sister, acquire successional right over the estate if the decedent dies without issue and without ascendants in the direct line.

The records reveal that Teofilo was predeceased by his parents. He had no other siblings but petitioner. Thus, if Teofilo II is finally found and proven to be not a legitimate, illegitimate, or adopted son of Teofilo, petitioner succeeds to the other half of the estate of his brother, the first half being allotted to the widow pursuant to Article 1001 of the New Civil Code. This makes petitioner a real-party-interest to seek the declaration of absolute nullity of marriage of his deceased brother with respondent Felicidad. If the subject marriage is found to be void ab initio, petitioner succeeds to the entire estate.

It bears stressing, however, that the legal personality of petitioner to bring the nullity of marriage case is contingent upon the final declaration that Teofilo II is not a legitimate, adopted, or illegitimate son of Teofilo.

If Teofilo II is proven to be a legitimate, illegitimate, or legally adopted son of Teofilo, then petitioner has no legal personality to ask for the nullity of marriage of his deceased brother and respondent Felicidad. This is based on the ground that he has no successional right to be protected, hence, does not have proper interest. For although the marriage in controversy may be found to be [34] void from the beginning, still, petitioner would not inherit. This is because the presence of descendant, illegitimate, or even an [35] adopted child excludes the collateral relatives from inheriting from the decedent.

Thus, the Court finds that a remand of the case for trial on the merits to determine the validity or nullity of the subject marriage is called for. But the RTC is strictly instructed to dismiss the nullity of marriage case for lack of cause of action if it is proven by evidence that Teofilo II is a legitimate, illegitimate, or legally adopted son of Teofilo Carlos, the deceased brother of petitioner.

IV. Remand of the case regarding the question of filiation of respondent Teofilo II is proper and in order. There is a need to vacate the disposition of the trial court as to the other causes of action before it.

Petitioner did not assign as error or interpose as issue the ruling of the CA on the remand of the case concerning the filiation of respondent Teofilo II. This notwithstanding, We should not leave the matter hanging in limbo.

This Court has the authority to review matters not specifically raised or assigned as error by the parties, if their consideration is [36] necessary in arriving at a just resolution of the case.

We agree with the CA that without trial on the merits having been conducted in the case, petitioners bare allegation that respondent Teofilo II was adopted from an indigent couple is insufficient to support a total forfeiture of rights arising from his putative filiation. However, We are not inclined to support its pronouncement that the declaration of respondent Felicidad as to the illegitimate filiation of respondent Teofilo II is more credible. For the guidance of the appellate court, such declaration of respondent Felicidad should not be afforded credence. We remind the CA of the guaranty provided by Article 167 of the Family Code to protect the status of legitimacy of a child, to wit:

ARTICLE 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (Underscoring supplied)

It is stressed that Felicidads declaration against the legitimate status of Teofilo II is the very act that is proscribed by Article 167 of the Family Code. The language of the law is unmistakable. An assertion by the mother against the legitimacy of her child [37] cannot affect the legitimacy of a child born or conceived within a valid marriage.

Finally, the disposition of the trial court in favor of petitioner for causes of action concerning reconveyance, recovery of property, and sum of money must be vacated. This has to be so, as said disposition was made on the basis of its finding that the marriage in controversy was null and void ab initio.

WHEREFORE, the appealed Decision is MODIFIED as follows:

1.

The case is REMANDED to the Regional Trial Court in regard to the action on the status and filiation of respondent Teofilo Carlos II and the validity or nullity of marriage between respondent Felicidad Sandoval and the late Teofilo Carlos;

2.

If Teofilo Carlos II is proven to be the legitimate, or illegitimate, or legally adopted son of the late Teofilo Carlos, the RTC is strictly INSTRUCTED to DISMISS the action for nullity of marriage for lack of cause of action;

3.

The disposition of the RTC in Nos. 1 to 8 of the fallo of its decision is VACATED AND SET ASIDE.

The Regional Trial Court is ORDERED to conduct trial on the merits with dispatch and to give this case priority in its calendar.

No costs.

SO ORDERED.

FIRST DIVISION [G.R. No. 138774. March 8, 2001] REGINA FRANCISCO AND ZENAIDA PASCUAL, petitioners, vs. AIDA FRANCISCO-ALFONSO, respondent. DECISION PARDO, J.: 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? The case before the Court is an appeal via certiorari from the decision of the Court of Appeals declaring void the deed of sale of two parcels of land conveyed to petitioners who are illegitimate children of the deceased to the exclusion of respondent, his sole legitimate daughter. The facts
[2] [1]

are:

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 (hereafter Gregorio) owned two parcels of residential land, situated in Barangay Lolomboy, Bocaue, Bulacan, covered by TCT Nos. T-32740 and T-117160. 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 [4] 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 [5] 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. In their joint answer to the complaint, petitioners denied the alleged forgery or simulation of the deed of sale. After due proceedings, on July 21, 1994, the trial court rendered a decision dismissing the complaint. The dispositive portion reads: WHEREFORE, on the basis of the evidence adduced and the law applicable thereon, the Court hereby renders judgment: a) sustaining the validity of the Kasulatan Sa Ganap Na Bilihan (Exh.G) executed on 15 August 1993 by the late Gregorio Francisco in favor of the defendants; b) affirming the validity of the Transfer Certificates of Title No. T-59.585 (Exh. I) issued to defendant Regina Francisco and No. T59.386 (Exh. H) issued to defendant Zenaida Pascual; and c) dismissing the complaint as well as the defendants counterclaim for damages and attorneys fees for lack of merit. In time , respondent Alfonso appealed to the Court of Appeals.
[7] [8] [6] [3]

After due proceedings, on April 30, 1999, the Court of Appeals promulgated its decision reversing that of the trial court, the dispositive portion of which reads: WHEREFORE, the Decision dated July 21, 1994 of the court a quo is REVERSED and SET ASIDE and another rendered as follows: 1. The Kasulatan Sa Ganap na Bilihan dated August 15, 1983 (Exhibit G) is declared null and void from the beginning and TCT Nos. T-59.585 (M) and T-59-586 (M), both of the Registry of Deeds of Bulacan (Meycauayan Branch) in the names of Regina Francisco and Zenaida Pascual, respectively, are annulled and cancelled; 2. The Register of Deeds of Bulacan (Meycauayan Branch) is ordered to cancel the aforementioned TCT Nos. T-59.585 (M) and T59.586 (M) and to reinstate Transfer Certificates of Title Nos. T-132740 and T-117160 both in the name of Gregorio Francisco.

3. Defendants-appellees Regina Francisco and Zenaida Pascual jointly and solidarily are ordered to pay plaintiff-appellant Alfonso the amount of P5,000.00 as moral damages, P5,000.00 as exemplary damages and P5,000.00 as attorneys fees. 4. The counterclaim of defendants-appellees is dismissed for lack of merit. Costs of suit against said defendants-appellees. Hence, this petition.
[10] [9]

The main issue raised is whether the Supreme Court may review the factual findings of the appellate court. The jurisdiction of this Court in cases brought before it from the Court of Appeals under Rule 45 of the Revised Rules of Court is limited to review of pure errors of law. It is not the function of this Court to analyze or weigh evidence all over again, unless there is a showing that the findings [11] of the lower court are totally devoid of support or are glaringly erroneous as to constitute grave abuse of discretion. The findings of fact of the Court of Appeals supported by substantial evidence are conclusive and binding on the parties and are [12] [13] not reviewable by this Court, unless the case falls under any of the recognized exceptions to the rule. Petitioner has failed to prove that the case falls within the exceptions. We affirm the decision of the Court of Appeals because: First: The kasulatan was simulated. There was no consideration for the contract of sale. Felicitas de la Cruz, a family friend of the Franciscos, testified that Zenaida Pascual and Regina Francisco did not have any source of income in 1983, when they bought the [15] property, until the time when Felicitas testified in 1991. As proof of income, however, Zenaida Pascual testified that she was engaged in operating a canteen, working as cashier in Mayon Night Club as well as buying and selling RTW (Ready to Wear) items in August of 1983 and prior thereto. Zenaida alleged that she paid her father the amount of P10,000.00. She did not withdraw money from her bank account at the Rural Bank of Meycauayan, Bulacan, to pay for the property. She had personal savings other than those deposited in the bank. Her [16] gross earnings from the RTW for three years was P9,000.00, and she earned P50.00 a night at the club. Regina Francisco, on the other hand, was a market vendor, selling nilugaw, earning a net income of P300.00 a day in 1983. She [17] bought the property from the deceased for P15,000.00. She had no other source of income. We find it incredible that engaging in buy and sell could raise the amount of P10,000.00, or that earnings in selling goto could save enough to pay P15,000.00, in cash for the land. The testimonies of petitioners were incredible considering their inconsistent statements as to whether there was consideration for the sale and also as to whether the property was bought below or above its supposed market value. They could not even present a single witness to the kasulatan that would prove receipt of the purchase price. Since there was no cause or consideration for the sale, the same was a simulation and hence, null and void.
[19] [18] [14]

