G.R. No. L-68053 May 7, 1990 LAURA ALVAREZ, FLORA ALVAREZ and RAYMUNDO ALVAREZ, vs.

THE HONORABLE INTERMEDIATE APELLATE COURT and JESUS YANES, ESTELITA YANES, ANTONIO YANES, ROSARIO YANES, and ILUMINADO YANES,. This is a petition for review on certiorari seeking the reversal of: (a) the decision of the Fourth Civil Cases Division of the Intermediate Appellate Court dated August 31, 1983 in AC-G.R. CV No. 56626 entitled "Jesus Yanes et al. v. Dr. Rodolfo Siason et al." affirming the decision dated July 8, 1974 of the Court of First Instance of Negros Occidental insofar as it ordered the petitioners to pay jointly and severally the private respondents the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros Occidental and reversing the subject decision insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees, respectively and (b) the resolution of said appellate court dated May 30, 1984, denying the motion for reconsideration of its decision. The real properties involved are two parcels of land identified as Lot 773-A and Lot 773-B which were originally known as Lot 773 of the cadastral survey of Murcia, Negros Occidental. Lot 773, with an area of 156,549 square meters, was registered in the name of the heirs of Aniceto Yanes under Original Certificate of Title No. RO-4858 (8804) issued on October 9, 1917 by the Register of Deeds of Occidental Negros (Exh. A). Aniceto Yanes was survived by his children, Rufino, Felipe and Teodora. Herein private respondents, Estelita, Iluminado and Jesus, are the children of Rufino who died in 1962 while the other private respondents, Antonio and Rosario Yanes, are children of Felipe. Teodora was survived by her child, 1 Jovita (Jovito) Alib. It is not clear why the latter is not included as a party in this case. Aniceto left his children Lots 773 and 823. Teodora cultivated only three hectares of Lot 823 as she could not attend to the other portions of the two lots which had a total area of around twenty-four hectares. The record does not show whether the children of Felipe also cultivated some portions of the lots but it is established that Rufino and his children left the province to settle in other places as a result of the outbreak of World War II. According to Estelita, from the "Japanese time up to peace time", they did not visit the parcels of land in question but "after liberation", when her brother went there to get their share of the sugar produced therein, he was informed that Fortunato Santiago, Fuentebella (Puentevella) and 2 Alvarez were in possession of Lot 773. It is on record that on May 19, 1938, Fortunato D. Santiago was issued Transfer Certificate of Title No. RF 3 2694 (29797) covering Lot 773-A with an area of 37,818 square meters. TCT No. RF 2694 describes Lot 773-A as a portion of Lot 773 of the cadastral survey of Murcia and as originally registered under OCT No. 8804. The bigger portion of Lot 773 with an area of 118,831 square meters was also registered in the name of 4 Fortunato D. Santiago on September 6, 1938 Under TCT No. RT-2695 (28192 ). Said transfer certificate of title also contains a certification to the effect that Lot 773-B was originally registered under OCT No. 8804. On May 30, 1955, Santiago sold Lots 773-A and 773-B to Monico B. Fuentebella, Jr. in consideration of 5 the sum of P7,000.00. Consequently, on February 20, 1956, TCT Nos. T-19291 and T-19292 were 6 issued in Fuentebella's name. After Fuentebella's death and during the settlement of his estate, the administratrix thereof (Arsenia R. Vda. de Fuentebella, his wife) filed in Special Proceedings No. 4373 in the Court of First Instance of 7 Negros Occidental, a motion requesting authority to sell Lots 773-A and 773-B. By virtue of a court order 8 granting said motion, on March 24, 1958, Arsenia Vda. de Fuentebella sold said lots for P6,000.00 to

Rosendo Alvarez. Hence, on April 1, 1958 TCT Nos. T-23165 and T-23166 covering Lots 773-A and 10 773-B were respectively issued to Rosendo Alvarez. Two years later or on May 26, 1960, Teodora Yanes and the children of her brother Rufino, namely, Estelita, Iluminado and Jesus, filed in the Court of First Instance of Negros Occidental a complaint against Fortunato Santiago, Arsenia Vda. de Fuentebella, Alvarez and the Register of Deeds of Negros Occidental for the "return" of the ownership and possession of Lots 773 and 823. They also prayed that an accounting of the produce of the land from 1944 up to the filing of the complaint be made by the defendants, that after court approval of said accounting, the share or money equivalent due the plaintiffs be delivered to them, and that defendants be ordered to pay plaintiffs P500.00 as damages in the form of 11 attorney's fees. During the pendency in court of said case or on November 13, 1961, Alvarez sold Lots 773-A, 773-B and 12 another lot for P25,000.00 to Dr. Rodolfo Siason. Accordingly, TCT Nos. 30919 and 30920 were issued 13 14 to Siason, who thereafter, declared the two lots in his name for assessment purposes. Meanwhile, on November 6, 1962, Jesus Yanes, in his own behalf and in behalf of the other plaintiffs, and assisted by their counsel, filed a manifestation in Civil Case No. 5022 stating that the therein plaintiffs "renounce, forfeit and quitclaims (sic) any claim, monetary or otherwise, against the defendant Arsenia 15 Vda. de Fuentebella in connection with the above-entitled case." On October 11, 1963, a decision was rendered by the Court of First Instance of Negros Occidental in Civil Case No. 5022, the dispositive portion of which reads: WHEREFORE, judgment is rendered, ordering the defendant Rosendo Alvarez to reconvey to the plaintiffs lots Nos. 773 and 823 of the Cadastral Survey of Murcia, Negros Occidental, now covered by Transfer Certificates of Title Nos. T-23165 and T23166 in the name of said defendant, and thereafter to deliver the possession of said lots to the plaintiffs. No special pronouncement as to costs. SO ORDERED.
16

It will be noted that the above-mentioned manifestation of Jesus Yanes was not mentioned in the aforesaid decision. However, execution of said decision proved unsuccessful with respect to Lot 773. In his return of service dated October 20, 1965, the sheriff stated that he discovered that Lot 773 had been subdivided into Lots 773-A and 773-B; that they were "in the name" of Rodolfo Siason who had purchased them from Alvarez, and that Lot 773 could not be delivered to the plaintiffs as Siason was "not a party per writ of execution."
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The execution of the decision in Civil Case No. 5022 having met a hindrance, herein private respondents (the Yaneses) filed on July 31, 1965, in the Court of First Instance of Negros Occidental a petition for the issuance of a new certificate of title and for a declaration of nullity of TCT Nos. T-23165 and T-23166 18 issued to Rosendo Alvarez. Thereafter, the court required Rodolfo Siason to produce the certificates of title covering Lots 773 and 823. Expectedly, Siason filed a manifestation stating that he purchased Lots 773-A, 773-B and 658, not Lots 773 and 823, "in good faith and for a valuable consideration without any knowledge of any lien or 19 encumbrances against said properties"; that the decision in the cadastral proceeding could not be enforced against him as he was not a party thereto; and that the decision in Civil Case No. 5022 could neither be enforced against him not only because he was not a party-litigant therein but also because it 20 had long become final and executory. Finding said manifestation to be well-founded, the cadastral

court, in its order of September 4, 1965, nullified its previous order requiring Siason to surrender the 21 certificates of title mentioned therein. In 1968, the Yaneses filed an ex-parte motion for the issuance of an alias writ of execution in Civil Case 22 No. 5022. Siason opposed it. In its order of September 28, 1968 in Civil Case No. 5022, the lower court, noting that the Yaneses had instituted another action for the recovery of the land in question, ruled 23 that at the judgment therein could not be enforced against Siason as he was not a party in the case. The action filed by the Yaneses on February 21, 1968 was for recovery of real property with damages. Named defendants therein were Dr. Rodolfo Siason, Laura Alvarez, Flora Alvarez, Raymundo Alvarez and the Register of Deeds of Negros Occidental. The Yaneses prayed for the cancellation of TCT Nos. T19291 and 19292 issued to Siason (sic) for being null and void; the issuance of a new certificate of title in the name of the Yaneses "in accordance with the sheriffs return of service dated October 20, 1965;" Siason's delivery of possession of Lot 773 to the Yaneses; and if, delivery thereof could not be effected, or, if the issuance of a new title could not be made, that the Alvarez and Siason jointly and severally pay the Yaneses the sum of P45,000.00. They also prayed that Siason render an accounting of the fruits of Lot 773 from November 13, 1961 until the filing of the complaint; and that the defendants jointly and severally pay the Yaneses moral damages of P20,000.00 and exemplary damages of P10,000.00 plus 25 attorney's fees of P4, 000.00. In his answer to the complaint, Siason alleged that the validity of his titles to Lots 773-A and 773-B, having been passed upon by the court in its order of September 4, 1965, had become res judicata and 26 the Yaneses were estopped from questioning said order. On their part, the Alvarez stated in their answer that the Yaneses' cause of action had been "barred by res judicata, statute of limitation and 27 estoppel." In its decision of July 8, 1974, the lower court found that Rodolfo Siason, who purchased the properties in question thru an agent as he was then in Mexico pursuing further medical studies, was a buyer in good faith for a valuable consideration. Although the Yaneses were negligent in their failure to place a notice of lis pendens "before the Register of Deeds of Negros Occidental in order to protect their rights over the property in question" in Civil Case No. 5022, equity demanded that they recover the actual value of the 28 land because the sale thereof executed between Alvarez and Siason was without court approval. The dispositive portion of the decision states: IN VIEW OF THE FOREGOING CONSIDERATION, judgment is hereby rendered in the following manner: A. The case against the defendant Dr. Rodolfo Siason and the Register of Deeds are (sic) hereby dismmissed, B. The defendants, Laura, Flora and Raymundo, all surnamed Alvarez being the legitimate children of the deceased Rosendo Alvarez are hereby ordered to pay jointly and severally the plaintiffs the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of Murcia Cadastre, Negros Occidental; the sum of P2,000.00 as actual damages suffered by the plaintiff; the sum of P5,000.00 representing moral damages and the sum of P2.000 as attorney's fees, all with legal rate of interest from date of the filing of this complaint up to final payment. C. The cross-claim filed by the defendant Dr. Rodolfo Siason against the defendants, Laura, Flora and Raymundo, all surnamed Alvarez is hereby dismissed. D. Defendants, Laura, Flora and Raymundo, all surnamed Alvarez are hereby ordered to pay the costs of this suit.
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SO ORDERED.

29

The Alvarez appealed to the then Intermediate Appellate Court which in its decision of August 31, 1983 affirmed the lower court's decision "insofar as it ordered defendants-appellants to pay jointly and severally the plaintiffs-appellees the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773B of the cadastral survey of Murcia, Negros Occidental, and is reversed insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees, 31 respectively." The dispositive portion of said decision reads: WHEREFORE, the decision appealed from is affirmed insofar as it ordered defendantsappellants to pay jointly and severally the plaintiffs- appellees the sum of P20,000.00 representing the actual value of Lots Nos. 773-A and 773-B of the cadastral survey of Murcia, Negros Occidental, and is reversed insofar as it awarded the sums of P2,000.00, P5,000.00 and P2,000.00 as actual damages, moral damages and attorney's fees, respectively. No costs. SO ORDERED.
32

30

Finding no cogent reason to grant appellants motion for reconsideration, said appellate court denied the same. Hence, the instant petition. ln their memorandum petitioners raised the following issues: 1. Whethere or not the defense of prescription and estoppel had been timely and properly invoked and raised by the petitioners in the lower court. 2. Whether or not the cause and/or causes of action of the private respondents, if ever there are any, as alleged in their complaint dated February 21, 1968 which has been docketed in the trial court as Civil Case No. 8474 supra, are forever barred by statute of limitation and/or prescription of action and estoppel. 3. Whether or not the late Rosendo Alvarez, a defendant in Civil Case No. 5022, supra and father of the petitioners become a privy and/or party to the waiver (Exhibit 4defendant Siason) in Civil Case No. 8474, supra where the private respondents had unqualifiedly and absolutely waived, renounced and quitclaimed all their alleged rights and interests, if ever there is any, on Lots Nos. 773-A and 773-B of Murcia Cadastre as appearing in their written manifestation dated November 6, 1962 (Exhibits "4" Siason) which had not been controverted or even impliedly or indirectly denied by them. 4. Whether or not the liability or liabilities of Rosendo Alvarez arising from the sale of Lots Nos. 773-A and 773-B of Murcia Cadastre to Dr. Rodolfo Siason, if ever there is any, could be legally passed or transmitted by operations ( sic) of law to the petitioners without 33 violation of law and due process . The petition is devoid of merit. As correctly ruled by the Court of Appeals, it is powerless and for that matter so is the Supreme Court, to review the decision in Civil Case No. 5022 ordering Alvarez to reconvey the lots in dispute to herein private respondents. Said decision had long become final and executory and with the possible exception of Dr. Siason, who was not a party to said case, the decision in Civil Case No. 5022 is the law of the case between the parties thereto. It ended when Alvarez or his heirs failed to appeal the decision against them.
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Thus, it is axiomatic that when a right or fact has been judicially tried and determined by a court of competent jurisdiction, so long as it remains unreversed, it should be conclusive upon the parties and 35 those in privity with them in law or estate. As consistently ruled by this Court, every litigation must come to an end. Access to the court is guaranteed. But there must be a limit to it. Once a litigant's right has been adjudicated in a valid final judgment of a competent court, he should not be granted an unbridled license to return for another try. The prevailing party should not be harassed by subsequent suits. For, if endless litigation were to be allowed, unscrupulous litigations will multiply in number to the detriment of 36 the administration of justice. There is no dispute that the rights of the Yaneses to the properties in question have been finally adjudicated in Civil Case No. 5022. As found by the lower court, from the uncontroverted evidence presented, the Yaneses have been illegally deprived of ownership and possession of the lots in question. 37 In fact, Civil Case No. 8474 now under review, arose from the failure to execute Civil Case No. 5022, as subject lots can no longer be reconveyed to private respondents Yaneses, the same having been sold during the pendency of the case by the petitioners' father to Dr. Siason who did not know about the controversy, there being no lis pendens annotated on the titles. Hence, it was also settled beyond question that Dr. Siason is a purchaser in good faith. Under the circumstances, the trial court did not annul the sale executed by Alvarez in favor of Dr. Siason on November 11, 1961 but in fact sustained it. The trial court ordered the heirs of Rosendo Alvarez who lost in Civil Case No. 5022 to pay the plaintiffs (private respondents herein) the amount of P20,000.00 representing the actual value of the subdivided lots in dispute. It did not order defendant Siason to pay 38 said amount. As to the propriety of the present case, it has long been established that the sole remedy of the landowner whose property has been wrongfully or erroneously registered in another's name is to bring an ordinary action in the ordinary court of justice for reconveyance or, if the property has passed into the 39 hands of an innocent purchaser for value, for damages. "It is one thing to protect an innocent third party; it is entirely a different matter and one devoid of justification if deceit would be rewarded by allowing the perpetrator to enjoy the fruits of his nefarious decided As clearly revealed by the undeviating line of decisions coming from this Court, such an undesirable eventuality is precisely sought to be guarded 40 against." The issue on the right to the properties in litigation having been finally adjudicated in Civil Case No. 5022 in favor of private respondents, it cannot now be reopened in the instant case on the pretext that the defenses of prescription and estoppel have not been properly considered by the lower court. Petitioners could have appealed in the former case but they did not. They have therefore foreclosed their rights, if any, and they cannot now be heard to complain in another case in order to defeat the enforcement of a judgment which has longing become final and executory. Petitioners further contend that the liability arising from the sale of Lots No. 773-A and 773-B made by Rosendo Alvarez to Dr. Rodolfo Siason should be the sole liability of the late Rosendo Alvarez or of his estate, after his death. Such contention is untenable for it overlooks the doctrine obtaining in this jurisdiction on the general transmissibility of the rights and obligations of the deceased to his legitimate children and heirs. Thus, the pertinent provisions of the Civil Code state: Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.

Art. 1311. Contract stake effect only between the parties, their assigns and heirs except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property received from the decedent. As explained by this Court through Associate Justice J.B.L. Reyes in the case of Estate of Hemady vs. 41 Luzon Surety Co., Inc. The binding effect of contracts upon the heirs of the deceased party is not altered by the provision of our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made from the state is ultimately a payment by the heirs or distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive. Under our law, therefore. the general rule is that a party's contractual rights and obligations are transmissible to the successors. The rule is a consequence of the progressive "depersonalization" of patrimonial rights and duties that, as observed by Victorio Polacco has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other. xxx xxx xxx Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape the legal consequences of their father's transaction, which gave rise to the present claim for damages. That petitioners did not inherit the property involved herein is of no moment because by legal fiction, the monetary equivalent thereof devolved into the mass of their father's hereditary estate, and we have ruled that the hereditary assets are 42 always liable in their totality for the payment of the debts of the estate. It must, however, be made clear that petitioners are liable only to the extent of the value of their inheritance. With this clarification and considering petitioners' admission that there are other properties left by the deceased which are sufficient to cover the amount adjudged in favor of private respondents, we see no cogent reason to disturb the findings and conclusions of the Court of Appeals. WHEREFORE, subject to the clarification herein above stated, the assailed decision of the Court of Appeals is hereby AFFIRMED. Costs against petitioners. SO ORDERED. G.R. Nos. 89224-25 January 23, 1992 MAURICIO SAYSON, ROSARIO SAYSON-MALONDA, BASILISA SAYSON-LIRIO, REMEDIOS SAYSON-REYES and JUANA C. BAUTISTA, vs. THE HONORABLE COURT OF APPEALS, DELIA SAYSON, assisted by her husband, CIRILO CEDO, JR., EDMUNDO SAYSON AND DORIBEL SAYSON,.

At issue in this case is the status of the private respondents and their capacity to inherit from their alleged parents and grandparents. The petitioners deny them that right, asserting if for themselves to the exclusion of all others. The relevant genealogical facts are as follows. Eleno and Rafaela Sayson begot five children, namely, Mauricio, Rosario, Basilisa, Remedios and Teodoro. Eleno died on November 10, 1952, and Rafaela on May 15, 1976. Teodoro, who had married Isabel Bautista, died on March 23, 1972. His wife died nine years later, on March 26, 1981. Their properties were left in the possession of Delia, Edmundo, and Doribel, all surnamed Sayson, who claim to be their children. On April 25, 1983, Mauricio, Rosario, Basilisa, and Remedios, together with Juana C. Bautista, Isabel's mother, filed a complaint for partition and accounting of the intestate estate of Teodoro and Isabel Sayson. It was docketed as Civil Case No. 1030 in Branch 13 of the Regional Trial Court of Albay. The action was resisted by Delia, Edmundo and Doribel Sayson, who alleged successional rights to the disputed estate as the decedents' lawful descendants. On July 11, 1983, Delia, Edmundo and Doribel filed their own complaint, this time for the accounting and partition of the intestate estate of Eleno and Rafaela Sayson, against the couple's four surviving children. This was docketed as Civil Case No. 1042 in the Regional Trial Court of Albay, Branch 12. The complainants asserted the defense they raised in Civil Case No. 1030, to wit, that Delia and Edmundo were the adopted children and Doribel was the legitimate daughter of Teodoro and Isabel. As such, they were entitled to inherit Teodoro's share in his parents' estate by right of representation. Both cases were decided in favor of the herein private respondents on the basis of practically the same evidence. Judge Rafael P. Santelices declared in his decision dated May 26, 1 1986, that Delia and Edmundo were the legally adopted children of Teodoro and Isabel Sayson by virtue 2 of the decree of adoption dated March 9, 1967. Doribel was their legitimate daughter as evidenced by 3 her birth certificate dated February 27, 1967. Consequently, the three children were entitled to inherit from Eleno and Rafaela by right of representation. In his decision dated September 30, 1986, Judge Jose S. Saez dismissed Civil Case No. 1030, holding that the defendants, being the legitimate heirs of Teodoro and Isabel as established by the aforementioned evidence, excluded the plaintiffs from sharing in their estate. Both cases were appealed to the Court of Appeals, where they were consolidated. In its own decision 5 dated February 28, 1989, the respondent court disposed as follows: WHEREFORE, in Civil Case No. 1030 (CA-G.R. No. 11541), the appealed decision is hereby AFFIRMED. In Civil case No. 1042 (CA-G.R. No. 12364), the appealed decision is MODIFIED in that Delia and Edmundo Sayson are disqualified from inheriting from the estate of the deceased spouses Eleno and Rafaela Sayson, but is affirmed in all other respects. SO ORDERED. That judgment is now before us in this petition for review by certiorari. Reversal of the respondent court is sought on the ground that it disregarded the evidence of the petitioners and misapplied the pertinent law and jurisprudence when it declared the private respondents as the exclusive heirs of Teodoro and Isabel Sayson.
4

The contention of the petitioners is that Delia and Edmundo were not legally adopted because Doribel had already been born on February 27, 1967, when the decree of adoption was issued on March 9, 1967. The birth of Doribel disqualified her parents from adopting. The pertinent provision is Article 335 of the Civil Code, naming among those who cannot adopt "(1) Those who have legitimate, legitimated, acknowledged natural children, or natural children by legal fiction." Curiously enough, the petitioners also argue that Doribel herself is not the legitimate daughter of Teodoro and Isabel but was in fact born to one Edita Abila, who manifested in a petition for guardianship of the 6 child that she was her natural mother. The inconsistency of this position is immediately apparent. The petitioners seek to annul the adoption of Delia and Edmundo on the ground that Teodoro and Isabel already had a legitimate daughter at the time but in the same breath try to demolish this argument by denying that Doribel was born to the couple. On top of this, there is the vital question of timeliness. It is too late now to challenge the decree of 7 adoption, years after it became final and executory. That was way back in 1967. Assuming the the petitioners were proper parties, what they should have done was seasonably appeal the decree of adoption, pointing to the birth of Doribel that disqualified Teodoro and Isabel from adopting Delia and Edmundo. They did not. In fact, they should have done this earlier, before the decree of adoption was issued. They did not, although Mauricio claimed he had personal knowledge of such birth. As the respondent court correctly observed: When Doribel was born on February 27, 1967, or about TEN (10) days before the issuance of the Order of Adoption, the petitioners could have notified the court about the fact of birth of DORIBEL and perhaps withdrew the petition or perhaps petitioners could have filed a petition for the revocation or rescission of the adoption (although the birth of a child is not one of those provided by law for the revocation or rescission of an adoption). The court is of the considered opinion that the adoption of the plaintiffs DELIA and EDMUNDO SAYSON is valid, outstanding and binding to the present, the same not having been revoked or rescinded. Not having any information of Doribel's birth to Teodoro and Isabel Sayson, the trial judge cannot be faulted for granting the petition for adoption on the finding inter alia that the adopting parents were not disqualified. A no less important argument against the petitioners is that their challenge to the validity of the adoption cannot be made collaterally, as in their action for partition, but in a direct proceeding frontally addressing the issue. The settled rule is that a finding that the requisite jurisdictional facts exists, whether erroneous or not, cannot be questioned in a collateral proceeding , for a presumption arises in such cases where the validity of the judgment is thus attacked that the necessary jurisdictional facts were proven [Freeman on Judgments, Vol. I, Sec. 350, pp. 719-720]. (Emphasis supplied.) In the case of Santos v. Aranzanso, 8 this Court declared: Anent this point, the rulings are summed up in 2 American Jurisprudence, 2nd Series, Adoption, Sec. 75, p. 922, thus: An adoption order implies the finding of the necessary facts and the burden of proof is on the party attacking it; it cannot be considered void

merely because the fact needed to show statutory compliance is obscure. While a judicial determination of some particular fact, such as the abandonment of his next of kin to the adoption, may be essential to the exercise of jurisdiction to enter the order of adoption, this does not make it essential to the jurisdictional validity of the decree that the fact be determined upon proper evidence, or necessarily in accordance with the truth; a mere error cannot affect the jurisdiction, and the determination must stand until reversed on appeal, and hence cannot be collaterally attacked. If this were not the rule, the status of adopted children would always be uncertain, since the evidence might not be the same at all investigations, and might be regarded with different effect by different tribunals, and the adoption might be held by one court to have been valid, while another court would hold it to have been of no avail. (Emphasis supplied.) On the question of Doribel's legitimacy, we hold that the findings of the trial courts as affirmed by the respondent court must be sustained. Doribel's birth certificate is a formidable piece of evidence. It is one of the prescribed means of recognition under Article 265 of the Civil Code and Article 172 of the Family 9 Code. It is true, as the petitioners stress, that the birth certificate offers only prima facie evidence of filiation and may be refuted by contrary evidence. However, such evidence is lacking in the case at bar. Mauricio's testimony that he was present when Doribel was born to Edita Abila was understandbly 10 suspect, coming as it did from an interested party. The affidavit of Abila denying her earlier statement in the petition for the guardianship of Doribel is of course hearsay, let alone the fact that it was never offered in evidence in the lower courts. Even without it, however, the birth certificate must be upheld in line with 11 Legaspi v. Court of Appeals, where we ruled that "the evidentiary nature of public documents must be sustained in the absence of strong, complete and conclusive proof of its falsity or nullity." Another reason why the petitioners' challenge must fail is the impropriety of the present proceedings for that purpose. Doribel's legitimacy cannot be questioned in a complaint for partition and accounting but in a direct action seasonably filed by the proper party. The presumption of legitimacy in the Civil Code . . . does not have this purely evidential character. It serves a more fundamental purpose. It actually fixes a civil status for the child born in wedlock, and that civil status cannot be attacked collaterally. The legitimacy of the child can be impugned only in a direct action brought for that purpose, by the proper parties, and within the period limited by law. The legitimacy of the child cannot be contested by way of defense or as a collateral issue 12 in another action for a different purpose. . . . (Emphasis supplied.) In consequence of the above observations, we hold that Doribel, as the legitimate daughter of Teodoro and Isabel Sayson, and Delia and Edmundo, as their adopted children, are the exclusive heirs to the intestate estate of the deceased couple, conformably to the following Article 979 of the Civil Code: Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child. The philosophy underlying this article is that a person's love descends first to his children and grandchildren before it ascends to his parents and thereafter spreads among his collateral relatives. It is

also supposed that one of his purposes in acquiring properties is to leave them eventually to his children as a token of his love for them and as a provision for their continued care even after he is gone from this earth. Coming now to the right of representation, we stress first the following pertinent provisions of the Civil Code: Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. Art. 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one who the person represented would have succeeded. Art. 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation. There is no question that as the legitimate daughter of Teodoro and thus the granddaughter of Eleno and Rafaela, Doribel has a right to represent her deceased father in the distribution of the intestate estate of her grandparents. Under Article 981, quoted above, she is entitled to the share her father would have directly inherited had he survived, which shall be equal to the shares of her grandparents' other children.
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But a different conclusion must be reached in the case of Delia and Edmundo, to whom the grandparents were total strangers. While it is true that the adopted child shall be deemed to be a legitimate child and have the same right as the latter, these rights do not include the right of representation. The relationship created by the adoption is between only the adopting parents and the adopted child and does not extend 14 to the blood relatives of either party. In sum, we agree with the lower courts that Delia and Edmundo as the adopted children and Doribel as the legitimate daughter of Teodoro Sayson and Isabel Bautista, are their exclusive heirs and are under no obligation to share the estate of their parents with the petitioners. The Court of Appeals was correct, however, in holding that only Doribel has the right of representation in the inheritance of her grandparents' intestate estate, the other private respondents being only the adoptive children of the deceased Teodoro. WHEREFORE, the petition is DENIED, and the challenged decision of the Court of Appeals is AFFIRMED in toto, with costs against the petitioners. G.R. No. 77867 February 6, 1990 ISABEL DE LA PUERTA, vs. THE HONORABLE COURT OF APPEALS and CARMELITA DE LA PUERTA, The basic issue involved in this case is the filiation of private respondent Carmelita de la Puerta, who claims successional lights to the estate of her alleged grandmother. Dominga Revuelta died on July 3, 1966, at the age of 92, with a will leaving her properties to her three surviving children, namely, Alfredo, Vicente and Isabel, all surnamed de la Puerta. Isabel was given the 1 free portion in addition to her legitime and was appointed executrix of the will.

The petition for the probate of the will filed by Isabel was opposed by her brothers, who averred that their mother was already senile at the time of the execution of the will and did not fully comprehend its meaning. Moreover, some of the properties listed in the inventory of her estate belonged to them 2 exclusively. Meantime, Isabel was appointed special administratrix by the probate court. Alfredo subsequently died, 4 leaving Vicente the lone oppositor. On August 1, 1974, Vicente de la Puerta filed with the Court of First Instance of Quezon a petition to 5 adopt Carmelita de la Puerta. After hearing, the petition was granted. However, the decision was appealed by Isabel to the Court of Appeals. During the pendency of the appeal, Vicente died, prompting 6 her to move for the dismissal of the case On November 20, 1981, Carmelita, having been allowed to intervene in the probate proceedings, filed a motion for the payment to her of a monthly allowance as the acknowledged natural child of Vicente de la 7 Puerta. At the hearing on her motion, Carmelita presented evidence to prove her claimed status to which Isabel was allowed to submit counter-evidence. On November 12,1982, the probate court granted the motion, declaring that it was satisfied from the evidence at hand that Carmelita was a natural child of Vicente de la Puerta and was entitled to the amounts claimed for her support. The court added that "the evidence presented by the petitioner against 8 it (was) too weak to discredit the same. On appeal, the order of the lower court was affirmed by the respondent court, which is now in turn being challenged in this petition before us. The petitioner's main argument is that Carmelita was not the natural child of Vicente de la Puerta, who was married to Genoveva de la Puerta in 1938 and remained his wife until his death in 1978. Carmelita's real parents are Juanita Austrial and Gloria Jordan. Invoking the presumption of legitimacy, she argues that Carmelita was the legitimate child of Juanita Austrial and Gloria Jordan, who were legally or presumably married. Moreover, Carmelita could not have been a natural child of Vicente de la Puerta because he was already married at the time of her birth in 1962. To prove her point, Isabel presented Amado Magpantay, who testified that he was a neighbor of Austrial and Jordan. According to him, the two were living as husband and wife and had three children, including a girl named "Puti," presumably Carmelita. He said though that he was not sure if the couple was legally 10 married. Another witness, Genoveva de la Puerta, Identified herself as Vicente de la Puerta's wife but said they separated two years after their marriage in 1938 and were never reconciled. In 1962, Gloria Jordan started living with Vicente de la Puerta in his house, which was only five or six houses away from where she herself was staying. Genoveva said that the relationship between her husband and Gloria was well 11 known in the community. In finding for Carmelita, the lower court declared that: . . . By her evidence, it was shown to the satisfaction of the Court that she was born on December 18, 1962 per her birth certificate (Exh. A); that her father was Vicente de la Puerta and her mother is Gloria Jordan who were living as common law husband and wife until his death on June 14, 1978; that Vicente de la Puerta was married to, but was separated from, his legal wife Genoveva de la Puerta; that upon the death of Vicente de
9 3

la Puerta on June 14, 1978 without leaving a last will and testament, she was the only child who survived him together with his spouse Genoveva de la Puerta with whom he did not beget any child; that she was treated by Vicente de la Puerta as a true child from the time of her birth until his father died; that the fact that she was treated as a child of Vicente de la Puerta is shown by the family pictures showing movant with Vicente de la Puerta (Exhs. D, D-1 and D-2) and school records wherein he signed the report cards as her parent (Exh. E and E-1); that during the hearing of her adoption case in Special Proceeding No. 0041 in Branch V of this Court at Mauban, Quezon, Vicente de la Puerta categorically stated in court that Carmelita de la Puerta is his daughter with Gloria Jordan (Exhs. B and B-1); that it was Vicente de la Puerta during his lifetime who spent for her 12 subsistence, support and education; . . . This is a factual finding that we do not see fit to disturb, absent any of those circumstances we have laid 13 down in a long line of decisions that will justify reversal. Among these circumstances are: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant and appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of facts are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record. The petitioner insists on the application of the following provisions of the Civil Code to support her thesis that Carmelita is not the natural child of Vicente de la Puerta but the legitimate child of Juanito Austrial and Gloria Jordan: Art. 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: (1) By the impotence of the husband; (2) By the fact that the husband and wife were living separately in such a way that access was not possible; (3) By the serious illness of the husband. Art. 256. The child shall be presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. These rules are in turn based on the presumption that Juanito and Gloria were married at the time of Carmelita's birth in 1962, pursuant to Rule 131, Sec. 5(bb) of the Rules of Court, providing that: Sec. 5. Disputable presumptions.The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

xxx xxx xxx (bb) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; But this last-quoted presumption is merely disputable and may be refuted with evidence to the contrary. As the Court sees it, such evidence has been sufficiently established in the case at bar. The cases cited by the petitioner are not exactly in point because they involve situations where the couples lived continuously as husband and wife and so could be reasonably presumed to be married. In the case before us, there was testimony from Vicente's own wife that her husband and Gloria lived together as a married couple, thereby rebutting the presumption that Gloria was herself the lawful wife of Juanita Austrial. Such testimony would for one thing show that Juanito and Gloria did not continuously live together as a married couple. Moreover, it is not explained why, if he was really married to her, Juanito did not object when Gloria left the conjugal home and started openly consorting with Vicente, and in the same neighborhood at that. That was unnatural, to say the least. It was different with Genoveva for she herself swore that she had separated from Vicente two years after their marriage and had long lost interest in her 15 husband. In fact, she even renounced in open court any claim to Vicente's estate. The presumption of marriage between Juanito and Gloria having been destroyed, it became necessary for the petitioner to submit additional proof to show that the two were legally married. She did not. Turning now to the evidence required to prove the private respondent's filiation, we reject the petitioner's contention that Article 278 of the Civil Code is not available to Carmelita. It is error to contend that as she is not a natural child but a spurious child (if at all) she cannot prove her status by the record of birth, a will, a statement before a court of record, or any authentic writing. On the contrary, it has long been settled that: The so-called spurious children or illegitimate children other than natural children, commonly known as bastards, include adulterous children or those born out of wedlock to a married woman cohabiting with a man other than her husband or to a married man cohabiting with a woman other than his wife. They are entitled to support and successional rights (Art. 287, CC). But their filiation must be duly proven.(Ibid, Art. 887) How should their filiation be proven? Article 289 of the Civil Code allows the investigation of the paternity or maternity of spurious children under the circumstances specified in Articles 283 and 284 of the Civil Code. The implication is that the rules on compulsory recognition of natural children are applicable to spurious children. Spurious children should not be in a better position than natural children. The rules on proof of filiation of natural children or the rule on voluntary and compulsory 16 acknowledgment for natural children may be applied to spurious children. This being so, we need not rule now on the admissibility of the private respondent's certificate of birth as proof of her filiation. That status was sufficiently established by the sworn testimony of Vicente de la Puerta at the hearing of the petition for adoption on September 6, 1976, where he categorically declared as follows: Q What relation if any do you have with Carmelita de la Puerta? A She is my daughter.
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Finally, we move to the most crucial question, to wit: May Carmelita de la Puerta claim support and successional rights to the estate of Dominga Revuelta? According to Article 970 of the Civil Code: Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. The answer to the question posed must be in the negative. The first reason is that Vicente de la Puerta did not predecease his mother; and the second is that Carmelita is a spurious child. It is settled that In testamentary succession, the right of representation can take place only in the following cases: first, when the person represented dies before the testator; second, when the person represented is incapable of succeeding the testator; and third, when the person represented is disinherited by the testator. In all of these cases, since there is a vacancy in the inheritance, the law calls the children or descendants of the person 18 represented to succeed by right of representation. xxx xxx xxx The law is clear that there is representation only when relatives of a deceased person try to succeed him in his rights which he would have had if still living. In the present case, however, said deceased had already succeeded his aunt, the testatrix herein. . . . It is a fact that at the time of the death of the testatrix, Reynaldo Cuison was still alive. He died two months after her (testatrix's) death. And upon his death, he transmitted to his heirs, the petitioners herein Elisa Cuison et al., the legacy or the right to succeed to the legacy. . . . In other words, the herein petitioners-appellants are not trying to succeed to the right to the property of the testatrix, but rather to the right of the legatee Reynaldo Cuison in 19 said property. Not having predeceased Dominga Revuelta, her son Vicente had the right to inherit from her directly or in his own right. No right of representation was involved, nor could it be invoked by Carmelita upon her father's death, which came after his own mother's death. It would have been different if Vicente was already dead when Dominga Revuelta died. Carmelita could then have inherited from her in representation of her father Vicente, assuming the private respondent was a lawful heir. But herein lies the crux, for she is not. As a spurious child of Vicente, Carmelita is barred from inheriting from Dominga because of Article 992 of the Civil Code, which lays down the barrier between the legitimate and illegitimate families. This article provides quite clearly: Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. Applying this rule in Leonardo v. Court of Appeals,
20

this Court declared:

. . . even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by right of representation, claim a share of the estate left by the deceased Francisca Reyes considering that, as found again by the Court of Appeals, he was born outside wedlock

as shown by the fact that when he was born, his alleged putative father and mother were not yet married, and what is more, his alleged father's first marriage was still subsisting. At most, petitioner would be an illegitimate child who has no right to inherit ab intestato from the legitimate children and relatives of his father, like the deceased Francisca Reyes. The reason for this rule was explained in the recent case of Diaz v. Intermediate Appellate Court,
21

thus:

Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized by law for the purpose of Article 992. Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; the family is in turn, hated by the illegitimate child the latter considers the privileged condition of the former, and the resources of which it is thereby deprived; the former in turn sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no more than recognize 22 this truth, by avoiding further ground of resentment. Indeed, even as an adopted child, Carmelita would still be barred from inheriting from Dominga Revuelta for there would be no natural kindred ties between them and consequently, no legal ties to bind them either. As aptly pointed out by Dr. Arturo M. Tolentino: If the adopting parent should die before the adopted child, the latter cannot represent the former in the inheritance from the parents or ascendants of the adopter. The adopted child is not related to the deceased in that case, because the filiation created by fiction of law is exclusively between the adopter and the adopted. "By adoption, the adopters can 23 make for themselves an heir, but they cannot thus make one for their kindred. The result is that Carmelita, as the spurious daughter of Vicente de la Puerta, has successional rights to the intestate estate of her father but not to the estate of Dominga Revuelta. Her claims for support and inheritance should therefore be filed in the proceedings for the settlement of her own father's 24 estate and cannot be considered in the probate of Dominga Revuelta's Will. WHEREFORE, the petition is GRANTED and the appealed decision is hereby REVERSED and SET ASIDE, with costs against the private respondent. It is so ordered. G.R. No. 118248 April 5, 2000 DKC HOLDINGS CORPORATION, vs. COURT OF APPEALS, VICTOR U. BARTOLOME and REGISTER OF DEEDS FOR METRO MANILA, DISTRICT III, This is a petition for review on certiorari seeking the reversal of the December 5, 1994 Decision of the Court of Appeals in CA-G.R. CV No. 40849 entitled "DKC Holdings Corporation vs. Victor U. Bartolome, 1 et al.", affirming in toto the January 4, 1993 Decision of the Regional Trial Court of Valenzuela, Branch 2 172, which dismissed Civil Case No. 3337-V-90 and ordered petitioner to pay P30,000.00 as attorney's fees. The subject of the controversy is a 14,021 square meter parcel of land located in Malinta, Valenzuela, Metro Manila which was originally owned by private respondent Victor U. Bartolome's deceased mother, Encarnacion Bartolome, under Transfer Certificate of Title No. B-37615 of the Register of Deeds of Metro Manila, District III. This lot was in front of one of the textile plants of petitioner and, as such, was seen by the latter as a potential warehouse site.

