In re will of Josefa Zalamea y Abella, deceased.

PEDRO
UNSON, petitioner and appellee, vs. ANTONIO ABELLA ET
AL., opponents and appellants.

made in letters, and is just as valid as paging with letters

A, B, C, etc., under the circumstances stated in the case of
Aldaba vs. Roque (43 Phil., 378).

1. 1.WILLS; NON-PRODUCTION OF ONE ATTESTING

WITNESS.Though the general rule is that, if opposition
is presented to the probate of a will, all the attesting
witnesses must be produced; nevertheless, there are
exceptions to this rule, to wit: When one of the witnesses is
dead, or cannot be served with process of the court, or his
reputation for truth is questioned, or he appears to be
hostile to the cause of the parties seeking the probate of
the will. In such cases the will may be admitted to probate,
if upon the evidence actually introduced the court is
satisfied of the due execution of the will, inasmuch as even
if said witness had been produced and had testified
against the application, the result would not have been
changed, if the court was satisfied upon the evidence
adduced that the will has been executed in the manner
prescribed by the law.

APPEAL from a judgment of the Court of First Instance of

Laguna. Paredes, J.
The facts are stated in the opinion of the court.
Crispin Oben for appellants.
Pedro Guevara andCarlos Ledesma for appellee.

1. 2.ID.; INVENTORY
MADE
PART
OF
A
WlLL; ATTESTATION CLAUSE. When in a will
reference is made to an inventory of the properties of the
testator, which has thus been made a part of the will, if
the will has an attestation clause that meets the
requirements of the law, no other attestation clause is
necessary for the said inventory, but that of the will will be
sufficient for the validity both of the will and the inventory.
3.ID.; ID.; PAGING IN ARABIC NUMERALS.Paging in
inventory with Arabic numerals is in compliance with the
spirit of the law, requiring that the paging of a will be

VILLAMOR, J.:
On July 19, 1918, Doa Josefa Zalamea y Abella, single, 60
years old, who was residing in the municipality of Pagsanjan,
Province of Laguna, executed her last will and testament
with an attached inventory of her properties, Exhibits A and
A-1, in the presence of three witnesses, who signed with her
all the pages of said documents. The testatrix died on the 6th
of January, 1921, and, as the record shows, the executor
appointed in the will, Pedro Unson, filed in the Court of First
Instance of Laguna on the 19th of January of the same year
an application for the probate of the will and the issuance of
the proper letters of administration in his favor.
To said application an opposition was presented by
Antonio Abella, Ignacia Abella, Avicencia Abella, and
Santiago Vito, alleging that the supposed will of the deceased
Zalamea was not executed in conformity with the provisions
of the law, inasmuch as it was not paged correlatively in
letters, nor was there any attestation clause in it, nor was it
signed by the testatrix and the witnesses in the presence of
each other.

Trial having been held, the judge a quo overruled the

opposition of the contestants, and ordered the probate of the
will, Exhibit A, and the inventory, Exhibit A-1, holding that
both documents contained the true and last will of the
deceased Josefa Zalamea.
From the judgment of the court below, the contestants
have appealed, and in their brief they assign three errors,
which, in their opinion, justify the reversal of the judgment
appealed from.
The first error assigned by the appellants as committed by
the court below is its finding to the effect that Exhibit A, said
to be the will of the deceased Josefa Zalamea, was executed
with all the solemnities required by the law.
The arguments advanced by appellants' counsel in support
of the first assignment of error tend to impeach the
credibility of the witnesses f or the proponent, specially that
of Eugenio Zalamea. We have made a careful examination of
the evidence, but have not found anything that would justify
us in disturbing the finding of the court a quo.' The attesting
witnesses, Eugenio Zalamea and Gonzalo Abaya, clearly
testify that together with the other witness to the will, Pedro
de Jesus, they did sign each and every page of the will and of
the inventory in the presence of each other and of the
testatrix, as the latter did likewise sign all the pages of the
will and of the inventory in their presence.
In their brief the appellants intimate that one of the pages
of the will was not signed by the testatrix, nor by the
witnesses on the day of the execution of the will, that is, on
the 19th of July, 1918, basing their contention on the
testimony of Aurelio Palileo, who says that on one occasion