Second: Even if the kasulatan was not simulated, it still violated the Civil Code provisions insofar as the transaction affected respondents legitime. The sale was executed in 1983, when the applicable law was the Civil Code, not the Family Code. Obviously, the sale was Gregorios way to transfer the property to his illegitimate daughters 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 fathers estate. By law, she is entitled to half of the estate of her [21] father as his only legitimate child. The legal heirs of the late Gregorio Francisco must be determined in proper testate or intestate proceedings for settlement of the [22] estate. His compulsory heir can not be deprived of her share in the estate save by disinheritance as prescribed by law. WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals in CA-G. R. CV No. 48545 is AFFIRMED, in toto. No costs. SO ORDERED.
[20]

FIRST DIVISI ON [G.R. No. 126334. November 23, 2001]

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. DECISION YNARES-SANTIAGO, J.: Petitioner Emilio Emnace, Vicente Tabanao and Jacinto Divinagracia were partners in a business concern known as Ma. Nelma Fishing Industry. Sometime in January of 1986, they decided to dissolve their partnership and executed an agreement of partition and [1] distribution of the partnership properties among them, consequent to Jacinto Divinagracias withdrawal from the partnership. Among the assets to be distributed were five (5) fishing boats, six (6) vehicles, two (2) parcels of land located at Sto. Nio and Talisay, Negros Occidental, and cash deposits in the local branches of the Bank of the Philippine Islands and Prudential Bank. Throughout the existence of the partnership, and even after Vicente Tabanaos untimely demise in 1994, petitioner failed to submit to Tabanaos heirs any statement of assets and liabilities of the partnership, and to render an accounting of the partnerships finances. Petitioner also reneged on his promise to turn over to Tabanaos heirs the deceaseds 1/3 share in the total assets of the [2] partnership, amounting to P30,000,000.00, or the sum of P10,000,000.00, despite formal demand for payment thereof. Consequently, Tabanaos heirs, respondents herein, filed against petitioner an action for accounting, payment of shares, division [3] of assets and damages. In their complaint, respondents prayed as follows: 1. Defendant be ordered to render the proper accounting of all the assets and liabilities of the partnership at bar; and 2. After due notice and hearing defendant be ordered to pay/remit/deliver/surrender/yield to the plaintiffs the following: A. No less than One Third (1/3) of the assets, properties, dividends, cash, land(s), fishing vessels, trucks, motor vehicles, and other forms and substance of treasures which belong and/or should belong, had accrued and/or must accrue to the partnership; B. No less than Two Hundred Thousand Pesos (P200,000.00) as moral damages;

C. Attorneys fees equivalent to Thirty Percent (30%) of the entire share/amount/award which the Honorable Court may resolve the [4] plaintiffs as entitled to plus P1,000.00 for every appearance in court. Petitioner filed a motion to dismiss the complaint on the grounds of improper venue, lack of jurisdiction over the nature of the [5] action or suit, and lack of capacity of the estate of Tabanao to sue. On August 30, 1994, the trial court denied the motion to dismiss. It held that venue was properly laid because, while realties were involved, the action was directed against a particular person on the basis of his personal liability; hence, the action is not only a personal action but also an action in personam. As regards petitioners argument of lack of jurisdiction over the action because the prescribed docket fee was not paid considering the huge amount involved in the claim, the trial court noted that a request for accounting was made in order that the exact value of the partnership may be ascertained and, thus, the correct docket fee may be paid. Finally, the trial court held that the heirs of Tabanao had a right to sue in their own names, in view of the provision of Article 777 of the Civil Code, which states that the rights to the succession are transmitted from the [6] moment of the death of the decedent. The following day, respondents filed an amended complaint, incorporating the additional prayer that petitioner be ordered to sell all (the partnerships) assets and thereafter pay/remit/deliver/surrender/yield to the plaintiffs their corresponding share in the proceeds [8] thereof. In due time, petitioner filed a manifestation and motion to dismiss, arguing that the trial court did not acquire jurisdiction over [9] the case due to the plaintiffs failure to pay the proper docket fees. Further, in a supplement to his motion to dismiss, petitioner also raised prescription as an additional ground warranting the outright dismissal of the complaint. On June 15, 1995, the trial court issued an Order, denying the motion to dismiss inasmuch as the grounds raised therein were basically the same as the earlier motion to dismiss which has been denied. Anent the issue of prescription, the trial court ruled that prescription begins to run only upon the dissolution of the partnership when the final accounting is done. Hence, prescription has not set in the absence of a final accounting. Moreover, an action based on a written contract prescribes in ten years from the time the right of action accrues. Petitioner filed a petition for certiorari before the Court of Appeals,
[11] [10] [7]

raising the following issues:

I. Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in taking cognizance of a case despite the failure to pay the required docket fee; II. Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in insisting to try the case which involve (sic) a parcel of land situated outside of its territorial jurisdiction; III. Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in allowing the estate of the deceased to appear as party plaintiff, when there is no intestate case and filed by one who was never appointed by the court as administratrix of the estates; and IV. Whether or not respondent Judge acted without jurisdiction or with grave abuse of discretion in not dismissing the case on the ground of prescription. On August 8, 1996, the Court of Appeals rendered the assailed decision, dismissing the petition for certiorari, upon a finding that no grave abuse of discretion amounting to lack or excess of jurisdiction was committed by the trial court in issuing the questioned orders denying petitioners motions to dismiss. Not satisfied, petitioner filed the instant petition for review, raising the same issues resolved by the Court of Appeals, namely: I. Failure to pay the proper docket fee;
[12]

II. Parcel of land subject of the case pending before the trial court is outside the said courts territorial jurisdiction; III. Lack of capacity to sue on the part of plaintiff heirs of Vicente Tabanao; and IV. Prescription of the plaintiff heirs cause of action. It can be readily seen that respondents primary and ultimate objective in instituting the action below was to recover the decedents 1/3 share in the partnerships assets. While they ask for an accounting of the partnerships assets and finances, what they are actually asking is for the trial court to compel petitioner to pay and turn over their share, or the equivalent value thereof, from the proceeds of the sale of the partnership assets. They also assert that until and unless a proper accounting is done, the exact value of the partnerships assets, as well as their corresponding share therein, cannot be ascertained. Consequently, they feel justified in not having paid the commensurate docket fee as required by the Rules of Court. We do not agree. The trial court does not have to employ guesswork in ascertaining the estimated value of the partnerships assets, for respondents themselves voluntarily pegged the worth thereof at Thirty Million Pesos (P30,000,000.00). Hence, this case is one which is really not beyond pecuniary estimation, but rather partakes of the nature of a simple collection case where the value of the [13] subject assets or amount demanded is pecuniarily determinable. While it is true that the exact value of the partnerships total assets cannot be shown with certainty at the time of filing, respondents can and must ascertain, through informed and practical estimation, the amount they expect to collect from the partnership, particularly from petitioner, in order to determine the proper amount of docket and [14] other fees. It is thus imperative for respondents to pay the corresponding docket fees in order that the trial court may acquire [15] jurisdiction over the action. Nevertheless, unlike in the case of Manchester Development Corp. v. Court of Appeals, where there was clearly an effort to defraud the government in avoiding to pay the correct docket fees, we see no attempt to cheat the courts on the part of respondents. In fact, the lower courts have noted their expressed desire to remit to the court any payable balance or lien on whatever award which the Honorable Court may grant them in this case should there be any deficiency in the payment of the docket fees to be computed by the [17] Clerk of Court. There is evident willingness to pay, and the fact that the docket fee paid so far is inadequate is not an indication that they are trying to avoid paying the required amount, but may simply be due to an inability to pay at the time of filing. This consideration may have moved the trial court and the Court of Appeals to declare that the unpaid docket fees shall be considered a lien on the judgment award. Petitioner, however, argues that the trial court and the Court of Appeals erred in condoning the non-payment of the proper legal fees and in allowing the same to become a lien on the monetary or property judgment that may be rendered in favor of respondents. There is merit in petitioners assertion. The third paragraph of Section 16, Rule 141 of the Rules of Court states that: The legal fees shall be a lien on the monetary or property judgment in favor of the pauper-litigant. Respondents cannot invoke the above provision in their favor because it specifically applies to pauper-litigants. Nowhere in the [18] records does it appear that respondents are litigating as paupers, and as such are exempted from the payment of court fees. The rule applicable to the case at bar is Section 5(a) of Rule 141 of the Rules of Court, which defines the two kinds of claims as: (1) those which are immediately ascertainable; and (2) those which cannot be immediately ascertained as to the exact amount. This second class of claims, where the exact amount still has to be finally determined by the courts based on evidence presented, falls squarely under the third paragraph of said Section 5(a), which provides: In case the value of the property or estate or the sum claimed is less or more in accordance with the appraisal of the court, the difference of fee shall be refunded or paid as the case may be. (Underscoring ours) In Pilipinas Shell Petroleum Corporation v. Court of Appeals, this Court pronounced that the above-quoted provision clearly contemplates an initial payment of the filing fees corresponding to the estimated amount of the claim subject to adjustment as to what [20] later may be proved. Moreover, we reiterated therein the principle that the payment of filing fees cannot be made contingent or dependent on the result of the case. Thus, an initial payment of the docket fees based on an estimated amount must be paid simultaneous with the filing of the complaint. Otherwise, the court would stand to lose the filing fees should the judgment later turn out to be adverse to any claim of the respondent heirs. The matter of payment of docket fees is not a mere triviality. These fees are necessary to defray court expenses in the handling of cases. Consequently, in order to avoid tremendous losses to the judiciary, and to the government as well, the payment of docket fees cannot be made dependent on the outcome of the case, except when the claimant is a pauper-litigant. Applied to the instant case, respondents have a specific claim 1/3 of the value of all the partnership assets but they did not allege a specific amount. They did, however, estimate the partnerships total assets to be worth Thirty Million Pesos (P30,000,000.00), [21] in a letter addressed to petitioner. Respondents cannot now say that they are unable to make an estimate, for the said letter and the admissions therein form part of the records of this case. They cannot avoid paying the initial docket fees by conveniently omitting the said amount in their amended complaint. This estimate can be made the basis for the initial docket fees that respondents should pay. Even if it were later established that the amount proved was less or more than the amount alleged or estimated, Rule 141, Section 5(a) of the Rules of Court specifically provides that the court may refund the excess or exact additional fees should the initial payment be insufficient. It is clear that it is only the difference between the amount finally awarded and the fees paid upon filing of this complaint that is subject to adjustment and which may be subjected to a lien. In the oft-quoted case of Sun Insurance Office, Ltd. v. Hon. Maximiano Asuncion, this Court held that when the specific claim has been left for the determination by the court, the additional filing fee therefor shall constitute a lien on the judgment and it shall be the responsibility of the Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee. Clearly, the rules and jurisprudence contemplate the initial payment of filing and docket fees based on the estimated claims of the plaintiff, and it is only when there is a deficiency that a lien may be constituted on the judgment award until such additional fee is collected.
[22] [19] [16]