On March 16, 1988, petitioner entered into a Contract of Lease with Option to Buy with Encarnacion Bartolome, whereby petitioner was given the option to lease or lease with purchase the subject land, which option must be exercised within a period of two years counted from the signing of the Contract. In turn, petitioner undertook to pay P3,000.00 a month as consideration for the reservation of its option. Within the two-year period, petitioner shall serve formal written notice upon the lessor Encarnacion Bartolome of its desire to exercise its option. The contract also provided that in case petitioner chose to lease the property, it may take actual possession of the premises. In such an event, the lease shall be for a period of six years, renewable for another six years, and the monthly rental fee shall be P15,000.00 for the first six years and P18,000.00 for the next six years, in case of renewal. Petitioner regularly paid the monthly P3,000.00 provided for by the Contract to Encarnacion until her death in January 1990. Thereafter, petitioner coursed its payment to private respondent Victor Bartolome, being the sole heir of Encarnacion. Victor, however, refused to accept these payments. Meanwhile, on January 10, 1990, Victor executed an Affidavit of Self-Adjudication over all the properties of Encarnacion, including the subject lot. Accordingly, respondent Register of Deeds cancelled Transfer Certificate of Title No. B-37615 and issued Transfer Certificate of Title No. V-14249 in the name of Victor Bartolome. On March 14, 1990, petitioner served upon Victor, via registered mail, notice that it was exercising its option to lease the property, tendering the amount of P15,000.00 as rent for the month of March. Again, Victor refused to accept the tendered rental fee and to surrender possession of the property to petitioner. Petitioner thus opened Savings Account No. 1-04-02558-I-1 with the China Banking Corporation, Cubao Branch, in the name of Victor Bartolome and deposited therein the P15,000.00 rental fee for March as well as P6,000.00 reservation fees for the months of February and March. Petitioner also tried to register and annotate the Contract on the title of Victor to the property. Although respondent Register of Deeds accepted the required fees, he nevertheless refused to register or annotate the same or even enter it in the day book or primary register.1wphi1.nt Thus, on April 23, 1990, petitioner filed a complaint for specific performance and damages against Victor 3 and the Register of Deeds, docketed as Civil Case No. 3337-V-90 which was raffled off to Branch 171 of the Regional Trial Court of Valenzuela. Petitioner prayed for the surrender and delivery of possession of the subject land in accordance with the Contract terms; the surrender of title for registration and annotation thereon of the Contract; and the payment of P500,000.00 as actual damages, P500,000.00 as moral damages, P500,000.00 as exemplary damages and P300,000.00 as attorney's fees. Meanwhile, on May 8, 1990, a Motion for Intervention with Motion to Dismiss was filed by one Andres Lanozo, who claimed that he was and has been a tenant-tiller of the subject property, which was agricultural riceland, for forty-five years. He questioned the jurisdiction of the lower court over the property and invoked the Comprehensive Agrarian Reform Law to protect his rights that would be affected by the dispute between the original parties to the case. On May 18, 1990, the lower court issued an Order referring the case to the Department of Agrarian Reform for preliminary determination and certification as to whether it was proper for trial by said court. On July 4, 1990, the lower court issued another Order referring the case to Branch 172 of the RTC of Valenzuela which was designated to hear cases involving agrarian land, after the Department of Agrarian Reform issued a letter-certification stating that referral to it for preliminary determination is no longer required. On July 16, 1990, the lower court issued an Order denying the Motion to Intervene, holding that Lanozo's rights may well be ventilated in another proceeding in due time.
7 6 5 4

After trial on the merits, the RTC of Valenzuela, Branch 172 rendered its Decision on January 4, 1993, dismissing the Complaint and ordering petitioner to pay Victor P30,000.00 as attorney's fees. On appeal to the CA, the Decision was affirmed in toto. Hence, the instant Petition assigning the following errors: (A) FIRST ASSIGNMENT OF ERROR THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE PROVISION ON THE NOTICE TO EXERCISE OPTION WAS NOT TRANSMISSIBLE. (B) SECOND ASSIGNMENT OF ERROR THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE NOTICE OF OPTION MUST BE SERVED BY DKC UPON ENCARNACION BARTOLOME PERSONALLY. (C) THIRD ASSIGNMENT OF ERROR THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE CONTRACT WAS ONE-SIDED AND ONEROUS IN FAVOR OF DKC. (D) FOURTH ASSIGNMENT OF ERROR THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE EXISTENCE OF A REGISTERED TENANCY WAS FATAL TO THE VALIDITY OF THE CONTRACT. (E) FIFTH ASSIGNMENT OF ERROR THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PLAINTIFF8 APPELLANT WAS LIABLE TO DEFENDANT-APPELLEE FOR ATTORNEY'S FEES. The issue to be resolved in this case is whether or not the Contract of Lease with Option to Buy entered into by the late Encarnacion Bartolome with petitioner was terminated upon her death or whether it binds her sole heir, Victor, even after her demise. Both the lower court and the Court of Appeals held that the said contract was terminated upon the death of Encarnacion Bartolome and did not bind Victor because he was not a party thereto. Art. 1311 of the Civil Code provides, as follows

Art. 1311. Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent. xxx xxx xxx The general rule, therefore, is that heirs are bound by contracts entered into by their predecessors-ininterest except when the rights and obligations arising therefrom are not transmissible by (1) their nature, (2) stipulation or (3) provision of law. In the case at bar, there is neither contractual stipulation nor legal provision making the rights and obligations under the contract intransmissible. More importantly, the nature of the rights and obligations therein are, by their nature, transmissible. The nature of intransmissible rights as explained by Arturo Tolentino, an eminent civilist, is as follows: Among contracts which are intransmissible are those which are purely personal, either by provision of law, such as in cases of partnerships and agency, or by the very nature of the obligations arising therefrom, such as those requiring special personal qualifications of the obligor. It may also be stated that contracts for the payment of money debts are not transmitted to the heirs of a party, but constitute a charge against his estate. Thus, where the client in a contract for professional services of a lawyer died, leaving minor heirs, and the lawyer, instead of presenting his claim for professional services under the contract to the probate court, substituted the minors as parties for his client, it was held that the contract could not be enforced against the minors; the lawyer was limited to a recovery 9 on the basis of quantum meruit. In American jurisprudence, "(W)here acts stipulated in a contract require the exercise of special knowledge, genius, skill, taste, ability, experience, judgment, discretion, integrity, or other personal qualification of one or both parties, the agreement is of a personal nature, and terminates on the death of 10 the party who is required to render such service." It has also been held that a good measure for determining whether a contract terminates upon the death of one of the parties is whether it is of such a character that it may be performed by the promissor's personal representative. Contracts to perform personal acts which cannot be as well performed by others are discharged by the death of the promissor. Conversely, where the service or act is of such a character that it may as well be performed by another, or where the contract, by its terms, shows that performance 11 by others was contemplated, death does not terminate the contract or excuse nonperformance. In the case at bar, there is no personal act required from the late Encarnacion Bartolome. Rather, the obligation of Encarnacion in the contract to deliver possession of the subject property to petitioner upon the exercise by the latter of its option to lease the same may very well be performed by her heir Victor. As early as 1903, it was held that "(H)e who contracts does so for himself and his heirs." In 1952, it was ruled that if the predecessor was duty-bound to reconvey land to another, and at his death the reconveyance had not been made, the heirs can be compelled to execute the proper deed for reconveyance. This was grounded upon the principle that heirs cannot escape the legal consequence of a transaction entered into by their predecessor-in-interest because they have inherited the property 13 subject to the liability affecting their common ancestor. It is futile for Victor to insist that he is not a party to the contract because of the clear provision of Article 1311 of the Civil Code. Indeed, being an heir of Encarnacion, there is privity of interest between him and his deceased mother. He only succeeds to what rights his mother had and what is valid and binding
12

against her is also valid and binding as against him. This is clear from Paraaque Kings Enterprises vs. 15 Court of Appeals, where this Court rejected a similar defense With respect to the contention of respondent Raymundo that he is not privy to the lease contract, not being the lessor nor the lessee referred to therein, he could thus not have violated its provisions, but he is nevertheless a proper party. Clearly, he stepped into the shoes of the owner-lessor of the land as, by virtue of his purchase, he assumed all the obligations of the lessor under the lease contract. Moreover, he received benefits in the form of rental payments. Furthermore, the complaint, as well as the petition, prayed for the annulment of the sale of the properties to him. Both pleadings also alleged collusion between him and respondent Santos which defeated the exercise by petitioner of its right of first refusal. In order then to accord complete relief to petitioner, respondent Raymundo was a necessary, if not indispensable, party to the case. A favorable judgment for the petitioner will necessarily affect the rights of respondent Raymundo as the buyer of the property over which petitioner would like to assert its right of first option to buy. In the case at bar, the subject matter of the contract is likewise a lease, which is a property right. The death of a party does not excuse nonperformance of a contract which involves a property right, and the rights and obligations thereunder pass to the personal representatives of the deceased. Similarly, nonperformance is not excused by the death of the party when the other party has a property interest in 16 the subject matter of the contract. Under both Article 1311 of the Civil Code and jurisprudence, therefore, Victor is bound by the subject Contract of Lease with Option to Buy. That being resolved, we now rule on the issue of whether petitioner had complied with its obligations under the contract and with the requisites to exercise its option. The payment by petitioner of the reservation fees during the two-year period within which it had the option to lease or purchase the property is not disputed. In fact, the payment of such reservation fees, except those for February and 17 March, 1990 were admitted by Victor. This is clear from the transcripts, to wit ATTY. MOJADO: One request, Your Honor. The last payment which was allegedly made in January 1990 just indicate in that stipulation that it was issued November of 1989 and postdated January 1990 and then we will admit all. COURT: All reservation fee? ATTY. MOJADO: Yes, Your Honor. COURT: All as part of the lease? ATTY. MOJADO:

14

Reservation fee, Your Honor. There was no payment with respect to 18 payment of rentals. Petitioner also paid the P15,000.00 monthly rental fee on the subject property by depositing the same in China Bank Savings Account No. 1-04-02558-I-1, in the name of Victor as the sole heir of Encarnacion 19 Bartolome, for the months of March to July 30, 1990, or a total of five (5) months, despite the refusal of 20 Victor to turn over the subject property. Likewise, petitioner complied with its duty to inform the other party of its intention to exercise its option to lease through its letter dated Match 12, 21 1990, well within the two-year period for it to exercise its option. Considering that at that time Encarnacion Bartolome had already passed away, it was legitimate for petitioner to have addressed its letter to her heir. It appears, therefore, that the exercise by petitioner of its option to lease the subject property was made in accordance with the contractual provisions. Concomitantly, private respondent Victor Bartolome has the obligation to surrender possession of and lease the premises to petitioner for a period of six (6) years, pursuant to the Contract of Lease with Option to Buy. Coming now to the issue of tenancy, we find that this is not for this Court to pass upon in the present petition. We note that the Motion to Intervene and to Dismiss of the alleged tenant, Andres Lanozo, was denied by the lower court and that such denial was never made the subject of an appeal. As the lower court stated in its Order, the alleged right of the tenant may well be ventilated in another proceeding in due time. WHEREFORE, in view of the foregoing, the instant Petition for Review is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 40849 and that of the Regional Trial Court of Valenzuela in Civil Case No. 3337-V-90 are both SET ASIDE and a new one rendered ordering private respondent Victor Bartolome to: (a) surrender and deliver possession of that parcel of land covered by Transfer Certificate of Title No. V-14249 by way of lease to petitioner and to perform all obligations of his predecessor-in-interest, Encarnacion Bartolome, under the subject Contract of Lease with Option to Buy; (b) surrender and deliver his copy of Transfer Certificate of Title No. V14249 to respondent Register of Deeds for registration and annotation thereon of the subject Contract of Lease with Option to Buy; (c) pay costs of suit. Respondent Register of Deeds is, accordingly, ordered to register and annotate the subject Contract of Lease with Option to Buy at the back of Transfer Certificate of Title No. V-14249 upon submission by petitioner of a copy thereof to his office. SO ORDERED.1wphi1.nt G.R. No. 77029 August 30, 1990 BIENVENIDO, ESTELITA, MACARIO, LUIS, ADELAIDE, ENRIQUITA and CLAUDIO, all surnamed, GEVERO, vs. INTERMEDIATE APPELLATE COURT and DEL MONTE DEVELOPMENT CORPORATION,

This is a petition for review on certiorari of the March 20, 1988 decision of the then Intermediate Appellate Court (now Court of Appeals) in AC-GR CV No. 69264, entitled Del Monte Development 2 Corporation vs. Enrique Ababa, et al., etc. affirming the decision of the then Court of First Instance (now Regional Trial Court) of Misamis Oriental declaring the plaintiff corporation as the true and absolute owner of that portion of Lot 476 of the Cagayan Cadastre, particularly Lot No. 2476-D of the subdivision plan (LRC) Psd-80450, containing an area of Seven Thousand Eight Hundred Seventy Eight (7,878) square meters more or less. As found by the Appellate Court, the facts are as follows: The parcel of land under litigation is Lot No. 2476 of the Subdivision Plan Psd-37365 containing an area of 20,119 square meters and situated at Gusa, Cagayan de Oro City. Said lot was acquired by purchase from the late Luis Lancero on September 15, 1964 as per Deed of Absolute Sale executed in favor of plaintiff and by virtue of which Transfer Certificate of Title No. 4320 was issued to plaintiff (DELCOR for brevity). Luis Lancero, in turn acquired the same parcel from Ricardo Gevero on February 5, 1952 per deed of sale executed by Ricardo Gevero which was duly annotated as entry No. 1128 at the back of Original Certificate of Title No. 7610 covering the mother lot identified as Lot No. 2476 in the names of Teodorica Babangha 1/2 share and her children: Maria; Restituto, Elena, Ricardo, Eustaquio and Ursula, all surnamed surnamed Gevero, 1/2 undivided share of the whole area containing 48,122 square meters. Teodorica Babangha died long before World War II and was survived by her six children aforementioned. The heirs of Teodorica Babangha on October 17,1966 executed an Extra-Judicial Settlement and Partition of the estate of Teodorica Babangha, consisting of two lots, among them was lot 2476. By virtue of the extra-judicial settlement and partition executed by the said heirs of Teodorica Babangha, Lot 2476-A to Lot 2476-I, inclusive, under subdivision plan (LRC) Psd-80450 duly approved by the Land Registration Commission, Lot 2476-D, among others, was adjudicated to Ricardo Gevero who was then alive at the time of extra-judicial settlement and partition in 1966. Plaintiff (private respondent herein) filed an action with the CFI (now RTC) of Misamis Oriental to quiet title and/or annul the partition made by the heirs of Teodorica Babangha insofar as the same prejudices the land which it acquired a portion of lot 2476. Plaintiff now seeks to quiet title and/or annul the partition made by the heirs of Teodorica Babangha insofar as the same prejudices the land which it acquired, a portion of Lot 2476. Plaintiff proved that before purchasing Lot 2476-A it first investigated and checked the title of Luis Lancero and found the same to be intact in the office of the Register of Deeds of Cagayan de Oro City. The same with the subdivision plan (Exh. "B"), the corresponding technical description (Exh. "P") and the Deed of Sale executed by Ricardo Gevero all of which were found to be unquestionable. By reason of all these, plaintiff claims to have bought the land in good faith and for value, occupying the land since the sale and taking over from Lancero's possession until May 1969, when the defendants Abadas forcibly entered the property. (Rollo, p. 23) After trial the court a quo on July 18, 1977 rendered judgment, the dispositive portion of which reads as follows: WHEREFORE, premises considered, judgment is hereby rendered declaring the plaintiff corporation as the true and absolute owner of that portion of Lot No. 2476 of the Cagayan Cadastre, particularly Lot No. 2476-D of the subdivision plan (LRC) Psd-80450, containing an area of SEVEN THOUSAND EIGHT HUNDRED SEVENTY EIGHT (7,878) square meters, more or less. The other portions of Lot No. 2476 are hereby adjudicated as follows:

Lot No. 2476 B to the heirs of Elena Gevero; Lot No. 2476 C to the heirs of Restituto Gevero; Lot No. 2476 E to the defendant spouses Enrique C. Torres and Francisca Aquino; Lot No. 2476 F to the defendant spouses Eduard Rumohr and Emilia Merida Rumohf ; Lot Nos. 2476-H, 2476-I and 2476 G to defendant spouses Enrique Abada and Lilia Alvarez Abada. No adjudication can be made with respect to Lot No. 2476-A considering that the said lot is the subject of a civil case between the Heirs of Maria Gevero on one hand and the spouses Daniel Borkingkito and Ursula Gevero on the other hand, which case is now pending appeal before the Court of Appeals. No pronouncement as to costs, SO ORDERED. (Decision, Record on Appeal, p. 203; Rollo, pp. 21-22) From said decision, defendant heirs of Ricardo Gevero (petitioners herein) appealed to the IAC (now Court of Appeals) which subsequently, on March 20, 1986, affirmed the decision appealed from. Petitioners, on March 31, 1986, filed a motion for reconsideration ( Rollo, p. 28) but was denied on April 21, 1986. Hence, the present petition. This petition is devoid of merit. Basically, the issues to be resolved in the instant case are: 1) whether or not the deed of sale executed by Ricardo Gevero to Luis Lancero is valid; 2) in the affirmative, whether or not the 1/2 share of interest of Teodorica Babangha in one of the litigated lots, lot no. 2476 under OCT No. 7610 is included in the deed of sale; and 3) whether or not the private respondents' action is barred by laches. Petitioners maintain that the deed of sale is entirely invalid citing alleged flaws thereto, such as that: 1) the signature of Ricardo was forged without his knowledge of such fact; 2) Lancero had recognized the fatal defect of the 1952 deed of sale when he signed the document in 1968 entitled "Settlement to Avoid the Litigation"; 3) Ricardo's children remained in the property notwithstanding the sale to Lancero; 4) the designated Lot No. is 2470 instead of the correct number being Lot No. 2476; 5) the deed of sale included the share of Eustaquio Gevero without his authority; 6) T.C.T. No. 1183 of Lancero segregated the area of 20,119 square meters from the bigger area (OCT No. 7616) without the consent of the other coowners; 7) Lancero caused the 1952 Subdivision survey without the consent of the Geveros' to bring about the segregation of the 20,119 square meters lot from the mother lot 2476 which brought about the issuance of his title T-1183 and to DELCOR's title T4320, both of which were illegally issued; and 8) the area sold as per document is 20,649 square meters whereas the segregated area covered by TCT No. T1183 of Lancero turned out to be 20,119 square meters (Petitioners Memorandum, pp. 62-78). As to petitioners' claim that the signature of Ricardo in the 1952 deed of sale in favor of Lancero was forged without Ricardo's knowledge of such fact (Rollo, p. 71) it will be observed that the deed of sale in question was executed with all the legal formalities of a public document. The 1952 deed was duly acknowledged by both parties before the notary public, yet petitioners did not bother to rebut the legal presumption of the regularity of the notarized document (Dy v. Sacay, 165 SCRA 473 [1988]); Nuguid v.

C.A., G.R. No. 77423, March 13, 1989). In fact it has long been settled that a public document executed and attested through the intervention of the notary public is evidence of the facts in clear, unequivocal manner therein expressed. It has the presumption of regularity and to contradict all these, evidence must be clear, convincing and more than merely preponderant (Rebuleda v. I.A.C., 155 SCRA 520-521 [1987]). Forgery cannot be presumed, it must be proven (Siasat v. IAC, No. 67889, October 10, 1985). Likewise, petitioners allegation of absence of consideration of the deed was not substantiated. Under Art. 1354 of the Civil Code, consideration is presumed unless the contrary is proven. As to petitioners' contention that Lancero had recognized the fatal defect of the 1952 deed when he signed the document in 1968 entitled "Settlement to Avoid Litigation" ( Rollo, p. 71), it is a basic rule of evidence that the right of a party cannot be prejudiced by an act, declaration, or omission of another (Sec. 28. Rule 130, Rules of Court). This particular rule is embodied in the maxim "res inter alios acta alteri nocere non debet." Under Section 31, Rule 130, Rules of Court "where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property is evidence against the former." It is however stressed that the admission of the former owner of a property must have been made while he was the owner thereof in order that such admission may be binding upon the present owner (City of Manila v. del Rosario, 5 Phil. 227 [1905]; Medel v. Avecilla, 15 Phil. 465 [1910]). Hence, Lanceros' declaration or acts of executing the 1968 document have no binding effect on DELCOR, the ownership of the land having passed to DELCOR in 1964. Petitioners' claim that they remained in the property, notwithstanding the alleged sale by Ricardo to Lancero (Rollo, p. 71) involves a question of fact already raised and passed upon by both the trial and appellate courts. Said the Court of Appeals: Contrary to the allegations of the appellants, the trial court found that Luis Lancero had taken possession of the land upon proper investigation by plaintiff the latter learned that it was indeed Luis Lancero who was the owner and possessor of Lot 2476 D. . . . (Decision, C.A., p. 6). As a finding of fact, it is binding upon this Court (De Gola-Sison v. Manalo, 8 SCRA 595 [1963]; Gaduco vs. C.A., 14 SCRA 282 [1965]; Ramos v. Pepsi-Cola, 19 SCRA 289 [1967]; Tan v. C.A., 20 SCRA 54 [1967]; Ramirez Tel. Co. v. Bank of America, 33 SCRA 737 [1970]; Lucero v. Loot, 25 SCRA 687 [1968]; Guerrero v. C.A., 142 SCRA 130 [1986]). Suffice it to say that the other flaws claimed by the petitioners which allegedly invalidated the 1952 deed of sale have not been raised before the trial court nor before the appellate court. It is settled jurisprudence that an issue which was neither averred in the complaint nor raised during the trial in the court below cannot be raised for the first time on appeal as it would be offensive to the basic rules of fair play, justice and due process. (Matienzo v. Servidad, 107 SCRA 276 [1981]; Dela Santa v. C.A., 140 SCRA 44 [1985]; Dihiansan v. C.A., 157 SCRA 434 [1987]; Anchuelo v. IAC, 147 SCRA 434 [1987]; Dulos Realty and Development Corporation v. C.A., 157 SCRA [1988]; Kamos v. IAC, G.R. No. 78282, July 5, 1989). Petitioners aver that the 1/2 share of interest of Teodorica (mother of Ricardo) in Lot 2476 under OCT No. 7610 was not included in the deed of sale as it was intended to limit solely to Ricardos' proportionate share out of the undivided 1/2 of the area pertaining to the six (6) brothers and sisters listed in the Title and that the Deed did not include the share of Ricardo, as inheritance from Teodorica, because the Deed did not recite that she was deceased at the time it was executed ( Rollo, pp. 67-68). The hereditary share in a decedents' estate is transmitted or vested immediately from the moment of the death of the "causante" or predecessor in interest (Civil Code of the Philippines, Art. 777), and there is no legal bar to a successor (with requisite contracting capacity) disposing of his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate (De Borja v. Vda. de Borja, 46 SCRA 577 [1972]).

Teodorica Babangha died long before World War II, hence, the rights to the succession were transmitted from the moment of her death. It is therefore incorrect to state that it was only in 1966, the date of extrajudicial partition, when Ricardo received his share in the lot as inheritance from his mother Teodorica. Thus, when Ricardo sold his share over lot 2476 that share which he inherited from Teodorica was also included unless expressly excluded in the deed of sale. Petitioners contend that Ricardo's share from Teodorica was excluded in the sale considering that a paragraph of the aforementioned deed refers merely to the shares of Ricardo and Eustaquio ( Rollo, p. 6768). It is well settled that laws and contracts shall be so construed as to harmonize and give effect to the different provisions thereof (Reparations Commission v. Northern Lines, Inc., 34 SCRA 203 [1970]), to ascertain the meaning of the provisions of a contract, its entirety must be taken into account (Ruiz v. Sheriff of Manila, 34 SCRA 83 [1970]). The interpretation insisted upon by the petitioners, by citing only one paragraph of the deed of sale, would not only create contradictions but also, render meaningless and set at naught the entire provisions thereof. Petitioners claim that DELCOR's action is barred by laches considering that the petitioners have remained in the actual, open, uninterrupted and adverse possession thereof until at present ( Rollo, p. 17). An instrument notarized by a notary public as in the case at bar is a public instrument (Eacnio v. Baens, 5 Phil. 742). The execution of a public instrument is equivalent to the delivery of the thing (Art. 1498, 1st Par., Civil Code) and is deemed legal delivery. Hence, its execution was considered a sufficient delivery of the property (Buencamino v. Viceo, 13 Phil. 97; [1906]; Puato v. Mendoza, 64 Phil. 457 [1937]; Vda. de Sarmiento v. Lesaca, 108 Phil. 900 [1960]; Phil. Suburban Development Corp. v. Auditor Gen., 63 SCRA 397 (1975]). Besides, the property sold is a registered land. It is the act of registration that transfers the ownership of the land sold. (GSIS v. C.A., G.R. No. 42278, January 20, 1989). If the property is a registered land, the purchaser in good, faith has a right to rely on the certificate of title and is under no duty to go behind it to look for flaws (Mallorca v. De Ocampo, No. L-26852, March 25, 1970; Unchuan v. C.A., 161 SCRA 710 [1988]; Nuguid v. CA-G.R. No. 77427, March 13, 1989). Under the established principles of land registration law, the person dealing with registered land may generally rely on the correctness of its certificate of title and the law will in no way oblige him to go behind the certificate to determine the condition of the property (Tiongco v. de la Merced, L-2446, July 25, 1974; Lopez vs. CA., G.R. No. 49739, January 20, 1989; Davao Grains Inc. vs. IAC, 171 SCRA 612 [1989]). This notwithstanding, DELCOR did more than that. It did not only rely on the certificate of title. The Court of Appeals found that it had first investigated and checked the title (T.C.T. No. T-1183) in the name of Luis Lancero. It likewise inquired into the Subdivision Plan, the corresponding technical description and the deed of sale executed by Ricardo Gevero in favor of Luis Lancero and found everything in order. It even went to the premises and found Luis Lancero to be in possession of the land to the exclusion of any other person. DELCOR had therefore acted in good faith in purchasing the land in question. Consequently, DELCOR's action is not barred by laches. The main issues having been disposed of, discussion of the other issues appear unnecessary. PREMISES CONSIDERED, the instant petition is hereby DISMISSED and the decision of the Court of Appeals is hereby AFFIRMED. SO ORDERED.

G.R. No. L-46364 April 6, 1990 SULPICIA JIMENEZ and TORIBIO MATIAS, vs. VICENTE FERNANDEZ alias HOSPICIO FERNANDEZ and TEODORA GRADO, Before Us is a petition for review on certiorari of the following Decision and Resolution of the Honorable Court of Appeals: (1) Decision, dated March 1, 1977 in C.A.-G.R. No. 49178-R entitled "Sulpicia Jimenez, et al., v. Vicente Fernandez, et al." affirming in toto the judgment of the Court of First Instance of Pangasinan, Third Judicial District in Civil Case No. 14802-I between the same parties and (2) Resolution dated June 3, 1977 denying plaintiffs-appellants' motion for reconsideration. As gathered from the records, the factual background of this case is as follows: The land in question is the Eastern portion with an area of Four Hundred Thirty Six (436) square meters of that parcel of residential land situated in Barrio Dulig (now Magsaysay), Municipality of Labrador, Pangasinan actually covered by Transfer Certificate of Title No. 82275 (Exhibit A) issued in the name of Sulpicia Jimenez. The entire parcel of land with an area of 2,932 square meters, formerly belonged to Fermin Jimenez. Fermin Jimenez has two (2) sons named Fortunato and Carlos Jimenez. This Fortunato Jimenez who predeceased his father has only one child, the petitioner Sulpicia Jimenez. After the death of Fermin Jimenez, the entire parcel of land was registered under Act 496 in the name of Carlos Jimenez and Sulpicia Jimenez (uncle and niece) in equal shares pro-indiviso. As a result of the registration case Original Certificate of Title No. 50933 (Exhibit 8) was issued on February 28, 1933, in the names of Carlos Jimenez and Sulpicia Jimenez, in equal shares pro-indiviso. Carlos Jimenez died on July 9, 1936 and his illegitimate daughter, Melecia Cayabyab, also known as Melecia Jimenez, took possession of the eastern portion of the property consisting of 436 square meters. On January 20, 1944, Melecia Jimenez sold said 436 square meter-portion of the property to Edilberto Cagampan and defendant Teodora Grado executed a contract entitled "Exchange of Real Properties" whereby the former transferred said 436 square meter-portion to the latter, who has been in occupation since. On August 29, 1969, plaintiff Sulpicia Jimenez executed an affidavit adjudicating unto herself the other half of the property appertaining to Carlos Jimenez, upon manifestation that she is the only heir of her deceased uncle. Consequently Transfer Certificate of Title No. 82275 was issued on October 1, 1969 in petitioner's name alone over the entire 2,932 square meter property. On April 1, 1970, Sulpicia Jimenez, joined by her husband, instituted the present action for the recovery of the eastern portion of the property consisting of 436 square meters occupied by defendant Teodora Grado and her son. After trial on the merits, the lower court rendered judgment, the dispositive portion of which reads: WHEREFORE, decision is hereby rendered dismissing the complaint and holding the defendant, Teodora Grado, the absolute owner of the land in question; ordering the plaintiffs to pay to the defendant the amount of P500.00 as damages, as attorney's fees, and to pay the costs of suit. SO ORDERED. (Rollo, p. 20)
1 2

Petitioner appealed the above judgment to the respondent Court of Appeals and on March 1, 1977, respondent Court of Appeals rendered a decision affirming the same in toto. Said decision was rendered by a special division of five (5) justices, with the Hon. Lourdes San Diego, dissenting. Petitioners within the reglementary period granted by the Honorable Court of Appeals, filed therewith a motion for reconsideration. But said motion for reconsideration was denied by the Court of Appeals in its resolution dated June 3, 1977. In their appeal to the respondent Court of Appeals from the aforequoted decision of the trial court, herein petitioner raised the following assignments of error to wit: ASSIGNMENTS OF ERROR I THE LOWER COURT ERRED IN NOT DECLARING THAT MELECIA CAYABYAB, ALSO KNOWN AS MELECIA JIMENEZ, IS NOT THE DAUGHTER OF CARLOS JIMENEZ. II THE LOWER COURT ERRED IN NOT DECLARING THAT MELECIA CAYABYAB, ALSO KNOWN AS MELECIA JIMENEZ, HAS NO RIGHT TO SELL THE LAND IN QUESTION TO EDILBERTO CAGAMPAN. III THE LOWER COURT ERRED IN NOT DECLARING THAT EDILBERTO CAGAMPAN DID NOT BECOME THE OWNER OF THE LAND IN QUESTION BY VIRTUE OF THE DEED OF SALE (EXH. "1") EXECUTED BY MELECIA CAYABYAB, ALIAS MELECIA JIMENEZ, IN HIS FAVOR. IV THE LOWER COURT ERRED IN NOT DECLARING THAT TEODORA GRADO DID NOT BECOME THE OWNER OF THE LAND IN QUESTION BY VIRTUE OF THE DEED OF EXCHANGE (EXH. "7") EXECUTED BY HER AND EDILBERTO CAGAMPAN. V THE LOWER COURT ERRED IN NOT DECLARING THAT THE TITLE OF APPELLANT SULPICIA JIMENEZ OVER THE LAND IN QUESTION CAN NOT BE DEFEATED BY THE ADVERSE OPEN AND NOTORIOUS POSSESSION OF APPELLEE TEODORA GRADO. VI THE LOWER COURT ERRED IN DECLARING THAT THE APPELLEE TEODORA GRADO IS THE ABSOLUTE OWNER OF THE LAND IN QUESTION IN THE LIGHT OF THE DECISION OF THE SUPREME COURT IN THE CASE OF LOURDES ARCUINO, ET AL., V. RUFINA APARIS AND CASIANO PURAY, G.R. NO. L-23424, PROMULGATED JANUARY 31, 1968, WHICH CASE IS NOT APPLICABLE TO THE CASE AT BAR.

VII THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT AND ORDERING THE APPELLANTS TO PAY THE APPELLEES THE SUM OF P500.00 AS ATTORNEYS FEES PLUS THE COSTS. From the foregoing, this petition for review was filed. We find merit in the petition. From the start the respondent court erred in not declaring that Melecia Jimenez Cayabyab also known as Melecia Jimenez, is not the daughter of Carlos Jimenez and therefore, had no right over the property in question. Respondents failed to present concrete evidence to prove that Melecia Cayabyab was really the daughter of Carlos Jimenez. Nonetheless, assuming for the sake of argument that Melecia Cayabyab was the illegitimate daughter of Carlos Jimenez there can be no question that Melecia Cayabyab had no right to succeed to the estate of Carlos Jimenez and could not have validly acquired, nor legally transferred to Edilberto Cagampan that portion of the property subject of this petition. It is well-settled in this jurisdiction that the rights to the succession are transmitted from the moment of the death of the decedent (Art. 777, Civil Code). Moreover, Art. 2263 of the Civil Code provides as follows: Rights to the inheritance of a person who died with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court . . . (Rollo, p. 17) Thus, since Carlos Jimenez, owner of one-half pro-indiviso portion of that parcel of land then covered by Original Certificate of title No. 50933, died on July 9, 1936 (Exhibit "F") way before the effectivity of the Civil Code of the Philippines, the successional rights pertaining to his estate must be determined in accordance with the Civil Code of 1889. Citing the case of Cid v. Burnaman (24 SCRA 434) wherein this Court categorically held that: To be an heir under the rules of Civil Code of 1889 (which was the law in force when Carlos Jimenez died and which should be the governing law in so far as the right to inherit from his estate was concerned), a child must be either a child legitimate, legitimated, or adopted, or else an acknowledged natural child for illegitimate not natural are disqualified to inherit. (Civil Code of 1889, Art. 807, 935) Even assuming that Melecia Cayabyab was born out of the common-law-relationship between her mother (Maria Cayabyab) and Carlos Jimenez, she could not even be considered an acknowledged natural child because Carlos Jimenez was then legally married to Susana Abalos and therefore not qualified to marry Maria Cayabyab and consequently Melecia Cayabyab was an illegitimate spurious child and not entitled to any successional rights in so far as the estate of Carlos Jimenez was concerned. Melecia Cayabyab in the absence of any voluntary conveyance to her by Carlos Jimenez or Sulpicia Jimenez of the litigated portion of the land could not even legally transfer the parcel of land to Edilberto Cagampan who accordingly, could not also legally transfer the same to herein private respondents. Analyzing the case before Us in this manner, We can immediately discern another error in the decision of the respondent court, which is that the said court sustained and made applicable to the case at bar the ruling in the case of Arcuino, et al., v. Aparis and Puray, No. L-23424, January 31, 1968, 22 SCRA 407, wherein We held that:

. . . it is true that the lands registered under the Torrens System may not be acquired by prescription but plaintiffs herein are not the registered owners. They merely claim to have acquired by succession, their alleged title or interest in lot No. 355. At any rate plaintiffs herein are guilty of laches. The respondent court relying on the Arcuino case, concluded that respondents had acquired the property under litigation by prescription. We cannot agree with such conclusion, because there is one very marked and important difference between the case at bar and that of the Arcuino case, and that is, that since 1933 petitioner Sulpicia Jimenez was a title holder, the property then being registered in her and her uncle Carlos Jimenez' name. In the Arcuino case, this Supreme Court held. "(I)t is true that lands registered under the Torrens System may not be acquired by prescription but plaintiffs herein are not the registered owners." (Rollo, p. 38) Even in the said cited case the principle of imprescriptibility of Torrens Titles was respected. Melecia Cayabyab's possession or of her predecessors-in-interest would be unavailing against the petitioner Sulpicia Jimenez who was the holder pro-indiviso with Carlos Jimenez of the Torrens Certificate of Title covering a tract of land which includes the portion now in question, from February 28, 1933, when the Original Certificate of Title No. 50933 (Exhibit 8) was issued. No possession by any person of any portion of the land covered by said original certificate of titles, could defeat the title of the registered owner of the land covered by the certificate of title. (Benin v. Tuason, L26127, June 28, 1974, 57 SCRA 531) Sulpicia's title over her one-half undivided property remained good and continued to be good when she segregated it into a new title (T.C.T No. 82275, Exhibit "A") in 1969. Sulpicia's ownership over her onehalf of the land and which is the land in dispute was always covered by a Torrens title, and therefore, no amount of possession thereof by the respondents, could ever defeat her proprietary rights thereon. It is apparent, that the right of plaintiff (now petitioner) to institute this action to recover possession of the portion of the land in question based on the Torrens Title of Sulpicia Jimenez, T.C.T. No. 82275 (Exhibit "A") is imprescriptible and not barred under the doctrine of laches. (J.M. Tuason & Co. v. Macalindong, L15398, December 29, 1962, Francisco v. Cruz, et al., 43 O.G. 5105) Rollo, p. 39) The respondent Court of Appeals declared the petitioner Sulpicia Jimenez guilty of laches and citing the ruling in the case of Heirs of Lacamen v. Heirs of Laruan (65 SCRA 605), held that, since petitioner Sulpicia Jimenez executed her Affidavit of Self-Adjudication only in 1969, she lost the right to recover possession of the parcel of land subject of the litigation. In this instance, again We rule for the petitioner. There is no absolute rule as to what constitutes laches or staleness of demand; each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court and since laches is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or to perpetrate fraud and injustice. It would be rank injustice and patently inequitous to deprive the lawful heirs of their rightful inheritance. Petitioner Sulpicia Jimenez is entitled to the relief prayed for, declaring her to be the sole and absolute owner of the land in question with right to its possession and enjoyment. Since her uncle Carlos Jimenez died in 1936, his pro-indiviso share in the properties then owned in co-ownership with his niece Sulpicia descended by intestacy to Sulpicia Jimenez alone because Carlos died without any issue or other heirs. After all, the professed objective of Act No. 496, otherwise known as the Land Registration Act or the law which established the Torrens System of Land Registration in the Philippines is that the stability of the landholding system in the Philippines depends on the confidence of the people in the titles covering the properties. And to this end, this Court has invariably upheld the indefeasibility of the Torrens Title and in, among others, J.M. Tuason and Co., Inc. v. Macalindong (6 SCRA 938), held that "the right of the

appellee to file an action to recover possession based on its Torrens Title is imprescriptible and not barred under the doctrine of laches. WHEREFORE, the Petition for Review is hereby GRANTED. The Decision and Resolution dated March 1, 1977 and June 3, 1977 in CA G.R. No. L-49178-R are SET ASIDE. SO ORDERED. G.R. No. 126950 July 2, 1999 NELSON NUFABLE, SILMOR NUFABLE and AQUILINA NUFABLE, vs. GENEROSA NUFABLE, VILFOR NUFABLE, MARCELO NUFABLE, and the COURT OF APPEALS, This petition for review on certiorari seeks to reverse and set aside the Decision dated November 25, 1 1995 of the Fifth Division of the Court of Appeals for allegedly being contrary to law. The following facts as found by the Court of Appeals are undisputed: Edras Nufable owned at Poblacion, Manjuyod, Negros Oriental, consisting of 948 square meters, more or less. He died on August 9, 1965 and was survived by his children, namely: Angel Custodio, Generosa, Vilfor and Marcelo, all surnamed Nufable. Upon petition for probate filed by said heirs and after due publication and hearing, the then Court of First Instance of Negros Oriental (Branch II) issued an Order dated March 30, 1966 admitting to probate the last will and testament executed by the deceased Edras Nufable (Exhs. B, C and C-1). On June 6, 1966 the same court issued an Order approving the Settlement of Estate submitted by the heirs of the late ESdras Nufable, portions of which read: KNOW ALL MEN BY THESE PRESENTS: We, ANGEL CUSTODIO NUFABLE, GENEROSA NUFABLE, VILFOR NUFABLE and MARCELO NUFABLE, all of legal ages (sic), Filipinos, and with residence and postal address at Manjuyod, Negros Oriental, Philippines, HEREBY DECLARE AND MAKE MANIFEST 1. That on August 9, 1965, Rev. Fr. Esdras Nufable died leaving (a) Last Will and Testament (marked Exh. G) disposing (of) his properties or estate in favor of his four legitimate children, namely: Angel Custodio Nufable, Generosa Nufable, Vilfor Nufable and Marcelo Nufable; 2. That on March 30, 1966 the said Last Will and Testament was probated by the Honorable Court, Court of First Instance of Negros Oriental, and is embodied in the same order appointing an Administratrix, Generosa Nufable, but to qualify only if she put up a necessary bond of P1,000.00; 3. That herein legitimate children prefer not to appoint an Administratrix, as agreed upon (by) all the heirs, because they have no objection as to the manner of disposition of their share made by the testator, the

expenses of the proceedings and that they have already taken possession of their respective shares in accordance with the will; 4. That the herein heirs agreed, as they hereby agree to settle the estate in accordance with the terms and condition of the will in the following manner, to wit: a) That the parcel of land situated in Poblacion Manjuyod, Negros Oriental remains undivided for community ownership but respecting conditions imposed therein (sic) in the will; xxx xxx xxx (Exhs. "E" and "E-1") Two months earlier, or on March 15, 1966, spouses Angel Custodio and Aquilina Nufable mortgaged the entire property located at Manjuyod to the Development Bank of the Philippines [DBP] (Pre-trial Order, dated January 7, 1992, p. 103, Original Records). Said mortgagors became delinquent for which reason the mortgaged property was foreclosed by DBP on February 26, 1973 (id.). On January 11, 1980, Nelson Nufable, the son of Angel Custodio Nufable (who died on August 29, 1978 [TSN, Testimony of Nelson Nufable, Hearing of August 18, 1992, p. 17]), purchased said property from DBP (Exh. "1"). Generosa, Vilfor and Marcelo, all surnamed Nufable filed with the lower court a complaint dated July 25, 1985 "To Annul Fraudulent Transactions, to Quiet Title and To Recover Damages' against Nelson Nufable, and wife, Silmor Nufable and his mother Aquilina Nufable. Plaintiffs pray: WHEREFORE, plaintiffs pray this Honorable Court that after trial judgment be rendered ordering: (a) That the said Deed of Sale (Annex "C") executed by the Development Bank of the Philippines in favor of the defendants be declared null and void as far as the three fourths (3/4) rights which belongs ( sic) to the plaintiffs are concerned; (b) That the said three fourths (3/4) rights over the above parcel in question be declared as belonging to the plaintiffs at one fourth right to each of them; (c) To order the defendants to pay jointly and severally to the plaintiffs by way of actual and moral damages the amount of P10,000.00 and another P5,000.00 as Attorney's fees, and to pay the costs. (d) Plus any other amount which this Court may deem just and equitable. (p. 6, Original Records) In their Answer, defendants contend: 4. Paragraph 4 is denied, the truth being that the late Angel Nufable was the exclusive owner of said property, that as such owner he mortgaged