Gonzalo Abaya told him that one of the pages of the will had
not been signed by the witnesses, nor by the testatrix on the
day of its execution. Palileo's testimony is entirely
contradicted by Gonzalo Abaya not only in the direct, but in
the rebuttal, evidence as well. To our mind, Palileo's
testimony cannot prevail over that of the attesting witnesses,
Gonzalo Abaya and Eugenio Zalamea. The appellants
impeach the credibility of Eugenio Zalamea, for having made
a sworn declaration before the justice of the peace of Santa
Cruz, Laguna, before the trial of this case, to the effect that
he was really one of the witnesses to the will in question,
which fact was corroborated by himself at the trial. The
appellants take Zalamea's testimony in connection with the
dismissal of a criminal case against a nephew 6f his, in
whose success he was interested, and infer from this fact the
partiality of his testimony. We deem this allegation of little
importance to impeach the credibility of the witness Zalamea,
especially because his testimony is corroborated by the other
attesting witness, Gonzalo Abaya, and by attorney Luis
Abaya, who had prepared the testament at the instance of
the testatrix. The foregoing is sufficient for us to conclude
that the first assignment of error made by the appellants is
groundless.
The appellants contend that the court below erred in
admitting the will to probate notwithstanding the omission of
the proponent to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent
stated to the court that they had necessarily to omit the
testimony of Pedro de Jesus, one of the persons who appear
to have witnessed the execution of the will, for there were

reasonable grounds to believe that said witness was openly

hostile to the proponent, inasmuch as since the
announcement of the trial of the petition f or the probate of
the will, said witness has been in frequent communication
with the contestants and their attorney, and has refused to
hold any conference with the attorneys for the proponent. In
reply to this, the attorney for the contestants, said to the
court, "without discussing for the present whether or not in
view of those facts (the facts mentioned by the attorneys for
the petitioner), in the hypothesis that the same are proven,
they are relieved from produQing that witness, for while it' is
a matter not decided, it is a recognized rule that the fact that
a witness is hostile does not justify a party to omit his
testimony; without discussing this, I say, I move that said
statement be stricken out, and if the proponent wants these
facts to stand in the record, let him prove them." The courta
quo ruled, saying, "there is no need."
To this ruling of the court, the attorney f or the appellants
did not take any exception.
In the case of Avera vs.Garcia and Rodriguez (42 Phil.,
145), recently decided by this court, in deciding the question
whether a will can be admitted to probate, where opposition
is made, upon the proof of a single attesting witness, without
producing or accounting for the absence of the other two, it
was said; "while it is undoutedly true that an uncontested
will may be proved by the testimony of only one of the three
attesting witnesses, nevertheless in Cabang vs.Delfinado (34
Phil., 291), this court declared after an elaborate
examination of the American and English authorities- that
when a contest is instituted, all of the attesting witnesses

must be examined, if alive and within reach of the process of

the court.

"In the present case no explanation was made at the trial as to why
all three of the attesting witnesses were not produced, but the
probable reason is found in the fact that, although the petition for
the probate of this will had been pending from December 21, 1917,
until the date set for the hearing, which was April 5, 1919, no
formal contest was entered until the very day set f or the hearing;
and it is probable that the attorney for the proponent, believing in
good faith that probate would not be contested, repaired to the
court with only one of the three attesting witnesses at hand, and
upon finding that the will was contested, incautiously permitted
the case to go to proof without asking for a postponement of the
trial in order that he might produce all the attesting witnesses.
"Although this circumstance may explain why the three
witnesses were not produced, it does not in itself supply any basis f
or 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 f or determination in that court or upon the occasion of the
filing of the motion f or 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 to be well taken. This
exact question has been decided by the Supreme Court of
California adversely to the contention of the appellant, and we see
no reason why the same rule of practice should not be observed by
us. (Estate of McCarty, 58 Cal., 335, 337.)