Based on the foregoing, the trial court erred in not dismissing the complaint outright despite their failure to pay the proper docket fees. Nevertheless, as in other procedural rules, it may be liberally construed in certain cases if only to secure a just and speedy disposition of an action. While the rule is that the payment of the docket fee in the proper amount should be adhered to, there are [23] certain exceptions which must be strictly construed. In recent rulings, this Court has relaxed the strict adherence to the Manchester doctrine, allowing the plaintiff to pay the proper [24] docket fees within a reasonable time before the expiration of the applicable prescriptive or reglementary period. In the recent case of National Steel Corp. v. Court of Appeals,
[25]

this Court held that:

The court acquires jurisdiction over the action if the filing of the initiatory pleading is accompanied by the payment of the requisite fees, or, if the fees are not paid at the time of the filing of the pleading, as of the time of full payment of the fees within such reasonable time as the court may grant, unless, of course, prescription has set in the meantime. It does not follow, however, that the trial court should have dismissed the complaint for failure of private respondent to pay the correct amount of docket fees. Although the payment of the proper docket fees is a jurisdictional requirement, the trial court may allow the plaintiff in an action to pay the same within a reasonable time before the expiration of the applicable prescriptive or reglementary period. If the plaintiff fails to comply within this requirement, the defendant should timely raise the issue of jurisdiction or else he would be considered in estoppel. In the latter case, the balance between the appropriate docket fees and the amount actually paid by the plaintiff will be considered a lien or any award he may obtain in his favor. (Underscoring ours) Accordingly, the trial court in the case at bar should determine the proper docket fee based on the estimated amount that respondents seek to collect from petitioner, and direct them to pay the same within a reasonable time, provided the applicable prescriptive or reglementary period has not yet expired. Failure to comply therewith, and upon motion by petitioner, the immediate dismissal of the complaint shall issue on jurisdictional grounds. On the matter of improper venue, we find no error on the part of the trial court and the Court of Appeals in holding that the case below is a personal action which, under the Rules, may be commenced and tried where the defendant resides or may be found, or [26] where the plaintiffs reside, at the election of the latter. Petitioner, however, insists that venue was improperly laid since the action is a real action involving a parcel of land that is located outside the territorial jurisdiction of the court a quo. This contention is not well-taken. The records indubitably show that respondents are asking that the assets of the partnership be accounted for, sold and distributed according to the agreement of the partners. The fact that two of the assets of the partnership are parcels of land does not materially change the nature of the action. It is an action in personam because it is an action against a person, namely, petitioner, on the basis of his personal liability. It is not an action in [27] rem where the action is against the thing itself instead of against the person. Furthermore, there is no showing that the parcels of land involved in this case are being disputed. In fact, it is only incidental that part of the assets of the partnership under liquidation happen to be parcels of land. The time-tested case of Claridades v. Mercader, et al.,
[28]

settled this issue thus:

The fact that plaintiff prays for the sale of the assets of the partnership, including the fishpond in question, did not change the nature or character of the action, such sale being merely a necessary incident of the liquidation of the partnership, which should precede and/or is part of its process of dissolution. The action filed by respondents not only seeks redress against petitioner. It also seeks the enforcement of, and petitioners compliance with, the contract that the partners executed to formalize the partnerships dissolution, as well as to implement the liquidation and partition of the partnerships assets. Clearly, it is a personal action that, in effect, claims a debt from petitioner and [29] seeks the performance of a personal duty on his part. In fine, respondents complaint seeking the liquidation and partition of the assets of the partnership with damages is a personal action which may be filed in the proper court where any of the parties [30] [31] reside. Besides, venue has nothing to do with jurisdiction for venue touches more upon the substance or merits of the case. As it is, venue in this case was properly laid and the trial court correctly ruled so. On the third issue, petitioner 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. Petitioners objection in this regard is misplaced. 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 Tabanaos 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 [32] 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 [33] to the extent of the value of the inheritance of a person are transmitted. Moreover, respondents became owners of their respective [34] 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 [35] commence any action originally pertaining to the decedent. From the moment of his death, his rights as a partner and to demand fulfillment of petitioners obligations as outlined in their dissolution agreement were transmitted to respondents. They, therefore, had the capacity to sue and seek the courts intervention to compel petitioner to fulfill his obligations. Finally, petitioner contends that the trial court should have dismissed the complaint on the ground of prescription, arguing that respondents action prescribed four (4) years after it accrued in 1986. The trial court and the Court of Appeals gave scant consideration to petitioners hollow arguments, and rightly so.

The three (3) final stages of a partnership are: (1) dissolution; (2) winding-up; and (3) termination. The partnership, although dissolved, continues to exist and its legal personality is retained, at which time it completes the winding up of its affairs, including the [37] partitioning and distribution of the net partnership assets to the partners. For as long as the partnership exists, any of the partners may demand an accounting of the partnerships business. Prescription of the said right starts to run only upon the dissolution of the [38] partnership when the final accounting is done. Contrary to petitioners protestations that respondents right to inquire into the business affairs of the partnership accrued in 1986, prescribing four (4) years thereafter, prescription had not even begun to run in the absence of a final accounting. Article 1842 of the Civil Code provides: The right to an account of his interest shall accrue to any partner, or his legal representative as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary. Applied in relation to Articles 1807 and 1809, which also deal with the duty to account, the above-cited provision states that the right to demand an accounting accrues at the date of dissolution in the absence of any agreement to the contrary. When a final accounting is made, it is only then that prescription begins to run. In the case at bar, no final accounting has been made, and that is precisely what respondents are seeking in their action before the trial court, since petitioner has failed or refused to render an accounting of the partnerships business and assets. Hence, the said action is not barred by prescription. In fine, the trial court neither erred nor abused its discretion when it denied petitioners motions to dismiss. Likewise, the Court of Appeals did not commit reversible error in upholding the trial courts orders. Precious time has been lost just to settle this preliminary issue, with petitioner resurrecting the very same arguments from the trial court all the way up to the Supreme Court. The litigation of the merits and substantial issues of this controversy is now long overdue and must proceed without further delay. WHEREFORE, in view of all the foregoing, the instant petition is DENIED for lack of merit, and the case is REMANDED to the Regional Trial Court of Cadiz City, Branch 60, which is ORDERED to determine the proper docket fee based on the estimated amount that plaintiffs therein seek to collect, and direct said plaintiffs to pay the same within a reasonable time, provided the applicable prescriptive or reglementary period has not yet expired. Thereafter, the trial court is ORDERED to conduct the appropriate proceedings in Civil Case No. 416-C. Costs against petitioner. SO ORDERED.