the same to the Development Bank of the Philippines on March 15, 1966, that said mortgage was foreclosed and the DBP became the successful bidder at the auction sale, that ownership was consolidated in the name of the DBP, and that defendant Nelson Nufable bought said property from the DBP thereafter. During this period, the plaintiffs never questioned the transactions which were public, never filed any third party claim nor attempted to redeem said property as redemptioners, and that said Deed of Sale, Annex "B" to the complaint, is fictitious, not being supported by any consideration; (pp. 20-21, id.) The Deed of Sale (Annex "B"), referred to by the parties is a notarized Deed of Sale, dated July 12, 1966 (marked as Exhibit "H") by virtue of which, spouses Angel and Aquilina Nufable, as vendors, sold 3/4 portion of the subject property to herein plaintiffs 2 for and in consideration of P1,000.00 (Exh. "5"). On November 29, 1995, the Court of Appeals rendered judgment, the dispositive portion of which reads: WHEREFORE, the appealed decision of the lower court is REVERSED and SET ASIDE. A new judgment is hereby entered declaring plaintiffs-appellants as the rightful co-owners of the subject property and entitled to possession of 3/4 southern portion thereof; and defendant-appellee Nelson Nufable to 1/4 portion. No award on damages. No costs. Defendants-appellees' Motion for Reconsideration was denied for lack of merit in the Resolution of the 4 Court of Appeals dated October 2, 1996. Hence, the present petition. Petitioners raise the following grounds for the petition: 1. Honorable Court of Appeals erred in considering as controlling the probate of the Last Will and Testament of Esdras Nufable, the probate thereof not being an issue in this case; 2. The Honorable Court of Appeals erred in not considering the fact that the Development Bank of the Philippines became absolute, exclusive, legal and rightful owner of the land in question, from whom petitioner Nelson Nufable acquired the same by purchase and that, therefore, no award can be made in favor of private respondent unless and until the Development Bank of the Philippines' title thereto is first declared null and void by the court. The Court of Appeals, in its decision, stated that the trial court failed to take into consideration the 5 probated will of the late Esdras Nufable bequeathing the subject property to all his four children. In the present petition, petitioner present the issue of whether or not the Last Will and Testament of Esdras Nufable and its subsequent probate are pertinent and material to the question of the right of ownership of petitioner Nelson Nufable who purchased the land in question from, and as acquired property of, the Development Bank of the Philippines (DBP, for short). They contend that the probate of the Last Will Testament and of Esdras Nufable did not determine the ownership of the land in question as against third parties.1wphi1.nt As a general rule, courts in probate proceedings are limited only to passing upon the extrinsic validity of the will sought to be probated, the due execution thereof, the testator's testamentary capacity and the
3

compliance with the requisites or solemnities prescribes by law. Said court at this stage of the 6 proceedings is not called to rule on the rule on the intrinsic validity or efficacy of the will. The question of the intrinsic validity of a will normally comes only after the court has declared that the will has been duly authenticated. The records show that upon petition for probate filed by the heirs of the late Esdras Nufable, an Order dated March 30, 1966 was issued by then Court of First Instance of Negros Oriental, Branch II, admitting 7 to probate the last will and testament executed by the decedent. Thereafter, on June 6, 1966, the same court approved the Settlement of Estate submitted by the heirs of the late Esdras Nufable wherein they agreed "(T)hat the parcel land situated in Poblacion Manjuyod, Negros Oriental remains undivided for 8 community ownership but respecting conditions imposed therein (sic) in the will." In paragraph 3 thereof, they stated that "they have no objection as to the manner of disposition of their share made by the testator, the expenses of the proceeding and that they have already taken possession of their respective shares in accordance with the will." Verily, it was the heirs of the late Esdras Nufable who agreed among themselves on the disposition of their shares. The probate court simply approved the agreement among 9 the heirs which approval was necessary for the validity of any disposition of the decedent's estate. It should likewise be noted that the late Esdras Nufable died on August 9, 1965. When the entire property located at Manjuyod was mortgaged on March 15, 1966 by his son Angel Custodio with DBP, the other heirs of Esdras namely: Generosa, Vilfor and Marcelo had already acquired successional rights over the said property. This is so because of the principle contained in Article 777 of the Civil Code to the effect that the rights to the succession are transmitted from the moment of death of the decedent. Accordingly, for the purpose of transmission of rights, it does not matter whether the Last Will and Testament of the late Esdras Nufable was admitted on March 30, 1966 or thereafter or that the Settlement of Estate was approved on June 6, 1966 or months later. It is to be noted that the probated will of the late Esdras Nufable specifically referred to the subject property in stating that "the land situated in the Poblacion, Manjuyod, Negros Oriental, should not be divided because this must remain in common 10 for them, but it is necessary to allow anyone of them brothers and sisters to construct a house therein." It was therefor the will of the decedent that the subject property should undivided, although the restriction 11 should not exceed twenty (20) years pursuant to Article 870 of the Civil Code. Thus, when Angel Nufable and his spouses mortgaged the subject property to DBP on March 15, 1966, they had no right to mortgage the entire property. Angel's right over the subject property was limited only to 1/4 pro indiviso share. As co-owner of the subject property, Angel's right to sell, assign or mortgage is limited to that portion that may be allotted to him upon termination of the co-ownership. Well-entrenched 12 is the rule that a co-owner can only alienate his pro indiviso share in the co-owned property. The Court of Appeals did not err in ruling that Angel Custodio Nufable "had no right to mortgage the subject property in its entirety. His right to encumber said property was limited only to 1/4 pro indiviso 13 share of the property in question." Article 493 of the Civil Code spells out the rights or co-owners over a co-owned property. Pursuant to said Article, a co-owner shall have full ownership of his part and of the fruits and benefits pertaining thereto. He has the right to alienate, assign or mortgage it, and even substitute another person in its enjoyment. As a mere part owner, he cannot alienate the shares of the other co-owners. The prohibition is premised on the elementary rule that "no one can give what he does 14 not have." Moreover, respondents stipulated that they were not aware of the mortgage by petitioners of the subject 15 property. This being the case, a co-owner does not lose his part ownership of a co-owned property 16 when his share is mortgaged by another co-owner without the former's knowledge and consent as in the case at bar. It has likewise been ruled that the mortgage of the inherited property is not binding 17 against co-heirs who never benefitted. Furthermore, the Deed of Sale dated June 17, 1966 marked as Exhibit "H" executed by spouses Angel and Aquilina Nufable in favor of respondents Generosa, Vilfor and Marcelo wherein the former sold, ceded and transferred back to the latter the 3/4 portion of the subject property bolsters respondents' claim

that there was co-ownership. Petitioner Nelson himself claimed that he was aware of the aforesaid Deed 18 of Sale. Anent the second ground of the petition, petitioners allege that the Development Bank of the Philippines acquired ownership of the land in question through foreclosure, purchase and consolidation of ownership. Petitioners argue that if petitioner Nelson Nufable had not bought said land from the DBP, private respondents, in order to acquire said property, must sue said bank for the recovery thereof, and in so doing, must allege grounds for the annulment of documents evidencing the bank's ownership thereof. Petitioners contend that since petitioner Nelson Nufable simply bought the whole land from the bank, they cannot be deprived of the ownership of 3/4 without making any pronouncement as to the legality or illegality of the bank's ownership of said land. It is argued that there was no evidence to warrant declaration of nullity of the bank's acquisition of said land; and that neither was there a finding by the court that the bank illegally acquired the said property. As adverted to above, when the subject property was mortgaged by Angel Custodio, he had no right to mortgage the entire property but only with respect to his 1/4 pro indiviso share as the property was subject to the successional rights of the other heirs of the late Esdras. Moreover, in case of foreclosure; a sale would result in the transmission of title to the buyer which is feasible only if the seller can be in a 19 20 position to convey ownership of the things sold. And in one case, it was held that a foreclosure would be ineffective unless the mortgagor has title to the property to be foreclosed. Therefore, as regards the 21 remaining 3/4 pro indiviso share, the same was held in trust for the party rightfully entitled thereto, who are the private respondents herein. Pursuant to Article 1451 of the Civil Code, when land passes by succession to any person and he causes the legal title to be put in the name of another, a trust is established by implication of law for the benefit of the true owner. Likewise, under Article 1456 of the same Code, if property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of 22 the person from whom the property comes. In the case of Noel vs. Court of Appeals, this Court held that "a buyer of a parcel of land at a public auction to satisfy a judgment against a widow acquired only one-half interest on the land corresponding to the share of the widow and the other half belonging to the heirs of her husband became impressed with a constructive trust in behalf of said heirs." Neither does the fact that DBP succeeded in consolidating ownership over the subject property in its name terminate the existing co-ownership. Registration of property is not a means of acquiring 23 ownership. When the subject property was sold to and consolidated in the name of DBP, it being the winning bidder in the public auction, DBP merely held the 3/4 portion in trust for the private respondents. When petitioner Nelson purchased the said property, he merely stepped into the shoes of DBP and acquired whatever rights and obligations appertain thereto. This brings us to the issue of whether or not the DBP should have been impleaded as party-defendant in the case at bar. Petitioners contend that DBP was never impleaded and that due process requires that DBP be impleaded so that it can defend its sale to petitioner Nelson Nufable; and that it was the duty of private respondents, and not of petitioner Nelson, to implead the bank and ask for the annulment of documents evidencing the bank's ownership of the disputed land. In the Rejoinder to the Reply, private respondents that the non-inclusion of DBP as a "necessary party" was not questioned by petitioners from the time the Complaint was filed until the case was "finished." It was only after the adverse decision by the respondent Court of Appeals that petitioners raised the issue. At the outset, it should be stated petitioners never raised this issue in their Answers and pursuant to Section 2, Rule 9 of the Rules of Court, defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.

Nonetheless, the rule is that indispensable parties, i.e., parties in interest without whom no final determination can be had of an action, shall be joined either as plaintiffs or defendants; the inclusion as a party, i.e., persons who are not indispensable but ought to be parties if complete relief is to be accorded as between those already parties, the court may, in its discretion, proceed in the action without making such persons parties, and the judgment rendered therein shall be without prejudice to the rights of such 25 persons. Proper parties, therefore, have been described as parties whose presence in necessary in order to adjudicate the whole controversy, but whose interests are so far separable that a final decree can 26 be made in their absence without affecting them. Any claim against a party may be severed and 27 proceeded with separately. The pivotal issue to be determined is whether DBP is an indispensable party in this case. Private respondents do not question the legality of the foreclosure of the mortgaged property and the subsequent sale of the same to DBP. The subject property was already purchased by petitioner Nelson from DBP and latter, by such sale, transferred its rights and obligations to the former. Clearly, petitioners' interest in the controversy is distinct and separable from the interest of DBP and a final determination can be had of the action despite the non-inclusion of DBP as party-defendant. Hence, DBP, not being an indispensable party, did not have to be impleaded in this case. WHEREFORE, there being no reversible error in the decision appealed from, the petition for review on certiorari is hereby DENIED.1wphi1.nt SO ORDERED. G.R. No. 89783 February 19, 1992 MARIANO B. LOCSIN, JULIAN J. LOCSIN, JOSE B. LOCSIN, AUREA B. LOCSIN, MATILDE L. CORDERO, SALVADOR B. LOCSIN and MANUEL V. DEL ROSARIO, vs. THE HON. COURT OF APPEALS, JOSE JAUCIAN, FLORENTINO JAUCIAN, MERCEDES JAUCIAN ARBOLEDA, HEIRS OF JOSEFINA J. BORJA, HEIRS OF EDUARDO JAUCIAN and HEIRS OF VICENTE JAUCIAN, Reversal of the decision of the Court of Appeals in CA-G.R. No. CV-11186 affirming with modification the judgment of the Regional Trial Court of Albay in favor of the plaintiffs in Civil Case No. 7152 entitled "Jose Jaucian, et al. v. Mariano B. Locsin, et al.," an action for recovery of real property with damages is sought. in these proceedings initiated by petition for review on certiorari in accordance with Rule 45 of the Rules of Court. The petition was initially denied due course and dismissed by this Court. It was however reinstated upon a second motion for reconsideration filed by the petitioners, and the respondents were required to comment thereon. The petition was thereafter given due course and the parties were directed to submit their memorandums. These, together with the evidence, having been carefully considered, the Court now decides the case. First, the facts as the Court sees them in light of the evidence on record: The late Getulio Locsin had three children named Mariano, Julian and Magdalena, all surnamed Locsin. He owned extensive residential and agricultural properties in the provinces of Albay and Sorsogon. After his death, his estate was divided among his three (3) children as follows: (a) the coconut lands of some 700 hectares in Bual, Pilar, Sorsogon, were adjudicated to his daughter, Magdalena Locsin;

(b) 106 hectares of coconut lands were given to Julian Locsin, father of the petitioners Julian, Mariano, Jose, Salvador, Matilde, and Aurea, all surnamed Locsin; (c) more than forty (40) hectares of coconut lands in Bogtong, eighteen (18) hectares of riceland in Daraga, and the residential lots in Daraga, Albay and in Legazpi City went to his son Mariano, which Mariano brought into his marriage to Catalina Jaucian in 1908. Catalina, for her part, brought into the marriage untitled properties which she had inherited from her parents, Balbino Jaucian and Simona 1 Anson. These were augmented by other properties acquired by the spouses in the course of their union, which however was not blessed with children. Eventually, the properties of Mariano and Catalina were brought under the Torrens System. Those that Mariano inherited from his father, Getulio Locsin, were surveyed cadastrally and registered in the name of 2 "Mariano Locsin, married to Catalina Jaucian.'' Mariano Locsin executed a Last Will and Testament instituting his wife, Catalina, as the sole and 3 universal heir of all his properties. The will was drawn up by his wife's nephew and trusted legal adviser, Attorney Salvador Lorayes. Attorney Lorayes disclosed that the spouses being childless, they had agreed that their properties, after both of them shall have died should revert to their respective sides of the family, i.e., Mariano's properties would go to his "Locsin relatives" ( i.e., brothers and sisters or nephews and 4 nieces), and those of Catalina to her "Jaucian relatives." Don Mariano Locsin died of cancer on September 14, 1948 after a lingering illness. In due time, his will was probated in Special Proceedings No. 138, CFI of Albay without any opposition from both sides of the family. As directed in his will, Doa Catalina was appointed executrix of his estate. Her lawyer in the 5 probate proceeding was Attorney Lorayes. In the inventory of her husband's estate which she submitted 6 to the probate court for approval, Catalina declared that "all items mentioned from Nos. 1 to 33 are the private properties of the deceased and form part of his capital at the time of the marriage with the 7 surviving spouse, while items Nos. 34 to 42 are conjugal." Among her own and Don Mariano's relatives, Doa Catalina was closest to her nephew, Attorney Salvador Lorayes, her nieces, Elena Jaucian, Maria Lorayes-Cornelio and Maria Olbes-Velasco, and the husbands of the last two: Hostilio Cornelio and Fernando Velasco. 8 Her trust in Hostilio Cornelio was such that she made him custodian of all the titles of her properties; and before she disposed of any of them, she unfailingly consulted her lawyer-nephew, Attorney Salvador Lorayes. It was Atty. Lorayes who prepared the legal documents and, more often than not, the witnesses to the transactions were her niece Elena Jaucian, Maria Lorayes-Cornelio, Maria Olbes-Velasco, or their husbands. Her niece, Elena Jaucian, was her life-long companion in her house. Don Mariano relied on Doa Catalina to carry out the terms of their compact, hence, nine (9) years after his death, as if in obedience to his voice from the grave, and fully cognizant that she was also advancing in years, Doa Catalina began transferring, by sale, donation or assignment, Don Mariano's as well as her own, properties to their respective nephews and nieces. She made the following sales and donation of properties which she had received from her husband's estate, to his Locsin nephews and nieces: EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE WITNESSES 23 Jan. 26, 1957 Deed of Absolute Sale in 962 P 481 favor of Mariano Locsin 1-JRL Apr. 7, 1966 Deed of Sale in favor of 430,203 P 20,000 Jose R. Locsin 1-JJL Mar. 22, 1967 Deed of Sale in favor of 5,000 P 1,000 Hostilio Cornello Julian Locsin (Lot 2020) Helen M. Jaucian

1 Nov. 29, 1974 Deed of Donation in 26,509 favor Aurea Locsin, Matilde L. Cordero and Salvador Locsin 2 Feb. 4, 1975 Deed of Donation in 34,045 favor Aurea Locsin, Matilde L. Cordero and Salvador Locsin 3 Sept. 9, 1975 Deed of Donation in (Lot 2059) favor Aurea Locsin, Matilde L. Cordero and Salvador Locsin 4 July 15, 1974 Deed of Absolute Sale in 1,424 Hostilio Cornelio favor of Aurea B. Locsin Fernando Velasco 5 July 15, 1974 Deed of Absolute Sale in 1,456 P 5,750 Hostilio Cornelio favor of Aurea B. Locsin Elena Jaucian 6 July 15, 1974 Deed of Absolute Sale in 1,237 P 5,720 - ditto favor of Aurea B. Locsin 7 July 15, 1974 Deed of Absolute Sale in 1,404 P 4,050 - ditto favor of Aurea B. Locsin 15 Nov. 26, 1975 Deed of Sale in favor of 261 P 4,930 - ditto Aurea Locsin 16 Oct. 17, 1975 Deed of Sale in favor of 533 P 2,000 Delfina Anson Aurea Locsin M. Acabado 17 Nov. 26, 1975 Deed of Sale in favor of 373 P 1,000 Leonor Satuito Aurea Locsin Mariano B. Locsin 19 Sept. 1, 1975 Conditional Donation in 1,130 P 3,000 - ditto favor of Mariano Locsin 1-MVRJ Dec. 29, 1972 Deed of Reconveyance 1,5110.66 P 1,000 Delfina Anson in favor of Manuel V. del (Lot 2155) Antonio Illegible Rosario whose maternal grandfather was Getulio Locsin 2-MVRJ June 30, 1973 Deed of Reconveyance 319.34 P 500 Antonio Illegible in favor of Manuel V. del (Lot 2155) Salvador Nical Rosario but the rentals from bigger portion of Lot 2155 leased to Filoil Refinery were assigned to Maria Jaucian Lorayes Cornelio

Of her own properties, Doa Catalina conveyed the following to her own nephews and nieces and others: EXHIBIT DATE PARTICULARS AREA/SQ.M. PRICE 2-JJL July 16, 1964 Deed of Sale in favor 5,000 P 1,000 Vicente Jaucian (lot 2020) (6,825 sqm. when resurveyed) 24 Feb. 12, 1973 Deed of Absolute Sale 100 P 1,000 in favor of Francisco M. Maquiniana 26 July 15, 1973 Deed of Absolute Sale in 130 P 1,300 favor of Francisco Maquiniana 27 May 3, 1973 Deed of Absolute Sale in 100 P 1,000 favor of Ireneo Mamia 28 May 3, 1973 Deed of Absolute Sale in 75 P 750 favor of Zenaida Buiza 29 May 3, 1973 Deed of Absolute Sale in 150 P 1,500 favor of Felisa Morjella 30 Apr. 3, 1973 Deed of Absolute Sale in 31 P 1,000 favor of Inocentes Motocinos 31 Feb. 12, 1973 Deed of Absolute Sale in 150 P 1,500 favor of Casimiro Mondevil 32 Mar. 1, 1973 Deed of Absolute Sale in 112 P 1,200 favor of Juan Saballa 25 Dec. 28, 1973 Deed of Absolute Sale in 250 P 2,500 of Rogelio Marticio Doa Catalina died on July 6, 1977. Four years before her death, she had made a will on October 22, 1973 affirming and ratifying the transfers she had made during her lifetime in favor of her husband's, and her own, relatives. After the reading of her will, all the relatives agreed that there was no need to submit it to the court for probate because the properties devised to them under the will had already been conveyed to them by the deceased when she was still alive, except some legacies which the executor of her will or estate, Attorney Salvador Lorayes, proceeded to distribute. In 1989, or six (6) years after Doa Catalina's demise, some of her Jaucian nephews and nieces who had already received their legacies and hereditary shares from her estate, filed action in the Regional Trial Court of Legaspi City (Branch VIII, Civil Case No. 7152) to recover the properties which she had conveyed to the Locsins during her lifetime, alleging that the conveyances were inofficious, without consideration, and intended solely to circumvent the laws on succession. Those who were closest to Doa Catalina did not join the action.

After the trial, judgment was rendered on July 8, l985 in favor of the plaintiffs (Jaucian), and against the Locsin defendants, the dispositive part of which reads: WHEREFORE, this Court renders judgment for the plaintiffs and against the defendants: (1) declaring the, plaintiffs, except the heirs of Josefina J. Borja and Eduardo Jaucian, who withdrew, the rightful heirs and entitled to the entire estate, in equal portions, of Catalina Jaucian Vda. de Locsin, being the nearest collateral heirs by right of representation of Juan and Gregorio, both surnamed Jaucian, and full-blood brothers of Catalina; (2) declaring the deeds of sale, donations, reconveyance and exchange and all other instruments conveying any part of the estate of Catalina J. Vda. de Locsin including, but not limited to those in the inventory of known properties (Annex B of the complaint) as null and void ab-initio; (3) ordering the Register of Deeds of Albay and/or Legazpi City to cancel all certificates of title and other transfers of the real properties, subject of this case, in the name of defendants, and derivatives therefrom, and issue new ones to the plaintiffs; (4) ordering the defendants, jointly and severally, to reconvey ownership and possession of all such properties to the plaintiffs, together with all muniments of title properly endorsed and delivered, and all the fruits and incomes received by the defendants from the estate of Catalina, with legal interest from the filing of this action; and where reconveyance and delivery cannot be effected for reasons that might have intervened and prevent the same, defendants shall pay for the value of such properties, fruits and incomes received by them, also with legal interest from the filing, of this case (5) ordering each of the defendants to pay the plaintiffs the amount of P30,000.00 as exemplary damages; and the further sum of P20,000.00 each as moral damages; and (6) ordering the defendants to pay the plaintiffs attorney's fees and litigation expenses, in the amount of P30,000.00 without prejudice to any contract between plaintiffs and counsel. Costs against the defendants.
9

The Locsins appealed to the Court of Appeals (CA-G.R. No. CV-11186) which rendered its now appealed judgment on March 14, 1989, affirming the trial court's decision. The petition has merit and should be granted. The trial court and the Court of Appeals erred in declaring the private respondents, nephews and nieces of Doa Catalina J. Vda. de Locsin, entitled to inherit the properties which she had already disposed of more than ten (10) years before her death. For those properties did not form part of her hereditary estate, i.e., "the property and transmissible rights and obligations existing at the time of (the decedent's) death 10 and those which have accrued thereto since the opening of the succession." The rights to a person's 11 succession are transmitted from the moment of his death, and do not vest in his heirs until such time. Property which Doa Catalina had transferred or conveyed to other persons during her lifetime no longer formed part of her estate at the time of her death to which her heirs may lay claim. Had she died intestate, only the property that remained in her estate at the time of her death devolved to her legal heirs; and even if those transfers were, one and all, treated as donations, the right arising under certain

circumstances to impugn and compel the reduction or revocation of a decedent's gifts inter vivos does not 12 inure to the respondents since neither they nor the donees are compulsory (or forced) heirs. There is thus no basis for assuming an intention on the part of Doa Catalina, in transferring the properties she had received from her late husband to his nephews and nieces, an intent to circumvent the law in violation of the private respondents' rights to her succession. Said respondents are not her compulsory heirs, and it is not pretended that she had any such, hence there were no legitimes that could conceivably be impaired by any transfer of her property during her lifetime. All that the respondents had was an expectancy that in nowise restricted her freedom to dispose of even her entire estate subject only to the limitation set forth in Art. 750, Civil Code which, even if it were breached, the respondents may not invoke: Art. 750. The donation may comprehend all the present property of the donor or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced on petition of any person affected. (634a) The lower court capitalized on the fact that Doa Catalina was already 90 years old when she died on July 6, 1977. It insinuated that because of her advanced years she may have been imposed upon, or unduly influenced and morally pressured by her husband's nephews and nieces (the petitioners) to transfer to them the properties which she had inherited from Don Mariano's estate. The records do not support that conjecture. For as early as 1957, or twenty-eight (28) years before her death, Doa Catalina had already begun transferring to her Locsin nephews and nieces the properties which she received from Don Mariano. She 13 sold a 962-sq.m. lot on January 26, 1957 to his nephew and namesake Mariano Locsin II. On April 7, 1966, or 19 years before she passed away, she also sold a 43 hectare land to another Locsin nephew, 14 Jose R. Locsin. The next year, or on March 22, 1967, she sold a 5,000-sq.m. portion of Lot 2020 to 15 Julian Locsin. On March 27, 1967, Lot 2020 was partitioned by and among Doa Catalina, Julian Locsin, Vicente 17 Jaucian and Agapito Lorete. At least Vicente Jaucian, among the other respondents in this case, is estopped from assailing the genuineness and due execution of the sale of portions of Lot 2020 to himself, Julian Locsin, and Agapito Lorete, and the partition agreement that he (Vicente) concluded with the other co-owners of Lot 2020. Among Doa, Catalina's last transactions before she died in 1977 were the sales of property which she 18 made in favor of Aurea Locsin and Mariano Locsin in 1975. There is not the slightest suggestion in the record that Doa Catalina was mentally incompetent when she made those dispositions. Indeed, how can any such suggestion be made in light of the fact that even as she was transferring properties to the Locsins, she was also contemporaneously disposing of her other properties in favor of the Jaucians? She sold to her nephew, Vicente Jaucian, on July 16, 1964 (21 years before her death) one-half (or 5,000 sq.m.) of Lot 2020. Three years later, or on March 22, 1967, she sold 19 another 5000 sq.m. of the same lot to Julian Locsin. From 1972 to 1973 she made several other transfers of her properties to her relatives and other persons, namely: Francisco Maquiniana, Ireneo Mamia, Zenaida Buiza, Feliza Morjella, Inocentes Motocinos, 20 Casimiro Mondevil, Juan Saballa and Rogelio Marticio. None of those transactions was impugned by the private respondents. In 1975, or two years before her death, Doa Catalina sold some lots not only to Don Mariano's niece, Aurea Locsin, and his nephew, Mariano Locsin
16

II, but also to her niece, Mercedes Jaucian Arboleda. If she was competent to make that conveyance to Mercedes, how can there be any doubt that she was equally competent to transfer her other pieces of property to Aurea and Mariano II? The trial court's belief that Don Mariano Locsin bequeathed his entire estate to his wife, from a "consciousness of its real origin" which carries the implication that said estate consisted of properties which his wife had inherited from her parents, flies in the teeth of Doa Catalina's admission in her inventory of that estate, that "items 1 to 33 are the private properties of the deceased (Don Mariano) and forms (sic) part of his capital at the time of the marriage with the surviving spouse, while items 34 to 42 are conjugal properties, acquired during the marriage." She would have known better than anyone else whether the listing included any of her paraphernal property so it is safe to assume that none was in fact included. The inventory was signed by her under oath, and was approved by the probate court in Special Proceeding No. 138 of the Court of First Instance of Albay. It was prepared with the assistance of her own nephew and counsel, Atty. Salvador Lorayes, who surely would not have prepared a false inventory that would have been prejudicial to his aunt's interest and to his own, since he stood to inherit from her eventually. This Court finds no reason to disbelieve Attorney Lorayes' testimony that before Don Mariano died, he and his wife (Doa Catalina), being childless, had agreed that their respective properties should eventually revert to their respective lineal relatives. As the trusted legal adviser of the spouses and a fullblood nephew of Doa Catalina, he would not have spun a tale out of thin air that would also prejudice his own interest. Little significance, it seems, has been attached to the fact that among Doa Catalina's nephews and nieces, those closest to her: (a) her lawyer-nephew Attorney Salvador Lorayes; (b) her niece and companion Elena Jaucian: (c) her nieces Maria Olbes-Velasco and Maria Lorayes-Cornelio and their respective husbands, Fernando Velasco and Hostilio Cornelio, did not join the suit to annul and undo the dispositions of property which she made in favor of the Locsins, although it would have been to their advantage to do so. Their desistance persuasively demonstrates that Doa Catalina acted as a completely free agent when she made the conveyances in favor of the petitioners. In fact, considering their closeness to Doa Catalina it would have been well-nigh impossible for the petitioners to employ "fraud, undue pressure, and subtle manipulations" on her to make her sell or donate her properties to them. Doa Catalina's niece, Elena Jaucian, daughter of her brother, Eduardo Jaucian, lived with her in her house. Her nephew-in-law, Hostilio Cornelio, was the custodian of the titles of her properties. The sales and donations which she signed in favor of the petitioners were prepared by her trusted legal adviser and nephew, Attorney Salvador Lorayes. The (1) deed of donation dated November 19, 23 24 1974 in favor of Aurea Locsin, (2) another deed of donation dated February 4, 1975 in favor of 25 Matilde Cordero, and (3) still another deed dated September 9, 1975 in favor of Salvador Lorayes, were all witnessed by Hostilio Cornelio (who is married to Doa Catalina's niece, Maria Lorayes) and Fernando 26 Velasco who is married to another niece, Maria Olbes. The sales which she made in favor of Aurea 27 Locsin on July 15, 1974 were witnessed by Hostilio Cornelio and Elena Jaucian. Given those circumstances, said transactions could not have been anything but free and voluntary acts on her part. Apart from the foregoing considerations, the trial court and the Court of Appeals erred in not dismissing this action for annulment and reconveyance on the ground of prescription. Commenced decades after the transactions had been consummated, and six (6) years after Doa Catalina's death, it prescribed four (4) 28 years after the subject transactions were recorded in the Registry of Property, whether considered an action based on fraud, or one to redress an injury to the rights of the plaintiffs. The private respondents may not feign ignorance of said transactions because the registration of the deeds was constructive 29 notice thereof to them and the whole world. WHEREFORE, the petition for review is granted. The decision dated March 14, 1989 of the Court of Appeals in CA-G.R. CV No. 11186 is REVERSED and SET ASIDE. The private respondents' complaint for annulment of contracts and reconveyance of properties in Civil Case No. 7152 of the Regional Trial

21

22

Court, Branch VIII of Legazpi City, is DISMISSED, with costs against the private respondents, plaintiffs therein. SO ORDERED. G.R. No. 125835 July 30, 1998 NATALIA CARPENA OPULENCIA, vs. COURT OF APPEALS, ALADIN SIMUNDAC and MIGUEL OLIVAN, Is a contract to sell a real property involved in restate proceedings valid and binding without the approval of the probate court? Statement of the Case This is the main question raised in this petition for review before us, assailing the Decision of the Court 2 3 of Appeals in CA-GR CV No. 41994 promulgated on February 6, 1996 and its Resolution dated July 19, 1996. The challenged Decision disposed as follows: WHEREFORE, premises considered, the order of the lower court dismissing the complaint is SET ASIDE and judgment is hereby rendered declaring the CONTRACT TO SELL executed by appellee in favor of appellants as valid and binding, subject to the result of the administration proceedings of the testate Estate of Demetrio Carpena. SO ORDERED.
4 1

Petitioner's Motion for Reconsideration was denied in the challenged Resolution. The Facts

The antecedent facts, as succinctly narrated by Respondent Court of Appeals, are: In a complaint for specific performance filed with the court a quo [herein private respondents] Aladin Simundac and Miguel Oliven alleged that [herein petitioner] Natalia Carpena Opulencia executed in their favor a "CONTRACT TO SELL" Lot 2125 of the Sta. Rosa Estate, consisting of 23,766 square meters located in Sta. Rosa, Laguna at P150.00 per square meter; that plaintiffs paid a downpayment of P300,000.00 but defendant, despite demands, failed to comply with her obligations under the contract. [Private respondents] therefore prayed that [petitioner] be ordered to perform her contractual obligations and to further pay damages, attorney's fee and litigation expenses. In her traverse, [petitioner] admitted the execution of the contract in favor of plaintiffs and receipt of P300,000.00 as downpayment. However, she put forward the following affirmative defenses: that the property subject of the contract formed part of the Estate of Demetrio Carpena (petitioner's father), in respect of which a petition for probate was filed with the Regional Trial Court, Branch 24, Bian, Laguna; that at the time the contract was executed, the parties were aware of the pendency of the probate proceeding; that the contract to sell was not approved by the probate court; that realizing the nullity of the contract [petitioner] had offered to return the downpayment received from [private respondents], but the latter refused to accept it; that [private respondents] further failed to provide funds for the tenant who demanded P150,00.00 in payment of his tenancy rights on the land; that [petitioner] had chosen to rescind the contract.

At the pre-trial conference the parties stipulated on [sic] the following facts: 1. That on February 3, 1989, [private respondents] and [petitioner] entered into a contract to sell involving a parcel of land situated in Sta. Rosa, Laguna, otherwise known as Lot No. 2125 of the Sta. Rosa Estate. 2. That the price or consideration of the said sell [sic] is P150.00 per square meters; 3. That the amount of P300,000.00 had already been received by [petitioner]; 4. That the parties have knowledge that the property subject of the contract to sell is subject of the probate proceedings; 5. That [as] of this time, the probate Court has not yet issued an order either approving or denying the said sale. (p. 3, appealed Order of September 15, 1992, pp. 109-112, record). [Private respondents] submitted their evidence in support of the material allegations of the complaint. In addition to testimonies of witnesses, [private respondents] presented the following documentary evidences: (1) Contract to Sell (Exh A); (2) machine copy of the last will and testament of Demetrio Carpena (defendant's father) to show that the property sold by defendant was one of those devised to her in said will (Exh B); (3) receipts signed by defendant for the downpayment in the total amount of P300,000.00 (Exhs C, D & E); and (4) demand letters sent to defendant (Exhs F & G). It appears that [petitioner], instead of submitting her evidence, filed a Demurrer to Evidence. In essence, defendant maintained that the contract to sell was null and void for want of approval by the probate court. She further argued that the contract was subject to a suspensive condition, which was the probate of the will of defendant's father Demetrio Carpena. An Opposition was filed by [private respondents]. It appears further that in an Order dated December 15, 1992 the court a quo granted the demurrer to evidence and dismissed the complaint. It justified its action in dismissing the complaint in the following manner: It is noteworthy that when the contract to sell was consummated, no petition was filed in the Court with notice to the heirs of the time and place of hearing, to show that the sale is necessary and beneficial. A sale of properties of an estate as beneficial to the interested parties must comply with the requisites provided by law, (Sec. 7, Rule 89, Rules of Court) which are mandatory, and without them, the authority to sell, the sale itself, and the order approving it, would be null and void ab initio. (Arcilla vs. David, 77 Phil. 718, Gabriel, et al., vs. Encarnacion, et al., L-6736, May 4, 1954; Bonaga vs. Soler, 2 Phil. 755) Besides, it is axiomatic that where the estate of a deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the probate Court. (Estate of Obave, vs. Reyes, 123 SCRA 767). As held by the Supreme Court, a decedent's representative (administrator) is not estopped from questioning the validity of his own void deed purporting to convey land. (Bona vs. Soler, 2 Phil, 755). In the case at bar, the [petitioner,] realizing the illegality of the transaction[,] has interposed the nullity of the contract as her defense, there being no approval from the probate Court, and, in good faith offers to return the money she

received from the [private respondents]. Certainly, the administratrix is not estop[ped] from doing so and the action to declare the inexistence of contracts do not prescribe. This 6 is what precipitated the filing of [petitioner's] demurrer to evidence. The trial court's order of dismissal was elevated to the Court of Appeals by private respondents who alleged: 1. The lower court erred in concluding that the contract to sell is null and void, there being no approval of the probate court. 2. The lower court erred in concluding that [petitioner] in good faith offers to return the money to [private respondents]. 3. The lower court erred in concluding that [petitioner] is not under estoppel to question the validity of the contract to sell. 4. The lower court erred in not ruling on the consideration of the contract to sell which is tantamount to plain unjust enrichment of [petitioner] at the expense of [private 7 respondents]. Public Respondent's Ruling Declaring the Contract to Sell valid, subject to the outcome of the testate proceedings on Demetrio Carpena's estate, the appellate court set aside the trial court's dismissal of the complaint and correctly ruled as follows: It is apparent from the appealed order that the lower court treated the contract to sell executed by appellee as one made by the administratrix of the Estate of Demetrio Carpena for the benefit of the estate. Hence, its main reason for voiding the contract in question was the absence of the probate court's approval. Presumably, what the lower court had in mind was the sale of the estate or part thereof made by the administrator for the benefit of the estate, as authorized under Rule 89 of the Revised Rules of Court, which requires the approval of the probate court upon application therefor with notice to the heirs, devisees and legatees. However, as adverted to by appellants in their brief, the contract to sell in question is not covered by Rule 89 of the Revised Rules of Court since it was made by appellee in her capacity as an heir, of a property that was devised to her under the will sought to be probated. Thus, while the document inadvertently stated that appellee executed the contract in her capacity as "executrix and administratrix" of the estate, a cursory reading of the entire text of the contract would unerringly show that what she undertook to sell to appellants was one of the "other properties given to her by her late father," and more importantly, it was not made for the benefit of the estate but for her own needs. To illustrate this point, it is apropos to refer to the preambular or preliminary portion of the document, which reads: WHEREAS, the SELLER is the lawful owner of a certain parcel of land, which is more particularly described as follows: xxx xxx xxx xxx xxx xxx

xxx xxx xxx WHEREAS, the SELLER suffers difficulties in her living and has forced to offer the sale of the above-described property, "which property was only one among the other properties given to her by her late father," to anyone who can wait for complete clearance of the court on the Last Will Testament of her father. WHEREAS, the SELLER in order to meet her need of cash, has offered for sale the said property at ONE HUNDRED FIFTY PESOS (150.00) Philippine Currency, per square meter unto the BUYERS, and with this offer, the latter has accepted to buy and/or purchase the same, less the area for the road and other easements indicated at the back of Transfer Certificate of Title No. 2125 duly confirmed after the survey to be conducted by the BUYER's Licensed Geodetic Engineer, and whatever area [is] left. (Emphasis added). To emphasize, it is evident from the foregoing clauses of the contract that appellee sold Lot 2125 not in her capacity as executrix of the will or administratrix of the estate of her father, but as an heir and more importantly as owner of said lot which, along with other properties, was devised to her under the will sought to be probated. That being so, the requisites stipulated in Rule 89 of the Revised Rules of Court which refer to a sale made by the administrator for the benefit of the estate do not apply. xxx xxx xxx It is noteworthy that in a Manifestation filed with this court by appellants, which is not controverted by appellee, it is mentioned that the last will and testament of Demetrio Carpena was approved in a final judgment rendered in Special Proceeding No. B-979 by the Regional Trial Court, Branch 24 Bian, Laguna. But of course such approval does not terminate the proceeding[s] since the settlement of the estate will ensue. Such proceedings will consist, among others, in the issuance by the court of a notice to creditors (Rule 86), hearing of money claims and payment of taxes and estate debts (Rule 88) and distribution of the residue to the heirs or persons entitled thereto (Rule 90). In effect, the final execution of the deed of sale itself upon appellants' payment of the balance of the purchase price will have to wait for the settlement or termination of the administration proceedings of the Estate of Demetrio Carpena. Under the foregoing premises, what the trial court should have done with the complaint was not to dismiss it but to simply put on hold further proceedings until such time that the estate or its residue will be distributed in accordance with the approved will. The rule is that when a demurrer to the evidence is granted by the trial court but reversed on appeal, defendant loses the right to adduce his evidence. In such a case, the appellate court will decide the controversy on the basis of plaintiff's evidence. In the case at bench, while we find the contract to sell valid and binding between the parties, we cannot as yet order appellee to perform her obligations under the contract because the result of the administration proceedings of the testate Estate of Demetrio Carpena has to be awaited. Hence, we shall confine our adjudication to merely declaring the validity of the questioned Contract to Sell. Hence, this appeal.
8

The Issue

Petitioner raises only one issue: Whether or not the Contract to Sell dated 03 February 1989 executed by the [p]etitioner and [p]rivate [r]espondent[s] without the requisite probate court approval is valid. The Court's Ruling The petition has no merit. Contract to Sell Valid In a nutshell, petitioner contends that "where the estate of the deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without 9 prior approval of the Probate Court." She maintains that the Contract to Sell is void because it was not approved by the probate court, as required by Section 7, Rule 89 of the Rules of Court: Sec. 7. Regulations for granting authority to sell, mortgage, or otherwise encumber estate. The court having jurisdiction of the estate of the deceased may authorize the executor or administrator to sell, mortgage, or otherwise encumber real estate, in cases provided by these rules and when it appears necessary or beneficial, under the following regulations: xxx xxx xxx Insisting that the above rule should apply to this case, petitioner argues that the stipulations in the Contract to Sell require her to act in her capacity as an executrix or administratrix. She avers that her obligation to eject tenants pertains to the administratrix or executrix, the estate being the landlord of the 10 said tenants. Likewise demonstrating that she entered into the contract in her capacity as executor is the stipulation that she must effect the conversion of subject land from irrigated rice land to residential land and secure the necessary clearances from government offices. Petitioner alleges that these 11 obligations can be undertaken only by an executor or administrator of an estate, and not by an heir. The Court is not persuaded. As correctly ruled by the Court of Appeals, Section 7 of Rule 89 of the Rules of Court is not applicable, because petitioner entered into the Contract to Sell in her capacity as an heiress, not as an executrix or administratrix of the estate. In the contract, she represented herself as the 12 "lawful owner" and seller of the subject parcel of land. She also explained the reason for the sale to be 13 "difficulties in her living" conditions and consequent "need of cash." These representations clearly evince that she was not acting on behalf of the estate under probate when she entered into the Contract to Sell. Accordingly, the jurisprudence cited by petitioners has no application to the instant case. We emphasize that hereditary rights are vested in the heir or heirs from the moment of the decedent's 14 death. Petitioner, therefore, became the owner of her hereditary share the moment her father died. Thus, the lack of judicial approval does not invalidate the Contract to Sell, because the petitioner has the 15 substantive right to sell the whole or a part of her share in the estate of her late father. Thus, in 16 Jakosalem vs. Rafols, the Court resolved an identical issue under the old Civil Code and held: Art. 440 of the Civil Code provides that "the possession of hereditary property is deemed to be transmitted to the heir without interruption from the instant of the death of the decedent, in case the inheritance be accepted." And Manresa with reason states that upon the death of a person, each of his heirs "becomes the undivided owner of the whole estate left with respect to the part or portion which might be adjudicated to him, a community of ownership being thus formed among the coowners of the estate while it remains undivided." . . . And according to article 399 of the Civil Code, every part owner

may assign or mortgage his part in the common property, and the effect of such assignment or mortgage shall be limited to the portion which may be allotted him in the partition upon the dissolution of the community. Hence, where some of the heirs, without the concurrence of the others, sold a property left by their deceased father, this Court, speaking thru its then Chief Justice Cayetano Arellano, said that the sale was valid, but that the effect thereof was limited to the share which may be allotted to the vendors upon the partition of the estate. Administration of the Estate Not Prejudiced by the Contract to Sell Petitioner further contends that "[t]o sanction the sale at this stage would bring about a partial distribution 17 of the decedent's estate pending the final termination of the testate proceedings." This becomes all the more significant in the light of the trial court's finding, as stated in its Order dated August 20, 1997, that 18 "the legitimate of one of the heirs has been impaired." Petitioner's contention is not convincing. The Contract to Sell stipulates that petitioner's offer to sell is 19 contingent on the "complete clearance of the court on the Last Will Testament of her father." Consequently, although the Contract to Sell was perfected between the petitioner and private respondents during the pendency of the probate proceedings, the consummation of the sale or the transfer of ownership over the parcel of land to the private respondents is subject to the full payment of the purchase price and to the termination and outcome of the testate proceedings. Therefore, there is no basis for petitioner's apprehension that the Contract to Sell may result in a premature partition and distribution of the properties of the estate. Indeed, it is settled that "the sale made by an heir of his share in an inheritance, subject to the pending administration, in no wise stands in the way of such 20 administration." Estoppel Finally, petitioner is estopped from backing out of her representations in her valid Contract to Sell with private respondents, from whom she had already received P300,000 as initial payment of the purchase price. Petitioner may not renege on her own acts and representations, to the prejudice of the private 21 respondents who have relied on them. Jurisprudence teaches us that neither the law nor the courts will extricate a party from an unwise or undesirable contract he or she entered into with all the required 22 formalities and with full awareness of its consequences. WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 126334 November 23, 2001