"There are at least two reasons why the appellate tribunals are
disinclined to permit certain questions to be raised for the first
time in the second instance. In the first place it eliminates the
judicial criterion of the Court of First Instance upon the point
there presented and makes the appellate court in effect a court of
first instance with reference to that point, unless the case is
remanded for a new trial. In the second place, it permits, if it does
not encourage, attorneys to trifle with the administration of justice
by concealing from the trial court and from their opponent the
actual point upon which reliance is placed, while they are engaged
in other discussions more simulated than real. These
considerations are, we think, decisive.
"In ruling upon the point above presented we do not wish to be
understood as laying down any hard and fast rule that would prove
an embarrassment to this court in the administration of justice in
the future. In one way or another we are constantly here
considering aspects of cases and applying doctrines which have
escaped the attention of all persons concerned in the litigation
below; and this is necessary if this court is to contribute the part
due from it in the correct decision of the cases brought before it.
What we mean to declare is that when we believe that substantial
justice has been done in the Court of First Instance, and the point
relied on for reversal in this court appears to be one which ought
properly to have been presented in that court, we will in the
exercise of a sound discretion ignore such question upon appeal;
and this is the more proper when the question relates to a defect
which might have been cured in the Court of First Instance if
attention had been called to it there. In the present case, if the
appellant had raised this question in the lower court, either at the
hearing or upon a motion for a new trial, that court would have
had the power, and it would have been its duty, considering the
tardy 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 f or the avowed purpose of presenting
the two additional attesting witnesses who had not been previously
examined, but nevertheless subsequently f ailed 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."

In the case at bar, we do not think this question properly to

have been raised at the trial, but in the memorandum
submitted by the attorney for the appellants to the trial
court, he contended that the will could not be admitted to
probate because one of the witnesses to the will was not
produced, and that the voluntary non-production of this
witness raises a presumption against the pretension of the
proponent. The trial court found that the evidence introduced
by the proponent, consisting of the testimony of the two
attesting witnesses and the other witness who was present at
the execution, and had charge of the preparation of the will
and the inventory,Exhibits A and A-1, was sufficient. As
announced inCabang vs. Delfinado, supra,the general rule is
that, where opposition is made to the probate of a will, the
attesting witnesses must be produced. But there are
exceptions to this rule, for instance, when a witness is dead,

or cannot be served with process of the court, or his

reputation for truth has been questioned or he appears
hostile to the cause of the proponent. In such cases, the will
may be admitted to probate without the testimony of said
witness, if, upon the other proof s adduced in the case, the
court is satisfied that the will has been duly executed.
Wherefore, we find that the non-production of the attesting
witness, Pedro de Jesus, as accounted for by the attorney for
the proponent at the trial, does not render void the decree of
the court a quo, allowing the probate.
But supposing that said witness, when cited, had testified
adversely to the application, this would not by itself have
change the result reached by the court a quo, for section 632
of the Code of Civil Procedure provides that a will can be
admitted to probate, notwithstanding that one or more
witnesses do not remember having attested it, provided the
court is satisfied upon the evidence adduced that the will has
been executed and signed in the manner prescribed by the
law.
The last error assigned by the appellants is made to
consist in the probate of the inventory, Exhibit A-1, despite
the fact that this exhibit has no attestation clause in it, and
its paging is made in Arabic numerals and not in letters.
In the third paragraph of the.will, reference is made to the
inventory, Exhibit A-1, and at the bottom of said will, the
testatrix Josefa Zalamea says:
"In witness whereof, I sign this will composed of ten folios
including the page containing the signatures and the attestation of
the witnesses; I have likewise signed the inventory attached to this
will composed of ten folios in the presence of Messrs. Gonzalo

Abaya, Eugenio Zalamea, Pedro de Jesus, in this municipality of

Pagsanjan, Laguna, Philippine Islands, this 19th of July, 1918."

And the attestation clause is as follows:

"The foregoing will composed of ten folios including this one

whereunto we have affixed our signatures, as well as the inventory
of the properties of Doa Josefa Zalamea y Abella, was read to
Doa Josefa Zalamea y Abella, and the latter affixed her name to
the last, and each ,and every page of this will and inventory
composed of ten folios in our presence; and she declared this to be
her last will and testament and at her request we have affixed
hereunto our respective signatures in her presence and in the
presence of each other as witnesses to the will and the inventory
this 19th of July, 1918, at Pagsanjan, Laguna, P. I.
(Sgd.)
"GONZALO ABAYA,
"EUGENIO ZALAMEA,
"PEDRO DE JESUS."