[36]

SECOND DIVISION [G.R. No. 176943, October 17, 2008] DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, AND CONNIE ALUAD, PETITIONERS, VS. ZENAIDO ALUAD, RESPONDENT. DECISION

CARPIO MORALES, J.:

Petitioners' mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the childless spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin). Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, [1] his wife Matilde adjudicated the lots to herself. On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real Property Inter Vivos" (Deed of Donation) in [3] favor of petitioners' mother Maria covering all the six lots which Matilde inherited from her husband Crispin. The Deed of Donation provided: That, for and in consideration of the love and affection of the DONOR [Matilde] for the DONEE [Maria], the latter being adopted and hav[ing] been brought up by the former the DONOR, 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; Provided, however, that anytime during the lifetime of the DONOR or anyone of them who should survive, they could use[,] encumber or even [4] dispose of any or even all of the parcels of land herein donated. (Emphasis and underscoring supplied) On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in Matilde's name. On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale of Real Property.
[5] [2]

Subsequently or on January 14, 1992, Matilde executed a last will and testament, devising Lot Nos. 675, 677, 682, and 680 to Maria, and her "remaining properties" including Lot No. 674 to respondent. Matilde died on January 25, 1994, while Maria died on September 24 of the same year.
[7]

[6]

On August 21, 1995, Maria's heirs-herein petitioners filed before the Regional Trial Court (RTC) of Roxas City a Complaint, for declaration and recovery of ownership and possession of Lot Nos. 674 and 676, and damages against respondent, alleging: That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until January 1991 when defendant entered and possessed the two (2) parcels of land claiming as the adopted son of Crispin Aluad who refused to give back possession until Matilde Aluad died in [1994] and then retained the possession thereof up to and until the present time, thus, depriving the plaintiffs of the enjoyment of said parcels of land x x x; That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right of representation from their deceased mother, [9] Maria Aluad who is the sole and only daughter of Matilde Aluad[.] To the complaint respondent alleged in his Answer.
[10]

[8]

That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last Will and Testament of Matilde Aluad x x x while [11] Lot 676 was purchased by him from Matilde Aluad. These two lots are in his possession as true owners thereof. (Underscoring supplied) Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to Evidence to which it annexed an Amended [13] Complaint which cited the donation of the six lots via Deed of Donation in favor of their mother Maria. Branch 15 of the RTC granted [14] the motion and admitted the Amended Complaint. Respondent filed an Amended Answer contending, inter alia, that the Deed of Donation is forged and falsified and petitioners' change of theory showed that "said document was not existing at the time they filed their complaint and was concocted by them after realizing [16] that their false claim that their mother was the only daughter of Matild[e] Aluad cannot in anyway be established by them"; and that if ever said document does exist, the same was already revoked by Matilde "when [she] exercised all acts of dominion over said properties until she sold Lot 676 to defendant and until her death with respect to the other lots without any opposition from Maria [17] Aluad." The trial court, by Decision of September 20, 1996, held that Matilde could not have transmitted any right over Lot Nos. 674 and 676 to respondent, she having previously alienated them to Maria via the Deed of Donation. Thus it disposed: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. 2. 3. Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676, Pilar Cadastre; Ordering the defendant to deliver the possession of the subject lots to the plaintiffs; Ordering the defendant to pay the plaintiffs:
[18] [15] [12]

a. b. c. d.

Thirty thousand pesos (P30,000.00) as attorney's fees; Twenty thousand pesos (P20,000.00), representing the income from subject Lot 676, a year from 1991 up to the time said lot is delivered to the plaintiffs, together with the interest thereof at the legal rate until fully paid; Ten thousand pesos (P10,000.00), representing the income from the subject Lot No. 674, a year from 1991 up to the time said lot is delivered to the plaintiffs, plus legal interest thereof at the legal rate until fully paid; and The costs of the suit.

Defendant's counterclaim is ordered dismissed for lack of merit. SO ORDERED.

[19] [20]

On petitioners' motion, the trial court directed the issuance of a writ of execution pending appeal. appears to have in fact been taken by petitioners.
[21]

Possession of the subject lots

By Decision of August 10, 2006, the Court of Appeals reversed the trial court's decision, it holding that the Deed of Donation was actually a donation mortis causa, not inter vivos, and as such it had to, but did not, comply with the formalities of a will. Thus, it found that the Deed of Donation was witnessed by only two witnesses and had no attestation clause which is not in accordance with Article 805 of the Civil Code, reading: 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 that 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. While the appellate court declared respondent as the rightful owner of Lot No. 676, it did not so declare with respect to Lot No. 674, as Matilde's last will and testament had not yet been probated. Thus the Court of Appeals disposed: WHEREFORE, finding the instant petition worthy of merit, the same is hereby GRANTED and the Decision of the Regional Trial Court of Roxas City, Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for declaration of ownership, recovery of ownership and possession, and damages is REVERSED and SET ASIDE. A new one is entered in its stead declaring defendant-appellant as the lawful owner of Lot [No.] 676 of the Pilar Cadastre. Accordingly,plaintiffs-appellees are directed to return the possession of the said lot to the defendant-appellant. Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as attorney's fees and litigation expenses. Costs against plaintiffs-appellees. SO ORDERED.
[22]

(Emphasis in the original; underscoring supplied)

[23]

Their Motion for Reconsideration of Appeals erred

having been denied,

[24]

petitioners filed the present Petition for Review, I

[25]

contending that the Court

X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF PETITIONERS' MOTHER IS IN FACT A DONATION MORTIS CAUSA. II X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME. III X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED OWNER THEREOF. IV X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN POSSESSION OF LOT 676 [26] TO RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEY'S FEES AND COST[S] OF SUIT. As did the appellate court, the Court finds the donation to petitioners' mother one ofmortis causa, it having the following characteristics: (1) (2) (3) 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; That before the death of the transferor, 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 That the transfer should be void if the transferor should survive the transferee.
[27]

(Emphasis and underscoring supplied)

The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of the DONOR" admits of no other interpretation than to mean that Matilde did not intend to transfer the ownership of the six lots to petitioners' mother during her [28] (Matilde's) lifetime. The statement in the Deed of Donation reading "anytime during the lifetime of the DONOR or anyone of them who should survive, [29] they could use, encumber or even dispose of any or even all the parcels of land herein donated" means that Matilde retained ownership of the lots and reserved in her the right to dispose them. For the right to dispose of a thing without other limitations than [30] those established by law is an attribute of ownership. The phrase in the Deed of Donation "or anyone of them who should survive" is of course out of sync. For the Deed of Donation clearly stated that it would take effect upon the death of the donor, hence, said phrase could only have referred to the donor Matilde. Petitioners themselves concede that such phrase does not refer to the donee, thus: x x x [I]t is well to point out that the last provision (sentence) in the disputed paragraph should only refer to Matilde Aluad, the donor, because she was the only surviving spouse at the time the donation was executed on 14 November 1981, as her husband - Crispin [31] Aluad [-] had long been dead as early as 1975.