EMILIO EMNACE, 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, 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 distribution of the partnership properties 1 among them, consequent to Jacinto Divinagracia's 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 Tabanao's untimely demise in 1994, petitioner failed to submit to Tabanao's heirs any statement of assets and liabilities of the partnership, and to render an accounting of the partnership's finances. Petitioner also reneged on his promise to turn over to Tabanao's heirs the deceased's 1/3 share in the total assets of the partnership, amounting to 2 P30,000,000.00, or the sum of P10,000,000.00, despite formal demand for payment thereof. Consequently, Tabanao' s heirs, respondents herein, filed against petitioner an action for accounting, 3 payment of shares, division 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. Attorney's fees equivalent to Thirty Percent (30%) of the entire share/amount/award which the Honorable Court may resolve the plaintiffs as entitled to plus P1,000.00 for 4 every appearance in court. Petitioner filed a motion to dismiss the complaint on the grounds of improper venue, lack of jurisdiction 5 over the nature of the 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 petitioner's 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 aright 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 6 succession are transmitted from the 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 partnership's) assets and thereafter pay/remit/deliver/surrender/yield to the plaintiffs" their corresponding share in the proceeds thereof. In due time, petitioner filed a 8 manifestation and motion to dismiss, arguing that the trial court did not acquire jurisdiction over the case due to the plaintiffs' failure to pay the proper docket fees. Further, in a supplement to his motion to 9 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.
10 7

Petitioner filed a petition for certiorari before the Court of Appeals,

11

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 petitioner's 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 court's territorial jurisdiction; III. IV. Lack of capacity to sue on the part of plaintiff heirs of Vicente Tabanao; and 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 decedent's 1/3 share in the partnership' s assets. While they ask for an accounting of the partnership' s 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 partnership' s 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.1wphi1.nt We do not agree. The trial court does not have to employ guesswork in ascertaining the estimated value of the partnership's 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 subject assets or 13 amount demanded is pecuniarily determinable. While it is true that the exact value of the partnership's 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, 14 particularly from petitioner, in order to determine the proper amount of docket and 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 17 fees to be computed by the 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 nonpayment 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 petitioner's 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 pauperlitigants. Nowhere in the records does it appear that respondents are litigating as paupers, and as such 18 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 abovequoted provision "clearly contemplates an Initial payment of the filing fees corresponding to the estimated 20 amount of the claim subject to adjustment as to what 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 partnership's total 21 assets to be worth Thirty Million Pesos (P30,000,000.00), 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
19

16

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 alien. 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. 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 certain exceptions which 23 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 docket fees within a reasonable time before the expiration of the applicable 24 prescriptive or reglementary period. In the recent case of National Steel Corp. v. Court of Appeals,
25 22

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 26 where the defendant resides or may be found, or 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 rem where the action is against the thing itself instead of against the 27 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 petitioner's compliance with, the contract that the partners executed to formalize the partnership's dissolution, as well as to implement the liquidation and partition of the partnership's assets. Clearly, it is a personal action that, in effect, claims a debt from petitioner and seeks the performance of a personal duty 29 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 30 parties reside. Besides, venue has nothing to do with jurisdiction for venue touches more upon the 31 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. Petitioner's 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 Tabanao' s death, his rights insofar as the partnership was concerned were transmitted to his heirs, for rights to the succession are transmitted from the moment of death of the decedent.32 Whatever claims and rights Vicente Tabanao had against the partnership and petitioner were transmitted to respondents by operation of law, more particularly by succession, which is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person 33 are transmitted. Moreover, respondents became owners of their respective hereditary shares from the 34 moment Vicente Tabanao died. A prior settlement of the estate, or even the appointment of Salvacion Tabanao as executrix or administratrix, is not necessary for any of the heirs to acquire legal capacity to sue. As successors who stepped into the shoes of their decedent upon his death, they can commence any action originally 35 pertaining to the decedent. From the moment of his death, his rights as a partner and to demand fulfillment of petitioner's obligations as outlined in their dissolution agreement were transmitted to respondents. They, therefore, had the capacity to sue and seek the court's intervention to compel petitioner to fulfill his obligations. 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 petitioner's 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 partitioning and distribution of the net partnership 37 assets to the partners. For as long as the partnership exists, any of the partners may demand an accounting of the partnership's business. Prescription of the said right starts to run only upon the 38 dissolution of the partnership when the final accounting is done.
36

Contrary to petitioner's 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 partnership's 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 petitioner's motions to dismiss. Likewise, the Court of Appeals did not commit reversible error in upholding the trial court's 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.1wphi1.nt SO ORDERED. [G.R. No. 113725. June 29, 2000] JOHNNY S. RABADILLA, , vs. COURT OF APPEALS AND MARIA MARLENA COSCOLUELLA Y BELLEZA VILLACARLOS, 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 defendants-appellees (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. RT4002 (10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental. (b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla. 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. 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 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/returnLot 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 defendantheirs, 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 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." 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 noncompliance 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." 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 "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 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 substitution, or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution. The Codicil sued upon contemplates neither of the two. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants. Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution." Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir. In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla. 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 application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. To some extent, it is similar to a resolutory condition. 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, 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 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 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 CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs SO ORDERED. G.R. No. 104482 January 22, 1996

BELINDA TAEDO, for herself and in representation of her brothers and sisters, and TEOFILA CORPUZ TAEDO, representing her minor daughter VERNA TAEDO, vs. THE COURT OF APPEALS, SPOUSES RICARDO M. TAEDO AND TERESITA BARERA TAEDO, Is a sale of future inheritance valid? In multiple sales of the same real property, who has preference in ownership? What is the probative value of the lower court's finding of good faith in registration of such sales in the registry of property? These are the main questions raised in this Petition for review on 1 certiorari under Rule 45 of the Rules of Court to set aside and reverse the Decision of the Court of 2 Appeals in CA-G.R. CV NO. 24987 promulgated on September 26, 1991 affirming the decision of the Regional Trial Court, Branch 63, Third Judicial Region, Tarlac, Tarlac in Civil Case No. 6328, and its Resolution denying reconsideration thereof, promulgated on May 27, 1992. By the Court's Resolution on October 25, 1995, this case (along with several others) was transferred from the First to the Third Division and after due deliberation, the Court assigned it to the undersigned ponente for the writing of this Decision. The Facts On October 20, 1962, Lazardo Taedo executed a notarized deed of absolute sale in favor of his eldest brother, Ricardo Taedo, and the latter's wife, Teresita Barera, private respondents herein, whereby he conveyed to the latter in consideration of P1,500.00, "one hectare of whatever share I shall have over Lot No. 191 of the cadastral survey of Gerona, Province of Tarlac and covered by Title T-13829 of the Register of Deeds of Tarlac", the said property being his "future inheritance" from his parents (Exh. 1). Upon the death of his father Matias, Lazaro executed an "Affidavit of Conformity" dated February 28, 1980 (Exh. 3) to "re-affirm, respect, acknowledge and validate the sale I made in 1962." On January 13, 1981, Lazaro executed another notarized deed of sale in favor of private respondents covering his "undivided ONE TWELVE (1/12) of a parcel of land known as Lot 191 . . . " (Exh. 4). He acknowledged

therein his receipt of P10,000.00 as consideration therefor. In February 1981, Ricardo learned that Lazaro sold the same property to his children, petitioners herein, through a deed of sale dated December 29, 1980 (Exh. E). On June 7, 1982, private respondents recorded the Deed of Sale (Exh. 4) in their favor in the Registry of Deeds and the corresponding entry was made in Transfer Certificate of Title No. 166451 (Exh. 5). Petitioners on July 16, 1982 filed a complaint for rescission (plus damages) of the deeds of sale executed by Lazaro in favor of private respondents covering the property inherited by Lazaro from his father. Petitioners claimed that their father, Lazaro, executed an "Absolute Deed of Sale" dated December 29, 1980 (Exit. E). Conveying to his ten children his allotted portion tinder the extrajudicial partition executed by the heirs of Matias, which deed included the land in litigation (Lot 191). Petitioners also presented in evidence: (1) a private writing purportedly prepared and signed by Matias dated December 28, 1978, stating that it was his desire that whatever inheritance Lazaro would receive from him should be given to his (Lazaro's) children (Exh. A); (2) a typewritten document dated March 10, 1979 signed by Lazaro in the presence of two witnesses, wherein he confirmed that he would voluntarily abide by the wishes of his father, Matias, to give to his (Lazaro's) children all the property he would inherit from the latter (Exh. B); and (3) a letter dated January 1, 1980 of Lazaro to his daughter, Carmela, stating that his share in the extrajudicial settlement of the estate of his father was intended for his children, petitioners herein (Exh. C). Private respondents, however presented in evidence a "Deed of Revocation of a Deed of Sale" dated March 12, 1981 (Exh. 6), wherein Lazaro revoked the sale in favor of petitioners for the reason that it was "simulated or fictitious without any consideration whatsoever". Shortly after the case a quo was filed, Lazaro executed a sworn statement (Exh. G) which virtually repudiated the contents of the Deed of Revocation of a Deed of Sale (Exh. 6) and the Deed of Sale (Exh. 4) in favor of private respondents. However, Lazaro testified that he sold the property to Ricardo, and that it was a lawyer who induced him to execute a deed of sale in favor of his children after giving him five pesos (P5.00) to buy a "drink" (TSN September 18, 1985, pp. 204-205). The trial court decided in favor of private respondents, holding that petitioners failed "to adduce a proponderance of evidence to support (their) claim." On appeal, the Court of Appeals affirmed the decision of the trial court, ruling that the Deed of Sale dated January 13, 1981 (Exh. 9) was valid and that its registration in good faith vested title in said respondents. The Issues Petitioners raised the following "errors" in the respondent Court, which they also now allege in the instant Petition: I. The trial court erred in concluding that the Contract of Sale of October 20, 1962 (Exhibit 7, Answer) is merely voidable or annulable and not void ab initio pursuant to paragraph 2 of Article 1347 of the New Civil Code involving as it does a "future inheritance". II. The trial court erred in holding that defendants-appellees acted in good faith in registering the deed of sale of January 13, 1981 (Exhibit 9) with the Register of Deeds of Tarlac and therefore ownership of the land in question passed on to defendants-appellees. III. The trial court erred in ignoring and failing to consider the testimonial and documentary evidence of plaintiffs-appellants which clearly established by preponderance of evidence that they are indeed the legitimate and lawful owners of the property in question.

IV. The decision is contrary to law and the facts of the case and the conclusions drawn from the established facts are illogical and off-tangent. From the foregoing, the issues may be restated as follows: 1. Is the sale of a future inheritance valid? 2. Was the subsequent execution on January 13, 1981 (and registration with the Registry of Property) of a deed of sale covering the same property to the same buyers valid? 3. May this Court review the findings of the respondent Court (a) holding that the buyers acted in good faith in registering the said subsequent deed of sale and (b) in "failing to consider petitioners' evidence"? Are the conclusions of the respondent Court "illogical and off-tangent"? The Court's Ruling At the outset, let it be clear that the "errors" which are reviewable by this Court in this petition for review on certiorari are only those allegedly committed by the respondent Court of Appeals and not directly those of the trial court, which is not a party here. The "assignment of errors" in the petition quoted above are therefore totally misplaced, and for that reason, the petition should be dismissed. But in order to give the parties substantial justice we have decided to delve into the issues as above re-stated. The errors attributed by petitioners to the latter (trial) court will be discussed only insofar as they are relevant to the appellate court's assailed Decision and Resolution. The sale made in 1962 involving future inheritance is not really at issue here. In context, the assailed Decision conceded "it may be legally correct that a contract of sale of anticipated future inheritance is null 3 and void." But to remove all doubts, we hereby categorically rule that, pursuant to Article 1347 of the Civil Code, "(n)o contract may be entered into upon a future inheritance except in cases expressly authorized by law." Consequently, said contract made in 1962 is not valid and cannot be the source of any right nor the creator of any obligation between the parties. Hence, the "affidavit of conformity" dated February 28, 1980, insofar as it sought to validate or ratify the 1962 sale, is also useless and, in the words of the respondent Court, "suffers from the same infirmity." 4 Even private respondents in their memorandum concede this. However, the documents that are critical to the resolution of this case are: (a) the deed of sale of January 13, 1981 in favor of private respondents covering Lazaro's undivided inheritance of one-twelfth (1/12) share in Lot No. 191, which was subsequently registered on June 7, 1982; and (b) the deed of sale dated December 29, 1980 in favor of petitioners covering the same property. These two documents were executed after the death of Matias (and his spouse) and after a deed of extra-judicial settlement of his (Matias') estate was executed, thus vesting in Lazaro actual title over said property. In other words, these dispositions, though conflicting, were no longer infected with the infirmities of the 1962 sale. Petitioners contend that what was sold on January 13, 1981 was only one-half hectare out of Lot No. 191, citing as authority the trial court's decision. As earlier pointed out, what is on review in these proceedings by this Court is the Court of Appeals' decision which correctly identified the subject matter of the January 13, 1981 sale to be the entire undivided 1/12 share of Lazaro in Lot No. 191 and which is the same property disposed of on December 29, 1980 in favor of petitioners.

Critical in determining which of these two deeds should be given effect is the registration of the sale in favor of private respondents with the register of deeds on June 7, 1982. Article 1544 of the Civil Code governs the preferential rights of vendees in cases of multiple sales, as follows: Art. 1544. If the same thing should have been sold to different vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it should be movable property. Should it be immovable property, the ownership shall belong to the person acquiring it who in good faith first recorded it in the Registry of Property. Should there be no inscription, the ownership shall pertain to the person who in good faith was first in the possession; and, in the absence thereof, to the person who presents the oldest title, provided there is good faith. The property in question is land, an immovable, and following the above-quoted law, ownership shall belong to the buyer who in good faith registers it first in the registry of property. Thus, although the deed of sale in favor of private respondents was later than the one in favor of petitioners, ownership would vest in the former because of the undisputed fact of registration. On the other hand, petitioners have not registered the sale to them at all. Petitioners contend that they were in possession of the property and that private respondents never took possession thereof. As between two purchasers, the one who registered the sale in his favor has a preferred right over the other who has not registered his title, even if the latter is in actual possession of 5 the immovable property. As to third issue, while petitioners conceded the fact of registration, they nevertheless contended that it was done in bad faith. On this issue, the respondent Court ruled; Under the second assignment of error, plaintiffs-appellants contend that defendants-appellees acted in bad faith when they registered the Deed of Sale in their favor as appellee Ricardo already knew of the execution of the deed of sale in favor of the plaintiffs; appellants cite the testimony of plaintiff Belinda Taedo to the effect that defendant Ricardo Taedo called her up on January 4 or 5, 1981 to tell her that he was already the owner of the land in question "but the contract of sale between our father and us were (sic) already consumated" (pp. 9-10, tsn, January 6, 1984). This testimony is obviously self-serving, and because it was a telephone conversation, the deed of sale dated December 29, 1980 was not shown; Belinda merely told her uncle that there was already a document showing that plaintiffs are the owners (p. 80). Ricardo Taedo controverted this and testified that he learned for the first time of the deed of sale executed by Lazaro in favor of his children "about a month or sometime in February 1981" (p. 6 111, tsn, Nov. 28, 1984). . . . The respondent Court, reviewing the trial court's findings, refused to overturn the latter's assessment of the testimonial evidence, as follows; We are not prepared to set aside the finding of the lower court upholding Ricardo Taedo's testimony, as it involves a matter of credibility of witnesses which the trial judge, who presided at the hearing, was in a better position to resolve. (Court of Appeals' Decision, p. 6.) In this connection, we note the tenacious allegations made by petitioners, both in their basic petition and in their memorandum, as follows:

1. The respondent Court allegedly ignored the claimed fact that respondent Ricardo "by fraud and deceit and with foreknowledge" that the property in question had already been sold to petitioners, made Lazaro execute the deed of January 13, 1981; 2. There is allegedly adequate evidence to show that only 1/2 of the purchase price of P10,000.00 was paid at the time of the execution of the deed of sale, contrary to the written acknowledgment, thus showing bad faith; 3. There is allegedly sufficient evidence showing that the deed of revocation of the sale in favor of petitioners "was tainted with fraud or deceit." 4. There is allegedly enough evidence to show that private respondents "took undue advantage over the weakness and unschooled and pitiful situation of Lazaro Taedo . . ." and that respondent Ricardo Taedo "exercised moral ascendancy over his younger brother he being the eldest brother and who reached fourth year college of law and at one time a former ViceGovernor of Tarlac, while his younger brother only attained first year high school . . . ; 5. The respondent Court erred in not giving credence to petitioners' evidence, especially Lazaro Taedo's Sinumpaang Salaysay dated July 27, 1982 stating that Ricardo Taedo deceived the former in executing the deed of sale in favor of private respondents. To be sure, there are indeed many conflicting documents and testimonies as well as arguments over their probative value and significance. Suffice it to say, however, that all the above contentions involve questions of fact, appreciation of evidence and credibility of witnesses, which are not proper in this review. It is well-settled that the Supreme Court is not a trier of facts. In petitions for review under Rule 45 of the Revised Rules of Court, only questions of law may be raised and passed upon. Absent any whimsical or capricious exercise of judgment, and unless the lack of any basis for the conclusions made by the lower courts be amply demonstrated, the Supreme Court will not disturb their findings. At most, it appears that petitioners have shown that their evidence was not believed by both the trial and the appellate courts, and that the said courts tended to give more credence to the evidence presented by private respondents. But this in itself is not a reason for setting aside such findings. We are far from convinced that both courts gravely abused their respective authorities and judicial prerogatives. As held in the recent case of Chua Tiong Tay vs. Court of Appeals and Goldrock Construction and 7 Development Corp. The Court has consistently held that the factual findings of the trial court, as well as the Court of Appeals, are final and conclusive and may not be reviewed on appeal. Among the exceptional circumstances where a reassessment of facts found by the lower courts is allowed are when the conclusion is a finding grounded entirely on speculation, surmises or conjectures; when the inference made is manifestly absurd, mistaken or impossible; when there is grave abuse of discretion in the appreciation of facts; when the judgment is premised on a misapprehension of facts; when the findings went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee. After a careful study of the case at bench, we find none of the above grounds present to justify the re-evaluation of the findings of fact made by the courts below. In the same vein, the ruling in the recent case of South Sea Surety and Insurance Company, Inc. vs. Hon. 8 Court of Appeals, et al. is equally applicable to the present case: We see no valid reason to discard the factual conclusions of the appellate court. . . . (I)t is not the function of this Court to assess and evaluate all over again the evidence, testimonial and documentary, adduced by the parties, particularly where, such as here, the findings of both the trial court and the appellate court on the matter coincide. (emphasis supplied)

WHEREFORE, the petition is DENIED and the assailed Decision of the Court of Appeals is AFFIRMED. No Costs. SO ORDERED. G.R. No. L-4275 March 23, 1909

PAULA CONDE vs. ROMAN ABAYA From the hearing of the appeal interposed by Roman Abaya in the special proceedings brought in the Court of First Instance of La Laguna for the settlement of the intestate estate and the distribution of the property of Casiano Abaya it appears: I. As antecedents: that Casiano Abaya, unmarried, the son of Romualdo Abaya and Sabrina Labadia, died on the 6th of April, 1899; that Paula Conde, as the mother of the natural children Jose and Teopista Conde, whom the states she had by Casiano Abaya, on the 6th of November, 1905, moved the settlement of the said intestate succession; that an administrator having been appointed for the said estate on the 25th of November, 1905, Roman Abaya, a son of the said Romualdo Abaya and Sabrina Labadia, the parents of the late Casiano Abaya, came forward and opposed said appointment and claimed it for himself as being the nearest relative of the deceased; that this was granted by the court below on the 9th of January, 1906; that on the 17th of November, 1906, Roman Abaya moved that, after due process of law, the court declare him to be the sole heir of Casiano Abaya, to the exclusion of all other persons, especially of Paula Conde, and to be therefore entitled to take possession of all the property of said estate, and that it be adjudicated to him; and that on November 22, 1906, the court ordered the publication of notices for the declaration of heirs and distribution of the property of the estate. II. That on the 28th of November, 1906, Paula Conde, in replying to the foregoing motion of Roman Abaya, filed a petition wherein she stated that she acknowledged the relationship alleged by Roman Abaya, but that she considered that her right was superior to his and moved for a hearing of the matter, and, in consequence of the evidence that she intended to present she prayed that she be declared to have preferential rights to the property left by Casiano Abaya, and that the same be adjudicated to her together with the corresponding products thereof. III. That the trial was held, both parties presenting documentary and oral evidence, and the court below entered the following judgment: That the administrator of the estate of Casiano Abaya should recognize Teopista and Jose Conde as being natural children of Casiano Abaya; that the petitioner Paula Conde should succeed to the hereditary rights of her children with respect to the inheritance of their deceased natural father Casiano Abaya; and therefore, it is hereby declared that she is the only heir to the property of the said intestate estate, to the exclusion of the administrator, Roman Abaya. IV. That Roman Abaya excepted to the foregoing judgment, appealed to this court, and presented the following statement of errors: 1. The fact that the court below found that an ordinary action for the acknowledgment of natural children under articles 135 and 137 of the Civil Code, might be brought in special probate proceedings. 2. The finding that after the death of a person claimed to be an unacknowledged natural child, the mother of such presumed natural child, as heir to the latter, may bring an action to enforce the acknowledgment of her deceased child in accordance with articles 135 and 137 of the Civil Code.

3. The finding in the judgment that the alleged continuos possession of the deceased children of Paula Conde of the status of natural children of the late Casiano Abaya, has been fully proven in these proceedings; and 4. On the hypothesis that it was proper to adjudicate the property of this intestate estate to Paula Conde, as improperly found by the court below, the court erred in not having declared that said property should be reserved in favor of relatives of Casiano Abaya to the third degree, and in not having previously demanded securities from Paula Conde to guarantee the transmission of the property to those who might fall within the reservation. As to the first error assigned, the question is set up as to whether in special proceedings for the administration and distribution of an intestate estate, an action might be brought to enforce the acknowledgment of the natural child of the person from whom the inheritance is derived, that is to say, whether one might appear as heir on the ground that he is a recognized natural child of the deceased, not having been so recognized by the deceased either voluntarily or compulsorily by reason of a preexisting judicial decision, but asking at the same time that, in the special proceeding itself, he be recognized by the presumed legitimate heirs of the deceased who claim to be entitled to the succession opened in the special proceeding. According to section 782 of the Code of Civil Procedure If there shall be a controversy before the Court of First Instance as to who the lawful heirs of the deceased person are, or as to the distributive share to which each person is entitled under the law, the testimony as to such controversy shall be taken in writing by the judge, under oath, and signed by the witness. Any party in interest whose distributive share is affected by the determination of such controversy, may appeal from the judgment of the Court of First Instance determining such controversy to the Supreme Court, within the time and in the manner provided in the last preceding section. This court has decided the present question in the manner shown in the case of Juana Pimentel vs. Engracio Palanca (5 Phil. Rep., 436.) The main question with regard to the second error assigned, is whether or not the mother of a natural child now deceased, but who survived the person who, it is claimed, was his natural father, also deceased, may bring an action for the acknowledgment of the natural filiation in favor of such child in order to appear in his behalf to receive the inheritance from the person who is supposed to be his natural father. In order to decide in the affirmative the court below has assigned the following as the only foundation: In resolving a similar question Manresa says: "An acknowledgment can only be demanded by the natural child and his descendants whom it shall benefit, and should they be minors or otherwise incapacitated, such person as legally represents them; the mother may ask it in behalf of her child so long as he is under her authority." On this point no positive declaration has been made, undoubtedly because it was not considered necessary. A private action is in question and the general rule must be followed. Elsewhere the same author adds: "It may so happen that the child dies before four years have expired after attaining majority, or that the document supporting his petition for acknowledgment is discovered after his death, such death perhaps occurring after his parents had died, as is supposed by article 137, or during their lifetime. In any case such right of action shall pertain to the descendants of the child whom the acknowledgment may interest." (See Commentaries to arts. 135 and 137, Civil Code, Vol. I.)

The above doctrine, advanced by one of the most eminent commentators of the Civil Code, lacks legal and doctrinal foundation. The power to transmit the right of such action by the natural child to his descendants can not be sustained under the law, and still less to his mother. It is without any support in law because the rule laid down in the code is most positive, limiting in form, when establishing the exception for the exercise of such right of action after the death of the presumed parents, as is shown hereafter. It is not supported by any doctrine, because up to the present time no argument has been presented, upon which even an approximate conclusion could be based. Although the Civil Code considerably improved the condition of recognized natural children, granting them rights and actions that they did not possess under the former laws, they were not, however, placed upon the same place as legitimate ones. The difference that separates these two classes of children is still great, as proven by so many articles dealing with the rights of the family and the succession in relation to the members thereof. It may be laid down as legal maxim, that whatever the code does not grant to the legitimate children, or in connection with their rights, must still less be understood as granted to recognized natural children or in connection with their rights. There is not a single exception in its provisions. If legitimacy is the attribute that constitutes the basis of the absolute family rights of the child, the acknowledgment of the natural child is, among illegitimate ones, that which unites him to the family of the father or the mother who recognized him, and affords him a participation in the rights of the family, relatively advantageous according to whether they are alone or whether they concur with other individuals of the family of his purely natural father or mother. Thus, in order to consider the spirit of the Civil Code, nothing is more logical than to establish a comparison between an action to claim the legitimacy, and one to enforce acknowledgment. ART. 118. The action to claim its legitimacy may be brought by the child at any time of its lifetime and shall be transmitted to its heirs, should it die during minority or in a state of insanity. In such cases the heirs shall be allowed a period of five years in which to institute the action. The action already instituted by the child is transmitted by its death to the heirs, if it has not lapsed before then. ART. 137. The actions for the acknowledgment of natural children can be instituted only during the life of the presumed parents, except in the following cases: 1. If the father or mother died during the maturity of the child, in which case the latter may institute the action before the expiration of the first four years of its maturity. 2. If, after the death of the father or mother, some instrument, before unknown, should be discovered in which the child is expressly acknowledged. In this case the action must be instituted with the six months following the discovery of such instrument. On this supposition the first difference that results between one action and the other consists in that the right of action for legitimacy lasts during the whole lifetime of the child, that is, it can always be brought against the presumed parents or their heirs by the child itself, while the right of action for the acknowledgment of a natural child does not last his whole lifetime, and, as a general rule, it can not be instituted against the heirs of the presumed parents, inasmuch as it can be exercised only during the life of the presumed parents.

With regard to the question at issue, that is, the transmission to the heirs of the presumed parents of the obligation to admit the legitimate filiation, or to recognize the natural filiation, there exists the most radical difference in that the former continues during the life of the child who claims to be legitimate, and he may demand it either directly and primarily from the said presumed parents, or indirectly and secondarily from the heirs of the latter; while the second does not endure for life; as a general rule, it only lasts during the life of the presumed parents. Hence the other difference, derived as a consequence, that an action for legitimacy is always brought against the heirs of the presumed parents in case of the death of the latter, while the action for acknowledgment is not brought against the heirs of such parents, with the exception of the two cases prescribed by article 137 transcribed above. So much for the passive transmission of the obligation to admit the legitimate filiation, or to acknowledge the natural filiation. As to the transmission to the heirs of the child of the latter's action to claim his legitimacy, or to obtain the acknowledgment of his natural filiation, it is seen that the code grants it in the first case, but not in the second. It contains provisions for the transmission of the right of action which, for the purpose claiming his legitimacy inheres in the child, but it does not say a word with regard to the transmission of the right to obtain the acknowledgment of the natural filiation. Therefore, the respective corollary of each of the two above-cited articles is: (1) That the right of action which devolves upon the child to claim his legitimacy under article 118, may be transmitted to his heirs in certain cases designated in the said article; (2) That the right of action for the acknowledgment of natural children to which article 137 refers, can never be transmitted, for the reason that the code makes no mention of it in any case, not even as an exception. It is most illogical and contrary to every rule of correct interpretation, that the right of action to secure acknowledgment by the natural child should be presumed to be transmitted, independently, as a rule, to his heirs, while the right of action to claim legitimacy from his predecessor is not expressly, independently, or, as a general rule, conceded to the heirs of the legitimate child, but only relatively and as an exception. Consequently, the pretension that the right of action on the part of the child to obtain the acknowledgment of his natural filiation is transmitted to his descendants is altogether unfounded. No legal provision exists to sustain such pretension, nor can an argument of presumption be based on the lesser claim when there is no basis for the greater one, and when it is only given as an exception in well-defined cases. It is placing the heirs of the natural child on a better footing than the heirs of the legitimate one, when, as a matter of fact, the position of a natural child is no better than, no even equal to, that of a legitimate child. From the express and precise precepts of the code the following conclusions are derived: The right of action that devolves upon the child to claim his legitimacy lasts during his whole life, while the right to claim the acknowledgment of a natural child lasts only during the life of his presumed parents. Inasmuch as the right of action accruing to the child to claim his legitimacy lasts during his whole life, he may exercise it either against the presumed parents, or their heirs; while the right of action to secure the acknowledgment of a natural child, since it does not last during his whole life, but depends on that of the presumed parents, as a general rule can only be exercised against the latter. Usually the right of action for legitimacy devolving upon the child is of a personal character and pertains exclusively to him, only the child may exercise it at any time during his lifetime. As an exception, and in three cases only, it may be transmitted to the heirs of the child, to wit, if he died during his minority, or while insane, or after action had been already instituted. An action for the acknowledgment of a natural child may, as an exception, be exercised against the heirs of the presumed parents in two cases: first, in the event of the death of the latter during the minority of the

child, and second, upon the discovery of some instrument of express acknowledgment of the child, executed by the father or mother, the existence of which was unknown during the life of the latter. But such action for the acknowledgment of a natural child can only be exercised by him. It can not be transmitted to his descendants, or his ascendants. In support of the foregoing the following authorities may be cited: Sanchez Roman, in his Treatise of Civil Law, propounds the question as to whether said action should be considered transmissive to the heirs or descendants of the natural child, whether he had or had not exercised it up to the time of his death, and decides it as follows: There is an entire absence of legal provisions, and at most, it might be deemed admissible as a solution, that the right of action to claim the acknowledgment of a natural child is transmitted by the analogy to his heirs on the same conditions and terms that it is transmitted to the descendants of a legitimate child, to claim his legitimacy, under article 118, but nothing more; because on this point nothing warrants placing the heirs of a natural child on a better footing than those of the legitimate child, and even to compare them would not fail to be a strained and questionable matter, and one of great difficulty for decision by the courts, for the simple reason that for the heirs of the legitimate child, the said article 118 exists, while for those of the natural child, as we have said, there is no provision in the code authorizing the same, although on the other hand there is none that prohibits it. (Vol. V.) Diaz Guijarro and Martinez Ruiz in their work on "The Civil Code as construed by the supreme court of Spain," commenting upon article 137, say: Article 118, taking into account the privileges due to the legitimacy of children, grants them the right to claim said legitimacy during their lifetime, and even authorizes the transmission of said right for the space of five years to the heirs thereof, if the child die during his minority or in a state of insanity. But as article 137 is based on the consideration that in the case of a natural child, ties are less strong and sacred in the eyes of the law, it does not fix such a long and indefinite period for the exercise of the action; it limits it to the life of the parents, excepting in the two cases mentioned in said article; and it does not allow, as does article 118, the action to pass on to the heirs, inasmuch as, although it does not prohibit it, and for that reason it might be deemed on general principles of law to consent to it, such a supposition is inadmissible for the reason that a comparison of both articles shows that the silence of the law in the latter case is not, nor it can be, an omission, but a deliberate intent to establish a wide difference between the advantages granted to a legitimate child and to a natural one. (Ibid., Vol. II, 171.) Navarro Amandi (Cuestionario del Cdigo Civil) raises the question: "Can the heirs of a natural child claim the acknowledgment in those cases wherein the father or mother are under obligation to acknowledge"? And says: Opinions are widely divergent. The court of Rennes held (on April 13, 1844) that the right of investigation forms a part of the estate of the child, and along with his patrimony is transmitted to his heirs. The affirmation is altogether too categorical to be admissible. If it were correct the same thing would happen as when the legitimacy of a child is claimed, and as already seen, the right of action to demand the legitimacy is not transmitted to the heirs in every case and as an absolute right, but under certain limitations and circumstances. Now, were we to admit the doctrine of the court of Rennes, the result would be that the claim for natural filiation would be more favored than one for legitimate filiation. This would be absurd, because it can not be conceived that the legislator should have granted a right of action to the heirs of the natural child, which is only

granted under great limitations and in very few cases to those of a legitimate one. Some persons insist that the same rules that govern legitimate filiation apply by analogy to natural child are entitled to claim it in the cases prescribed by the article 118. The majority, however, are inclined to consider the right to claim acknowledgment as a personal right, and consequently, not transmissive to the heirs. Really there are no legal grounds to warrant the transmission. (Vol. 2, 229.) In a decision like the present one it is impossible to bring forward the argument of analogy for the purpose of considering that the heirs of the natural child are entitled to the right of action which article 118 concedes to the heirs of the legitimate child. The existence of a provision for the one case and the absence thereof for the other is a conclusive argument that inclusio unius est exclusio alterius, and it can not be understood that the provision of law should be the same when the same reason does not hold in the one case as in the other. The theory of law of transmission is also entirely inapplicable in this case. This theory, which in the Roman Law expressed the general rule than an heir who did not accept an inheritance during his lifetime was incapacitated from transmitting it to his own heirs, included at the same time the idea that if the inheritance was not transmitted because the heir did not possess it, there were, however, certain things which the heir held and could transmit. Such was the law and the right to accept the inheritance, for the existing reason that all rights, both real and personal, shall pass to the heir; quia haeres representat defunctum in omnibus et per omnia. According to the article 659 of the Civil Code, "the inheritance includes all the property, rights, and obligations of a person, which are not extinguished by his death." If the mother is the heir of her natural child, and the latter, among other rights during his lifetime was entitled to exercise an action of his acknowledgment against his father, during the life of the latter, if after his death in some of the excepting cases of article 137, such right, which is a portion of his inheritance, is transmitted to his mother as being his heir, and it was so understood by the court of Rennes when it considered the right in question, not as a personal and exclusive right of the child which is extinguished by his death, but a any other right which might be transmitted after his death. This right of supposed transmission is even less tenable than that sought to be sustained by the argument of analogy. The right of action pertaining to the child to claim his legitimacy is in all respects superior to that of the child who claims acknowledgment as a natural child. And it is evident that the right of action to claim his legitimacy is not one of those rights which the legitimate child may transmit by inheritance to his heirs; it forms no part of the component rights of his inheritance. If it were so, there would have been no necessity to establish its transmissibility to heirs as an exception in the terms and conditions of article 118 of the code. So that, in order that it may constitute a portion of the child's inheritance, it is necessary that the conditions and the terms contained in article 118 shall be present, since without them, the right that the child held during his lifetime, being personal and exclusive in principle, and therefore, as a general rule not susceptible of transmission, would and should have been extinguished by his death. Therefore, where no express provision like that of article 118 exists, the right of action for the acknowledgment of a natural child is, in principle and without exception, extinguished by his death, and can not be transmitted as a portion of the inheritance of the deceased child. On the other hand, if said right of action formed a part of the child's inheritance, it would be necessary to establish the doctrine that the right to claim such an acknowledgment from the presumed natural father and from his heirs is an absolute right of the heirs of the child, not limited by certain circumstances as in the case of the heirs of a natural child with a legitimate one to place the heirs of a natural child and his inheritance on a better footing than those of a legitimate child would not only be unreasonable, but, as stated in one of the above citations, most absurd and illegal in the present state of the law and in accordance with the general principles thereof. For all of the foregoing reasons we hereby reverse the judgment appealed from in all its parts, without any special ruling as to the costs of this instance. Mapa, Johnson, Carson, and Willard, JJ., concur.