In view of the fact that the inventory is referred to in the will

as an integral part of it, we find that the foregoing
attestation clause is in compliance with section 1 of Act No.
2645, which requires this solemnity for the validity of a will,
and makes unnecessary any other attestation clause at the
end of the inventory.
As to the paging of the will in Arabic numerals, instead of
in letters, we adhere to the doctrine announced in the case
ofAldaba vs. Roque (p. 378,ante), recently decided by this
court. In that case the validity of the will was assailed on the
ground that its folios were paged with the letters A, B, C,
etc., instead of with the letters "one," "two," "three," etc. It
was held that this way of numbering the pages of a will is in
compliance with the spirit of the law, inasmuch as either one
of these methods indicates the correlation of the pages and

serves to prevent the abstraction of any of them. In the

course of the decision, we said: "It might be said that the
object of the law in requiring that the paging be made in
letters ,is to make falsification more difficult, but it should be
noted that since all the pages of the testament are signed at
the margin by the testatrix and the witnesses, the difficulty
of forging the signatures in either case remains the same. In
other words the more or less degree of facility to imitate the
writing of the letters A, B, C, etc., does not make for the
easiness to forge the signatures. And as in the present case
there exists the guaranty of the authenticity of the
testament, consisting in the signatures on the left margins of
the testament and the paging thereof as declared in the
attestation
clause,
the
holding
of
this
court
in Abangan vs.Abangan (40 Phil., 476), might as well be
repeated:
" The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But,
on the other hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the
right to make a will. So when an interpretation 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 that case the testament was written on one page, and the
attestation clause on another. Neither one of these pages was
numbered in any way, and it was held: 'ln a will consisting of two
sheets the first of which contains all the testamentary dispositions

and is signed at the bottom by the testator and three witnesses

and the second contains only the attestation clause and is signed
also at the bottom by the three witnesses, it is not necessary that
both sheets be further signed on their margins by the testator and
the witnesses, or be paged.'
"This means that, according to the particular case, the omission
of paging does not necessarily render the testament invalid.
"The law provides that the numbering of the pages should be in
letters placed on the upper part of the sheet, but if the paging
should be placed in the lower part, would the testament be void for
this sole reason? We believe not. The law also provides that the
testator and the witnesses must sign the left margin of each of the
sheets of the testament; but if they should sign on the right
margin, would this fact also annul the testament? Evidently not.
This court has already held in Averavs. Garcia and Rodriguez (42
PhiL, 145):
" 'lt is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left margin
of each and every page; and it is undeniable that the general
doctrine is to the effect that all statutory requirements as to the
execution of wills must be fully complied with. The same doctrine
is also deducible from cases heretofore decided by this court.'
" 'Still some details at times creep into legislative enactments
which are so trivial that it would be absurd to suppose that the
Legislature could have attached any decisive importance to them.
The provision to the effect that the signatures of the testator and
witnesses shall be written on the left margin of each pagerather
than on the right marginseems to be 6f this character. So far as
concerns the authentication of the will, and Of every part thereof,
it can make no possible difference whether the names appear on
the left or on the right margin, provided they are on one or the
other. 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.'
"We do not desire to intimate that the numbering in letters is a
requisite of no importance. But since its principal object is to give
the correlation of the pages, we hold that this object may be
attained by writing one, two, three, etc., as well as by writing A, B,
C, etc."

We see no reason why the same rule should not be applied

where the paging is in Arabic numerals, instead of in letters,
as in the inventory in question. So that, adhering to the view
taken by this court in the case of Abangan vs.Abangan, and
followed in Aldaba vs. Roque, with regard to the appreciation
of the solemnities of a will, we find that the judgment
appealed from should be, as is hereby, affirmed with the costs
against the appellants. So ordered.
Araullo,
C.
J.,Malcolm, Avancea,Ostrand, Johns, andRomualdez, JJ.,
concur.
Judgment affirmed.

MALOTO,

testator or by another person in his presence and under his express

direction. There is paucity of evidence to show compliance with
these requirements. For one, the document or papers burned by
Adriana's maid, Guadalupe, was not satisfactorily established to be
a will at all, much less the will of Adriana Maloto. For another, the
burning was not proven to have been done under the express
direction of Adriana. And then, the burning was not in her
presence. Both witnesses, Guadalupe and Eladio, were one in
stating that they were the only ones present at the place where the
stove (presumably in the kitchen) was located in which the papers
proferred as a will were burned.