The trial court, in holding that the donation was inter vivos, reasoned: x x x The donation in question is subject to a resolutory term or period when the donor provides in the aforequoted provisions, "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". When the donor provides that should the "DONEE" xxx die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect" the logical construction thereof is that after the execution of the subject donation, the same became effective immediately and shall be "deemed rescinded and [of] no further force and effect" upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur before that of the donor. Understandably, the arrival of this resolutory term or period cannot rescind and render of no further force and effect a donation which has never become effective, because, certainly what donation is there to be rescinded and rendered of no further force and effect upon the arrival of said resolutory term or period if there [32] was no donation which was already effective at the time when the donee died? (Underscoring supplied) A similar ratio in a case had been brushed aside by this Court, however, thus: x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee] die ahead of [donor] Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos. Petitioners' arguments are bereft of merit. xxxx x x x The herein subject deeds expressly provide that the donation shall be rescinded in case [donees] the petitioners predecease [the donor] 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 to the donee or independently of, and not by reason of her death, she would not have expressed such proviso in the subject [34] deeds. (Underscoring supplied) As the Court of Appeals observed, "x x x [t]hat the donation is mortis causa is fortified by Matilde's acts of possession as she continued to pay the taxes for the said properties which remained under her name; appropriated the produce; and applied for free patents for [35] which OCTs were issued under her name." The donation being then mortis causa, the formalities of a will should have been observed [37] only two, not three or more witnesses following Article 805 of the Civil Code.
[38] [36] [33]

but they were not, as it was witnessed by

Further, the witnesses did not even sign the attestation clause the execution of which clause is a requirement separate from the subscription of the will and the affixing of signatures on the left-hand margins of the pages of the will. So the Court has emphasized: x x x 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[s] 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. x x x 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 [39] elemental facts would be their signatures on the attestation clause. (Emphasis and underscoring supplied) Furthermore, the witnesses did not acknowledge the will before the notary public, which is not in accordance with the requirement of Article 806 of the Civil Code that every will must be acknowledged before a notary public by the testator and the witnesses. More. The requirement that all the pages of the will must be numbered correlatively in letters placed on the upper part of each page [41] was not also followed. The Deed of Donation which is, as already discussed, one of mortis causa, not having followed the formalities of a will, it is void and transmitted no right to petitioners' mother. But even assuming arguendo that the formalities were observed, since it was not probated, [42] no right to Lot Nos. 674 and 676 was transmitted to Maria. Matilde thus validly disposed of Lot No. 674 to respondent by her last will and testament, subject of course to the qualification that her (Matilde's) will must be probated. With respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent on August 26, 1991. Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of their mother is indeed mortis causa, hence, Matilde could devise it to respondent, the lot should nevertheless have been awarded to them because they had acquired it by acquisitive prescription, they having been in continuous, uninterrupted, adverse, open, and public possession of it in good faith and in [43] the concept of an owner since 1978. Petitioners failed to raise the issue of acquisitive prescription before the lower courts, however, they having laid their claim on the basis of inheritance from their mother. As a general rule, points of law, theories, and issues not brought to the attention of the trial court [44] cannot be raised for the first time on appeal. For a contrary rule would be unfair to the adverse party who would have no opportunity
[40]

to present further evidence material to the new theory, which it could have done had it been aware of it at the time of the hearing before [45] the trial court. WHEREFORE, the petition is DENIED. SO ORDERED.

FIRST DIVISION [A.C. No. 5281, February 12, 2008] MANUEL L. LEE, Complainant, vs. ATTY. REGINO B. TAMBAGO, Respondent. RESOLUTION

CORONA, J.:

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament. In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will. Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its execution. In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant. The will was purportedly executed and acknowledged before respondent on June 30, 1965. Complainant, however, pointed out that [2] [3] the residence certificate of the testator noted in the acknowledgment of the will was dated January 5, 1962. Furthermore, the [4] signature of the testator was not the same as his signature as donor in a deed of donation (containing his purported genuine signature). Complainant averred that the signatures of his deceased father in the will and in the deed of donation were in any way (sic) [5] entirely and diametrically opposed from (sic) one another in all angle[s]. Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and Grajo. He alleged that their signatures had likewise been forged and merely copied from their respective voters affidavits. Complainant further asserted that no copy of such purported will was on file in the archives division of the Records Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In this connection, the certification of the chief of the archives division dated September 19, 1999 stated: Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME RAMIREZ on June 30, 1965 and [6] is available in this Office[s] files. Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged that complainant was not a legitimate son of Vicente Lee, Sr. and the last will and testament was validly executed and actually notarized by respondent per [7] [8] affidavit of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint affidavit of the children of Vicente Lee, [9] Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx. Respondent further stated that the complaint was filed simply to harass him because the criminal case filed by complainant against him in the Office of the Ombudsman did not prosper. Respondent did not dispute complainants contention that no copy of the will was on file in the archives division of the NCCA. He claimed that no copy of the contested will could be found there because none was filed. Lastly, respondent pointed out that complainant had no valid cause of action against him as he (complainant) did not first file an action for the declaration of nullity of the will and demand his share in the inheritance. In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report [10] and recommendation. In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial Law as found [11] [12] in the Revised Administrative Code. The violation constituted an infringement of legal ethics, particularly Canon 1 and Rule 1.01 of
[1]

the Code of Professional Responsibility (CPR). Thus, the investigating commissioner of the IBP Commission on Bar Discipline recommended the suspension of respondent for a period of three months. The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved: [T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED,with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondents failure to comply with the laws in the discharge of his function as a notary public, Atty. Regino B. Tambago is hereby suspended from the practice of law for one year and Respondents notarial commission is Revoked and Disqualified from reappointment as Notary Public [14] for two (2) years. We affirm with modification. 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 his [15] estate, to take effect after his death. A will may either be notarial or holographic. The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth [16] and authenticity. A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself. In [17] addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be considered [18] void. This is in consonance with the rule that acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the witnesses. The importance of this requirement is highlighted by the fact that it was segregated from the other requirements under Article 805 and [20] embodied in a distinct and separate provision. 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. It involves an extra step undertaken whereby the signatory actually declares to the notary public that the same is his or [21] her own free act and deed. The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testators wishes long after his demise and (2) to assure that his estate is administered in the manner that he intends it to be done. A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testators old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will. As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will and those of [22] notarization. As we held inSantiago v. Rafanan: The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before him had presented the proper residence certificate (or exemption from the residence tax); and to enter its number, place of issue and date as part of such certification. These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight attached to [23] [24] notarized documents. A notary public, especially a lawyer, is bound to strictly observe these elementary requirements. The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or instrument: Section 251. Requirement as to notation of payment of [cedula] residence tax. Every contract, deed, or other document acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of such certificate the [25] number, place of issue, and date of each [cedula] residence certificate as aforesaid. The importance of such act was further reiterated by Section 6 of the Residence Tax Act
[26] [19]

[13]

which stated:

When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the residence certificate showing payment of the residence taxes by such person xxx. In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it is issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an expired residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the Residence Tax Act. As much could be said of his failure to demand the exhibition of the residence certificates of Noynay and Grajo. On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives division, Article 806 provides:

Art. 806. Every will must be acknowledged before a notary public by the testator and the witness. 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) Respondents failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a cause for disciplinary action. Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his notarial register. The old Notarial Law required the entry of the following matters in the notarial register, in chronological order: 1. 2. 3. 4. 5. 6. 7. nature of each instrument executed, sworn to, or acknowledged before him; person executing, swearing to, or acknowledging the instrument; witnesses, if any, to the signature; date of execution, oath, or acknowledgment of the instrument; fees collected by him for his services as notary; give each entry a consecutive number; and if the instrument is a contract, a brief description of the substance of the instrument.
[27]

In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had crossed out a prior entry and entered instead the will of the decedent. As proof, he presented a photocopy of his notarial register. To reinforce his claim, he [28] presented a photocopy of a certification stating that the archives division had no copy of the affidavit of Bartolome Ramirez. A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is unavailable. The proponent must [29] first prove the existence and cause of the unavailability of the original, otherwise, the evidence presented will not be admitted. Thus, the photocopy of respondents notarial register was not admissible as evidence of the entry of the execution of the will because it failed to comply with the requirements for the admissibility of secondary evidence. In the same vein, respondents attempt to controvert the certification dated September 21, 1999 must fail. Not only did he present a [31] mere photocopy of the certification dated March 15, 2000; its contents did not squarely prove the fact of entry of the contested will in his notarial register. Notaries public must observe with utmost care and utmost fidelity the basic requirements in the performance of their duties, [33] otherwise, the confidence of the public in the integrity of notarized deeds will be undermined. Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be taken lightly in view of the importance and delicate nature of a will, considering that the testator and the witnesses, as in this case, are no longer alive [34] to identify the instrument and to confirm its contents. Accordingly, respondent must be held accountable for his acts. The validity of [35] the will was seriously compromised as a consequence of his breach of duty. In this connection, Section 249 of the old Notarial Law provided: Grounds for revocation of commission. The following derelictions of duty on the part of a notary public shall, in the discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission: xxx xxx xxx (b) The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law. xxx xxx xxx (f) The failure of the notary to make the proper notation regarding cedula certificates.
[36] [32] [30]

These gross violations of the law also made respondent liable for violation of his oath as a lawyer and constituted transgressions of [37] [38] [39] Section 20 (a), Rule 138 of the Rules of Court and Canon 1 and Rule 1.01 of the CPR. The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution and obey the [40] laws of the land. For a lawyer is the servant of the law and belongs to a profession to which society has entrusted the administration [41] of law and the dispensation of justice. While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a lawyer should moreover make himself an example for [42] [43] others to emulate. Being a lawyer, he is supposed to be a model in the community in so far as respect for the law is concerned. The practice of law is a privilege burdened with conditions. A breach of these conditions justifies disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or acknowledgment that he has engaged in professional [45] misconduct. These sanctions meted out to errant lawyers include disbarment, suspension and reprimand.
[44]