G.R. No. L-33187 March 31, 1980 CORNELIO PAMPLONA alias GEMINIANO PAMPLONA and APOLONIA ONTE, vs. VIVENCIO MORETO, VICTOR MORETO, ELIGIO MORETO, MARCELO MORETO, PAULINA MORETO, ROSARIO MORETO, MARTA MORETO, SEVERINA MENDOZA, PABLO MENDOZA, LAZARO MENDOZA, VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO MORETO and LORENZO MENDOZA, This is a petition for certiorari by way of appeal from the decision of the Court of Appeals in CA-G.R. No. 35962-R, entitled "Vivencio Moreto, et al., Plaintiff-Appellees vs. Cornelio Pamplona, et al., DefendantsAppellants," affirming the decision of the Court of First Instance of Laguna, Branch I at Bian. The facts, as stated in the decision appealed from, show that: Flaviano Moreto and Monica Maniega were husband and wife. During their marriage, they acquired adjacent lots Nos. 1495, 4545, and 1496 of the Calamba Friar Land Estate, situated in Calamba, Laguna, containing 781-544 and 1,021 square meters respectively and covered by certificates of title issued in the name of "Flaviano Moreto, married to Monica Maniega." The spouses Flaviano Moreto and Monica Maniega begot during their marriage six (6) children, namely, Ursulo, Marta, La Paz, Alipio, Pablo, and Leandro, all surnamed Moreto. Ursulo Moreto died intestate on May 24, 1959 leaving as his heirs herein plaintiffs Vivencio, Marcelo, Rosario, Victor, Paulina, Marta and Eligio, all surnamed Moreto. Marta Moreto died also intestate on April 30, 1938 leaving as her heir plaintiff Victoria Tuiza. La Paz Moreto died intestate on July 17, 1954 leaving the following heirs, namely, herein plaintiffs Pablo, Severina, Lazaro, and Lorenzo, all surnamed Mendoza. Alipio Moreto died intestate on June 30, 1943 leaving as his heir herein plaintiff Josefina Moreto. Pablo Moreto died intestate on April 25, 1942 leaving no issue and as his heirs his brother plaintiff Leandro Moreto and the other plaintiffs herein. On May 6, 1946, Monica Maniega died intestate in Calamba, Laguna. On July 30, 1952, or more than six (6) years after the death of his wife Monica Maniega, Flaviano Moreto, without the consent of the heirs of his said deceased wife Monica, and before any liquidation of the conjugal partnership of Monica and Flaviano could be effected, executed in favor of Geminiano Pamplona, married to defendant Apolonia Onte, the deed of absolute sale (Exh. "1") covering lot No. 1495 for P900.00. The deed of sale (Exh. "1") contained a description of lot No. 1495 as having an area of 781 square meters and covered by transfer certificate of title No. 14570 issued in the name of Flaviano Moreto, married to Monica Maniega, although the lot was acquired during their marriage. As a result of the sale, the said certificate of title was cancelled and a new transfer certificate of title No. T-5671 was issued in the name of Geminiano Pamplona married to Apolonia Onte (Exh. "A"). After the execution of the above-mentioned deed of sale (Exh. "1"), the spouses Geminiano Pamplona and Apolonia Onte constructed their house on the eastern part of lot 1496 as Flaviano Moreto, at the time of the sale, pointed to it as the land which he sold to Geminiano Pamplona. Shortly thereafter, Rafael Pamplona, son of the spouses Geminiano Pamplona and Apolonia Onte, also built his house within lot 1496 about one meter from its boundary with the adjoining lot. The vendor Flaviano Moreto and the vendee Geminiano Pamplona thought all the time that the portion of 781 square meters which was the
1

subject matter of their sale transaction was No. 1495 and so lot No. 1495 appears to be the subject matter in the deed of sale (Exh. "1") although the fact is that the said portion sold thought of by the parties to be lot No. 1495 is a part of lot No. 1496. From 1956 to 1960, the spouses Geminiano Pamplona and Apolonio Onte enlarged their house and they even constructed a piggery corral at the back of their said house about one and one-half meters from the eastern boundary of lot 1496. On August 12, 1956, Flaviano Moreto died intestate. In 1961, the plaintiffs demanded on the defendants to vacate the premises where they had their house and piggery on the ground that Flaviano Moreto had no right to sell the lot which he sold to Geminiano Pamplona as the same belongs to the conjugal partnership of Flaviano and his deceased wife and the latter was already dead when the sale was executed without the consent of the plaintiffs who are the heirs of Monica. The spouses Geminiano Pamplona and Apolonia Onte refused to vacate the premises occupied by them and hence, this suit was instituted by the heirs of Monica Maniega seeking for the declaration of the nullity of the deed of sale of July 30, 1952 above-mentioned as regards one-half of the property subject matter of said deed; to declare the plaintiffs as the rightful owners of the other half of said lot; to allow the plaintiffs to redeem the one-half portion thereof sold to the defendants. "After payment of the other half of the purchase price"; to order the defendants to vacate the portions occupied by them; to order the defendants to pay actual and moral damages and attorney's fees to the plaintiffs; to order the defendants to pay plaintiffs P120.00 a year from August 1958 until they have vacated the premises occupied by them for the use and occupancy of the same. The defendants claim that the sale made by Flaviano Moreto in their favor is valid as the lot sold is registered in the name of Flaviano Moreto and they are purchasers believing in good faith that the vendor was the sole owner of the lot sold. After a relocation of lots 1495, 1496 and 4545 made by agreement of the parties, it was found out that there was mutual error between Flaviano Moreto and the defendants in the execution of the deed of sale because while the said deed recited that the lot sold is lot No. 1495, the real intention of the parties is that it was a portion consisting of 781 square meters of lot No. 1496 which was the subject matter of their sale transaction. After trial, the lower court rendered judgment, the dispositive part thereof being as follows: WHEREFORE, judgment is hereby rendered for the plaintiffs declaring the deed of absolute sale dated July 30, 1952 pertaining to the eastern portion of Lot 1496 covering an area of 781 square meters null and void as regards the 390.5 square meters of which plaintiffs are hereby declared the rightful owners and entitled to its possession. The sale is ordered valid with respect to the eastern one-half (1/2) of 1781 square meters of Lot 1496 measuring 390.5 square meters of which defendants are declared lawful owners and entitled to its possession. After proper survey segregating the eastern one-half portion with an area of 390.5 square meters of Lot 1496, the defendants shall be entitled to a certificate of title covering said portion and Transfer Certificate of Title No. 9843 of the office of the Register of Deeds of Laguna shall be cancelled accordingly and new titles issued to the plaintiffs and to the defendants covering their respective portions. Transfer Certificate of Title No. 5671 of the office of the Register of Deeds of Laguna covering Lot No. 1495 and registered in the name of Cornelio Pamplona, married to Apolonia Onte, is by virtue of this decision ordered cancelled. The defendants are ordered to surrender to the office of the Register of Deeds of Laguna the owner's

duplicate of Transfer Certificate of Title No. 5671 within thirty (30) days after this decision shall have become final for cancellation in accordance with this decision. Let copy of this decision be furnished the Register of Deeds for the province of Laguna for his information and guidance. With costs against the defendants.
2

The defendants-appellants, not being satisfied with said judgment, appealed to the Court of Appeals, which affirmed the judgment, hence they now come to this Court. The fundamental and crucial issue in the case at bar is whether under the facts and circumstances duly established by the evidence, petitioners are entitled to the full ownership of the property in litigation, or only one-half of the same. There is no question that when the petitioners purchased the property on July 30, 1952 from Flaviano Moreto for the price of P900.00, his wife Monica Maniega had already been dead six years before, Monica having died on May 6, 1946. Hence, the conjugal partnership of the spouses Flaviano Moreto and Monica Maniega had already been dissolved. (Article 175, (1) New Civil Code; Article 1417, Old Civil Code). The records show that the conjugal estate had not been inventoried, liquidated, settled and divided by the heirs thereto in accordance with law. The necessary proceedings for the liquidation of the conjugal partnership were not instituted by the heirs either in the testate or intestate proceedings of the deceased spouse pursuant to Act 3176 amending Section 685 of Act 190. Neither was there an extrajudicial partition between the surviving spouse and the heirs of the deceased spouse nor was an ordinary action for partition brought for the purpose. Accordingly, the estate became the property of a community between the surviving husband, Flaviano Moreto, and his children with the deceased Monica Maniega in the concept of a co-ownership. The community property of the marriage, at the dissolution of this bond by the death of one of the spouses, ceases to belong to the legal partnership and becomes the property of a community, by operation of law, between the surviving spouse and the heirs of the deceased spouse, or the exclusive property of the widower or the widow, it he or she be the heir of the deceased spouse. Every co-owner shall have full ownership of his part and in the fruits and benefits derived therefrom, and he therefore may alienate, assign or mortgage it, and even substitute another person in its enjoyment, unless personal rights are in question. (Marigsa vs. Macabuntoc, 17 Phil. 107) In Borja vs. Addision, 44 Phil. 895, 906, the Supreme Court said that "(t)here is no reason in law why the heirs of the deceased wife may not form a partnership with the surviving husband for the management and control of the community property of the marriage and conceivably such a partnership, or rather community of property, between the heirs and the surviving husband might be formed without a written agreement." In Prades vs. Tecson, 49 Phil. 230, the Supreme Court held that "(a)lthough, when the wife dies, the surviving husband, as administrator of the community property, has authority to sell the property with ut the concurrence of the children of the marriage, nevertheless this power can be waived in favor of the children, with the result of bringing about a conventional ownership in common between the father and children as to such property; and any one purchasing with knowledge of the changed status of the property will acquire only the undivided interest of those members of the family who join in the act of conveyance. It is also not disputed that immediately after the execution of the sale in 1952, the vendees constructed their house on the eastern part of Lot 1496 which the vendor pointed out to them as the area sold, and two weeks thereafter, Rafael who is a son of the vendees, also built his house within Lot 1496. Subsequently, a cemented piggery coral was constructed by the vendees at the back of their house about one and one-half meters from the eastern boundary of Lot 1496. Both vendor and vendees believed all

the time that the area of 781 sq. meters subject of the sale was Lot No. 1495 which according to its title (T.C.T. No. 14570) contains an area of 781 sq. meters so that the deed of sale between the parties Identified and described the land sold as Lot 1495. But actually, as verified later by a surveyor upon agreement of the parties during the proceedings of the case below, the area sold was within Lot 1496. Again, there is no dispute that the houses of the spouses Cornelio Pamplona and Apolonia Onte as well as that of their son Rafael Pamplona, including the concrete piggery coral adjacent thereto, stood on the land from 1952 up to the filing of the complaint by the private respondents on July 25, 1961, or a period of over nine (9) years. And during said period, the private respondents who are the heirs of Monica Maniega as well as of Flaviano Moreto who also died intestate on August 12, 1956, lived as neighbors to the petitioner-vendees, yet lifted no finger to question the occupation, possession and ownership of the land purchased by the Pamplonas, so that We are persuaded and convinced to rule that private respondents are in estoppel by laches to claim half of the property, in dispute as null and void. Estoppel by laches is a rule of equity which bars a claimant from presenting his claim when, by reason of abandonment and negligence, he allowed a long time to elapse without presenting the same. (International Banking Corporation vs. Yared, 59 Phil. 92) We have ruled that at the time of the sale in 1952, the conjugal partnership was already dissolved six years before and therefore, the estate became a co-ownership between Flaviano Moreto, the surviving husband, and the heirs of his deceased wife, Monica Maniega. Article 493 of the New Civil Code is applicable and it provides a follows: Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involve. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. We agree with the petitioner that there was a partial partition of the co-ownership when at the time of the sale Flaviano Moreto pointed out the area and location of the 781 sq. meters sold by him to the petitioners-vendees on which the latter built their house and also that whereon Rafael, the son of petitioners likewise erected his house and an adjacent coral for piggery. Petitioners point to the fact that spouses Flaviano Moreto and Monica Maniega owned three parcels of land denominated as Lot 1495 having an area of 781 sq. meters, Lot 1496 with an area of 1,021 sq. meters, and Lot 4545 with an area of 544 sq. meters. The three lots have a total area of 2,346 sq. meters. These three parcels of lots are contiguous with one another as each is bounded on one side by the other, thus: Lot 4545 is bounded on the northeast by Lot 1495 and on the southeast by Lot 1496. Lot 1495 is bounded on the west by Lot 4545. Lot 1496 is bounded on the west by Lot 4545. It is therefore, clear that the three lots constitute one big land. They are not separate properties located in different places but they abut each other. This is not disputed by private respondents. Hence, at the time of the sale, the coownership constituted or covered these three lots adjacent to each other. And since Flaviano Moreto was entitled to one-half pro-indiviso of the entire land area or 1,173 sq. meters as his share, he had a perfect legal and lawful right to dispose of 781 sq. meters of his share to the Pamplona spouses. Indeed, there was still a remainder of some 392 sq. meters belonging to him at the time of the sale. We reject respondent Court's ruling that the sale was valid as to one-half and invalid as to the other half for the very simple reason that Flaviano Moreto, the vendor, had the legal right to more than 781 sq. meters of the communal estate, a title which he could dispose, alienate in favor of the vendeespetitioners. The title may be pro-indiviso or inchoate but the moment the co-owner as vendor pointed out its location and even indicated the boundaries over which the fences were to be erectd without objection, protest or complaint by the other co-owners, on the contrary they acquiesced and tolerated such alienation, occupation and possession, We rule that a factual partition or termination of the co-ownership, although partial, was created, and barred not only the vendor, Flaviano Moreto, but also his heirs, the

private respondents herein from asserting as against the vendees-petitioners any right or title in derogation of the deed of sale executed by said vendor Flaiano Moreto. Equity commands that the private respondents, the successors of both the deceased spouses, Flaviano Moreto and Monica Maniega be not allowed to impugn the sale executed by Flaviano Moreto who indisputably received the consideration of P900.00 and which he, including his children, benefitted from the same. Moreover, as the heirs of both Monica Maniega and Flaviano Moreto, private respondents are duty-bound to comply with the provisions of Articles 1458 and 1495, Civil Code, which is the obligation of the vendor of the property of delivering and transfering the ownership of the whole property sold, which is transmitted on his death to his heirs, the herein private respondents. The articles cited provide, thus: Art. 1458. By the contract of sale one of the contracting parties obligates himself to transfer the ownership of and to deliver a determinate thing, and the other part to pay therefore a price certain in money or its equivalent. A contract of sale may be absolute or conditionial. Art. 1495. The vendor is bound to transfer the ownership of and deliver, as well as warrant the thing which is the object of the sale. Under Article 776, New Civil Code, the inheritance which private respondents received from their deceased parents and/or predecessors-in-interest included all the property rights and obligations which were not extinguished by their parents' death. And under Art. 1311, paragraph 1, New Civil Code, the contract of sale executed by the deceased Flaviano Moreto took effect between the parties, their assigns and heirs, who are the private respondents herein. Accordingly, to the private respondents is transmitted the obligation to deliver in full ownership the whole area of 781 sq. meters to the petitioners (which was the original obligation of their predecessor Flaviano Moreto) and not only one-half thereof. Private respondents must comply with said obligation. The records reveal that the area of 781 sq. meters sold to and occupied by petitioners for more than 9 years already as of the filing of the complaint in 1961 had been re-surveyed by private land surveyor Daniel Aranas. Petitioners are entitled to a segregation of the area from Transfer Certificate of Title No. T9843 covering Lot 1496 and they are also entitled to the issuance of a new Transfer Certificate of Title in their name based on the relocation survey. WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED with modification in the sense that the sale made and executed by Flaviano Moreto in favor of the petitionersvendees is hereby declared legal and valid in its entirely. Petitioners are hereby declared owners in full ownership of the 781 sq. meters at the eastern portion of Lot 1496 now occupied by said petitioners and whereon their houses and piggery coral stand. The Register of Deeds of Laguna is hereby ordered to segregate the area of 781 sq. meters from Certificate of Title No. 9843 and to issue a new Transfer Certificate of Title to the petitioners covering the segregated area of 781 sq. meters. No costs. SO ORDERED. G.R. No. L-33365 December 20, 1930

Estate of the deceased Paulino Diancin. TEOPISTA DOLAR, proponent-appellant, vs. FIDEL DIANCIN, ET AL., oppositors-appellees. The will of the deceased Paulino Diancin was denied probate in the Court of First Instance of Iloilo on the sole ground that the thumbmarks appearing thereon were not the thumbmarks of the testator. Disregarding the other errors assigned by the proponent of the will, we would direct attention to the third error which challenges squarely the correctness of this finding. The will in question is alleged to have been executed by Paulino Diancin at Dumangas, Iloilo, on November 13, 1927. A thumbmark appears at the end of the will and on the left hand margin of each of its pages in the following manner: "Paulino Diancin, Su Signo, Por Pedro Diamante." The witnesses to the will were the same Pedro Diamante, Inocentes Deocampo, and Juan Dominado. The will is detailed in nature, and disposes of an estate amounting approximately to P50,000. For comparative purposes, Exhibit 8, a document of sale containing an admittedly genuine thumbmark of Paulino Diancin, was presented. Photographs of the thumbmarks on the will and of the thumbmark on Exhibit 8 were also offered in evidence. One, Carlos J. Jaena, attempted to qualify as an "expert," and thereafter gave as his opinion that the thumbmarks had not been made by the same person .One, Jose G. Villanueva, likewise attempted to qualify as were authentic. The petition of the proponent of the will to permit the will to be sent to Manila to be examined by an expert was denied. On one fact only were the opposing witnesses agreed, and this was that the ink used to make the thumbmarks on the will was of the ordinary type which blurred the characteristics of the marks, whereas the thumbmark on Exhibit 8 was formed clearly by the use of the special ink required for this purpose. The trial judge expressed his personal view as being that great differences existed between the questioned marks and the genuine mar.lawphi1>net The requirement of the statute that the will shall be "signed" is satisfied not only the customary written signature but also by the testator's or testatrix' thumbmark .Expert testimony as to the identity of thumbmarks or fingerprints is of course admissible. The method of identification of fingerprints is a science requiring close study .Where thumb impressions are blurred and many of the characteristic marks far from clear, thus rendering it difficult to trace the features enumerated by experts as showing the identity or lack of identity of the impressions, the court is justified in refusing to accept the opinions of alleged experts and in substituting its own opinion that a distinct similarity in some respects between the admittedly genuine thumbmark and the questioned thumbmarks, is evident .This we do here. (Emperor vs. Abdul Hamid [1905], 32 Indian L. Rep., 759, cited in 3 Chamberlayne on the Modern Law of Evidence, sec. 2561, notes 3.) There is another means of approach to the question and an obvious one. The three instrumental witnesses united in testifying concerning the circumstances surrounding the execution of the will. It was stated that in addition to the testator and themselves, on other person, Diosdado Dominado, was present. This latter individual was called as a witness by the oppositors to the will to identify Exhibit 8. He was later placed on the witness stand by the proponent on rebuttal, and thereupon declared positively that he was the one who prepared the will for the signature of Paulino Diancin; that the thumbmarks appearing on the will were those of Paulino Diancin, and that he saw Paulino Diancin make these impressions. The testimony of a witness called by both parties is worthy of credit. We reach the very definite conclusion that the document presented for probate as the last will of the deceased Paulino Diancin was, in truth, his will, and that the thumbmarks appearing thereon were the thumbmarks of the testator .Accordingly, error is found, which means that the judgment appealed from must be, as it is hereby, reversed, and the will ordered admitted to probate, without special finding as to costs in this instance. Avancea, C.J., Johnson, Street, Villamor, Ostand, Johns, Romualdez and Villa-Real, JJ., concur.

G.R. No. 6845

September 1, 1914

YAP TUA, petitioner-appellee, vs. YAP CA KUAN and YAP CA KUAN, objectors-appellants. It appears from the record that on the 23d day of August, 1909, one Perfecto Gabriel, representing the petitioner, Yap Tua, presented a petition in the Court of First Instance of the city of Manila, asking that the will of Tomasa Elizaga Yap Caong be admitted to probate, as the last will and testament of Tomasa Elizaga Yap Caong, deceased. It appears that the said Tomasa Elizaga Yap Caong died in the city of Manila on the 11th day of August, 1909. Accompanying said petition and attached thereto was the alleged will of the deceased. It appears that the will was signed by the deceased, as well as Anselmo Zacarias, Severo Tabora, and Timoteo Paez. Said petition, after due notice was given, was brought on for hearing on the 18th day of September, 1909. Timoteo Paez declared that he was 48 years of age; that he had known the said Tomasa Elizaga Yap Caong; that she had died on the 11th day of August, 1909; that before her death she had executed a last will and testament; that he was present at the time of the execution of the same; that he had signed the will as a witness; that Anselmo Zacarias and Severo Tabora had also signed said will as witnesses and that they had signed the will in the presence of the deceased. Pablo Agustin also declared as a witness and said that he was 40 years of age; that he knew Tomasa Elizaga Yap Caong during her lifetime; that she died on the 11th day of August, 1909, in the city of Manila; that before her death she had executed a last will and testament; that he was present at the time said last will was executed; that there were also present Timoteo Paez and Severo Tabora and a person called Anselmo; that the said Tomasa Elizaga Yap Caong signed the will in the presence of the witnesses; that he had seen her sign the will with his own eyes; that the witnesses had signed the will in the presence of the said Tomasa Elizaga Yap Caong and in the presence of each other; that the said Tomasa Elizaga Yap Caong signed the will voluntarily, and in his judgment, she was in the possession of her faculties; that there were no threats or intimidation used to induce her to sign the will; that she signed it voluntarily. No further witnesses were called and there was no further opposition presented to the legalization of the said will. After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of September, 1909, ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed and admitted to probate. The will was attached to the record and marked Exhibit A. The court further ordered that one Yap Tua be appointed as executor of the will, upon the giving of a bond, the amount of which was to be fixed later. From the record it appears that no further proceedings were had until the 28th of February, 1910, when Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were interested in the matters of the said will and desired to intervene and asked that a guardian ad litem be appointed to represent them in the cause. On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad litem of said parties. Gabriel La O accepted said appointment, took the oath of office and entered upon the performance of his duties as guardian ad litem of said parties. On the 2d day of March, 1910, the said Gabriel La O appeared in court and presented a motion in which he alleged, in substance: First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the court on the 29th day of September, 1909, was null, for the following reasons: (a) Because the same had not been authorized nor signed by the witnesses as the law prescribes.

(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not then mentally capacitated to execute the same, due to her sickness. (c) Because her signature to the will had been obtained through fraud and illegal influence upon the part of persons who were to receive a benefit from the same, and because the said Tomasa Elizaga Yap Caong had no intention of executing the same. Second. That before the execution of the said will, which they alleged to be null, the said Tomasa Elizaga Yap Caong had executed another will, with all the formalities required by law, upon the 6th day of August, 1909. Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had been negligent in presenting their opposition to the legalization of the will, said negligence was excusable, on account of their age. Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day of September, 1909, and to grant to said minors an opportunity to present new proof relating to the due execution of said will. Said petition was based upon the provisions of section 113 of the Code of Procedure in Civil Actions. While it is not clear from the record, apparently the said minors in their petition for a new trial, attached to said petition the alleged will of August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the affidavits of Severo Tabora, Clotilde and Cornelia Serrano. Upon the 10th day of March, 1910, upon the hearing of said motion for a rehearing, the Honorable A. S. Crossfield, judge, granted said motion and ordered that the rehearing should take place upon the 18th day of March, 1910, and directed that notice should be given to the petitioners of said rehearing and to all other persons interested in the will. At the rehearing a number of witnesses were examined. It will be remembered that one of the grounds upon which the new trial was requested was that the deceased, Tomasa Elizaga Yap Caong, had not signed the will (Exhibit A) of the 11th of August, 1909; that in support of that allegation, the protestants, during the rehearing, presented a witness called Tomas Puzon. Puzon testified that he was a professor and an expert in handwriting, and upon being shown the will (of August 11, 1909) Exhibit A, testified that the name and surname on Exhibit A, in his judgment were written by two different hands, though the given name is the same as that upon Exhibit 1 (the will of August 6, 1909), because he found in the name "Tomasa" on Exhibit A a similarity in the tracing to the "Tomasa" in Exhibit 1; that comparing the surname on Exhibit A with the surname on Exhibit 1 he found that the character of the writing was thoroughly distinguished and different by the tracing and by the direction of the letters in the said two exhibits; that from his experience and observation he believed that the name "Tomasa" and "Yap Caong," appearing in the signature on Exhibit A were written by different person. Puzon, being cross-examined with reference to his capacity as an expert in handwriting, testified that while he was a student in the Ateneo de Manila, he had studied penmanship; that he could not tell exactly when that was, except that he had concluded his course in the year 1882; that since that time he had been a telegraph operator for seventeen years and that he had acted as an expert in hand- writing in the courts in the provinces. Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will of the 6th of August, 1909, at the request of Tomasa Elizaga Yap Caong; that it was drawn in accordance with her request and under her directions; that she had signed it; that the same had been signed by three witnesses in her presence and in the presence of each other; that the will was written in her house; that she was sick and was lying in her bed, but that she sat up to sign the will; that she signed the will with great difficulty; that she was signed in her right mind.

The said Severo Tabora was also called as a witness again during the rehearing. He testified that he knew Tomasa Elizaga Yap Caong during her lifetime; that she was dead; that his signature as a witness to Exhibit A (the will of August 11, 1909) was placed there by him; that the deceased, Tomasa Elizaga Yap Caong, became familiar with the contents of the will because she signed it before he (the witness) did; that he did not know whether anybody there told her to sign the will or not; that he signed two bills; that he did not know La O; that he did not believe that Tomasa had signed the will (Exhibit A) before he arrived at the house; that he was not sure that he had seen Tomasa Elizaga Yap Caong sign Exhibit A because there were many people and there was a screen at the door and he could not see; that he was called a a witness to sign the second will and was told by the people there that it was the same as the first; that the will (Exhibit A) was on a table, far from the patient, in the house but outside the room where the patient was; that the will was signed by Paez and himself; that Anselmo Zacarias was there; that he was not sure whether Anselmo Zacarias signed the will or not; that he was not sure whether Tomasa Elizaga Yap Caong could see the table on which the will was written at the time it was signed or not; that there were many people in the house; that he remembered the names of Pedro and Lorenzo; that he could not remember the names of any others; that the will remained on the table after he signed it; that after he signed the will he went to the room where Tomasa was lying; that the will was left on the table outside; that Tomasa was very ill; that he heard the people asking Tomasa to sign the will after he was (the witness) had signed it; that he saw Paez sign the will, that he could not remember whether Anselmo Zacarias had signed the will, because immediately after he and Paez signed it, he left because he was hungry; that the place where the table was located was in the same house, on the floor, about two steps down from the floor on which Tomasa was. Rufino R. Papa, was called as a witness for the purpose of supporting the allegation that Tomasa Elizaga Yap Caong was mentally incapacitated to make the will dated August 11, 1909 (Exhibit A). Papa declared that he was a physician; that he knew Tomasa Elizaga Yap Caong; that he had treated her in the month of August; that he visited her first on the 8th day of August; that he visited her again on the 9th and 10th days of August; that on the first visit he found the sick woman completely weak very weak from her sickness, in the third stage of tuberculosis; that she was lying in bed; that on the first visit he found her with but little sense, the second day also, and on the third day she had lost all her intelligence; that she died on the 11th of August; tat he was requested to issue the death certificate; that when he asked her (Tomasa) whether she was feeling any pain or anything of that kind, she did not answer at all; that she was in a condition of stupor, induced, as he believed, by the stage of uraemia from which she was suffering. Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a witnesses during the rehearing. He testified that he had known Tomasa Elizaga Yap Caong since he was a child; that Tomasa was dead; that he had written the will exhibit A; that it was all in his writing except the last part, which was written by Carlos Sobaco; that he had written the will Exhibit A at the request of the uncle of Tomasa; that Lorenzo, the brother of the deceased, was the one who had instructed him as to the terms of the will ; that the deceased had not spoken to him concerning the terms of the will; that the will was written in the dining room of the residence of the deceased; that Tomasa was in another room different from that in which the will was written; that the will was not written in the presence of Tomasa; that he signed the will as a witness in the room where Tomasa was lying; that the other witnesses signed the will in the same room that when he went into the room where the sick woman was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his hands; that when Lorenzo came to the bed he showed the will to his sister (Tomasa) and requested her to sign it; that she was lying stretched out on the bed and two women, who were taking care of her, helped her to sit up, supporting her by lacing their hands at her back; that when she started to write her name, he withdrew from the bed on account of the best inside the room; when he came back again to the sick bed the will was signed and was again in the hands of Lorenzo; that he did not see Tomasa sign the will because he withdrew from the room; that he did not know whether Tomasa had been informed of the contents of the will or not; he supposed she must have read it because Lorenzo turned the will over to her; that when Lorenzo asked her to sign the will, he did not know what she said he could not hear her voice; that he did not know whether the sick woman was him sign the will or not; that he believed that Tomasa died the next day after the will had been signed; that the other two witnesses, Timoteo Paez and Severo Tabora, had signed the will in the room with the sick woman; that

he saw them sign the will and that they saw him sign it; that he was not sure whether the testatrix could have seen them at the time they signed the will or not; that there was a screen before the bed; that he did not think that Lorenzo had been giving instructions as to the contents of the will; that about ten or fifteen minutes elapsed from the time Lorenzo handed the will to Tomasa before she started to sign it; that the pen with which she signed the will as given to her and she held it. Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong and that she was dead; that she had made two wills; that the first one was written by La O and the second by Zacarias; that he was present at the time Zacarias wrote the second one; that he was present when the second will was taken to Tomasa for signature; that Lorenzo had told Tomasa that the second will was exactly like the first; that Tomasa said she could not sign it. On cross examination he testified that there was a lot of visitors there; that Zacarias was not there; that Paez and Tabora were there; that he had told Tomasa that the second will was exactly like the first. During the rehearing Cornelia Serrano and Pedro Francisco were also examined as witnesses. There is nothing in their testimony, however, which in our opinion is important. In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19 years of age; that she knew Tomasa Elizaga Yap Caong during her lifetime; that she lived in the house of Tomasa during the last week of her illness; that Tomasa had made two wills; that she was present when the second one was executed; that a lawyer had drawn the will in the dining room and after it had been drawn and everything finished , it was taken to where Doa Tomasa was, for her signature; that it was taken to her by Anselmo Zacarias; that she was present at the time Tomasa signed the will that there were many other people present also; that she did not see Timoteo Paez there; that she saw Severo Tabora; that Anselmo Zacarias was present; that she did not hear Clotilde Mariano ask Tomasa to sign the will; that she did not hear Lorenzo say to Tomasa that the second will was the same sa the first; that Tomasa asked her to help her to sit up and to put a pillow to her back when Zacarias gave her some paper or document and asked her to sign it; that she saw Tomasa take hold of the pen and try to sign it but she did not see the place she signed the document, for the reason that she left the room; that she saw Tomasa sign the document but did not see on what place on the document she signed; and that a notary public came the next morning; that Tomasa was able to move about in the bed; that she had seen Tomasa in the act of starting to write her signature when she told her to get her some water. Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Elizaga Yap Caong and knew that she had made a will; that he saw the will at the time it was written; that he saw Tomasa sign it on her head; that he did not hear Lorenzo ask Tomasa to sign the will; that Lorenzo had handed the will to Tomasa to sign; that he saw the witnesses sign the will on a table near the bed; that the table was outside the curtain or screen and near the entrance to the room where Tomasa was lying. Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and that Zacarias wrote the will of Tomasa Elizaga Yap Caong; that Tomasa had given him instructions; that Tomasa had said that she sign the will; that the will was on a table near the bed of Tomasa; that Tomasa, from where she was lying in the bed, could seethe table where the witnesses had signed the will. During the rehearing certain other witnesses were also examined; in our opinion, however, it is necessary to quote from them for the reason that their testimony in no way affects the preponderance of proof above quoted. At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended opinion, reached the conclusion that the last will and testament of Tomasa Elizaga Yap Caong, which was attached to the record and marked Exhibit A was the last will and testament of the said Tomasa Elizaga Yap Caong and admitted it to probate and ordered that the administrator therefore appointed should continue as such

administrator. From that order the protestants appealed to this court, and made the following assignments of error: I. The court erred in declaring that the will, Exhibit A, was executed by the deceased Tomasa Yap Caong, without the intervention of any external influence on the part of other persons. II. The court erred in declaring that the testator had clear knowledge and knew what she was doing at the time of signing the will. III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong in the first will, Exhibit 1, is identical with that which appears in the second will, Exhibit A. IV. The court erred in declaring that the will, Exhibit A, was executed in accordance with the law. With reference to the first assignment of error, to wit, that undue influence was brought to bear upon Tomasa Elizaga Yap Caong in the execution of her will of August 11th, 1909 (Exhibit A), the lower court found that no undue influence had been exercised over the mind of the said Tomasa Elizaga Yap Caong. While it is true that some of the witnesses testified that the brother of Tomasa, one Lorenzo, had attempted to unduly influence her mind in the execution of he will, upon the other hand, there were several witnesses who testified that Lorenzo did not attempt, at the time of the execution of the will, to influence her mind in any way. The lower court having had an opportunity to see, to hear, and to note the witnesses during their examination reached the conclusion that a preponderance of the evidence showed that no undue influence had been used. we find no good reason in the record for reversing his conclusions upon that question. With reference to the second assignment of error to wit, that Tomasa Elizaga Yap Caong was not of sound mind and memory at the time of the execution of the will, we find the same conflict in the declarations of the witnesses which we found with reference to the undue influence. While the testimony of Dr. Papa is very strong relating to the mental condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his testimony related to a time perhaps twenty-four hours before the execution of the will in question (Exhibit A). Several witnesses testified that at the time the will was presented to her for her signature, she was of sound mind and memory and asked for a pen and ink and kept the will in her possession for ten or fifteen minutes and finally signed it. The lower court found that there was a preponderance of evidence sustaining the conclusion that Tomasa Elizaga Yap Caong was of sound mind and memory and in the possession of her faculties at the time she signed this will. In view of the conflict in the testimony of the witnesses and the finding of the lower court, we do not feel justified in reversing his conclusions upon that question. With reference to the third assignment of error, to wit, that the lower court committed an error in declaring that the signature of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is identical with that which appears in the second will (August 11, 1909, Exhibit A), it may be said: First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit 1), was not the question presented to the court. The question presented was whether or not she had duly executed the will of August 11, 1909 (Exhibit A). Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of August 6, 1909. Several witnesses testified to that fact. The mere fact, however, that she executed a former will is no proof that she did not execute a later will. She had a perfect right, by will, to dispose of her property, in accordance with the provisions of law, up to the very last of moment her life. She had a perfect right to change, alter, modify or revoke any and all of her former wills and to make a new one. Neither will the fact that the new will fails to expressly revoke all former wills, in any way sustain the charge that she did not make the new will.

Third. In said third assignment of error there is involved in the statement that "The signature of Tomasa Elizaga Yap Caong, in her first will (Exhibit 1) was not identical with that which appears in her second will (Exhibit A)" the inference that she had not signed the second will and all the argument of the appellants relating to said third assignment of error is based upon the alleged fact that Tomasa Elizaga Yap Caong did not sign Exhibit A. Several witnesses testified that they saw her write the name "Tomasa." One of the witnesses testified that she had written her full name. We are of the opinion, and we think the law sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any portion of her name tot he will, with the intention to sign the same, that the will amount to a signature. It has been held time and time again that one who makes a will may sign the same by using a mark, the name having been written by others. If writing a mark simply upon a will is sufficient indication of the intention of the person to make and execute a will, then certainly the writing of a portion or all of her name ought to be accepted as a clear indication of her intention to execute the will. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad. and El., 94 Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.) We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R. A., 353), and cited by the appellees, which was known as "Knox's Appeal." In this case one Harriett S. Knox died very suddenly on the 17th of October, 1888, at the residence of her father. After her death a paper was found in her room, wholly in her handwriting, written with a lead pencil, upon three sides of an ordinary folded sheet of note paper and bearing the signature simply of "Harriett." In this paper the deceased attempted to make certain disposition of her property. The will was presented for probate. The probation was opposed upon the ground that the same did not contain the signature of the deceased. That was the only question presented to the court, whether the signature, in the form above indicated, was a sufficient signature to constitute said paper the last will and testament of Harriett S. Knox. It was admitted that the entire paper was in the handwriting of the deceased. In deciding that question, Justice Mitchell said: The precise case of a signature by the first name only, does not appear to have arisen either in England or the United States; but the principle on which the decisions already referred to were based, especially those in regard to signing by initials only, are equally applicable to the present case, and additional force is given to them by the decisions as to what constitutes a binding signature to a contract. (Palmer vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9 Alle, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard, 14 How. (U. S.), 446.) The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is held to "sign" as effectually as if he had written his initials or his full name. It would seem to be sufficient, under the law requiring a signature by the person making a will, to make his mark, to place his initials or all or any part of his name thereon. In the present case we think the proof shows, by a large preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her full name, did at least sign her given name "Tomasa," and that is sufficient to satisfy the statute. With reference to the fourth assignment of error, it may be said that the argument which was preceded is sufficient to answer it also. During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap Caong did not sign her name in the presence of the witnesses and that they did not sign their names in their presence nor in the presence of each other. Upon that question there is considerable conflict of proof. An effort was made to show that the will was signed by the witnesses in one room and by Tomasa in another. A plan of the room or rooms in which the will was signed was presented as proof and it was shown that there was but one room; that one part of the room was one or two steps below the floor of the other; that the table on which the witnesses signed the will was located upon the lower floor of the room. It was also shown that from the bed in which Tomasa was lying, it was possible for her to see the table on which the witnesses signed the will. While the rule is absolute that one who makes a will must sign the same in the presence of the witnesses and that the witnesses must sign in the presence of each other, as well as in the presence of the one making the will, yet, nevertheless, the actual seeing of the signatures

made is not necessary. It is sufficient if the signatures are made where it is possible for each of the necessary parties, if they desire to see, may see the signatures placed upon the will. In cases like the present where there is so much conflict in the proof, it is very difficult for the courts to reach conclusions that are absolutely free from doubt. Great weight must be given by appellate courts who do not see or hear the witnesses, to the conclusions of the trial courts who had that opportunity. Upon a full consideration of the record, we find that a preponderance of the proof shows that Tomasa Elizaga Yap Caong did execute, freely and voluntarily, while she was in the right use of all her faculties, the will dated August 11, 1909 (Exhibit A). Therefore the judgment of the lower court admitting said will to probate is hereby affirmed with costs. Arellano, C. J., Torres, Carson, Moreland and Araullo, JJ., concur. G.R. No. 15566 September 14, 1921

EUTIQUIA AVERA, vs. MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors Cesar Garcia and Jose Garcia, In proceedings in the court below, instituted by Eutiquia Avera for probate of the will of one Esteban Garcia, contest was made by Marino Garcia and Juan Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon the date appointed for the hearing, the proponent of the will introduced one of the three attesting witnesses who testified with details not necessary to be here specified that the will was executed with all necessary external formalities, and that the testator was at the time in full possession of disposing faculties. Upon the latter point the witness was corroborated by the person who wrote the will at the request of the testator. Two of the attesting witnesses were not introduced, nor was their absence accounted for by the proponent of the will. When the proponent rested the attorney for the opposition introduced a single witness whose testimony tended to show in a vague and indecisive manner that at the time the will was made the testator was so debilitated as to be unable to comprehend what he was about. After the cause had been submitted for determination upon the proof thus presented, the trial judge found that the testator at the time of the making of the will was of sound mind and disposing memory and that the will had been properly executed. He accordingly admitted the will to probate. From this judgment an appeal was taken in behalf of the persons contesting the will, and the only errors here assigned have reference to the two following points, namely, first, whether a will can be admitted to probate, where opposition is made, upon the proof of a single attesting witness, without producing or accounting for the absence of the other two; and, secondly, whether the will in question is rendered invalid by reason of the fact that the signature of the testator and of the three attesting witnesses are written on the right margin of each page of the will instead of the left margin. Upon the first point, while it is undoubtedly true that an uncontested will bay be proved by the testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate examination of the American and English authorities that when a contest is instituted, all of the attesting witnesses must be examined, if alive and within reach of the process of the court. In the present case no explanation was made at the trial as to why all three of the attesting witnesses were not produced, but the probable reason is found in the fact that, although the petition for the probate of this will had been pending from December 21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest was entered until the very day set for the hearing; and it is probable that the

attorney for the proponent, believing in good faith the probate would not be contested, repaired to the court with only one of the three attesting witnesses at hand, and upon finding that the will was contested, incautiously permitted the case to go to proof without asking for a postponement of the trial in order that he might produce all the attesting witnesses. Although this circumstance may explain why the three witnesses were not produced, it does not in itself supply any basis for changing the rule expounded in the case above referred to; and were it not for a fact now to be mentioned, this court would probably be compelled to reverse this case on the ground that the execution of the will had not been proved by a sufficient number of attesting witnesses. It appears, however, that this point was not raised by the appellant in the lower court either upon the submission of the cause for determination in that court or upon the occasion of the filing of the motion for a new trial. Accordingly it is insisted for the appellee that this question cannot now be raised for the first time in this court. We believe this point is well taken, and the first assignment of error must be declared not be well taken. This exact question has been decided by the Supreme Court of California adversely to the contention of the appellant, and we see no reason why the same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.) There are at least two reason why the appellate tribunals are disinclined to permit certain questions to be raised for the first time in the second instance. In the first place it eliminates the judicial criterion of the Court of First Instance upon the point there presented and makes the appellate court in effect a court of first instance with reference to that point, unless the case is remanded for a new trial. In the second place, it permits, if it does not encourage, attorneys to trifle with the administration of justice by concealing from the trial court and from their opponent the actual point upon which reliance is placed, while they are engaged in other discussions more simulated than real. These considerations are, we think, decisive. In ruling upon the point above presented we do not wish to be understood as laying down any hard and fast rule that would prove an embarrassment to this court in the administration of justice in the future. In one way or another we are constantly here considering aspects of cases and applying doctrines which have escaped the attention of all persons concerned in the litigation below; and this is necessary if this court is to contribute the part due from it in the correct decision of the cases brought before it. What we mean to declare is that when we believe that substantial justice has been done in the Court of First Instance, and the point relied on for reversal in this court appears to be one which ought properly to have been presented in that court, we will in the exercise of a sound discretion ignore such question relates a defect which might have been cured in the Court of First Instance if attention had been called to it there. In the present case, if the appellant had raised this question in the lower court, either at the hearing or upon a motion for a new trial, that court would have had the power, and it would have been is duty, considering the tardy institution of the contest, to have granted a new trial in order that all the witnesses to the will might be brought into court. But instead of thus calling the error to the attention of the court and his adversary, the point is first raised by the appellant in this court. We hold that this is too late. Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing inconsistent with the ruling we now make, for it appears from the opinion in that case that the proponent of the will had obtained an order for a republication and new trial for the avowed purpose of presenting the two additional attesting witnesses who had not been previously examined, but nevertheless subsequently failed without any apparent reason to take their testimony. Both parties in that case were therefore fully apprised that the question of the number of witnesses necessary to prove the will was in issue in the lower court. The second point involved in this case is whether, under section 618 of the Code of Civil Procedure, as amended by Act No. 2645, it is essential to the validity of a will in this jurisdiction that the names of the testator and the instrumental witnesses should be written on the left margin of each page, as required in said Act, and not upon the right margin, as in the will now before us; and upon this we are of the opinion that the will in question is valid. It is true that the statute says that the testator and the instrumental witnesses shall sign their names on the left margin of each and every page; and it is undeniable that the

general doctrine is to the effect that all statutory requirements as to the execution of wills must be fully complied with. The same doctrine is also deducible from cases heretofore decided by this court. Still some details at times creep into legislative enactments which are so trivial it would be absurd to suppose that the Legislature could have attached any decisive importance to them. The provision to the effect that the signatures of the testator and witnesses shall be written on the left margin of each page rather than on the right margin seems to be this character. So far as concerns the authentication of the will, and of every part thereof, it can make no possible difference whether the names appear on the left or no the right margin, provided they are on one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this court declared a will void which was totally lacking in the signatures required to be written on its several pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared void which contained the necessary signatures on the margin of each leaf ( folio), but not in the margin of each page containing written matter. The instrument now before us contains the necessary signatures on every page, and the only point of deviation from the requirement of the statute is that these signatures appear in the right margin instead of the left. By the mode of signing adopted every page and provision of the will is authenticated and guarded from possible alteration in exactly the same degree that it would have been protected by being signed in the left margin; and the resources of casuistry could be exhausted without discovering the slightest difference between the consequences of affixing the signatures in one margin or the other. The same could not be said of a case like that of Estate of Saguinsin, supra, where only the leaves, or alternate pages, were signed and not each written page; for as observed in that case by our late lamented Chief Justice, it was possible that in the will as there originally executed by the testratrix only the alternative pages had been used, leaving blanks on the reverse sides, which conceivably might have been filled in subsequently. The controlling considerations on the point now before us were well stated In Re will of Abangan (40 Phil., 476, 479), where the court, speaking through Mr. Justice Avancea, in a case where the signatures were placed at the bottom of the page and not in the margin, said: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution o will and testaments and to guarantee their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded. In the case before us, where ingenuity could not suggest any possible prejudice to any person, as attendant upon the actual deviation from the letter of the law, such deviation must be considered too trivial to invalidate the instrument. It results that the legal errors assigned are not sustainable, and the judgment appealed from will be affirmed. It is so ordered, with costs against the appellants. Johnson, Araullo, Avancea and Villamor, JJ., concur. G.R. No. L-21755 December 29, 1924

In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA NAYVE, vs. LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.