Disbarment is the most severe form of disciplinary sanction. We have held in a number of cases that the power to disbar must be [47] exercised with great caution and should not be decreed if any punishment less severe such as reprimand, suspension, or fine will [48] accomplish the end desired. The rule then is that disbarment is meted out only in clear cases of misconduct that seriously affect the [49] standing and character of the lawyer as an officer of the court. Respondent, as notary public, evidently failed in the performance of the elementary duties of his office. Contrary to his claims that he exercised his duties as Notary Public with due care and with due regard to the provision of existing law and had complied with the elementary formalities in the performance of his duties xxx, we find that he acted very irresponsibly in notarizing the will in question. Such recklessness warrants the less severe punishment of suspension from the practice of law. It is, as well, a sufficient basis for the [50] [51] revocation of his commission and his perpetual disqualification to be commissioned as a notary public. WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law. Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial commission REVOKED. Because he has not lived up to the trustworthiness expected of him as a notary public and as an officer of the court, he isPERPETUALLY DISQUALIFIED from reappointment as a notary public. Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as made part of the personal records of respondent. SO ORDERED.

[46]

THIRD DIVISION

THE HEIRS OF MARCELINO DORONIO, NAMELY: REGINA AND FLORA, BOTH SURNAMED DORONIO, Petitioners,

G.R. No. 169454

Present:

YNARES-SANTIAGO, J., Chairperson, - versus AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and HEIRS OF FORTUNATO DORONIO, NAMELY: TRINIDAD ROSALINA DORONIO-BALMES, MODING DORONIO, FLORENTINA DORONIO, AND ANICETA ALCANTARA-MANALO, Respondents. December 27, 2007 Promulgated: REYES, JJ.

x--------------------------------------------------x

DECISION

REYES, R.T., J.:

[1] [2]

For Our review on certiorari is the Decision of the Court of Appeals (CA) reversing that of the Regional Trial Court (RTC), Branch 45, Anonas, Urdaneta City, Pangasinan, in an action for reconveyance and damages. The CA declared respondents as rightful owners of one-half of the subject property and directed petitioners to execute a registerable document conveying the same to respondents.

The Facts

Spouses Simeon Doronio and Cornelia Gante, now both deceased, were the registered owners of a parcel of land located [3] at Barangay Cabalitaan, Asingan, Pangasinan covered by Original Certificate of Title (OCT) No. 352. The courts below described it as follows:

Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta [4] y dos metros cuadrados.

The spouses had children but the records fail to disclose their number. It is clear, however, that Marcelino Doronio and Fortunato Doronio, now both deceased, were among them and that the parties in this case are their heirs. Petitioners are the heirs of Marcelino Doronio, while respondents are the heirs of Fortunato Doronio.
[5]

On April 24, 1919, a private deed of donation propter nuptias was executed by spouses Simeon Doronio and Cornelia Gante in favor of Marcelino Doronio and the latters wife, Veronica Pico. One of the properties subject of said deed of donation is the one that it described as follows:

Fourth A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the north by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to Villasis. Constructed on said land is a house of light materials also a part of [6] the dowry. Value 200.00.

It appears that the property described in the deed of donation is the one covered by OCT No. 352. However, there is a significant discrepancy with respect to the identity of the owner of adjacent property at the eastern side. Based on OCT No. 352, the adjacent owners are Zacarias Najorda and Alejandro Najorda, whereas based on the deed of donation, the owner of the adjacent [7] property is Fortunato Doronio. Furthermore, said deed of donation remained a private document as it was never notarized.
[8]

Both parties have been occupying the subject land for several decades although they have different theories regarding its present ownership. According to petitioners, they are now the owners of the entire property in view of the private deed of donation propter nuptias in favor of their predecessors, Marcelino Doronio and Veronica Pico.

Respondents, on the other hand, claim that only half of the property was actually incorporated in the said deed of donation because it stated that Fortunato Doronio, instead of Zacarias Najorda and Alejandro Najorda, is the owner of the adjacent property at the eastern side. Respondents posit that the donors respected and segregated the possession of Fortunato Doronio of the eastern half of the land. They are the ones who have been possessing said land occupied by their predecessor, Fortunato Doronio.

Eager to obtain the entire property, the heirs of Marcelino Doronio and Veronica Pico filed, on January 11, 1993, before [9] the RTC in Urdaneta, Pangasinan a petition For the Registration of a Private Deed of Donation docketed as Petition Case No. U[10] 920. No respondents were named in the said petition although notices of hearing were posted on the bulletin boards [11] of Barangay Cabalitaan, Municipalities of Asingan and Lingayen.

During the hearings, no one interposed an objection to the petition. After the RTC ordered a general default, the petition was eventually granted on September 22, 1993. This led to the registration of the deed of donation, cancellation of OCT No. 352 and [14] issuance of a new Transfer Certificate of Title (TCT) No. 44481 in the names of Marcelino Doronio and Veronica Pico. Thus, the entire property was titled in the names of petitioners predecessors.

[12]

[13]

On April 28, 1994, the heirs of Fortunato Doronio filed a pleading before the RTC in the form of a petition in the same Petition Case No. U-920. The petition was for the reconsideration of the decision of the RTC that ordered the registration of the subject deed of donation. It was prayed in the petition that an order be issued declaring null and void the registration of the private deed of donation and that TCT No. 44481 be cancelled. However, the petition was dismissed on May 13, 1994 on the ground that the decision in Petition Case No. U-920 had already become final as it was not appealed.

Determined to remain in their possessed property, respondent heirs of Fortunato Doronio (as plaintiffs) filed an action for [15] reconveyance and damages with prayer for preliminary injunction against petitioner heirs of Marcelino Doronio (as defendants) before the RTC, Branch 45, Anonas, Urdaneta City, Pangasinan. Respondents contended, among others, that the subject land is different from what was donated as the descriptions of the property under OCT No. 352 and under the private deed of donation were different. They posited that spouses Simeon Doronio and Cornelia Gante intended to donate only one-half of the property.

During the pre-trial conference, the parties stipulated, among others, that the property was originally covered by OCT No. 352 which was cancelled by TCT No. 44481. They also agreed that the issues are: (1) whether or not there was a variation in the description of the property subject of the private deed of donation and OCT No. 352; (2) whether or not respondents had acquired onehalf of the property covered by OCT No. 352 by acquisitive prescription; (3) whether or not the transfer of the whole property covered by OCT No. 352 on the basis of the registration of the private deed of donation notwithstanding the discrepancy in the description is valid; [16] (4) whether or not respondents are entitled to damages; and (5) whether or not TCT No. 44481 is valid.

RTC Decision

After due proceedings, the RTC ruled in favor of petitioner heirs of Marcelino Doronio (defendants). It concluded that the [17] parties admitted the identity of the land which they all occupy; that a title once registered under the torrens system cannot be [18] defeated by adverse, open and notorious possession or by prescription; that the deed of donation in consideration of the marriage of [19] the parents of petitioners is valid, hence, it led to the eventual issuance of TCT No. 44481 in the names of said parents; and that respondent heirs of Fortunato Doronio (plaintiffs) are not entitled to damages as they are not the rightful owners of the portion of the [20] property they are claiming.

The RTC disposed of the case, thus:

WHEREFORE, premises considered, the Court hereby renders judgment DISMISSING the herein [21] Complaint filed by plaintiffs against defendants.

Disagreeing with the judgment of the RTC, respondents appealed to the CA. They argued that the trial court erred in not finding that respondents predecessor-in-interest acquired one-half of the property covered by OCT No. 352 by tradition and/or intestate succession; that the deed of donation dated April 26, 1919 was null and void; that assuming that the deed of donation was valid, only one-half of the property was actually donated to Marcelino Doronio and Veronica Pico; and that respondents acquired ownership of the [22] other half portion of the property by acquisitive prescription.

CA Disposition

In a Decision dated January 26, 2005, the CA reversed the RTC decision with the following disposition:

WHEREFORE, the assailed Decision dated June 28, 2002 is REVERSED and SET ASIDE. Declaring the appellants as rightful owners of one-half of the property now covered by TCT No. 44481, the appellees are hereby directed to execute a registerable document conveying the same to appellants.
[23]

SO ORDERED.

The appellate court determined that (t)he intention to donate half of the disputed property to appellees predecessors can be gleaned from the disparity of technical descriptions appearing in the title (OCT No. 352) of spouses Simeon Doronio and Cornelia [24] Gante and in the deed of donation propter nuptias executed on April 24, 1919 in favor of appellees predecessors.

The CA based its conclusion on the disparity of the following technical descriptions of the property under OCT No. 352 and the deed of donation, to wit:

The court below described the property covered by OCT No. 352 as follows:

Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados.

On the other hand, the property donated to appellees predecessors was described in the deed of donation as:

Fourth A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the north by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to Villasis. Constructed on said land is a house of light materials also a part of the dowry. Value [25] 200.00. (Emphasis ours)

Taking note that the boundaries of the lot donated to Marcelino Doronio and Veronica Pico differ from the boundaries of the land owned by spouses Simeon Doronio and Cornelia Gante, the CA concluded that spouses Simeon Doronio and Cornelia Gante [26] donated only half of the property covered by OCT No. 352.

Regarding the allegation of petitioners that OCT No. 352 is inadmissible in evidence, the CA pointed out that, while the OCT is written in the Spanish language, this document already forms part of the records of this case for failure of appellees to interpose a timely objection when it was offered as evidence in the proceedings a quo. It is a well-settled rule that any objection to the admissibility of such evidence not raised will be considered waived and said evidence will have to form part of the records of the case as competent [27] and admitted evidence.

The CA likewise ruled that the donation of the entire property in favor of petitioners predecessors is invalid on the ground that it impairs the legitime of respondents predecessor, Fortunato Doronio. On this aspect, the CA reasoned out:

Moreover, We find the donation of the entire property in favor of appellees predecessors invalid as it impairs the legitime of appellants predecessor. Article 961 of the Civil Code is explicit. In default of testamentary heirs, the law vests the inheritance, x x x, in the legitimate x x x relatives of the deceased, x x x. As Spouses Simeon Doronio and Cornelia Gante died intestate, their property shall pass to their lawful heirs, namely: Fortunato and Marcelino Doronio. Donating the entire property to Marcelino Doronio and Veronica Pico and excluding another heir, Fortunato, tantamounts to divesting the latter of his rightful share in his parents inheritance. Besides, a persons prerogative to make donations is subject to certain limitations, one of which is that he cannot give by donation more than what he can give by will (Article 752, Civil Code). If he does, so much of what is donated as exceeds what he can give by will [28] is deemed inofficious and the donation is reducible to the extent of such excess.

Petitioners were not pleased with the decision of the CA. Hence, this petition under Rule 45.

Issues

Petitioners now contend that the CA erred in:

1.

DECLARING ADMISSIBILITY OF THE ORIGINAL CERTIFICATE OF TITLE NO. 352 DESPITE OF LACK OF TRANSLATION THEREOF.

2.

(RULING THAT) ONLY HALF OF THE DISPUTED PROPERTY WAS PREDECESSORS-IN-INTEREST OF THE HEREIN APPELLANTS.

DONATED

TO

THE

3.

(ITS) DECLARATION THAT THE DONATION PROPTER [29] PREMATURE, AND THUS IT IS ILLEGAL AND UNPROCEDURAL.

NUPTIAS IS

INNOFICIOUS,

IS

Our Ruling

OCT No. 352 in Spanish Although Not Translated into English or Filipino Is Admissible For Lack of Timely Objection

Petitioners fault the CA for admitting OCT No. 352 in evidence on the ground that it is written in Spanish language. They posit that (d)ocumentary evidence in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into [30] English or Filipino.

The argument is untenable. The requirement that documents written in an unofficial language must be accompanied with a translation in English or Filipino as a prerequisite for its admission in evidence must be insisted upon by the parties at the trial to enable [31] the court, where a translation has been impugned as incorrect, to decide the issue. Where such document, not so accompanied with a translation in English or Filipino, is offered in evidence and not objected to, either by the parties or the court, it must be presumed that [32] the language in which the document is written is understood by all, and the document is admissible in evidence.

Moreover, Section 36, Rule 132 of the Revised Rules of Evidence provides:

SECTION 36. Objection. Objection to evidence offered orally must be made immediately after the offer is made.

Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent.

An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court.

In any case, the grounds for the objections must be specified. (Emphasis ours)

Since petitioners did not object to the offer of said documentary evidence on time, it is now too late in the day for them to question its admissibility. The rule is that evidence not objected may be deemed admitted and may be validly considered by the court [33] in arriving at its judgment. This is true even if by its nature, the evidence is inadmissible and would have surely been rejected if it had [34] been challenged at the proper time.

As a matter of fact, instead of objecting, petitioners admitted the contents of Exhibit A, that is, OCT No. 352 in their [35] comment on respondents formal offer of documentary evidence. In the said comment, petitioners alleged, among others, that

Exhibits A, B, C, D, E, F and G, are admitted but not for the purpose they are offered because these exhibits being public and [36] official documents are the best evidence of that they contain and not for what a party would like it to prove. Said evidence was [37] admitted by the RTC. Once admitted without objection, even though not admissible under an objection, We are not inclined now to [38] reject it. Consequently, the evidence that was not objected to became property of the case, and all parties to the case are [39] considered amenable to any favorable or unfavorable effects resulting from the said evidence.

Issues on Impairment of Legitime Should Be Threshed Out in a Special Proceeding, Not in Civil Action for Reconveyance and Damages

On the other hand, petitioners are correct in alleging that the issue regarding the impairment of legitime of Fortunato Doronio must be resolved in an action for the settlement of estates of spouses Simeon Doronio and Cornelia Gante. It may not be passed upon in an action for reconveyance and damages. A probate court, in the exercise of its limited jurisdiction, is the best forum to ventilate and [40] adjudge the issue of impairment of legitime as well as other related matters involving the settlement of estate.

An action for reconveyance with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding. Special proceedings [41] require the application of specific rules as provided for in the Rules of Court.
[42]

As explained by the Court in Natcher v. Court of Appeals:

Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special proceedings, in this wise:

x x x a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.

A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to specific rules prescribed for a special civil action.

xxxx

c) A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact.

As could be gleaned from the foregoing, there lies a marked distinction between an action and a special proceeding. An action is a formal demand of ones right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. The term special proceeding may be defined as an application or proceeding to establish the status or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides. In special proceedings, the remedy is granted generally upon an application or motion.

Citing American Jurisprudence, a noted authority in Remedial Law expounds further:

It may accordingly be stated generally that actions include those proceedings which are instituted and prosecuted according to the ordinary rules and provisions relating to actions at law or suits in equity, and that special proceedings include those proceedings which are not ordinary in this sense, but is instituted and prosecuted according to some special mode as in the case of proceedings commenced without summons and prosecuted without regular pleadings, which are characteristics of ordinary actions x x x. A special proceeding must therefore be in the nature of a distinct and independent proceeding for particular relief, such as may be instituted independently of a pending action, by petition or motion upon notice.

Applying these principles, an action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court.

Clearly, 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.

Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to have been made by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings, and the final order of the court thereon shall be binding on the person raising the questions and on the heir.

While it may be true that the Rules used the word may, it is nevertheless clear that the same provision contemplates a probate court when it speaks of the court having jurisdiction of the estate proceedings.

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 Civil Case No. 71075 for reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to thresh out said question. Moreover, under the present circumstances, the RTC of Manila, Branch 55, 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, herein petitioner Natcher.

We likewise find merit in petitioners contention that before any conclusion about the legal share due to a compulsory heir may [43] be reached, it is necessary that certain steps be taken first. The net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it. With the partible estate thus determined, the legitime of the compulsory heir or heirs can be [44] established; and only then can it be ascertained whether or not a donation had prejudiced the legitimes.

Declaration of Validity of Donation Can Be Challenged by an Interested Party Not Impleaded in Petition for Quieting of Title or Declaratory Relief or Where There is No Res Judicata. Moreover, This Court Can Consider a Factual Matter or Unassigned Error in the Interest of Substantial Justice.

Nevertheless, petitioners cannot preclude the determination of validity of the deed of donation on the ground that (1) it has been impliedly admitted by respondents; (2) it has already been determined with finality by the RTC in Petition Case No. U-920; or (3) the [45] only issue in an action for reconveyance is who has a better right over the land.

The validity of the private deed of donation propter nuptias in favor of petitioners predecessors was one of the issues in this [46] case before the lower courts. The pre-trial order of the RTC stated that one of the issues before it is (w)hether or not the transfer of the whole property covered by OCT No. 352 on the basis of the private deed of donation notwithstanding the discrepancy in the description is valid. Before the CA, one of the errors assigned by respondents is that THE TRIAL COURT ERRED IN NOT FINDING [47] THAT THE PRIVATE DEED OF DONATION DATED APRIL 26, 1919 WAS NULL AND VOID.
[48]

The issue of the validity of donation is likewise brought to Us by petitioners as they stated in their Memorandum that one of the issues to be resolved is regarding the alleged fact that THE HONORABLE COURT OF APPEALS ERRED IN FINDING THE DONATION INVALID. We are thus poised to inspect the deed of donation and to determine its validity.