This is a proceeding for the probate of the will of the deceased Antonio Mojal instituted by his surviving spouse, Filomena Nayve. The probate is opposed by Leona Mojal and Luciana Aguilar, sister and niece, respectively, of the deceased. The Court of First Instance of Albay, which tried the case, overruled the objections to the will, and ordered the probate thereof, holding that the document in controversy was the last will and testament of Antonio Mojal, executed in accordance with law. From this judgment the opponents appeal, assigning error to the decree of the court allowing the will to probate and overruling their opposition. The will in question, Exhibit A, is composed of four sheets with written matter on only side of each, that is, four pages written on four sheets. The four sides or pages containing written matter are paged "Pag. 1," "Pag. 2," "Pag. 3," "Pag. 4," successively. Each of the first two sides or pages, which was issued, was signed by the testator and the three witnesses on the margin, left side of the reader. On the third page actually used, the signatures of the three witnesses appear also on the margin, left side of the reader, but the signature of the testator is not on the margin, but about the middle of the page, at the end of the will and before the attestation clause. On the fourth page, the signatures of the witnesses do not appear on the margin, but at the bottom of the attestation clause, it being the signature of the testator that is on the margin, left side of the reader. The defects attributed to the will are: (a) The fact of not having been signed by the testator and the witnesses on each and every sheet on the left margin; (b) the fact of the sheets of the document not being paged with letters; (c) the fact that the attestation clause does not state the number of sheets or pages actually used of the will; and ( d) the fact that the testator does not appear to have signed all the sheets in the presence of the three witnesses, and the latter to have attested and signed all the sheets in the presence of the testator and of each other. As to the signatures on the margin, it is true, as above stated, that the third page actually used was signed by the testator, not on the left margin, as it was by the witnesses, but about the middle of the page and the end of the will; and that the fourth page was signed by the witnesses, not on the left margin, as it was by the testator, but about the middle of the page and at the end of the attestation clause. In this respect the holding of this court in the case of Avera vs. Garcia and Rodriguez (42 Phil., 145), is applicable, wherein the will in question was signed by the testator and the witnesses, not on the left, but right, margin. The rule laid down in that case is that the document contained the necessary signatures on each page, whereby each page of the will was authenticated and safeguarded against any possible alteration. In that case, the validity of the will was sustained, and consequently it was allowed to probate. Applying that doctrine to the instant case, we hold that, as each and every page used of the will bears the signatures of the testator and the witnesses, the fact that said signatures do not all appear on the left margin of each page does not detract from the validity of the will.lawphi1.net Turning to the second defect alleged, that is to say, the fact that the sheets of the document are not paged with letters, suffice it to cite the case of Unson vs. Abella (43 Phil., 494), where this court held that paging with Arabic numerals and not with letters, as in the case before us, is within the spirit of the law and is just as valid as paging with letters. As to the proposition that the attestation clause does not state the number of sheets or pages of the will, which is the third defect assigned, it must be noted that the last paragraph of the will here in question and the attestation clause, coming next to it, are of the following tenor: In witness whereof, I set my hand unto this will here in the town of Camalig, Albay, Philippine Islands, this 26th day of November, nineteen hundred and

eighteen, composed of four sheets, including the next: ANTONIO MOJAL

(Signed and declared by the testator Don Antonio Mojal to be his last will and testament in the presence of each of us, and at the request of said testator Don Antonio Mojal, we signed this will in the presence of each other and of the testator.) PEDRO CARO SILVERIO MORCO ZOILO MASINAS As may be seen, the number of sheets is stated in said last paragraph of the will. It is true that in the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405), it was held that the attestation clause must state the number of sheets or pages composing the will; but when, as in the case before us, such fact, while it is not stated in the attestation clause, appears at the end of the will proper, so that no proof aliunde is necessary of the number of the sheets of the will, then there can be no doubt that it complies with the intention of the law that the number of sheets of which the will is composed be shown by the document itself, to prevent the number of the sheets of the will from being unduly increased or decreased. With regard to the last defect pointed out, namely, that the testator does not appear to have signed on all the sheets of the will in the presence of the three witnesses, and the latter to have attested and signed on all the sheets in the presence of the testator and of each other, it must be noted that in the attestation clause above set out it is said that the testator signed the will "in the presence of each of the witnesses" and the latter signed "in the presence of each other and of the testator." So that, as to whether the testator and the attesting witnesses saw each other sign the will, such a requirement was clearly and sufficiently complied with. What is not stated in this clause is whether the testator and the witnesses signed all the sheets of the will. The act of the testator and the witnesses seeing reciprocally the signing of the will is one which cannot be proven by the mere exhibition of the will unless it is stated in the document. And this fact is expressly stated in the attestation clause now before us. But the fact of the testator and the witnesses having signed all the sheets of the will may be proven by the mere examination of the document, although it does not say anything about this, and if that is the fact, as it is in the instant case, the danger of fraud in this respect, which is what the law tries to avoid, does not exist. Therefore, as in the instant case the fact that the testator and the witnesses signed each and every page of the will is proven by the mere examination of the signatures in the will, the omission to expressly state such evident fact does not invalidate the will nor prevent its probate. The order appealed from is affirmed with the costs against the appellants. So ordered. Johnson, Malcolm, and Villamor, JJ., concur. G.R. No. 147145 January 31, 2005

TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-NOBLE, vs. ALIPIO ABAJA and NOEL ABELLAR, The Case

Before the Court is a petition for review assailing the Decision of the Court of Appeals of 12 January 3 2001 in CA-G.R. CV No. 47644. The Court of Appeals sustained the Resolution of the Regional Trial Court of Kabankalan, Negros Occidental, Branch 61 ("RTC-Kabankalan"), admitting to probate the last will and testament of Alipio Abada ("Abada"). The Antecedent Facts Abada died sometime in May 1940. His widow Paula Toray ("Toray") died sometime in September 1943. Both died without legitimate children. On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then Court of First Instance of Negros 5 Occidental (now RTC-Kabankalan) a petition, docketed as SP No. 070 (313-8668), for the probate of the last will and testament ("will") of Abada. Abada allegedly named as his testamentary heirs his natural children Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio is the son of Eulogio. Nicanor Caponong ("Caponong") opposed the petition on the ground that Abada left no will when he died in 1940. Caponong further alleged that the will, if Abada really executed it, should be disallowed for the following reasons: (1) it was not executed and attested as required by law; (2) it was not intended as the last will of the testator; and (3) it was procured by undue and improper pressure and influence on the part of the beneficiaries. Citing the same grounds invoked by Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo, Humberto, Teodora and Elena Abada ("Joel Abada, et al."), and Levi, Leandro, Antonio, Florian, Hernani and Carmela Tronco ("Levi Tronco, et al."), also opposed the petition. The oppositors are the nephews, nieces and grandchildren of Abada and Toray. On 13 September 1968, Alipio filed another petition before the RTC-Kabankalan, docketed as SP No. 071 (312-8669), for the probate of the last will and testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al. opposed the petition on the same grounds they cited in SP No. 070 (313-8668). On 20 September 1968, Caponong filed a petition before the RTC-Kabankalan, docketed as SP No. 069 (309), praying for the issuance in his name of letters of administration of the intestate estate of Abada and Toray. In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the will of Toray. Since the oppositors did not file any motion for reconsideration, the order allowing the probate of Torays will 8 became final and executory. In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda Caponong-Noble 9 ("Caponong-Noble") Special Administratrix of the estate of Abada and Toray. Caponong-Noble moved for the dismissal of the petition for probate of the will of Abada. The RTC-Kabankalan denied the motion 10 in an Order dated 20 August 1991. Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas discovered that in an Order dated 16 March 1992, former Presiding Judge Edgardo Catilo had already submitted the case for decision. Thus, the RTC-Kabankalan rendered a Resolution dated 22 June 1994, as follows: There having been sufficient notice to the heirs as required by law; that there is substantial compliance with the formalities of a Will as the law directs and that the petitioner through his testimony and the deposition of Felix Gallinero was able to establish the regularity of the execution of the said Will and further, there being no evidence of bad faith and fraud, or substitution of the said Will, the Last Will and Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate.
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As prayed for by counsel, Noel Abbellar is appointed administrator of the estate of Paula Toray who shall discharge his duties as such after letters of administration shall have been issued in his favor and after taking his oath and filing a bond in the amount of Ten Thousand (P10,000.00) Pesos. Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall continue discharging her duties as such until further orders from this Court. SO ORDERED.
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The RTC-Kabankalan ruled on the only issue raised by the oppositors in their motions to dismiss the petition for probate, that is, whether the will of Abada has an attestation clause as required by law. The RTC-Kabankalan further held that the failure of the oppositors to raise any other matter forecloses all other issues. Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal. In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the Resolution of the RTCKabankalan. The appellate court found that the RTC-Kabankalan properly admitted to probate the will of Abada. Hence, the present recourse by Caponong-Noble. The Issues The petition raises the following issues: 1. What laws apply to the probate of the last will of Abada; 2. Whether the will of Abada requires acknowledgment before a notary public;
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3. Whether the will must expressly state that it is written in a language or dialect known to the testator; 4. Whether the will of Abada has an attestation clause, and if so, whether the attestation clause complies with the requirements of the applicable laws; 5. Whether Caponong-Noble is precluded from raising the issue of whether the will of Abada is written in a language known to Abada; 6. Whether evidence aliunde may be resorted to in the probate of the will of Abada. The Ruling of the Court The Court of Appeals did not err in sustaining the RTC-Kabankalan in admitting to probate the will of Abada. The Applicable Law Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of 1889 or the 14 Old Civil Code, and Act No. 190 or the Code of Civil Procedure which governed the execution of wills before the enactment of the New Civil Code.

The matter in dispute in the present case is the attestation clause in the will of Abada. Section 618 of 15 the Code of Civil Procedure, as amended by Act No. 2645, governs the form of the attestation clause of 16 Abadas will. Section 618 of the Code of Civil Procedure, as amended, provides: SEC. 618. Requisites of will. No will, except as provided in the preceding section, shall be valid to pass any estate, real or personal, nor charge or affect the same, unless it be written in the language or dialect known by the testator and signed by him, or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of each other. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the left margin, and said pages shall be numbered correlatively in letters placed on the upper part of each sheet. The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other. Requisites of a Will under the Code of Civil Procedure Under Section 618 of the Code of Civil Procedure, the requisites of a will are the following: (1) The will must be written in the language or dialect known by the testator; (2) The will must be signed by the testator, or by the testators name written by some other person in his presence, and by his express direction; (3) The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of each other; (4) The testator or the person requested by him to write his name and the instrumental witnesses of the will must sign each and every page of the will on the left margin; (5) The pages of the will must be numbered correlatively in letters placed on the upper part of each sheet; (6) The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page of the will, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the witnesses witnessed and signed the will and all pages of the will in the presence of the testator and of each other. Caponong-Noble asserts that the will of Abada does not indicate that it is written in a language or dialect known to the testator. Further, she maintains that the will is not acknowledged before a notary public. She cites in particular Articles 804 and 805 of the Old Civil Code, thus: Art. 804. Every will must be in writing and executed in [a] language or dialect known to the testator. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. xxx
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Caponong-Noble actually cited Articles 804 and 806 of the New Civil Code. Article 804 of the Old Civil Code is about the rights and obligations of administrators of the property of an absentee, while Article 806 of the Old Civil Code defines a legitime.

Articles 804 and 806 of the New Civil Code are new provisions. Article 804 of the New Civil Code is taken 20 from Section 618 of the Code of Civil Procedure. Article 806 of the New Civil Code is taken from Article 21 685 of the Old Civil Code which provides: Art. 685. The notary and two of the witnesses who authenticate the will must be acquainted with the testator, or, should they not know him, he shall be identified by two witnesses who are acquainted with him and are known to the notary and to the attesting witnesses. The notary and the witnesses shall also endeavor to assure themselves that the testator has, in their judgment, the legal capacity required to make a will. Witnesses authenticating a will without the attendance of a notary, in cases falling under Articles 700 and 701, are also required to know the testator. However, the Code of Civil Procedure repealed Article 685 of the Old Civil Code. Under the Code of 23 Civil Procedure, the intervention of a notary is not necessary in the execution of any will. Therefore, Abadas will does not require acknowledgment before a notary public. 1awphi1.nt Caponong-Noble points out that nowhere in the will can one discern that Abada knew the Spanish language. She alleges that such defect is fatal and must result in the disallowance of the will. On this issue, the Court of Appeals held that the matter was not raised in the motion to dismiss, and that it is now too late to raise the issue on appeal. We agree with Caponong-Noble that the doctrine of estoppel does 24 not apply in probate proceedings. In addition, the language used in the will is part of the requisites under Section 618 of the Code of Civil Procedure and the Court deems it proper to pass upon this issue. Nevertheless, Caponong-Nobles contention must still fail. There is no statutory requirement to state in 25 the will itself that the testator knew the language or dialect used in the will. This is a matter that a party 26 may establish by proof aliunde. Caponong-Noble further argues that Alipio, in his testimony, has failed, among others, to show that Abada knew or understood the contents of the will and the Spanish language used in the will. However, Alipio testified that Abada used to gather Spanish-speaking people in their 27 place. In these gatherings, Abada and his companions would talk in the Spanish language. This sufficiently proves that Abada speaks the Spanish language. The Attestation Clause of Abadas Will A scrutiny of Abadas will shows that it has an attestation clause. The attestation clause of Abadas will reads: Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen izquierdo de todas y cada una de las hojas del mismo. Y en testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del testador al pie de este documento y en el margen izquierdo de todas y cada una de las dos hojas de que esta compuesto el mismo, las cuales estan paginadas correlativamente con 28 las letras "UNO" y "DOS en la parte superior de la carrilla. Caponong-Noble proceeds to point out several defects in the attestation clause. Caponong-Noble alleges that the attestation clause fails to state the number of pages on which the will is written. The allegation has no merit. The phrase "en el margen izquierdo de todas y cada una de las dos hojas de que esta compuesto el mismo" which means "in the left margin of each and every one of the two pages consisting of the same" shows that the will consists of two pages. The pages are numbered correlatively with the letters "ONE" and "TWO" as can be gleaned from the phrase " las cuales estan paginadas correlativamente con las letras "UNO" y "DOS."
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Caponong-Noble further alleges that the attestation clause fails to state expressly that the testator signed the will and its every page in the presence of three witnesses. She then faults the Court of Appeals for applying to the present case the rule on substantial compliance found in Article 809 of the New Civil 29 Code. The first sentence of the attestation clause reads: "Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen izquierdo de todas y cada una de las hojas del mismo ." The English translation is: "Subscribed and professed by the testator Alipio Abada as his last will and testament in our presence, the testator having also signed it in our presence on the left margin of each and every one of the pages of the same." The attestation clause clearly states that Abada signed the will and its every page in the presence of the witnesses. However, Caponong-Noble is correct in saying that the attestation clause does not indicate the number of witnesses. On this point, the Court agrees with the appellate court in applying the rule on substantial compliance in determining the number of witnesses. While the attestation clause does not state the number of witnesses, a close inspection of the will shows that three witnesses signed it. This Court has applied the rule on substantial compliance even before the effectivity of the New Civil 30 Code. In Dichoso de Ticson v. De Gorostiza, the Court recognized that there are two divergent tendencies in the law on wills, one being based on strict construction and the other on liberal construction. 31 In Dichoso, the Court noted that Abangan v. Abangan, the basic case on the liberal construction, is cited with approval in later decisions of the Court. In Adeva vda. De Leynez v. Leynez, the petitioner, arguing for liberal construction of applicable laws, enumerated a long line of cases to support her argument while the respondent, contending that the rule on strict construction should apply, also cited a long series of cases to support his view. The Court, after examining the cases invoked by the parties, held: x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be applicable to all cases. More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the will, and the instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other non-essential defect. x x x. An attestation clause is made for the purpose of preserving, in permanent form, a record of the facts attending the execution of the will, so that in case of failure of the memory of the subscribing witnesses, or other casualty, they may still be proved. (Thompson on Wills, 2d ed., sec. 132.) A will, therefore, should 33 not be rejected where its attestation clause serves the purpose of the law. x x x 1a\^/phi1.net We rule to apply the liberal construction in the probate of Abadas will. Abadas will clearly shows four signatures: that of Abada and of three other persons. It is reasonable to conclude that there are three witnesses to the will. The question on the number of the witnesses is answered by an examination of the will itself and without the need for presentation of evidence aliunde. The Court explained the extent and limits of the rule on liberal construction, thus: [T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself.l^vvphi1.net They only permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or
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absence of the requisite formalities of law . This clear, sharp limitation eliminates uncertainty and ought 34 to banish any fear of dire results. (Emphasis supplied) The phrase "en presencia de nosotros" or "in our presence" coupled with the signatures appearing on the will itself and after the attestation clause could only mean that: (1) Abada subscribed to and professed before the three witnesses that the document was his last will, and (2) Abada signed the will and the left margin of each page of the will in the presence of these three witnesses. Finally, Caponong-Noble alleges that the attestation clause does not expressly state the circumstances that the witnesses witnessed and signed the will and all its pages in the presence of the testator and of each other. This Court has ruled: Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the language employed it 35 can reasonably be deduced that the attestation clause fulfills what the law expects of it. The last part of the attestation clause states "en testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del testador." In English, this means "in its witness, every one of us also signed in our presence and of the testator." This clearly shows that the attesting witnesses witnessed the signing of the will of the testator, and that each witness signed the will in the presence of one another and of the testator. WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644. SO ORDERED. 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, vs. HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate of Mateo Caballero, Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not the attestation clause contained in the last will and testament of the late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code. The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo 1 Manigos, in the preparation of that last will. It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of 2 whom do not appear to be related to the testator. Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but the

same and subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980, 3 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 value of which was P24,000.00, and he was so 4 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 5 probate of the Testator's will and the 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 6 Regional Trial Court of Cebu 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 testator 7 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 8 other two 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 executed in accordance with all the requisites of the law.
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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 the language of the law would have it that the testator signed the will "in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another." If not completely or ideally perfect in accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in 11 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 12 in the latter's resolution of 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 13 prescribed by law, to control to a certain degree the disposition of his estate after his death. Under the 14 Civil Code, there are two kinds of wills which a testator may execute. the first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Code. 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.
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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 15 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 16 thereto, and then 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 that they should be in writing and must have 17 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 need not even be known to the 18 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 19 instrument has been executed 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 required by law 20 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 21 witnesses, or other casualty, such facts may still be proved. Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the 22 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 interpolation or omission of one or some of its pages and to prevent any 23 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 indicates that 24 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 25 will as embodied in the attestation clause. The attestation clause, therefore, provide strong legal 26 guaranties for the due execution of a will and to insure the authenticity thereof. As it appertains only to 27 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 28 occasion in 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: 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 29 execution of wills. . . . 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 30 language and is 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 31 paper the names of the witnesses, for the sole purpose of identification. In Taboada vs. Rizal, we clarified that attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator. As it involves a mental act, there would be no means, therefore, of ascertaining by a physical examination of the will whether the witnesses had indeed signed in the presence of the testator and of each other unless this is substantially expressed in the attestation. 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
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state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other. The phrase "and he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin," obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other hand, although the words "in the presence of the testator and in the presence of each and all of us" may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring only to the testator signing in the presence of the witnesses since said phrase immediately follows the words " he has signed the same and every page thereof, on the spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the final logical analysis , is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit: Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is not proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805" (Emphasis supplied.) While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred therefrom that the said witness affixed their respective signatures in the presence of the testator and of each other since, as petitioners correctly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did subscribe to the will in the presence of the testator and of each other. The execution of a will is supposed to be one act so that where the testator and the witnesses sign on various days or occasions and in various combinations, the 33 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: . . . 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.
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The foregoing considerations do not apply where the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each 35 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 36 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, useless and frustrative of the testator's 37 38 last will, must be disregarded. The subsequent cases of Avera vs. Garcia, Aldaba vs. Roque, Unson 39 40 41 42 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 43 44 the subsequent cases of In the Matter of the Estate of Saguinsin, In re Will of Andrada, Uy Coque vs. 45 46 47 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:
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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 with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to contrast and, if possible, conciliate the last two decisions cited by opposing counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra. In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does not recite that the witnesses signed the will and each and every page thereof on the left margin in the presence of the testator is defective, and such a defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the attestation clause must estate the fact that the testator and the witnesses reciprocally saw the signing of the will, for such an act cannot be proved by the mere exhibition of the will, if it is not stated therein. It was also held that the fact that the testator and the witnesses signed each and every page of the will can be proved also by the mere examination of the signatures appearing on the document itself, and the omission to state such evident facts does not invalidate the will. It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If we rely on the other, we reverse. In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, the Mojal, decision was concurred in by only four members of the court, less than a majority, with two strong dissenting opinions; the Quintana decision was concurred in by seven members of the court, a clear majority, with one formal dissent. In the second place, the Mojal decision was promulgated in December, 1924, while the Quintana decision was promulgated in December, 1925; the Quintana decision was thus subsequent in point of time. And in the third place, the Quintana decision is believed more nearly to conform to the applicable provisions of the law. The right to dispose of property by will is governed entirely by statute. The law of the case is here found in section 61 of the Code of Civil Procedure as amended by Act No. 2645, and in section 634 of the same Code, as unamended. It is in part provided in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It is further provided in the same section that "The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other." Codal section 634 provides that "The will shall be disallowed in either of the following case: 1. If not executed and attested as in this Act provided." The law not alone carefully makes use of the imperative, but cautiously goes further and makes use of the negative, to enforce legislative intention. It is not within the province of the courts to disregard the legislative purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the extent necessary, modify the decision in the case of Nayve vs. Mojal and Aguilar, supra. (Emphases in the original text). But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases of 49 50 51 52 Quinto vs. Morata, Rodriguez vs. Alcala, Enchevarria vs. Sarmiento, and Testate Estate of Toray 53 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al., Rey vs. Cartagena, 54 55 56 57 58 De Ticson vs. De Gorostiza, Sebastian vs. Panganiban, Rodriguez vs. Yap, Grey vs. Fabia, 59 60 61 Leynez vs. 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 of Rodriguez 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 65 substantial 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."
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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. 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. G.R. No. 123486 August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, vs. EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, Before us is a petition for review on certiorari of the decision of the Court of Appeals and its resolution denying reconsideration, ruling: Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the authenticity of testators holographic will has been established and the handwriting and signature therein (exhibit S) are hers, enough to probate said will. Reversal of the judgment appealed from and the probate of the holographic will in question be called for. The rule is that after plaintiff has completed presentation of his evidence and the defendant files a motion for judgment on demurrer to evidence on the ground that upon the facts and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment may, therefore, be rendered for appellant in the instant case. Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate 2 of the holographic will of the testator Matilde Seo Vda. de Ramonal. The facts are as follows: On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, 3 Misamis Oriental, Branch 18, a petition for probate of the holographic will of the deceased, who died on January 16, 1990. In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and will was written voluntarily. The assessed value of the decedent's property, including all real and personal property was about 4 P400,000.00, at the time of her death. On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition to the petition for probate, alleging that the holographic will was a forgery and that the same is even illegible. This gives an
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impression that a "third hand" of an interested party other than the "true hand" of Matilde Seo Vda. de Ramonal executed the holographic will. Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is out of the ordinary. If the deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottom after the dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery.1wphi1.nt Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of 6 presenting their evidence, filed a demurrer to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal. On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads: WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well taken, same is granted, and the petition for probate of the document (Exhibit "S") on the purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for insufficiency 7 of evidence and lack of merits. On December 12, 1990, respondents filed a notice of appeal, and in support of their appeal, the respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay. To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies. Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the holographic will of the deceased was filed. He produced and identified the records of the case. The documents presented bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence is offered. Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's affidavit of the decedent. However, the voters' affidavit was not produced for the same was already destroyed and no longer available. Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her aunt, and that after the death of Matilde's husband, the latter lived with her in her parent's house for eleven (11) years from 1958 to 1969. During those eleven (11) years of close association the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings, and deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters of the deceased to her creditors. Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of the deceased.
8

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by the deceased in connection with the proceedings of her late husband, as a result of which he is familiar with the handwriting of the latter. He testified that the signature appearing in the holographic will was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure. The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and Natural Resources, Region 10. She testified that she processed the application of the deceased for pasture permit and was familiar with the signature of the deceased, since the signed documents in her presence, when the latter was applying for pasture permit. Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was in fact adopted by the latter. That after a long period of time she became familiar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal. The holographic will which was written in Visayan, is translated in English as follows: Instruction August 30, 1978 1. My share at Cogon, Raminal Street, for Evangeline Calugay. (Sgd) Matilde Vda de Ramonal August 30, 1978 2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street. (Sgd) Matilde Vda de Ramonal August 30, 1978 3. My jewelry's shall be divided among: 1. Eufemia Patigas 2. Josefina Salcedo 3. Evangeline Calugay (Sgd) Matilde Vda de Ramonal August 30, 1978 4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay (Sgd) Matilde Vda de Ramonal August 30, 1978

5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no longer around. (Sgd) Matilde Vda de Ramonal August 30, 1978 6. Bury me where my husband Justo is ever buried. (Sgd) Matilde Vda de Ramonal August 30, 1978 Gene and Manuel: Follow my instruction in order that I will rest peacefully. Mama Matilde Vda de Ramonal On October 9, 1995, the Court of Appeals, rendered decision ruling that the appeal was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held: . . . even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present civil code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of the holographic will, none being required by law (art. 810, new civil code), it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not express) "that the will and the signature are in the handwriting of the testator." There may be no available witness acquainted with the testator's hand; or even if so familiarized, the witness maybe unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of article 811 prescribes that in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. As can be see, the law foresees, the possibility that no qualified witness ma be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency. It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be considered mandatory only in case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no
9

witness need be present (art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court deem it necessary", which reveal that what the law deems essential is that the court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the court may still, and in fact it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of the having the probate denied. No witness need be present in the execution of the holographic will. And the rule requiring the production of three witnesses is merely permissive. What the law deems essential is that the court is convinced of the authenticity of the will. Its duty is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the true intention of the testator be carried into effect. And because the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be drawn from a party's failure to offer expert evidence, 10 until and unless the court expresses dissatisfaction with the testimony of the lay witnesses. According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no uncertain terms testified that the handwriting and signature in the holographic will were those of the testator herself. Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to probate. Hence, this petition. The petitioners raise the following issues: (1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the respondent Court of Appeals, was applicable to the case. (2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present credible evidence to that the date, text, and signature on the holographic will written entirely in the hand of the testatrix. (3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of Matilde Seo Vda. de Ramonal. In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly declare that the signature in the will is the genuine signature of the testator.1wphi1.nt We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes an

imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the 11 word "shall," when used in a statute is mandatory. Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator. So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An exhaustive and objective consideration of the evidence is imperative to establish the true intent of the testator. It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the handwriting of testator. In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely identified the record of Special Proceedings No. 427 before said court. He was not presented to declare explicitly that the signature appearing in the holographic was that of the deceased. Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in the voter's affidavit, which was not even produced as it was no longer available. Matilde Ramonal Binanay, on the other hand, testified that: Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did Matilde Vda de Ramonal keep herself busy that time? A. Collecting rentals. Q. From where? A. From the land rentals and commercial buildings at Pabayo-Gomez streets. xxx Q. Who sometime accompany her? A. I sometimes accompany her. Q. In collecting rentals does she issue receipts? A. Yes, sir.
13 12

xxx

xxx

xxx

xxx

xxx

Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the receipts which she issued to them? A. Yes, sir.

Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay? A. Matilde vda. De Ramonal. Q. Why do you say that is the signature of Matilde Vda. De Ramonal? A. I am familiar with her signature. Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of the accounts of her tenants? A. Yes, sir. Q. Why do you say so? A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal. Q. How is this record of accounts made? How is this reflected? A. In handwritten.
14

xxx

xxx

xxx

Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you said what else did you do to acquire familiarity of the signature of Matilde Vda De Ramonal? A. Posting records. Q. Aside from that? A. Carrying letters. Q. Letters of whom? A. Matilde. Q. To whom? A. To her creditors.
15

xxx

xxx

xxx

Q. You testified that at time of her death she left a will. I am showing to you a document with its title "tugon" is this the document you are referring to? A. Yes, sir. Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?

A. My Aunt. Q. Why do you say this is the handwriting of your aunt? A. Because I am familiar with her signature.
16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her tenants. She did not declare that she saw the deceased sign a document or write a note. Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the personal belongings of the deceased but was in the possession of Ms. Binanay. She testified that: Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de Ramonal left a will you said, yes? A. Yes, sir. Q. Who was in possession of that will? A. I. Q. Since when did you have the possession of the will? A. It was in my mother's possession. Q. So, it was not in your possession? A. Sorry, yes. Q. And when did you come into possession since as you said this was originally in the possession of your mother? A. 1985.
17

xxx

xxx

xxx

Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and therefore you have that in your possession? A. It was not given to me by my mother, I took that in the aparador when she died. Q. After taking that document you kept it with you? A. I presented it to the fiscal. Q. For what purpose? A. Just to seek advice. Q. Advice of what?

A. About the will.

18

In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally adopted children of the deceased. Such actions put in issue her motive of keeping the will a secret to petitioners and revealing it only after the death of Matilde Seo Vda. de Ramonal. In the testimony of Ms. Binanay, the following were established: Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct? A. Yes, sir. Q. She was up and about and was still uprightly and she could walk agilely and she could go to her building to collect rentals, is that correct? A. Yes, sir.
19

xxx

xxx

xxx

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in the word Vda.? A. Yes, a little. The letter L is continuous. Q. And also in Matilde the letter L is continued to letter D? A. Yes, sir. Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter D. A. Yes, sir. Q. And there is a retracing in the word Vda.? A. Yes, sir.
20

xxx

xxx

xxx

Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a document marked as Exhibit R. This is dated January 8, 1978 which is only about eight months from August 30, 1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully written and legible? A. Yes, sir the handwriting shows that she was very exhausted. Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she was agile. Now, you said she was exhausted? A. In writing.

Q. How did you know that she was exhausted when you were not present and you just tried to explain yourself out because of the apparent inconsistencies? A. That was I think. (sic). Q. Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and the signature was written on a fluid movement. . . . And in fact, the name Eufemia R. Patigas here refers to one of the petitioners? A. Yes, sir. Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will notice the hesitancy and tremors, do you notice that? A. Yes, sir.
21

Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the testator. She testified that: Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the period of 22 years. Could you tell the court the services if any which you rendered to Matilde Ramonal? A. During my stay I used to go with her to the church, to market and then to her transactions. Q. What else? What services that you rendered? A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer. Q. What was your purpose of going to her lawyer? A. I used to be her personal driver. Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de Ramonal? A. Yes, sir. Q. How come that you acquired familiarity? A. Because I lived with her since birth.
22

xxx

xxx

xxx

Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a signature here below item No. 1, will you tell this court whose signature is this? A. Yes, sir, that is her signature. Q. Why do you say that is her signature?

A. I am familiar with her signature.

23

So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because she lived with her since birth. She never declared that she saw the deceased write a note or sign a document. The former lawyer of the deceased, Fiscal Waga, testified that: Q. Do you know Matilde Vda de Ramonal? A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to the husband by consanguinity. Q. Can you tell the name of the husband? A. The late husband is Justo Ramonal. xxx
24

xxx

xxx

Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate children? A. As far as I know they have no legitimate children. xxx xxx
25

xxx

Q. You said after becoming a lawyer you practice your profession? Where? A. Here in Cagayan de Oro City. Q. Do you have services rendered with the deceased Matilde vda de Ramonal? A. I assisted her in terminating the partition, of properties. Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, Fiscal? A. It is about the project partition to terminate the property, which was under the court before. xxx xxx xxx
26

Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the estate of Justo Ramonal and there appears a signature over the type written word Matilde vda de Ramonal, whose signature is this? A. That is the signature of Matilde Vda de Ramonal. Q. Also in exhibit n-3, whose signature is this? A. This one here that is the signature of Mrs. Matilde vda de Ramonal.
27

xxx

xxx

xxx

Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other assistance wherein you were rendering professional service to the deceased Matilde Vda de Ramonal? A. I can not remember if I have assisted her in other matters but if there are documents to show 28 that I have assisted then I can recall. xxx xxx xxx

Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that document marked as exhibit "S"? A. I am not familiar with the handwriting. Q. This one, Matilde Vda de Ramonal, whose signature is this? A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal. Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose signature is this? A. Well, that is similar to that signature appearing in the project of partition. Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose signature is that? A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal. Q. Why do you say that? A. Because there is a similarity in the way it is being written. Q. How about this signature in item no. 4, can you tell the court whose signature is this? A. The same is true with the signature in item no. 4. It seems that they are similar. xxx xxx xxx
29

Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal? A. Yes, it is similar to the project of partition. Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing that it seems to be her signature because it is similar to the signature of the project of partition which you have made? A. That is true.
30

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the requirement of three witnesses in case of contested holographic will, citing the decision in Azaola vs. 31 Singson, ruling that the requirement is merely directory and not mandatory. In the case of Ajero vs. Court of Appeals, we said that "the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased. The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five years before the death of the deceased. There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime. The only chance at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will. A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes, retracing and erasures on the will. Comparing the signature in the holographic will dated August 30, 1978, and the signatures in several 34 documents such as the application letter for pasture permit dated December 30, 1980, and a letter 35 dated June 16, 1978, the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that ruling holographic will was in the handwriting by the deceased. IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin with instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the deceased Matilde Seo vda. de Ramonal.1wphi1.nt No costs. SO ORDERED. G.R. No. 106720 September 15, 1994 SPOUSES ROBERTO AND THELMA AJERO, vs. THE COURT OF APPEALS AND CLEMENTE SAND, 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;
33 32

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. Q37171, 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 xxx
2

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 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 holographic will of the late Annie Sand, the aforesaid will submitted herein must be 3 admitted to probate. (Citations omitted.) On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The 4 Court of Appeals found that, "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 6 acts of the decedent. In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous. We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
5

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 7 be totally autographic or handwritten by the testator himself, as provided under Article 810 of the New Civil Code, thus: A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.) Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator. A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held: Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la 8 sentencia de 4 de Abril de 1985." (Citations omitted.) Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the 9 10 holographic will or on testator's 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 11 situation constrains them to do, and pass upon certain provisions of the will. In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's other heirs. IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs. SO ORDERED. G.R. No. L-40207 September 28, 1984 ROSA K. KALAW, vs. HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW,. On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968. The holographic Will reads in full as follows: My Last will and Testament In the name of God, Amen. I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing mind and memory, do hereby declare thus to be my last will and testament.

1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In accordance with the rights of said Church, and that my executrix hereinafter named provide and erect at the expose of my state a suitable monument to perpetuate my memory. xxx xxx xxx The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance, that the holographic Will contained alterations, corrections, and insertions without the proper authentication by the full signature of the testatrix as required by Article 814 of the Civil Code reading: Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will the testator must authenticate the same by his full signature. ROSA's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder. After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part: The document Exhibit "C" was submitted to the National Bureau of Investigation for examination. The NBI reported that the handwriting, the signature, the insertions and/or additions and the initial were made by one and the same person. Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit 'C', should be admitted to probate although the alterations and/or insertions or additions above-mentioned were not authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru their counsel to submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly understood, that the oppositors would be in estoppel. The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit "C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of Exhibit "C". WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K. Kalaw is hereby denied. SO ORDERED. From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973, on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity for interpretation." From that Order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal question of whether or not the original unaltered text after subsequent alterations and insertions were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir.

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. 1 Manresa gave an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla 2 de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature, The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived: ... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la nulidad de un testamento olografo que contenga palabras tachadas, enmendadas o entre renglones no salvadas por el testador bajo su firnia segun previene el parrafo tercero del mismo, porque, en realidad, tal omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al testamento mismo , ya por estar esa disposicion en parrafo aparte de aquel que determine las condiciones necesarias para la validez del testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo de que pequefias enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del testamento, vinieran a anular este, y ya porque el precepto contenido en dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art. 26 de la ley del Notariado que declara nulas las adiciones apostillas entrerrenglonados, raspaduras y tachados en las escrituras matrices, siempre que no se salven en la forma prevenida, paro no el documento que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del pensamiento del testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin trascendencia alguna(l). Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras que no afecter4 alteren ni uarien de modo substancial la express voluntad del testador manifiesta en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un testamento olografo por no estar salvada por el testador la 3 enmienda del guarismo ultimo del ao en que fue extendido (Emphasis ours). WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No costs. SO ORDERED. G.R. No. L-14003 August 5, 1960

FEDERICO AZAOLA, vs. CESARIO SINGSON,

This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of the quantity of evidence required for the probate of a holographic will. The established facts are thus summarized in the decision appealed from (Rec. App. pp. 22-24): "Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of deceased Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month, more or less, before the death of the testatrix, as the same was handed to him and his wife; that the witness testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court two residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes; that said witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix; that said witness, in answer to a question of his counsel admitted that the holographic will was handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11). However, on page 16 on the same transcript of the stenographic notes, when the same witness was asked by counsel if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he answered positively in the affirmative and when he was asked again whether the penmanship referred to in the previous answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is hers"; that it was also established in the proceedings that the assessed value of the property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00. The opposition to the probate was on the ground that (1) the execution of the will was procured by undue and improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and that the same was actually written either on the 5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will. The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present three witnesses who could declare that the will and the signature are in the writing of the testatrix, the probate being contested; and because the lone witness presented by the proponent "did not prove sufficiently that the body of the will was written in the handwriting of the testatrix." The proponent appealed, urging: first, that he was not bound to produce more than one witness because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily require the production of three witnesses to identify the handwriting and signature of a holographic will, even if its authenticity should be denied by the adverse party. Article 811 of the Civil Code of the Philippines is to the following effect: ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.

In the absence of any competent witnesses referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. (691a). We agree with the appellant that since the authenticity of the will was not contested, he was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency. It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered mandatory only in the case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveal that what the law deems essential is that the Court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the ill is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks: La manera como esta concebida la redaccion del ultimo apartado de dicho precepto induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento olografo, aunque ya esten insertas en los autos del expediente las declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del testamento olografo lo hace necesario para mayor garantia de todos los interes comprometidos en aquel.

En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito la frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya habido o no testigos y dudaran o no estos respecto de los extremos por que son preguntados. El arbitrio judicial en este caso debe formarse con independencia de los sucesos y de su significacion, para responder debidamente de las resoluciones que haya de dictar. And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses. Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and is not mandatory. Considering, however, that this is the first occasion in which this Court has been called upon to construe the import of said article, the interest of justice would be better served, in our opinion, by giving the parties ample opportunity to adduce additional evidence, including expert witnesses, should the Court deem them necessary. In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidence already on record shall not be retaken. No costs. Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur. G.R. Nos. 75005-06 February 15, 1990 JOSE RIVERA vs. INTERMEDIATE APPELLATE COURT and ADELAIDO J. RIVERA, Was there only one Venancio Rivera in Mabalacat, Pampanga, or were there two? On May 30, 1975, a prominent and wealthy resident of that town named Venancio Rivera died. On July 28, 1975, Jose Rivera, claiming to be the only surviving legitimate son of the deceased, filed a petition for the issuance of letters of administration over Venancio's estate. Docketed as SP No. 1076, this petition was opposed by Adelaido J. Rivera, who denied that Jose was the son of the decedent. Adelaido averred 1 that Venancio was his father and did not die intestate but in fact left two holographic wills. On November 7, 1975, Adelaido J. Rivera filed, also with the Regional Trial Court of Angeles City, a petition for the probate of the holographic wills. Docketed as SP No. 1091, this petition was in turn 2 opposed by Jose Rivera, who reiterated that he was the sole heir of Venancio's intestate estate. On November 11, 1975, the two cases were consolidated. Adelaido J. Rivera was later appointed special administrator. After joint trial, Judge Eliodoro B. Guinto found that Jose Rivera was not the son of the decedent but of a different Venancio Rivera who was married to Maria Vital. The Venancio Rivera whose estate was in question was married to Maria Jocson, by whom he had seven children, including Adelaido. Jose Rivera had no claim to this estate because the decedent was not his father. The holographic wills 3 were also admitted to probate. On appeal, the decision of the trial court was affirmed by the then Intermediate Appellate Court. Its decision is now the subject of this petition, which urges the reversal of the respondent court.
4

In support of his claim that he was the sole heir of the late Venancio Rivera, Jose sought to show that the said person was married in 1928 to Maria Vital, who was his mother. He submitted for this purpose Exhibit A, the marriage certificate of the couple, and Exhibit B, his own baptismal certificate where the couple was indicated as his parents. The petitioner also presented Domingo Santos, who testified that 5 Jose was indeed the son of the couple and that he saw Venancio and Jose together several times. Jose himself stressed that Adelaido considered him a half-brother and kissed his hand as a sign of respect whenever they met. He insisted that Adelaido and his brothers and sisters were illegitimate children, sired 6 by Venancio with Maria Jocson. Adelaido, for his part, maintained that he and his brothers and sisters were born to Venancio Rivera and Maria Jocson, who were legally married and lived as such for many years. He explained that he could not present his parents' marriage certificate because the record of marriages for 1942 in Mabalacat were 7 destroyed when the town was burned during the war, as certified by Exhibit 6. He also submitted his own birth certificate and those of his sisters Zenaida and Yolanda Rivera, who were each described 8 therein as the legimitate children of Venancio Rivera and Maria Jocson. Atty. Regalado P. Morales, then 71 years of age, affirmed that he knew the deceased and his parents, Magno Rivera and Gertrudes de los Reyes, and it was during the Japanese occupation that Venancio introduced to him Maria Jocson as 9 his wife. To prove that there were in fact two persons by the same name of Venancio Rivera, Adelaido offered Venancio Rivera's baptismal certificate showing that his parents were Magno Rivera and 10 Gertrudes de los Reyes, as contrasted with the marriage certificate submitted by Jose, which indicated 11 that the Venancio Rivera subject thereof was the son of Florencio Rivera and Estrudez Reyes. He also 12 denied kissing Jose's hand or recognizing him as a brother. We find in favor of Adelaido J. Rivera. It is true that Adelaido could not present his parents' marriage certificate because, as he explained it, the marriage records for 1942 in the Mabalacat civil registry were burned during the war. Even so, he could still rely on the presumption of marriage, since it is not denied that Venancio Rivera and Maria Jocson lived together as husband and wife for many years, begetting seven children in all during that time. According to Article 220 of the Civil Code: In case of doubt, all presumptions favor the solidarity of the family. Thus every intendment of the law or fact leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, ... . The Rules of Court, in Rule 131, provides: SEC. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx xxx xxx (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage. By contrast, although Jose did present his parents' marriage certificate, Venancio was described therein as the son of Florencio Rivera. Presumably, he was not the same Venancio Rivera described in Exhibit 4, his baptismal certificate, as the son of Magno Rivera. While we realize that such baptismal certificate is not conclusive evidence of Venancio's filiation (which is not the issue here) it may nonetheless be considered to determine his real identity. Jose insists that Magno and Florencio are one and the same person, arguing that it is not uncommon for a person to be called by different names. The Court is not convinced. There is no evidence that Venancio's father was called either Magno or Florencio. What is

more likely is that two or more persons may live at the same time and bear the same name, even in the same community. That is what the courts below found in the cases at bar. What this Court considers particularly intriguing is why, if it is true that he was the legitimate son of Venancio Rivera, Jose did not assert his right as such when his father was still alive. By his own account, Jose supported himself and presumably also his mother Maria Vital as a gasoline attendant and driver for many years. All the time, his father was residing in the same town and obviously prospering and available for support. His alleged father was openly living with another woman and raising another family, but this was apparently accepted by Jose without protest, taking no step whatsoever to invoke his status. If, as he insists, he and Venancio Rivera were on cordial terms, there is no reason why the father did not help the son and instead left Jose to fend for himself as a humble worker while his other children by Maria Jocson enjoyed a comfortable life. Such paternal discrimination is difficult to understand, especially if it is considered assuming the claims to be true that Jose was the oldest and, by his own account, the only legitimate child of Venancio Rivera. And there is also Maria Vital, whose attitude is no less incomprehensible. As Venancio's legitimate wife if indeed she was she should have objected when her husband abandoned her and founded another family by another woman, and in the same town at that. Seeing that the children of Maria Jocson were being raised well while her own son Jose was practically ignored and neglected, she nevertheless did not demand for him at least support, if not better treatment, from his legitimate father. It is unnatural for a lawful wife to say nothing if she is deserted in favor of another woman and for a caring mother not to protect her son's interests from his wayward father's neglect. The fact is that this forsaken wife never demanded support from her wealthy if errant husband. She did not file a complaint for bigamy or concubinage against Venancio Rivera and Maria Jocson, the alleged partners in crime and sin. Maria Vital was completely passive and complaisant. Significantly, as noted by the respondent court, Maria Vital was not even presented at the trial to support her son's allegations that she was the decedent's lawful wife. Jose says this was not done because she was already old and bedridden then. But there was no impediment to the taking of her deposition in her own house. No effort was made toward this end although her testimony was vital to the petitioner's cause. Jose dismisses such testimony as merely "cumulative," but this Court does not agree. Having alleged that Maria Jocson's marriage to Venancio Rivera was null and void, Jose had the burden of proving that serious allegation. We find from the evidence of record that the respondent court did not err in holding that the Venancio Rivera who married Maria Jocson in 1942 was not the same person who married Maria Vital, Jose's legitimate mother, in 1928. Jose belonged to a humbler family which had no relation whatsoever with the family of Venancio Rivera and Maria Vital. This was more prosperous and prominent. Except for the curious Identity of names of the head of each, there is no evidence linking the two families or showing that the deceased Venancio Rivera was the head of both. Now for the holographic wills. The respondent court considered them valid because it found them to have been written, dated and signed by the testator himself in accordance with Article 810 of the Civil Code. It also held there was no necessity of presenting the three witnesses required under Article 811 because the authenticity of the wills had not been questioned. The existence and therefore also the authenticity of the holographic wills were questioned by Jose Rivera. In his own petition in SP No. 1076, he declared that Venancio Rivera died intestate; and in SP No. 1091, he denied the existence of the holographic wills presented by Adelaido Rivera for probate. In both proceedings, Jose Rivera opposed the holographic wills submitted by Adelaido Rivera and claimed that they were spurious. Consequently, it may be argued, the respondent court should have applied Article 811 of the Civil Code, providing as follows:

In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. The flaw in this argument is that, as we have already determined, Jose Rivera is not the son of the deceased Venancio Rivera whose estate is in question. Hence, being a mere stranger, he had no personality to contest the wills and his opposition thereto did not have the legal effect of requiring the three witnesses. The testimony of Zenaida and Venancio Rivera, Jr., who authenticated the wills as having been written and signed by their father, was sufficient. WHEREFORE, the petition is DENIED and the challenged decision is AFFIRMED, with costs against the petitioner. SO ORDERED. G.R. No. 76714 June 2, 1994 SALUD TEODORO VDA. DE PEREZ, vs. HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC, Bulacan, 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 PerezCunanan. 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. 405-407). 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. 1316). 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. G.R. No. 118671 January 29, 1996

THE ESTATE OF HILARIO M. RUIZ, EDMOND RUIZ, Executor, vs. THE COURT OF APPEALS (Former Special Sixth Division), MARIA PILAR RUIZ-MONTES, MARIA CATHRYN RUIZ, CANDICE ALBERTINE RUIZ, MARIA ANGELINE RUIZ and THE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF PASIG, This petition for review on certiorari seeks to annul and set aside the decision dated November 10, 1994 and the resolution dated January 5, 1995 of the Court of Appeals in CA-G.R. SP No. 33045. The facts show that on June 27, 1987, Hilario M. Ruiz executed a holographic will naming as his heirs his only son, Edmond Ruiz, his adopted daughter, private respondent Maria Pilar Ruiz Montes, and his three granddaughters, private respondents Maria Cathryn, Candice Albertine and Maria Angeline, all children of Edmond Ruiz. The testator bequeathed to his heirs substantial cash, personal and real 2 properties and named Edmond Ruiz executor of his estate. On April 12, 1988, Hilario Ruiz died. Immediately thereafter, the cash component of his estate was distributed among Edmond Ruiz and private respondents in accordance with the decedent's will. For unbeknown reasons, Edmond, the named executor, did not take any action for the probate of his father's holographic will. On June 29, 1992, four years after the testator's death, it was private respondent Maria Pilar Ruiz Montes who filed before the Regional Trial Court, Branch 156, Pasig, a petition for the probate and approval of 3 Hilario Ruiz's will and for the issuance of letters testamentary to Edmond Ruiz, Surprisingly, Edmond opposed the petition on the ground that the will was executed under undue influence. On November 2, 1992, one of the properties of the estate the house and lot at No. 2 Oliva Street, Valle 4 Verde IV, Pasig which the testator bequeathed to Maria Cathryn, Candice Albertine and Maria Angeline was leased out by Edmond Ruiz to third persons. On January 19, 1993, the probate court ordered Edmond to deposit with the Branch Clerk of Court the rental deposit and payments totalling P540,000.00 representing the one-year lease of the Valle Verde property. In compliance, on January 25, 1993, Edmond turned over the amount of P348,583.56,
1

representing the balance of the rent after deducting P191,416.14 for repair and maintenance expenses 5 on the estate. In March 1993, Edmond moved for the release of P50,000.00 to pay the real estate taxes on the real 6 properties of the estate. The probate court approved the release of P7,722.00. On May 14, 1993, Edmond withdrew his opposition to the probate of the will. Consequently, the probate court, on May 18, 1993, admitted the will to probate and ordered the issuance of letters testamentary to Edmond conditioned upon the filing of a bond in the amount of P50,000.00. The letters testamentary were issued on June 23, 1993. On July 28, 1993, petitioner Testate Estate of Hilario Ruiz, with Edmond Ruiz as executor, filed an "ExParte Motion for Release of Funds." It prayed for the release of the rent payments deposited with the Branch Clerk of Court. Respondent Montes opposed the motion and concurrently filed a "Motion for Release of Funds to Certain Heirs" and "Motion for Issuance of Certificate of Allowance of Probate Will." Montes prayed for the release of the said rent payments to Maria Cathryn, Candice Albertine and Maria Angeline and for the distribution of the testator's properties, specifically the Valle Verde property and the Blue Ridge apartments, in accordance with the provisions of the holographic will. On August 26, 1993, the probate court denied petitioner's motion for release of funds but granted respondent Montes' motion in view of petitioner's lack of opposition. It thus ordered the release of the rent payments to the decedent's three granddaughters. It further ordered the delivery of the titles to and possession of the properties bequeathed to the three granddaughters and respondent Montes upon the filing of a bond of P50,000.00. Petitioner moved for reconsideration alleging that he actually filed his opposition to respondent Montes's motion for release of rent payments which opposition the court failed to consider. Petitioner likewise reiterated his previous motion for release of funds. On November 23, 1993, petitioner, through counsel, manifested that he was withdrawing his motion for release of funds in view of the fact that the lease contract over the Valle Verde property had been 7 renewed for another year. Despite petitioner's manifestation, the probate court, on December 22, 1993, ordered the release of the funds to Edmond but only "such amount as may be necessary to cover the expenses of administration and allowances for support" of the testator's three granddaughters subject to collation and deductible from their share in the inheritance. The court, however, held in abeyance the release of the titles to respondent Montes and the three granddaughters until the lapse of six months from the date of first publication of the 8 notice to creditors. The court stated thus: xxx xxx xxx

After consideration of the arguments set forth thereon by the parties the court resolves to allow Administrator Edmond M. Ruiz to take possession of the rental payments deposited with the Clerk of Court, Pasig Regional Trial Court, but only such amount as may be necessary to cover the expenses of administration and allowances for support of Maria Cathryn Veronique, Candice Albertine and Maria Angeli, which are subject to collation and deductible from the share in the inheritance of said heirs and insofar as they exceed the fruits or rents pertaining to them. As to the release of the titles bequeathed to petitioner Maria Pilar Ruiz-Montes and the abovenamed heirs, the same is hereby reconsidered and held in abeyance until the lapse of six (6) months from the date of first publication of Notice to Creditors.

WHEREFORE, Administrator Edmond M. Ruiz is hereby ordered to submit an accounting of the expenses necessary for administration including provisions for the support Of Maria Cathryn Veronique Ruiz, Candice Albertine Ruiz and Maria Angeli Ruiz before the amount required can 9 be withdrawn and cause the publication of the notice to creditors with reasonable dispatch. Petitioner assailed this order before the Court of Appeals. Finding no grave abuse of discretion on the part of respondent judge, the appellate court dismissed the petition and sustained the probate court's 10 11 order in a decision dated November 10, 1994 and a resolution dated January 5, 1995. Hence, this petition. Petitioner claims that: THE PUBLIC RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AFFIRMING AND CONFIRMING THE ORDER OF RESPONDENT REGIONAL TRIAL COURT OF PASIG, BRANCH 156, DATED DECEMBER 22, 1993, WHICH WHEN GIVEN DUE COURSE AND IS EFFECTED WOULD: (1) DISALLOW THE EXECUTOR/ADMINISTRATOR OF THE ESTATE OF THE LATE HILARIO M. RUIZ TO TAKE POSSESSION OF ALL THE REAL AND PERSONAL PROPERTIES OF THE ESTATE; (2) GRANT SUPPORT, DURING THE PENDENCY OF THE SETTLEMENT OF AN ESTATE, TO CERTAIN PERSONS NOT ENTITLED THERETO; AND (3) PREMATURELY PARTITION AND DISTRIBUTE THE ESTATE PURSUANT TO THE PROVISIONS OF THE HOLOGRAPHIC WILL EVEN BEFORE ITS INTRINSIC VALIDITY HAS BEEN DETERMINED, AND DESPITE THE EXISTENCE OF UNPAID DEBTS AND 12 OBLIGATIONS OF THE ESTATE. The issue for resolution is whether the probate court, after admitting the will to probate but before payment of the estate's debts and obligations, has the authority: (1) to grant an allowance from the funds of the estate for the support of the testator's grandchildren; (2) to order the release of the titles to certain heirs; and (3) to grant possession of all properties of the estate to the executor of the will. On the matter of allowance, Section 3 of Rule 83 of the Revised Rules of Court provides: Sec. 3. Allowance to widow and family. The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom under the direction of the court, such allowance as are provided by law. Petitioner alleges that this provision only gives the widow and the minor or incapacitated children of the deceased the right to receive allowances for support during the settlement of estate proceedings. He contends that the testator's three granddaughters do not qualify for an allowance because they are not incapacitated and are no longer minors but of legal age, married and gainfully employed. In addition, the provision expressly states "children" of the deceased which excludes the latter's grandchildren. It is settled that allowances for support under Section 3 of Rule 83 should not be limited to the "minor or 13 incapacitated" children of the deceased. Article 188 of the Civil Code of the Philippines, the substantive law in force at the time of the testator's death, provides that during the liquidation of the conjugal partnership, the deceased's legitimate spouse and children, regardless of their age, civil status or gainful 14 employment, are entitled to provisional support from the funds of the estate. The law is rooted on the fact that the right and duty to support, especially the right to education, subsist even beyond the age of 15 majority. Be that as it may, grandchildren are not entitled to provisional support from the funds of the decedent's estate. The law clearly limits the allowance to "widow and children" and does not extend it to the 16 deceased's grandchildren, regardless of their minority or incapacity. It was error, therefore, for the

appellate court to sustain the probate court's order granting an allowance to the grandchildren of the testator pending settlement of his estate. Respondent courts also erred when they ordered the release of the titles of the bequeathed properties to private respondents six months after the date of first publication of notice to creditors. An order releasing titles to properties of the estate amounts to an advance distribution of the estate which is allowed only under the following conditions: Sec. 2. Advance distribution in special proceedings . Nothwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon 17 compliance with the conditions set forth in Rule 90 of these Rules. And Rule 90 provides that: Sec. 1. When order for distribution of residue made. When the debts, funeral charges, and expenses of administration the allowance to the widow, and inheritance tax if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. No distribution shall be allowed until the payment of the obligations above-mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by 18 the court, conditioned for the payment of said obligations within such time as the court directs. In settlement of estate proceedings, the distribution of the estate properties can only be made: (1) after all the debts, funeral charges, expenses of administration, allowance to the widow, and estate tax have been paid; or (2) before payment of said obligations only if the distributees or any of them gives a bond in a sum fixed by the court conditioned upon the payment of said obligations within such time as the court 19 directs, or when provision is made to meet those obligations. In the case at bar, the probate court ordered the release of the titles to the Valle Verde property and the Blue Ridge apartments to the private respondents after the lapse of six months from the date of first publication of the notice to creditors. The questioned order speaks of "notice" to creditors, not payment of debts and obligations. Hilario Ruiz allegedly left no debts when he died but the taxes on his estate had not hitherto been paid, much less ascertained. The estate tax is one of those obligations that must be paid before distribution of the estate. If not yet paid, the rule requires that the distributees post a bond or make such provisions as to meet the said tax obligation in proportion to their respective shares in the 20 inheritance. Notably, at the time the order was issued the properties of the estate had not yet been inventoried and appraised. It was also too early in the day for the probate court to order the release of the titles six months after admitting the will to probate. The probate of a will is conclusive as to its due execution and extrinsic 21 validity and settles only the question of whether the testator, being of sound mind, freely executed it in 22 accordance with the formalities prescribed by law. Questions as to the intrinsic validity and efficacy of the provisions of the will, the legality of any devise or legacy may be raised even after the will has been 23 authenticated.

The intrinsic validity of Hilario's holographic will was controverted by petitioner before the probate court in 24 his Reply to Montes' Opposition to his motion for release of funds and his motion for reconsideration of 25 the August 26, 1993 order of the said court. Therein, petitioner assailed the distributive shares of the devisees and legatees inasmuch as his father's will included the estate of his mother and allegedly impaired his legitime as an intestate heir of his mother. The Rules provide that if there is a controversy as to who are the lawful heirs of the decedent and their distributive shares in his estate, the probate court 26 shall proceed to hear and decide the same as in ordinary cases. Still and all, petitioner cannot correctly claim that the assailed order deprived him of his right to take possession of all the real and personal properties of the estate. The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised "so long as it is necessary for the payment of the debts and expenses of 27 administration," Section 3 of Rule 84 of the Revised Rules of Court explicitly provides: Sec. 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed. An executor or administrator shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment 28 of the debts and expenses for administration. When petitioner moved for further release of the funds deposited with the clerk of court, he had been previously granted by the probate court certain amounts for repair and maintenance expenses on the properties of the estate, and payment of the real estate taxes thereon. But petitioner moved again for the release of additional funds for the same reasons he previously cited. It was correct for the probate court to require him to submit an accounting of the necessary expenses for administration before releasing any further money in his favor. It was relevantly noted by the probate court that petitioner had deposited with it only a portion of the oneyear rental income from the Valle Verde property. Petitioner did not deposit its succeeding rents after 29 renewal of the lease. Neither did he render an accounting of such funds. Petitioner must be reminded that his right of ownership over the properties of his father is merely inchoate 30 as long as the estate has not been fully settled and partitioned. As executor, he is a mere trustee of his father's estate. The funds of the estate in his hands are trust funds and he is held to the duties and 31 responsibilities of a trustee of the highest order. He cannot unilaterally assign to himself and possess all his parents' properties and the fruits thereof without first submitting an inventory and appraisal of all real and personal properties of the deceased, rendering a true account of his administration, the expenses of administration, the amount of the obligations and estate tax, all of which are subject to a determination by 32 the court as to their veracity, propriety and justness. IN VIEW WHEREOF, the decision and resolution of the Court of Appeals in CA-G.R. SP No. 33045 affirming the order dated December 22, 1993 of the Regional Trial Court, Branch 156, Pasig in SP Proc. No. 10259 are affirmed with the modification that those portions of the order granting an allowance to the testator's grandchildren and ordering the release of the titles to the private respondents upon notice to creditors are annulled and set aside. Respondent judge is ordered to proceed with dispatch in the proceedings below. SO ORDERED. G.R. No. 82027 March 29, 1990 ROMARICO G. VITUG, vs. THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINOCORONA,

This case is a chapter in an earlier suit decided by this Court involving the probate of the two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980, naming private respondent Rowena Faustino-Corona executrix. In our said decision, we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate. On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of P667,731.66, plus interests, which he claimed were personal funds. As found by the 2 Court of Appeals, the alleged advances consisted of P58,147.40 spent for the payment of estate tax, 3 P518,834.27 as deficiency estate tax, and P90,749.99 as "increment thereto." According to Mr. Vitug, he withdrew the sums of P518,834.27 and P90,749.99 from savings account No. 35342-038 of the Bank of America, Makati, Metro Manila. On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from savings account No. 35342-038 were conjugal partnership properties and part of the estate, and hence, there was allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in question for inventory and for "concealment of funds belonging to the 4 estate." Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement executed with his late wife and the bank on June 19, 1970. The agreement provides: We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now or hereafter deposited by us or any or either of us with the BANK in our joint savings current account shall be the property of all or both of us and shall be payable to and collectible or withdrawable by either or any of us during our lifetime, and after the death of either or any of us shall belong to and be the sole property of the survivor or survivors, and shall be payable to and collectible or withdrawable by such survivor or survivors. We further agree with each other and the BANK that the receipt or check of either, any or all of us during our lifetime, or the receipt or check of the survivor or survivors, for any payment or withdrawal made for our above-mentioned account shall be valid and 5 sufficient release and discharge of the BANK for such payment or withdrawal. The trial courts upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the personal funds of Romarico Vitug in 7 the total sum of P667,731.66 ... ." On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private respondent, held that the above-quoted survivorship agreement constitutes a conveyance mortis causa 8 which "did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code," and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation under the 9 provisions of Article 133 of the Civil Code. The dispositive portion of the decision of the Court of Appeals states: WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition) is hereby set aside insofar as it granted private respondent's motion to sell certain properties of the estate of Dolores L. Vitug for reimbursement of his alleged advances to the estate, but the same order is sustained in all other respects. In addition, respondent Judge is directed to include provisionally the deposits in Savings Account No.
6

35342-038 with the Bank of America, Makati, in the inventory of actual properties possessed by the spouses at the time of the decedent's death. With costs against private 10 respondent. In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our 11 12 decisions in Rivera v. People's Bank and Trust Co. and Macam v. Gatmaitan in which we sustained 13 the validity of "survivorship agreements" and considering them as aleatory contracts. The petition is meritorious. The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been defined as "a personal, solemn, revocable and free act by which a capacitated person 14 disposes of his property and rights and declares or complies with duties to take effect after his death." 15 In other words, the bequest or device must pertain to the testator. In this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds In the case relied on, Rivera v. 16 People's Bank and Trust Co., we rejected claims that a survivorship agreement purports to deliver one party's separate properties in favor of the other, but simply, their joint holdings: xxx xxx xxx ... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the funds-deposited in the bank, which assumption was in turn based on the facts (1) that the account was originally opened in the name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of the deceased." But it not infrequently happens that a person deposits money in the bank in the name of another; and in the instant case it also appears that Ana Rivera served her master for about nineteen years without actually receiving her salary from him. The fact that subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera and executed with the latter the survivorship agreement in question although there was no relation of kinship between them but only that of master and servant, nullifies the assumption that Stephenson was the exclusive owner of the bank account. In the absence, then, of clear proof to the contrary, we must give full faith and credit to the certificate of deposit which recites in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera; that they were joint (and several) owners thereof; and that either of them could withdraw any part or the whole of said account during the lifetime of 17 both, and the balance, if any, upon the death of either, belonged to the survivor. xxx xxx xxx In Macam v. Gatmaitan,
18

it was held:

xxx xxx xxx This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. As already stated, Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture. By virtue of Exhibit C, Juana would become the owner of the house in case Leonarda died first, and Leonarda would become the owner of the automobile and the furniture if Juana were to die first. In this manner Leonarda and Juana reciprocally assigned their respective property to one another conditioned upon who might die first, the time of death determining the event upon which the acquisition of such right by the one or the other depended. This contract, as any other contract, is

binding upon the parties thereto. Inasmuch as Leonarda had died before Juana, the latter thereupon acquired the ownership of the house, in the same manner as Leonarda would have acquired the ownership of the automobile and of the furniture if Juana had died first.
19

xxx xxx xxx There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to 20 be conjugal, having been acquired during the existence of the marita. relations. Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect after the death of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a spouse's own properties to the other. It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as 21 22 23 held by the Court of Appeals, by "mere stipulation" and that it is no "cloak" to circumvent the law on conjugal property relations. Certainly, the spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly denominated in banking parlance as an "and/or" account. In the case at bar, when the spouses Vitug opened savings account No. 35342-038, they merely put what rightfully belonged to them in a money-making venture. They did not dispose of it in favor of the other, which would have arguably been sanctionable as a prohibited donation. And since the funds were conjugal, it can not be said that one spouse could have pressured the other in placing his or her deposits in the money pool. The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that contract imposed a mere obligation with a term, the term being death. Such agreements are permitted by 24 the Civil Code. Under Article 2010 of the Code: ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time. Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening of an event which is (1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship agreement, the sale of a sweepstake ticket, a transaction stipulating on the value of currency, and insurance have been held to fall under the first category, while a contract for life annuity or pension under 25 Article 2021, et sequentia, has been categorized under the second. In either case, the element of risk is present. In the case at bar, the risk was the death of one party and survivorship of the other. However, as we have warned: xxx xxx xxx But although the survivorship agreement is per se not contrary to law its operation or effect may be violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon such grounds. No such vice has been imputed and established against the agreement 26 involved in this case.

xxx xxx xxx There is no demonstration here that the survivorship agreement had been executed for such unlawful purposes, or, as held by the respondent court, in order to frustrate our laws on wills, donations, and conjugal partnership. The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter has acquired upon her death a vested right over the amounts under savings account No. 35342-038 of the Bank of America. Insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the court was in error. Being the separate property of petitioner, it forms no more part of the estate of the deceased. WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its resolution, dated February 9, 1988, are SET ASIDE. No costs. SO ORDERED. G.R. Nos. 83843-44 April 5, 1990 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA LABRADOR, and 1 CRISTOBAL LABRADOR, vs. COURT OF APPEALS, GAUDENCIO LABRADOR, and JESUS LABRADOR, The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador is 2 dated, as provided for in Article 810 of the New Civil Code. The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will. On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador. Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs), and Gaudencio Labrador filed an opposition to the petition on the ground that the will has been extinguished or revoked by implication of law, alleging therein that on September 30, 1971, that is, before Melecio's death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio executed a Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37) Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado allegedly had already acquired by devise from their father Melecio Labrador under a holographic will executed on March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised on the fact that the aforesaid Deed of Absolute Sale is fictitious.

After both parties had rested and submitted their respective evidence, the trial court rendered a joint decision dated February 28, 1985, allowing the probate of the holographic will and declaring null and void the Deed of Absolute sale. The court a quo had also directed the respondents (the defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the redemption price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon from December 20, 1976, when it was paid to vendee a retro. Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified said joint decision of the court a quo by denying the allowance of the probate of the will for being undated and reversing the order of reimbursement. Petitioners' Motion for Reconsideration of the aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence, this petition. Petitioners now assign the following errors committed by respondent court, to wit: I THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and II THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS. The alleged undated holographic will written in Ilocano translated into English, is quoted as follows: ENGLISH INTERPRETATION OF THE WILL OF THE LATE MELECIO LABRADOR WRITTEN IN ILOCANO BY ATTY. FIDENCIO L. FERNANDEZ I First Page This is also where it appears in writing of the place which is assigned and shared or the partition in favor of SAGRADO LABRADOR which is the fishpond located and known place as Tagale. And this place that is given as the share to him, there is a measurement of more or less one hectare, and the boundary at the South is the property and assignment share of ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known as the SEA as it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL LABRADOR, who likewise is also their brother. That because it is now the time for me being now ninety three (93) years, then I feel it is the right time for me to partition the fishponds which were and had been bought or acquired by us, meaning with their two mothers, hence there shall be no differences among themselves, those among brothers and sisters, for it is I myself their father who am making the apportionment and delivering to each and everyone of them the said portion and assignment so that there shall not be any cause of troubles or differences among the brothers and sisters. II Second Page

And this is the day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than MELECIO LABRADOR, their father. Now, this is the final disposition that I am making in writing and it is this that should be followed and complied with in order that any differences or troubles may be forestalled and nothing will happen along these troubles among my children, and that they will be in good relations among themselves, brothers and sisters; And those improvements and fruits of the land; mangoes, bamboos and all coconut trees and all others like the other kind of bamboo by name of Bayog, it is their right to get if they so need, in order that there shall be nothing that anyone of them shall complain against the other, and against anyone of the brothers and sisters. III THIRD PAGE And that referring to the other places of property, where the said property is located, the same being the fruits of our earnings of the two mothers of my children, there shall be equal portion of each share among themselves, and or to be benefitted with all those property, which property we have been able to acquire. That in order that there shall be basis of the truth of this writing (WILL) which I am here hereof manifesting of the truth and of the fruits of our labor which their two mothers, I am signing my signature below hereof, and that this is what should be complied with, by all the brothers and sisters, the children of their two mothers JULIANA QUINTERO PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo) The petition, which principally alleges that the holographic will is really dated, although the date is not in its usual place, is impressed with merit. The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It is worthy of note to quote the first paragraph of the second page of the holographic will, viz: And this is the day in which we agreed that we are making the partitioning and assigning the respective assignment of the said fishpond, and this being in the month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than MELECIO LABRADOR, their father. (emphasis supplied) (p. 46, Rollo) The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator. These requirements are present in the subject will. Respondents claim that the date 17 March 1968 in the will was when the testator and his beneficiaries entered into an agreement among themselves about "the partitioning and assigning the respective assignments of the said fishpond," and was not the date of execution of the holographic will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to the prejudice of other compulsory heirs like the respondents. This was thus a failure to comply with Article 783 which defines a will as "an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death."

Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the will is plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he was executing was a will. The act of partitioning and the declaration that such partitioning as the testator's instruction or decision to be followed reveal that Melecio Labrador was fully aware of the nature of the estate property to be disposed of and of the character of the testamentary act as a means to control the disposition of his estate. Anent the second issue of finding the reimbursement of the P5,000 representing the redemption price as erroneous, respondent court's conclusion is incorrect. When private respondents sold the property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property belonging to another and which they had no authority to sell, rendering such sale null and void. Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain possession of the property for its disposition in accordance with the will. Petitioners therefore deserve to be reimbursed the P5,000. PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00). SO ORDERED. G.R. No. L-58509 December 7, 1982 IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased, MARCELA RODELAS, vs. AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court. As found by the Court of Appeals: ... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: (1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of Court; (2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it was not a will (3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and (4 ) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.

The appellees likewise moved for the consolidation of the case with another case Sp. Proc. No, 8275). Their motion was granted by the court in an order dated April 4, 1977. On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that: (1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and (2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979. The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: ... It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original. In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the document itself as the material proof of authenticity of said wills. MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the decedent had discarded before his death his allegedly missing Holographic Will. Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence. On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned errors: I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF; II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL; III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL. The only question here is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one Identifying witness is required and, if no witness is

available, experts may be resorted to. If contested, at least three Identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE. SO ORDERED. G.R. No. 106720 September 15, 1994 SPOUSES ROBERTO AND THELMA AJERO, vs. THE COURT OF APPEALS AND CLEMENTE SAND, 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. Q37171, 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.
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Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia: Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix. For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the testatrix. xxx xxx xxx While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been presented and have explicitly and categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with. xxx xxx xxx 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 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 holographic will of the late Annie Sand, the aforesaid will submitted herein must be 3 admitted to probate. (Citations omitted.) On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The 4 Court of Appeals found that, "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 6 acts of the decedent. In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is erroneous. We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the 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 7 be totally autographic or handwritten by the testator himself, as provided under Article 810 of the New Civil Code, thus: A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.) Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator.
5

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held: Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la 8 sentencia de 4 de Abril de 1985." (Citations omitted.) Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the 9 10 holographic will or on testator's 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 11 situation constrains them to do, and pass upon certain provisions of the will. In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs. SO ORDERED. G.R. No. L-62952 October 9, 1985 SOFIA J. NEPOMUCENO, vs. THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA JUGO, This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the resolution dated December 28, 1982 denying petitioner's motion for reconsideration. Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses. In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner. The Will reads in part: Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally and properly entitled to inherit from me; that while I have been estranged from my above-named wife for so many years, I cannot deny that I was legally married to her or that we have been separated up to the present for reasons and justifications known fully well by them: Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comport and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage; On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the time of the execution of the Will, the testator was already very sick and that petitioner having admitted her living in concubinage with the testator, she is wanting in integrity and thus, letters testamentary should not be issued to her. On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident. The petitioner appealed to the respondent-appellate court. On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the will. The respondent court declared the Will to be valid except that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion of the decision reads: WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in favor of the appellant which is declared null and void. The properties so devised are instead passed on in intestacy to the appellant in equal shares, without pronouncement as to cost. On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was granted by the respondent court on August 10, 1982. On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a resolution dated December 28, 1982. The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner. The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to establish conclusively as against everyone that a Will was executed with the formalities required by law and that the testator has the mental capacity to execute the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in favor of the person with whom the testator was allegedly guilty of adultery or concubinage. The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits indubitably on its face the meretricious relationship between the testator and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission of the testator of the illicit relationship between him and the petitioner put in issue the legality of the devise. We agree with the respondents.

The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and void. The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the Will. The rule is expressed thus: xxx xxx xxx ... 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. (Fernandez v. Dimagiba, 21 SCRA 428) The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic validity thereof. The testators testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is premature. xxx xxx xxx True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing; the validity of the testamentary provisions is another. The first decides the execution of the document and the testamentary capacity of the testator; the second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369) xxx xxx xxx To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625). The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426) The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the Will. In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous. Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions. Invoking "practical considerations", we stated: The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void.

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization) the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate of a will might become an Idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693). There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that the testator had the mental capacity to execute his Will. The petitioner states that she completely agrees with the respondent court when in resolving the question of whether or not the probate court correctly denied the probate of Martin Jugo's last Will and Testament, it ruled: This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.) On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto. The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the petitioner as null and void. We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra): 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 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. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy crying for solution. We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate action for that purpose simply because, in the probate of a will, the court does not ordinarily look into the intrinsic validity of its provisions. Article 739 of the Civil Code provides: The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. Article 1028 of the Civil Code provides: The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions. In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage. There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death. It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally married to the testator. The records do not sustain a finding of innocence or good faith. As argued by the private respondents: First. The last will and testament itself expressly admits indubitably on its face the meretricious relationship between the testator and petitioner, the devisee. Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence. In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner by the deceased testator at the start of the proceedings. Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as already married, was an important and specific issue brought by the parties before the trial court, and passed upon by the Court of Appeals. Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64). Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point. Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of his brother and petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the inception of the case. Confronted by the situation, the trial court had to make a ruling on the question. When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery or concubinage', it was a finding that petitioner was not the innocent woman she pretended to be. xxx xxx xxx 3. If a review of the evidence must be made nonetheless, then private respondents respectfully offer the following analysis: FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where neither she nor the testator ever resided. If there was nothing to hide from, why the concealment' ? Of course, it maybe argued that the marriage of the deceased with private respondent Rufina Gomez was likewise done in secrecy. But it should be remembered that Rufina Gomez was already in the family way at that time and it would seem that the parents of Martin Jugo were not in favor of the marriage so much so that an action in court was brought concerning the marriage. (Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30) SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5, 1952. There was a space of about 30 years in between. During those 30 years, could it be believed that she did not even wonder why Martin Jugo did not marry her nor contact her anymore after November, 1923 - facts that should impel her to ask her groom before she married him in secrecy, especially so when she was already about 50 years old at the time of marriage. THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration that she new that the man she had openly lived for 22 years as man and wife was a married man with already two children. FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she would not have asked Martin Jugo whether or not they were his illegitimate or legitimate children and by whom? That is un-Filipino. FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible that she would not have known that the mother of private respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez, considering that the houses of the parents of Martin Jugo (where he had lived for many years) and that of respondent Rufina Gomez were just a few meters away? Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently improbable, for they are against the experience in common life and the ordinary instincts and promptings of human nature that a woman would not bother at all to ask the man she was going to marry whether or not he was already married to another, knowing that her groom had children. It would be a story that would strain human credulity to the limit if petitioner did not know that Martin Jugo was already a married man in view of the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to break off with the deceased during their younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage. WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs. SO ORDERED. G.R. No. 82233 March 22, 1990 JOSE BARITUA and EDGAR BITANCOR, vs. HONORABLE COURT OF APPEALS, NICOLAS NACARIO and VICTORIA RONDA NACARIO, This petition for review on certiorari assails as erroneous and contrary to existing relevant laws and 1 applicable jurisprudence the decision of the Court of Appeals dated December 11, 1987 which reversed 2 and set aside that of the Regional Trial Court, Branch XXXII, at Pili, Camarines Sur. The challenged decision adjudged the petitioners liable to the private respondents in the total amount of P20,505.00 and for costs. The facts are as follows: In the evening of November 7, 1979, the tricycle then being driven by Bienvenido Nacario along the national highway at Barangay San Cayetano, in Baao, Camarines Sur, figured in an accident with JB Bus 3 No. 80 driven by petitioner Edgar Bitancor and owned and operated by petitioner Jose Baritua. As a 4 5 result of that accident Bienvenido and his passenger died and the tricycle was damaged. No criminal 6 case arising from the incident was ever instituted. Subsequently, on March 27, 1980, as a consequence of the extra-judicial settlement of the matter negotiated by the petitioners and the bus insurer Philippine First Insurance Company, Incorporated (PFICI for brevity) Bienvenido Nacario's widow, Alicia Baracena Vda. de Nacario, received P18,500.00. In consideration of the amount she received, Alicia executed on March 27, 1980 a "Release of Claim" in favor of the petitioners and PFICI, releasing and forever discharging them from all actions, claims, and demands arising from the accident which resulted in her husband's death and the damage to the tricycle which the deceased was then driving. Alicia likewise executed an affidavit of desistance in which she formally manifested her lack of interest in instituting any case, either civil or criminal, against 7 the petitioners. On September 2, 1981, or about one year and ten months from the date of the accident on November 7, 1979, the private respondents, who are the parents of Bienvenido Nacario, filed a complaint for damages 8 against the petitioners with the then Court of First Instance of Camarines Sur. In their complaint, the private respondents alleged that during the vigil for their deceased son, the petitioners through their representatives promised them (the private respondents) that as extra-judicial settlement, they shall be indemnified for the death of their son, for the funeral expenses incurred by reason thereof, and for the damage for the tricycle the purchase price of which they (the private respondents) only loaned to the victim. The petitioners, however, reneged on their promise and instead negotiated and settled their obligations with the long-estranged wife of their late son. The Nacario spouses prayed that the defendants, petitioners herein, be ordered to indemnify them in the amount of P25,000.00 for the death of their son Bienvenido, P10,000.00 for the damaged tricycle, P25,000.00 for compensatory and exemplary 9 damages, P5,000.00 for attorney's fees, and for moral damages.

After trial, the court a quo dismissed the complaint, holding that the payment by the defendants (herein petitioners) to the widow and her child, who are the preferred heirs and successors-in-interest of the deceased Bienvenido to the exclusion of his parents, the plaintiffs (herein private respondents), 10 extinguished any claim against the defendants (petitioners). The parents appealed to the Court of Appeals which reversed the judgment of the trial court. The appellate court ruled that the release executed by Alicia Baracena Vda. de Nacario did not discharge the liability of the petitioners because the case was instituted by the private respondents in their own capacity and not as "heirs, representatives, successors, and assigns" of Alicia; and Alicia could not have validly waived the damages being prayed for (by the private respondents) since she was not the one who suffered these damages arising from the death of their son. Furthermore, the appellate court said that the petitioners "failed to rebut the testimony of the appellants (private respondents) that they were the ones who bought the tricycle that was damaged in the incident. Appellants had the burden of proof of such fact, 11 and they did establish such fact in their testimony . . . Anent the funeral expenses, "(T)he expenses for the funeral were likewise shouldered by the appellants (the private respondents). This was never contradicted by the appellees (petitioners). . . . Payment (for these) were made by the appellants, 12 therefore, the reimbursement must accrue in their favor. Consequently, the respondent appellate court ordered the petitioners to pay the private respondents P10,000.00 for the damage of the tricycle, P5,000.00 for "complete" funeral services, P450.00 for 13 cemetery lot, P55.00 for oracion adulto, and P5,000.00 for attorney's fees. The petitioners moved for 14 15 a reconsideration of the appellate court's decision but their motion was denied. Hence, this petition. The issue here is whether or not the respondent appellate court erred in holding that the petitioners are still liable to pay the private respondents the aggregate amount of P20,505.00 despite the agreement of extrajudicial settlement between the petitioners and the victim's compulsory heirs. The petition is meritorious. Obligations are extinguished by various modes among them being by payment. Article 1231 of the Civil Code of the Philippines provides: Art. 1231. Obligations are extinguished: (1) By payment or performance; (2) By the loss of the thing due; (3) By the condonation or remission of the debt; (4) By the confusion or merger of the rights of creditor and debtor; (5) By compensation; (6) By novation. (Emphasis ours.) There is no denying that the petitioners had paid their obligation petition arising from the accident that occurred on November 7, 1979. The only question now is whether or not Alicia, the spouse and the one who received the petitioners' payment, is entitled to it.

Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to extinguish an obligation should be made. Art 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it. Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in law as the persons authorized to receive payment. The Civil Code states: Article 887. The following are compulsory heirs: 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 decendants; 3. The widow or widower; 4. Acknowledged natural children and natural children by legal fiction; 5. Other illegitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2. Neither do they exclude one another. (Emphasis ours.) Article 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. (Emphasis ours.) It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On the other hand, the surviving spouse concurs with all classes of heirs. As it has been established that Bienvenido was married to Alicia and that they begot a child, the private respondents are not successors-in-interest of Bienvenido; they are not compulsory heirs. The petitioners therefore acted correctly in settling their obligation with Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse. Neither could the private respondents, as alleged creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be true that the private respondents loaned to Bienvenido the purchase price of the damaged tricycle and shouldered the expenses for his funeral, the said purchase price and 16 expenses are but money claims against the estate of their deceased son. These money claims are not the liabilities of the petitioners who, as we have said, had been released by the agreement of the extrajudicial settlement they concluded with Alicia Baracena Vda. de Nacario, the victim's widow and heir, as well as the natural guardian of their child, her co-heir. As a matter of fact, she executed a "Release Of Claim" in favor of the petitioners. WHEREFORE, the petition is GRANTED; the decision of the Court of Appeals is REVERSED and SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. Costs against the private respondents. SO ORDERED.