We cannot agree with petitioners contention that respondents may no longer question the validity of the deed of donation on the ground that they already impliedly admitted it. Under the provisions of the Civil Code, a void contract is inexistent from the [49] beginning. The right to set up the defense of its illegality cannot be waived. The right to set up the nullity of a void or non-existent contract is not limited to the parties as in the case of annullable or voidable contracts; it is extended to third persons who are directly [50] affected by the contract.

Consequently, although respondents are not parties in the deed of donation, they can set up its nullity because they are [51] directly affected by the same. The subject of the deed being the land they are occupying, its enforcement will definitely affect them.
[52]

Petitioners cannot also use the finality of the RTC decision in Petition Case No. U-920 as a shield against the verification of [53] the validity of the deed of donation. According to petitioners, the said final decision is one for quieting of title. In other words, it is a case for declaratory relief under Rule 64 (now Rule 63) of the Rules of Court, which provides:

SECTION 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, or ordinance, may, before breach or violation thereof, bring an action to determine any question of construction or validity arising under the instrument or statute and for a declaration of his rights or duties thereunder.

An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this rule.

SECTION 2. Parties. All persons shall be made parties who have or claim any interest which would be affected by the declaration; and no declaration shall, except as otherwise provided in these rules, prejudice the rights of persons not parties to the action. (Emphasis ours)

However, respondents were not made parties in the said Petition Case No. U-920. Worse, instead of issuing summons to interested parties, the RTC merely allowed the posting of notices on the bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan. As pointed out by the CA, citing the ruling of the RTC:

x x x In the said case or Petition No. U-920, notices were posted on the bulletin boards of barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan, so that there was a notice to the whole [54] world and during the initial hearing and/or hearings, no one interposed objection thereto.

Suits to quiet title are not technically suits in rem, nor are they, strictly speaking, in personam, but being against the person in [55] respect of the res, these proceedings are characterized asquasi in rem. The judgment in such proceedings is conclusive only [56] between the parties. Thus, respondents are not bound by the decision in Petition Case No. U-920 as they were not made parties in the said case.
[57]

The rules on quieting of title not parties to the action.

expressly provide that any declaration in a suit to quiet title shall not prejudice persons who are

That respondents filed a subsequent pleading in the same Petition Case No. U-920 after the decision there had become final did not change the fact that said decision became final without their being impleaded in the case. Said subsequent pleading was [59] dismissed on the ground of finality of the decision.

[58]

Thus, the RTC totally failed to give respondents their day in court. As a result, they cannot be bound by its orders. Generally accepted is the principle that no man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not [60] bound by judgment rendered by the court.

Moreover, for the principle of res judicata to apply, the following must be present: (1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final; and (4) the two actions involve identical parties, subject matter and causes of [61] action. The fourth element is not present in this case. The parties are not identical because respondents were not impleaded in Petition Case No. U-920. While the subject matter may be the same property covered by OCT No. 352, the causes of action are different. Petition Case No. U-920 is an action for declaratory relief while the case below is for recovery of property.

We are not persuaded by petitioners posture that the only issue in this action for reconveyance is who has a better right over [62] the land; and that the validity of the deed of donation is beside the point. It is precisely the validity and enforceability of the deed of donation that is the determining factor in resolving the issue of who has a better right over the property. Moreover, notwithstanding procedural lapses as to the appropriateness of the remedies prayed for in the petition filed before Us, this Court can brush aside the technicalities in the interest of justice. In some instances, this Court even suspended its own rules and excepted a case from their [63] operation whenever the higher interests of justice so demanded.

Moreover, although respondents did not directly raise the issue of validity of the deed of donation at the commencement of the [64] case before the trial court, it was stipulated by the parties during the pre-trial conference. In any event, this Court has authority to [65] inquire into any question necessary in arriving at a just decision of a case before it. Though not specifically questioned by the [66] parties, additional issues may also be included, if deemed important for substantial justice to be rendered.

Furthermore, this Court has held that although a factual issue is not squarely raised below, still in the interest of substantial justice, this Court is not prevented from considering a pivotal factual matter. The Supreme Court is clothed with ample authority to [67] review palpable errors not assigned as such if it finds that their consideration is necessary in arriving at a just decision.

A rudimentary doctrine on appealed cases is that this Court is clothed with ample authority to review matters, even if they are [68] not assigned as errors on appeal, if it finds that their consideration is necessary at arriving at a just decision of the case. Also, an unassigned error closely related to an error properly assigned or upon which the determination of the question raised by the error [69] properly assigned is dependent, will be considered by the appellate court notwithstanding the failure to assign it as an error.

Donation Propter Nuptias of Real Property Made in a Private Instrument Before the New Civil Code Took Effect on August 30, 1950 is Void

We now focus on the crux of the petition, which is the validity of the deed of donation. It is settled that only laws existing at the time of the execution of a contract are applicable to it and not the later statutes, unless the latter are specifically intended to have [70] retroactive effect. Accordingly, the Old Civil Code applies in this case as the donation propter nuptias was executed in 1919, while the New Civil Code took effect only on August 30, 1950.

Under the Old Civil Code, donations propter nuptias must be made in a public instrument in which the property donated must [71] be specifically described. Article 1328 of the Old Civil Code provides that gifts propter nuptias are governed by the rules established in Title 2 of Book 3 of the same Code. Article 633 of that title provides that the gift of real property, in order to be valid, must appear in a [72] [73] public document. It is settled that a donation of real estate propter nuptias is void unless made by public instrument.

In the instant case, the donation propter nuptias did not become valid. Neither did it create any right because it was not made in [74] a public instrument. Hence, it conveyed no title to the land in question to petitioners predecessors.

Logically, then, the cancellation of OCT No. 352 and the issuance of a new TCT No. 44481 in favor of petitioners predecessors have no legal basis. The title to the subject property should, therefore, be restored to its original owners under OCT No. 352.

Direct reconveyance to any of the parties is not possible as it has not yet been determined in a proper proceeding who among the heirs of spouses Simeon Doronio and Cornelia Gante is entitled to it. It is still unproven whether or not the parties are the only ones

entitled to the properties of spouses Simeon Doronio and Cornelia Gante. As earlier intimated, there are still things to be done before [75] the legal share of all the heirs can be properly adjudicated.

Titled Property Cannot Be Acquired By Another By Adverse Possession or Extinctive Prescription

Likewise, the claim of respondents that they became owners of the property by acquisitive prescription has no merit. Truth to tell, respondents cannot successfully invoke the argument of extinctive prescription. They cannot be deemed the owners by acquisitive prescription of the portion of the property they have been possessing. The reason is that the property was covered by OCT No. 352. A title once registered under the torrens system cannot be defeated even by adverse, open and notorious possession; neither can it be [76] defeated by prescription. It is notice to the whole world and as such all persons are bound by it and no one can plead ignorance of [77] the registration.

The torrens system is intended to guarantee the integrity and conclusiveness of the certificate of registration, but it cannot be [78] used for the perpetration of fraud against the real owner of the registered land. The system merely confirms ownership and does not create it. Certainly, it cannot be used to divest the lawful owner of his title for the purpose of transferring it to another who has not acquired it by any of the modes allowed or recognized by law. It cannot be used to protect a usurper from the true owner, nor can it be [79] used as a shield for the commission of fraud; neither does it permit one to enrich himself at the expense of another. Where such an illegal transfer is made, as in the case at bar, the law presumes that no registration has been made and so retains title in the real owner [80] of the land.

Although We confirm here the invalidity of the deed of donation and of its resulting TCT No. 44481, the controversy between the parties is yet to be fully settled. The issues as to who truly are the present owners of the property and what is the extent of their ownership remain unresolved. The same may be properly threshed out in the settlement of the estates of the registered owners of the property, namely: spouses Simeon Doronio and Cornelia Gante.

WHEREFORE, the appealed Decision is REVERSED AND SET ASIDE. A new one is entered:

(1) Declaring the private deed of donation propter nuptias in favor of petitioners predecessors NULL AND VOID; and (2) Ordering the Register of Deeds of Pangasinan to:

(a) CANCEL Transfer Certificate of Title No. 44481 in the names of Marcelino Doronio and Veronica Pico; and

(b) RESTORE Original Certificate of Title No. 352 in the names of its original owners, spouses Simeon Doronio and Cornelia Gante.

SO ORDERED.