G.R. No. 138774

March 8, 2001

REGINA FRANCISCO AND ZENAIDA PASCUAL, vs. AIDA FRANCISCO-ALFONSO, 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 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 of Deeds of Bulacan issued TCT No. T-59.585 to Regina Francisco and TCT T-59.586 4 to Zenaida Pascual. On April 1, 1991, Aida filed with the Regional Trial Court, Bulacan a complaint against petitioners for 5 annulment of sale with damages. She alleged that the signature of her late father, Gregorio Francisco, on the Kasulatan sa Ganap na Bilihan dated August 15, 1983, was a forgery. 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. T-59.386 (Exh. "H") issued to defendant Zenaida Pascual; and "c) dismissing the complaint as well as the defendants' counterclaim for damages and attorney's 6 fees for lack of merit."
3 2 1

In time , respondent Alfonso appealed to the Court of Appeals.

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 T-59.586 (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 attorney's 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 of the lower court 11 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 12 on the parties and are not reviewable by this Court, unless the case falls under any of the recognized 13 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 property, until the time when Felicitas testified in 15 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
14

savings other than those deposited in the bank. Her gross earnings from the RTW for three years was 16 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 17 P300.00 a day in 1983. She 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 18 void. Second: Even if the kasulatan was not simulated, it still violated the Civil Code provisions insofar as the transaction affected respondent's legitime. The sale was executed in 1983, when the applicable law was the Civil Code, not the Family Code. Obviously, the sale was Gregorio's way to transfer the property to his illegitimate 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 father's estate. 21 By law, she is entitled to half of the estate of her 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 estate. His compulsory heir can not be deprived of her share in the 22 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. G.R. No. 83484 February 12, 1990
20 19

CELEDONIA SOLIVIO, vs. THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA VILLANUEVA, This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA GR CV No. 09010 (Concordia Villanueva v. Celedonia Solivio) affirming the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of ownership and possession and damages, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant: a) Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2) shares: one-half for the plaintiff and one-half for defendant. From both shares shall be equally deducted the expenses for the burial, mausoleum and related expenditures. Against the share of defendants shall be charged the expenses for scholarship, awards, donations and the 'Salustia Solivio Vda. de Javellana Memorial Foundation;' b) Directing the defendant to submit an inventory of the entire estate property, including but not limited to, specific items already mentioned in this decision and to render an accounting of the property of the estate, within thirty (30) days from receipt of this judgment; one-half (1/2) of this produce shall belong to plaintiff; c) Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00 for and as attorney's fees plus costs. SO ORDERED. (pp. 42-43, Rollo) This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel "Without Seeing the Dawn," who died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr. He was a posthumous child. His father died barely ten (10) months after his marriage in December, 1916 to Salustia Solivio and four months before Esteban, Jr. was born. Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr. Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24 titles) which she had inherited from her mother, Gregoria Celo, Engracio Solivio's first wife (p. 325, Record), but no conjugal property was acquired during her short-lived marriage to Esteban, Sr. On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister lived. In due time, the titles of all these properties were transferred in the name of Esteban, Jr. During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack on February 26,1977 without having set up the foundation. Two weeks after his funeral, Concordia and Celedonia talked about what to do with Esteban's properties. Celedonia told Concordia about Esteban's desire to place his estate in a foundation to be named after his

mother, from whom his properties came, for the purpose of helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her "Motion to Reopen and/or Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, where she stated: 4. That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also the relative of the deceased within the third degree, she being the younger sister of the late Esteban Javellana, father of the decedent herein], because prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied.) Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of administration be issued to her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate be adjudicated to her (p. 115, Rollo). After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia Solivio; (2) that she is the decedent's nearest relative on his mother's side; and (3) with her as sole heir, the disposition of the properties of the estate to fund the foundation would be facilitated. On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION" which she caused to be registered in the Securities and Exchange Commission on July 17,1981 under Reg. No. 0100027 (p. 98, Rollo). Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion for reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana- Villanueva v. Celedonia Solivio" for partition, recovery of possession, ownership and damages. On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor of Concordia Javellana-Villanueva. On Concordia's motion, the trial court ordered the execution of its judgment pending appeal and required Celedonia to submit an inventory and accounting of the estate. In her motions for reconsideration of those orders, Celedonia averred that the properties of the deceased had already been transferred to, and were in the possession of, the 'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for reconsideration. In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh Division, rendered judgment affirming the decision of the trial court in toto. Hence, this petition for review wherein she raised the following legal issues:

1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of Concordia Villanueva's share of the estate of Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540) were still pending in Branch 23 of the same court; 2. whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud; 3. whether the decedent's properties were subject to reserva troncal in favor of Celedonia, his relative within the third degree on his mother's side from whom he had inherited them; and 4. whether Concordia may recover her share of the estate after she had agreed to place the same in the Salustia Solivio Vda. de Javellana Foundation, and notwithstanding the fact that conformably with said agreement, the Foundation has been formed and properties of the estate have already been transferred to it. I. The question of jurisdiction After a careful review of the records, we find merit in the petitioner's contention that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia Villanueva's action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl, Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the submission and approval of the administratix's inventory and accounting, distributing the residue of the estate to the heir, and terminating the proceedings (p. 31, Record). It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860, March 29, 1974, 56 SCRA 266). The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry up the settlement of the estate." The pertinent portions of the order are quoted below: 2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears from the record that despite the notices posted and the publication of these proceedings as required by law, no other heirs came out to interpose any opposition to the instant proceeding. It further appears that herein Administratrix is the only claimant-heir to the estate of the late Esteban Javellana who died on February 26, 1977. During the hearing of the motion for declaration as heir on March 17, 1978, it was established that the late Esteban Javellana died single, without any known issue, and without any surviving parents. His nearest relative is the herein Administratrix, an elder [sic] sister of his late mother who reared him and with whom he had always been living with [sic] during his lifetime. xxxxxxxxx

2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977 at La Paz, Iloilo City. The Administratrix is hereby instructed to hurry up with the settlement of this estate so that it can be terminated. (pp, 14-16, Record) In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordia's motion to set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year later, a separate action for the same purpose in Branch 26 of the court. We hold that the separate action was improperly filed for it is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere with probate proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of Pampanga, L-26695, January 31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her father in the proceedings for the settlement of the estate of her mother: The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of The probate court, in the exercise of its jurisdiction to make distribution, has power to determine the proportion or parts to which each distributed is entitled. ... The power to determine the legality or illegality of the testamentary provision is inherent in the jurisdiction of the court making a just and legal distribution of the inheritance. ... To hold that a separate and independent action is necessary to that effect, would be contrary to the general tendency of the jurisprudence of avoiding multiplicity of suits; and is further, expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil. 388) A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administratrix proceedings and can not properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364) A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil. 436) partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated Siguiong v. Tecson, supra); because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v. Bonilia, 83 Phil. 137). The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil. 730, 741-742; Timbol v.

Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461; Emphasis supplied) In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that "such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition. (p. 378). However, in the Guilas case, supra, since the estate proceedings had been closed and terminated for over three years, the action for annulment of the project of partition was allowed to continue. Considering that in the instant case, the estate proceedings are still pending, but nonetheless, Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted likewise to proceed to discuss the merits of her claim in the interest of justice. The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition of the estate, and requiring the administratrix, Celedonia, to submit an inventory and accounting of the estate, were improper and officious, to say the least, for these matters he within the exclusive competence of the probate court. II. The question of extrinsic fraud Was Concordia prevented from intervening in the intestate proceedings by extrinsic fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not alleged in Concordia's original complaint in Civil Case No. 13207. It was only in her amended complaint of March 6, 1980, that extrinsic fraud was alleged for the first time. Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party which prevented a fair submission of the controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a party from having a trial or presenting all of his case to the court, or one which operates upon matters pertaining, not to the judgment itself, but to the manner by which such judgment was procured so much so that there was no fair submission of the controversy. For instance, if through fraudulent machination by one [his adversary], a litigant was induced to withdraw his defense or was prevented from presenting an available defense or cause of action in the case wherein the judgment was obtained, such that the aggrieved party was deprived of his day in court through no fault of his own, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law Dictionary, 1972 Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248) A judgment may be annulled on the ground of extrinsic or collateral fraud, as distinguished from intrinsic fraud, which connotes any fraudulent scheme executed by a prevailing litigant 'outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side of the case. ... The overriding consideration is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court or from presenting his case. The fraud, therefore, is one that affects and goes into the jurisdiction

of the court. (Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29; Sterling Investment Corp. v. Ruiz, L-30694, October 31, 1969, 30 SCRA 318, 323) The charge of extrinsic fraud is, however, unwarranted for the following reasons: 1. Concordia was not unaware of the special proceeding intended to be filed by Celedonia. She admitted in her complaint that she and Celedonia had agreed that the latter would "initiate the necessary proceeding" and pay the taxes and obligations of the estate. Thus paragraph 6 of her complaint alleged: 6. ... for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the lowest possible cost and the least effort, the plaintiff and the defendant agreed that the defendant shall initiate the necessary proceeding, cause the payment of taxes and other obligations, and to do everything else required by law, and thereafter, secure the partition of the estate between her and the plaintiff, [although Celedonia denied that they agreed to partition the estate, for their agreement was to place the estate in a foundation.] (p. 2, Record; emphasis supplied) Evidently, Concordia was not prevented from intervening in the proceedings. She stayed away by choice. Besides, she knew that the estate came exclusively from Esteban's mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundation as the deceased had planned to do. 2. The probate proceedings are proceedings in rem. Notice of the time and place of hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonia's original petition was published in the "Visayan Tribune" on April 25, May 2 and 9, 1977 (Exh 4, p. 197, Record). Similarly, notice of the hearing of her amended petition of May 26, 1977 for the settlement of the estate was, by order of the court, published in "Bagong Kasanag" (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The publication of the notice of the proceedings was constructive notice to the whole world. Concordia was not deprived of her right to intervene in the proceedings for she had actual, as well as constructive notice of the same. As pointed out by the probate court in its order of October 27, 1978: ... . The move of Concordia Javellana, however, was filed about five months after Celedonia Solivio was declared as the sole heir. ... . Considering that this proceeding is one in rem and had been duly published as required by law, despite which the present movant only came to court now, then she is guilty of laches for sleeping on her alleged right. (p. 22, Record) The court noted that Concordia's motion did not comply with the requisites of a petition for relief from judgment nor a motion for new trial. The rule is stated in 49 Corpus Juris Secundum 8030 as follows: Where petition was sufficient to invoke statutory jurisdiction of probate court and proceeding was in rem no subsequent errors or irregularities are available on collateral attack. (Bedwell v. Dean 132 So. 20) Celedonia's allegation in her petition that she was the sole heir of Esteban within the third degree on his mother's side was not false. Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Esteban's nearest surviving

relative on his mother's side, is the rightful heir to them. It would have been self-defeating and inconsistent with her claim of sole heirship if she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud. Failure to disclose to the adversary, or to the court, matters which would defeat one's own claim or defense is not such extrinsic fraud as will justify or require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149) It should be remembered that a petition for administration of a decedent's estate may be filed by any "interested person" (Sec. 2, Rule 79, Rules of Court). The filing of Celedonia's petition did not preclude Concordia from filing her own. III. On the question of reserva troncal We find no merit in the petitioner's argument that the estate of the deceased was subject to reserva troncal and that it pertains to her as his only relative within the third degree on his mother's side. The reserva troncal provision of the Civil Code is found in Article 891 which reads as follows: ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. The persons involved in reserva troncal are: 1. The person obliged to reserve is the reservor (reservista)the ascendant who inherits by operation of law property from his descendants. 2. The persons for whom the property is reserved are the reservees (reservatarios) relatives within the third degree counted from the descendant (propositus), and belonging to the line from which the property came. 3. The propositusthe descendant who received by gratuitous title and died without issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.) Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mother's side. The reserva troncal applies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or 9 brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891. Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide: ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. Therefore, the Court of Appeals correctly held that: Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall succeed to the subject estate 'without distinction of line or preference among them by reason of relationship by the whole blood,' and is entitled one-half (1/2) share and share alike of the estate. (p. 57, Rollo) IV. The question of Concordia's one-half share However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540: 4. That ... prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each other's house which are not far away for (sic) each other. (p. 234, Record; Emphasis supplied) she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set up to honor his mother and to finance the education of indigent but deserving students as well. Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence need be presented to prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R.70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347). The admission was never withdrawn or impugned by Concordia who, significantly, did not even testify in the case, although she could have done so by deposition if she were supposedly indisposed to attend the trial. Only her husband, Narciso, and son-in-law, Juanito Domin, actively participated in the trial. Her husband confirmed the agreement between his wife and Celedonia, but he endeavored to dilute it by alleging that his wife did not intend to give all, but only one-half, of her share to the foundation (p. 323, Record). The records show that the "Salustia Solivio Vda. de Javellana Foundation" was established and duly registered in the Securities and Exchange Commission under Reg. No. 0100027 for the following principal purposes: 1. To provide for the establishment and/or setting up of scholarships for such deserving students as the Board of Trustees of the Foundation may decide of at least one scholar each to study at West Visayas State College, and the University of the Philippines in the Visayas both located in Iloilo City.

2. To provide a scholarship for at least one scholar for St. Clements Redemptorist Community for a deserving student who has the religious vocation to become a priest. 3. To foster, develop, and encourage activities that will promote the advancement and enrichment of the various fields of educational endeavors, especially in literary arts. Scholarships provided for by this foundation may be named after its benevolent benefactors as a token of gratitude for their contributions. 4. To direct or undertake surveys and studies in the community to determine community needs and be able to alleviate partially or totally said needs. 5. To maintain and provide the necessary activities for the proper care of the SolivioJavellana mausoleum at Christ the King Memorial Park, Jaro, Iloilo City, and the Javellana Memorial at the West Visayas State College, as a token of appreciation for the contribution of the estate of the late Esteban S. Javellana which has made this foundation possible. Also, in perpetuation of his Roman Catholic beliefs and those of his mother, Gregorian masses or their equivalents will be offered every February and October, and Requiem masses every February 25th and October llth, their death anniversaries, as part of this provision. 6. To receive gifts, legacies, donations, contributions, endowments and financial aids or loans from whatever source, to invest and reinvest the funds, collect the income thereof and pay or apply only the income or such part thereof as shall be determined by the Trustees for such endeavors as may be necessary to carry out the objectives of the Foundation. 7. To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge, exchange, sell, transfer, or otherwise, invest, trade, or deal, in any manner permitted by law, in real and personal property of every kind and description or any interest herein. 8. To do and perform all acts and things necessary, suitable or proper for the accomplishments of any of the purposes herein enumerated or which shall at any time appear conducive to the protection or benefit of the corporation, including the exercise of the powers, authorities and attributes concerned upon the corporation organized under the laws of the Philippines in general, and upon domestic corporation of like nature in particular. (pp. 9-10, Rollo) As alleged without contradiction in the petition' for review: The Foundation began to function in June, 1982, and three (3) of its eight Esteban Javellana scholars graduated in 1986, one (1) from UPV graduated Cum Laude and two (2) from WVSU graduated with honors; one was a Cum Laude and the other was a recipient of Lagos Lopez award for teaching for being the most outstanding student teacher. The Foundation has four (4) high school scholars in Guiso Barangay High School, the site of which was donated by the Foundation. The School has been selected as the Pilot Barangay High School for Region VI. The Foundation has a special scholar, Fr. Elbert Vasquez, who would be ordained this year. He studied at St. Francis Xavier Major Regional Seminary at Davao City. The Foundation likewise is a member of the Redemptorist Association that gives yearly donations to help poor students who want to become Redemptorist priests or brothers. It gives yearly awards for Creative writing known as the Esteban Javellana Award.

Further, the Foundation had constructed the Esteban S. Javellana Multi-purpose Center at the West Visayas State University for teachers' and students' use, and has likewise contributed to religious civic and cultural fund-raising drives, amongst other's. (p. 10, Rollo) Having agreed to contribute her share of the decedent's estate to the Foundation, Concordia is obligated to honor her commitment as Celedonia has honored hers. WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia Solivio Vda. de Javallana Foundation," of which both the petitioner and the private respondent shall be trustees, and each shall be entitled to nominate an equal number of trustees to constitute the Board of Trustees of the Foundation which shall administer the same for the purposes set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate court an inventory and accounting of the estate of the deceased preparatory to terminating the proceedings therein. SO ORDERED. G.R. No. L-66574 February 21, 1990 ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL, all surnamed SANTERO, and FELIXBERTA PACURSA, guardian of FEDERICO SANTERO, et al., vs. INTERMEDIATE APPELLATE COURT and FELISA PAMUTI JARDIN, The decision of the Second Division of this Court in the case of Anselma Diaz, et al. vs. Intermediate Appellate Court, et al., G.R. No. 6574, promulgated June 17, 1987 declaring Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti Vda. de Santero, and its Resolution of February 24, 1988 denying the Motion for Reconsideration dated July 2, 1987, are being challenged in this Second Motion for Reconsideration dated July 5, 1988. After the parties had filed their respective pleadings, the Court, in a resolution dated October 27, 1988, resolved to grant the request of the petitioners for oral argument before the court en banc, and the case was set for hearing on November 17, 1988 to resolve the question: Does the term "relatives" in Article 992 of the New Civil Code which reads: An illegitimate child has no right to inherit ab intestato from the legitimate children or relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. include the legitimate parents of the father or mother of the illegitimate children? Invited to discuss as amici curiae during the hearing were the following: Justice Jose B.L. Reyes, former Justice Minister Ricardo C. Puno, Dr. Arturo Tolentino, former Justice Eduardo Caguioa, and Professor Ruben Balane. The facts of the case, as synthesized in the assailed decision, are as follows: It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de Santero who together with Felisa's mother Juliana were the only legitimate children of the spouses Felipe Pamuti and Petronila Asuncion; 2) that Juliana married Simon Jardin and out of their union were born Felisa Pamuti and another child who died during infancy; 3) that Simona Pamuti Vda. de Santero is the widow of Pascual Santero and the mother of Pablo Santero; 4) that Pablo Santero was the only legitimate son of his parents Pascual Santero and Simona Pamuti Vda. de Santero; 5) that Pascual Santero died in 1970; Pablo Santero in 1973 and Simona Santero in 1976; 6) that Pablo Santero, at the time of

his death was survived by his mother Simona Santero and his six minor natural children to wit: four minor children with Anselma Diaz and two minor children with Felixberta Pacursa. (pp. 1-2, Decision; pp. 190-191, Rollo) Briefly stated, the real issue in the instant case is this who are the legal heirs of Simona Pamuti Vda. de Santero her niece Felisa Pamuti-Jardin or her grandchildren (the natural children of Pablo Santero)? The present controversy is confined solely to the intestate estate of Simona Pamuti Vda. de Santero. In connection therewith, We are tasked with determining anew whether petitioners as illegitimate children of Pablo Santero could inherit from Simona Pamuti Vda. de Santero, by right of representation of their father Pablo Santero who is a legitimate child of Simona Pamuti Vda. de Santero. Petitioners claim that the amendment of Articles 941 and 943 of the old Civil Code (Civil Code of Spain) by Articles 990 and 992 of the new Civil Code (Civil Code of the Philippines) constitute a substantial and not merely a formal change, which grants illegitimate children certain successional rights. We do not dispute the fact that the New Civil Code has given illegitimate children successional rights, which rights were never before enjoyed by them under the Old Civil Code. They were during that time merely entitled to support. In fact, they are now considered as compulsory primary heirs under Article 887 of the new Civil Code (No. 5 in the order of intestate succession). Again, We do not deny that fact. These are only some of the many rights granted by the new Code to illegitimate children. But that is all. A careful evaluation of the New Civil Code provisions, especially Articles 902, 982, 989, and 990, claimed by petitioners to have conferred illegitimate children the right to represent their parents in the inheritance of their legitimate grandparents, would in point of fact reveal that such right to this time does not exist. Let Us take a closer look at the above-cited provisions. Art.902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. Art. 982. The grandchildren and other descendants shall inherit by right of representation and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions. (933) Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. (940a) Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a) Emphasis supplied). Articles 902, 989, and 990 clearly speak of successional rights of illegitimate children, which rights are transmitted to their descendants upon their death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be legitimate or illegitimate. In whatever manner, one should not overlook the fact that the persons to be represented are themselves illegitimate. The three named provisions are very clear on this matter. The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a legitimate child is entitled to represent by virtue of the provisions of Article 982, which provides that "the grandchildren and other descendants shall inherit by right of representation." Such a conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent of his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to instant case because Article 992 prohibits

absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother. It may not be amiss to state that Article 982 is the general rule and Article 992 the exception. "The rules laid down in Article 982 that 'grandchildren and other descendants shall inherit by right of representation and in Article 902 that the rights of illegitimate children ... are transmitted upon their death to their descendants, whether legitimate or illegitimate are subject to the limitation prescribed by Article 992 to the end that an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother."' (Amicus Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12) "Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said illegitimate child. They may have a natural tie of blood, but this is not recognized by law for the purpose of Article 992. Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; and the family is in turn, hated by the illegitimate child; the latter considers the privileged condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further ground of resentment." (7 Manresa 110 cited in Grey v. Fable 40 OG (First S) No. 3, p. 196). According to petitioners, the commentaries of Manresa as above- quoted are based on Articles 939 to 944 of the old Civil Code and are therefore inapplicable to the New Civil Code and to the case at bar. Petitioners further argue that the consistent doctrine adopted by this Court in the cases of Llorente vs. Rodriguez, et al., 10 Phil., 585; Centeno vs. Centeno, 52 Phil. 322, and Oyao vs. Oyao, 94 Phil. 204, cited by former Justice Minister Justice Puno, Justice Caguioa, and Prof. Balane, which identically held that an illegitimate child has no right to succeed ab intestato the legitimate father or mother of his natural parent (also a legitimate child himself is already abrogated by the amendments made by the Now Civil Code and thus cannot be made to apply to the instant case. Once more, We decline to agree with petitioner. We are fully aware of certain substantial changes in our law of succcession, but there is no change whatsoever with respect to the provision of Article 992 of the Civil Code. Otherwise, by the said substantial change, Article 992, which was a reproduction f Article 943 of the Civil Code of Spain, should have been suppressed or at least modified to clarify the matters which are now the subject of the present controversy. While the New Civil Code may have granted successional rights to illegitimate children, those articles, however, in conjunction with Article 992, prohibit the right of representation from being exercised where the person to be represented is a legitimate child. Needless to say, the determining factor is the legitimacy or illegitimacy of the person to be represented. If the person to be represented is an illegitimate child, then his descendants, whether legitimate or illegitimate, may represent him; however, if the person to be represented is legitimate, his illegitimate descendants cannot represent him because the law provides that only his legitimate descendants may exercise the right of representation by reason of the barrier imposed Article 992. In this wise, the commentaries of Manresa on the matter in issue, even though based on the old Civil Code, are still very much applicable to the New Civil Code because the amendment, although substantial, did not consist of giving illegitimate children the right to represent their natural parents (legitimate) in the intestate succession of their grandparents (legitimate). It is with the same line of reasoning that the three aforecited cases may be said to be still applicable to the instant case. Equally important are the reflections of the Illustrious Hon. Justice Jose B.L. Reyes which also find support from other civilists. We quote: In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate child can not inherit ab intestato from the legitimate children and relatives of his father

and mother. The Civil Code of the Philippines apparently adhered to this principle since it reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the illegitimate child to pass to his own descendants, whether legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a legitimate child from representing him in the intestate succession of the grandparent, the illegitimates of an illegitimate child can now do so. This difference being indefensible and unwarranted, in the future revision of the Civil Code we shall have to make a choice and decide either that the illegitimate issue enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or contrariwise maintain said article and modify Articles 992 and 998. The first solution would be more in accord with an enlightened attitude vis-a-vis illegitimate children. (Reflections on the Reform of hereditary Succession, JOURNAL of the Integrated Bar of the Philippines, First Quartet 1976, Volume 4, Number 1, pp. 4041). (p. 7, Decision; p. 196, Rollo) It is therefore clear from Article 992 of the New Civil Code that the phrase "legitimate children and relatives of his father or mother" includes Simona Pamuti Vda. de Santero as the word "relative" is broad enough to comprehend all the kindred of the person spoken of. (Comment, p. 139 Rollo citing p. 2862 Bouvier's Law Dictionary vol. 11, Third Revision, Eight Edition) The record reveals that from the commencement of this case the only parties who claimed to be the legitimate heirs of the late Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin and the six minor natural or illegitimate children of Pablo Santero. Since petitioners herein are barred by the provisions of Article 992, the respondent Intermediate Appellate Court did not commit any error in holding Felisa Pamuti Jardin to be the sole legitimate heir to the intestate estate of the late Simona Pamuti Vda. de Santero. It is Our shared view that the word "relatives" should be construed in its general acceptation. Amicus curiae Prof. Ruben Balane has this to say: The term relatives, although used many times in the Code, is not defined by it. In accordance therefore with the canons of statutory interpretation, it should be understood to have a general and inclusive scope, inasmuch as the term is a general one. Generalia verba sunt generaliter intelligenda. That the law does not make a distinction prevents us from making one: Ubi lex non distinguit, nec nos distinguera debemus. Esrinche, in his Diccionario de Legislacion y Jurisprudencia defines parientes as "los que estan relacionados por los vinculos de la sangre, ya sea por proceder unos de otros, como los descendientes y ascendientes, ya sea por proceder de una misma raiz o tronco, como los colaterales. (cited in Scaevola, op. cit., p. 457). (p. 377, Rollo) According to Prof. Balane, to interpret the term relatives in Article 992 in a more restrictive sense than it is used and intended is not warranted by any rule of interpretation. Besides, he further states that when the law intends to use the term in a more restrictive sense, it qualifies the term with the word collateral, as in Articles 1003 and 1009 of the New Civil Code. Thus, the word "relatives" is a general term and when used in a statute it embraces not only collateral relatives but also all the kindred of the person spoken of, unless the context indicates that it was used in a more restrictive or limited sense which as already discussed earlier, is not so in the case at bar. To recapitulate, We quote this: The lines of this distinction between legitimates and illegitimates. which goes back very far in legal history, have been softened but not erased by present law. Our legislation has not gone so far as to place legitimate and illegitimate children on exactly the same footing. Even the Family Code of 1987 (EO 209) has not abolished the gradation between legitimate and illegitimate children (although it has done away with the sub-

classification of illegitimates into natural and 'spurious'). It would thus be correct to say that illegitimate children have only those rights which are expressly or clearly granted to them by law (vide Tolentino, Civil Code of the Philippines, 1973 ed., vol. III, p. 291). (Amicus Curiae's Opinion by Prof. Ruben Balane, p. 12). In the light of the foregoing, We conclude that until Article 992 is suppressed or at least amended to clarify the term "relatives" there is no other alternative but to apply the law literally. Thus, We hereby reiterate the decision of June 17, 1987 and declare Felisa Pamuti-Jardin to be the sole heir to the intestate estate of Simona Pamuti Vda. de Santero, to the exclusion of petitioners. WHEREFORE, the second Motion for Reconsideration is DENIED, and the assailed decision is hereby AFFIRMED. SO ORDERED. G.R. No. 109972 April 29, 1996 ZOSIMA VERDAD, vs. THE HON. COURT OF APPEALS, SOCORRO C. ROSALES, AURORA ROSALES, NAPOLEON ROSALES, ANTONIO ROSALES, FLORENDA ROSALES, ELENA ROSALES AND VIRGINIA ROSALES, The petitioner, Zosima Verdad, is the purchaser of a 248-square meter residential lot (identified to be Lot No. 529, Ts-65 of the Butuan Cadastre, located along Magallanes Street, now Marcos M. Calo St., Butuan City). Private respondent, Socorro Cordero Vda. de Rosales, seeks to exercise a right of legal redemption over the subject property and traces her title to the late Macaria Atega, her mother-in-law, who died intestate on 08 March 1956. During her lifetime, Macaria contracted two marriages: the first with Angel Burdeos and the second, following the latter's death, with Canuto Rosales. At the time of her own death, Macaria was survived by her son Ramon A. Burdeos and her grandchild (by her daughter Felicidad A. Burdeos) Estela Lozada of the first marriage and her children of the second marriage, namely, David Rosales, Justo Rosales, Romulo Rosales, and Aurora Rosales. Socorro Rosales is the widow of David Rosales who himself, some time after Macaria's death, died intestate without an issue. In an instrument, dated 14 June 1982, the heirs of Ramon Burdeos, namely, his widow Manuela Legaspi Burdeos and children Felicidad and Ramon, Jr., sold to petitioner Zosima Verdad (their interest on) the disputed lot supposedly for the price of P55,460.00. In a duly notarized deed of sale, dated 14 November 1982, it would appear, however, that the lot was sold for only P23,000.00. Petitioner explained that the second deed was intended merely to save on the tax on capital gains. Socorro discovered the sale on 30 March 1987 while she was at the City Treasurer's Office. On 31 March 1987, she sought the intervention of the Lupong Tagapayapa of Barangay 9, Princess Urduja, for the redemption of the property. She tendered the sum of P23,000.00 to Zosima. The latter refused to accept the amount for being much less than the lot's current value of P80,000.00. No settlement having been reached before the Lupong Tagapayapa, private respondents, on 16 October 1987, initiated against petitioner an action for "Legal Redemption with Preliminary Injunction" before the Regional Trial Court of Butuan City. On 29 June 1990, following the reception of evidence, the trial court handed down its decision holding, in fine, that private respondents' right to redeem the property had already lapsed.

An appeal to the Court of Appeals was interposed by private respondents. The appellate court, in its decision of 22 April 1993, reversed the court a quo; thus: WHEREFORE, premises considered, the judgment appealed from is hereby REVERSED, and a new one is accordingly entered declaring plaintiff-appellant, Socorro C. Rosales, entitled to redeem the inheritance rights (Art. 1088, NCC) or pro indiviso share (Art. 1620, NCC) of the Heirs of Ramon Burdeos, Sr. in Lot 529, Ts-65 of the Butuan Cadastre, within the remaining ELEVEN (11) DAYS from finality hereon, unless written notice of the sale and its terms are received in the interim, under the same terms and conditions appearing under Exhibit "J" and after returning the purchase price of 1 P23,000.00 within the foregoing period. No cost. In her recourse to this Court, petitioner assigned the following "errors:" That The Honorable Court of Appeals erred in declaring Socorro C. Rosales is entitled to redeem the inheritance rights (Article 1088, NCC) or pro-indiviso share (Article 1620, NCC) of the heirs of Ramon Burdeos, Sr. in Lot 529, Ts-65 of the Butuan Cadastre, for being contrary to law and evidence. The Honorable Court of Appeals erred in ignoring the peculiar circumstance, in that, the respondents' actual knowledge, as a factor in the delay constitutes laches. The Honorable Court of Appeals erred in concluding that Socorro C. Rosales, in effect, timely exercised the right of legal redemption when referral to Barangay by respondent signifies bona fide intention to redeem and; that, redemption is properly made even if there is no offer of redemption in legal tender. The Honorable Court of Appeals erred in ruling that the running of the statutory 2 redemption period is stayed upon commencement of Barangay proceedings. Still, the thrust of the petition before us is the alleged incapacity of private respondent Socorro C. Rosales to redeem the property, she being merely the spouse of David Rosales, a son of Macaria, and not being a co-heir herself in the intestate estate of Macaria. We rule that Socorro can. It is true that Socorro, a daughter-in-law (or, for that matter, a mere relative by 3 affinity), is not an intestate heir of her parents-in-law; however, Socorro's right to the property is not because she rightfully can claim heirship in Macaria's estate but that she is a legal heir of her husband, David Rosales, part of whose estate is a share in his mother's inheritance. David Rosales, incontrovertibly, survived his mother's death. When Macaria died on 08 March 1956 her estate passed on to her surviving children, among them David Rosales, who thereupon became coowners of the property. When David Rosales himself later died, his own estate, which included his undivided interest over the property inherited from Macaria, passed on to his widow Socorro and her coheirs pursuant to the law on succession. Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001. xxx xxx xxx

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 4 their children to the other half. Socorro and herein private respondents, along with the co-heirs of David Rosales, thereupon became co-owners of the property that originally descended from Macaria. When their interest in the property was sold by the Burdeos heirs to petitioner, a right of redemption arose in favor of private respondents; thus: Art. 1619. Legal redemption is the right to be subrogated, upon the same terms and conditions stipulated in the contract, in the place of one who acquires a thing by purchase or dation in payment, or by any other transaction whereby ownership is transmitted by onerous title. Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one. We hold that the right of redemption was timely exercised by private respondents. Concededly, no written 5 notice of the sale was given by the Burdeos heirs (vendors) to the co-owners required under Article 1623 of the Civil Code Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of safe shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners. Hence, the thirty-day period of redemption had yet to commence when private respondent Rosales sought to exercise the right of redemption on 31 March 1987, a day after she discovered the sale from the Office of the City Treasurer of Butuan City, or when the case was initiated, on 16 October 1987, before the trial court. The written notice of sale is mandatory. This Court has long established the rule that notwithstanding actual knowledge of a co-owner, the latter is still entitled to a written notice from the selling co-owner in order to remove all uncertainties about the sale, its terms and conditions, as well as its efficacy and 6 status. Even in Alonzo vs. Intermediate Appellate Court, relied upon by petitioner in contending that actual knowledge should be an equivalent to a written notice of sale, the Court made it clear that it was not reversing the prevailing jurisprudence; said the Court: We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law, which the respondent court understandably applied pursuant to existing jurisprudence. The said court acted properly as it had no competence to reverse the doctrines laid down by this Court in the above-cited cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the De Conejero and Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in view of the 8 peculiar circumstances of this case.
7

In Alonzo, the right of legal redemption was invoked several years, not just days or months, after the consummation of the contracts of sale. The complaint for legal redemption itself was there filed more than thirteen years after the sales were concluded. Relative to the question posed by petitioner on private respondents' tender of payment, it is enough that we quote, with approval, the appellate court; viz.: In contrast, records dearly show that an amount was offered, as required in Sempio vs. Del Rosario, 44 Phil. 1 and Daza vs. Tomacruz, 58 Phil. 414, by the redemptionerappellant during the barangay conciliation proceedings (Answer, par. 8) but was flatly rejected by the appellee, not on the ground that it was not the purchase price (though it appeared on the face of the deed of sale, Exh. "J-1"), nor that it was offered as partial payment thereof, but rather that it was All given, we find no error in the appellate court's finding that private respondents are entitled to the redemption of the subject property. WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals is AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 108581 December 8, 1999 LOURDES L. DOROTHEO, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents: Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter's last will and testament. In 1981, the court issued an order admitting Alejandro's will to probate. Private respondents did not appeal from said order. In 1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the motion and issued an order, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and 1 other taxes due to the government. Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellant's brief within the extended period 2 granted. This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued

by the lower court to implement the final and executory Order. Consequently, private respondents filed several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCT's, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion. An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely "interlocutory", hence not final in character. The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991. Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro's will that was earlier admitted to probate. Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to 3 maintain the status quo or lease of the premises thereon to third parties. Private respondents opposed the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro. The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a 4 final judgment on probated will, albeit erroneous, is binding on the whole world. It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and the question determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character of res judicata and cannot again be brought into question, all juridical 5 questions in connection therewith being for once and forever closed. Such final order makes the will 6 conclusive against the whole world as to its extrinsic validity and due execution. It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to 7 be probated, particularly on three aspects: n whether the will submitted is indeed, the decedent's last will and testament; n compliance with the prescribed formalities for the execution of wills; n the testamentary capacity of the testator;
8

n and the due execution of the last will and testament.

Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under 10 duress, fraud, menace or undue influence and that the will is genuine and not a forgery, that he was of 11 the proper testamentary age and that he is a person not expressly prohibited by law from making a will. The intrinsic validity is another matter and questions regarding the same may still be raised even after the 12 will has been authenticated. Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to 13 the laws on succession, the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound practice demand that, at the 14 risk of occasional errors, judgments of courts must at some point of time fixed by law become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium the very object of which 15 the courts were constituted was to put an end to controversies. To fulfill this purpose and to do so 16 speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not 17 imputable to negligence, which circumstances do not concur herein. Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by some 18 other court. It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession. Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner argues that "an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares from 19 one person to another particularly when no project of partition has been filed." The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that in the same Order, the trial court also said that the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and again re-examine the intrinsic provisions of the same will. It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy 20 is preferred to intestacy. But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is 21 usually onerous in nature and that no one is presumed to give Nemo praesumitur donare. No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity that is whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled

that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court. Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse's estate. Petitioner's motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is not an heir. WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED. SO ORDERED. G.R. No. L-54919 May 30, 1984 POLLY CAYETANO, vs. HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and NENITA CAMPOS PAGUIA, This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein private respondent. On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos. Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix. In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wins at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines. On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him.

On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his daughter Adoracion." Hence, an ex-parte presentation of evidence for the reprobate of the questioned will was made. On January 10, 1979, the respondent judge issued an order, to wit: At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a citizen of the United States of America with a permanent residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive, Adoracion C. Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E-3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in the Philippines and in the United States of America; that the Last Will and Testament of the late Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration were issued in favor of Clement J. McLaughlin all in accordance with the laws of the said foreign country on procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which would render her unfit as administratrix of the estate in the Philippines of the late Adoracion C. Campos. WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of Court. Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition, acknowledging the same to be his voluntary act and deed. On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground that the withdrawal of his opposition to the same was secured through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among the papers which he signed in connection with two Deeds of Conditional Sales which he executed with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special proceedings case. The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the hearing was set on May 29, 1980. On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing provided: Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for submission for reconsideration and resolution of the Honorable Court. Until this Motion is resolved, may I also request for the future setting of the case for hearing on the Oppositor's motion to set aside previously filed. The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of adducing

evidence in support of the petition for relief. Thus, the respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also denied the motion to vacate for lack of merit. Hence, this petition. Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his children and forced heirs as, on its face, patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court on September 13, 1982. A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his death with the rights of the respondent and her sisters, only remaining children and forced heirs was denied on September 12, 1983. Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his jurisdiction when: 1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the filing of the Motion to Dismiss opposition with waiver of rights or interests against the estate of deceased Adoracion C. Campos, thus, paving the way for the hearing ex-parte of the petition for the probate of decedent will. 2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated instrument), or by way of a petition presented to the court but by way of a motion presented prior to an order for the distribution of the estate-the law especially providing that repudiation of an inheritance must be presented, within 30 days after it has issued an order for the distribution of the estate in accordance with the rules of Court. 3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a will to probate in which no provision is made for the forced heir in complete disregard of Law of Succession 4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to support the Petition for Relief when no Notice nor hearing was set to afford petitioner to prove the merit of his petition a denial of the due process and a grave abuse of discretion amounting to lack of jurisdiction. 5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death was a usual resident of Dasmarias, Cavite, consequently Cavite Court of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July 1955). The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will. We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore,

maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other opposition to the same. The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA 478). In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for him. This contention is without merit. Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide: Art. 16 par. (2). xxx xxx xxx However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent. the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law. It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled: It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.

xxx xxx xxx The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis. As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing. There was no denial of due process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief. Furthermore, such request should be embodied in a motion and not in a mere notice of hearing. Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that: SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984). WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit. SO ORDERED.

MOLO VS. MOLO 90 Phil 37

FACTS: 1. Mariano Molo died on January 24, 1941 without leaving any forced heir either in the descending or ascending line. 2. His wife Juana Molo (petitioner) survived him, and by his nieces and nephew Luz, Gliceria and Cornelio, all surnamed Molo (oppositors-appellants).

3. Oppositors appellants were the legitimate children of a deceased brother of the testator. 4. Mariano left two wills, one executed on August 17, 1918 and another executed on June 20, 1939, 5. In both the 1918 and 1939 wills Juana was instituted as his universal heir. 6. The latter will contains a clause, which expressly revokes the will executed in 1918. 7. Juana Molo filed in the CFI a petition seeking the probate of the will executed in 1939. 8. The court rendered a decision denying the probate of said will on the ground that the petitioner failed to prove that the same was executed in accordance with law. 9. In view of the disallowance of the will, the widow filed another petition for the probate of the will executed by the deceased on August 18, 1918. 10. The oppositors filed an opposition to the petition contending that, notwithstanding the disallowance of the 1939 will, the revocatory clause is valid and still has the effect of nullifying the prior will of 1918. 11. Likewise, regardless of the revocatory clause, said will of 1918 cannot still be given effect because of the presumption that the testator himself deliberately revoked it. 12. The will of 1918 was admitted to probate. 13. Hence this appeal. ISSUE: Was the admittance into probate proper? What is the doctrine of dependent relative revocation? HELD: A subsequent will containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of law as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void. The doctrine of dependent relative revocation is usually applied where the testator cancels or destroys a will or executed an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if made, fails to effect for same reason. The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. Even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of 1939 has been validly executed and would be given due effect. The theory on which the principle of dependent relative revocation is predicated in that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on different occasions and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.