Civil Law; Wills; Revocation of Will; To constitute an effective

revocation, the physical act of destruction of a will must be coupled
with animus revocandi on the part of the testator.It is clear that
the physical act of destruction of a will, like burning in this case,
does not per se constitute an effective revocation, unless the
destruction is coupled withanimus revocandi on the part of the
testator. It is not imperative that the physical destruction be done
by the testator himself. It may be performed by another person but
under the express direction and in the presence of the testator. Of
course, it goes without saying that the document destroyed must be
the will itself.
Same; Same; Same; Same;Intention to revoke must be
accompanied by overt physical act of burning, tearing, obliterating
or cancelling the will by the testator or by another person in his
presence and under his express direction.In this case, while
animus revocandi, or the intention to revoke, may be conceded, for
that is a state of mind, yet that requisite alone would not suffice.
Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention to
revoke must be accompanied by the overt physical act of burning,
tearing, obliterating, or cancelling the will carried out by the

Civil Procedure; Res Adjudicata; Doctrine of res adjudicata

finds no application in the case at bar; Requisites of res adjudicata.
The doctrine of res adjudicata finds no application in the present
controversy. For a judgment to be a bar to a subsequent case, the
following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a court having
jurisdiction over the subject matter and the parties; (3) the former
judgment is a judgment on the merits; and (4) there is, between
the first and the second action, identity of parties, of subject
matter, and of cause of action. We do not find here the presence of
all the enumerated requisites.
Same; Same; Same; Strictly speaking, no final judgment
rendered insofar as the probate of Adriana Maloto's will is
concerned.For one, there is yet, strictly speaking, no final
judgment rendered insofar as the probate of Adriana Maloto's will
is concerned. The decision of the trial court in Special Proceeding
No. 1736, although final, involved only the intestate Settlement of
the estate of Adria iana. As such, that j udgment could not in any
manner be construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a
judgment on the merits of the action for probate. This is

No. L-76464. February 29, 1988.

TESTATE ESTATE OF THE LATE ADRIANA MALOTO,
*

ALDINA

MALOTO

CASIANO,

CONSTANCIO

MALOTO, PURIFICACION MIRAFLOR, ROMAN

CATHOLIC CHURCH OF MOLO, AND ASILO DE
MOLO,

PANFILO

petitioners, vs.COURT
MALOTO

respondents.

AND

OF

FELINO

APPEALS,

understandably so because the trial court, in the intestate

proceeding, was without jurisdiction to rule on the probate of the
contested will. After all, an action for probate, as it implies, is
founded on the presence of a will and with the objective of proving
its due execution and validity, something which can not be properly
done in an intestate settlement of estate proceeding which is
predicated on the assumption that the decedent left no will. Thus,
there is likewise no identity between the cause of action in
intestate proceeding and that in an action for probate, Be that as it
may, it would be remembered that it was precisely because of our
ruling in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana Maloto's will.
Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained.

PETITION for certiorari to review the decision of the Court

of Appeals.
The facts are stated in the opinion of the Court.
SARMIENTO, J.:
This is not the first time that the parties to this case come to
us. In fact, two other cases directly related to the present one
and involving the same parties had already been decided by
us in the past. In G.R. No. L-30479, which was a petition for
certiorari and mandamus instituted by the petitioners
herein, we dismissed the petition ruling that the more
appropriate remedy of the petitioners is a separate
proceeding for the probate of the will in question. Pursuant to
the said ruling, the petitioners commenced in the then Court
of First Instance of Iloilo, Special Proceeding No. 2176, for
the probate of the disputed will, which was opposed by the
private respondents presently, Panfilo and Felino, both
1

surnamed Maloto. The trial court dismissed the petition on

April 30, 1970. Complaining against the dismissal, again, the
petitioners came to this Court on a petition for review by
certiorari. Acting on the said petition, we set aside the trial
court's order and directed it to proceed to hear the case on
the merits. The trial court, after hearing, found the will to
have already been revoked by the testatrix. Adriana Maloto,
and thus, denied the petition. The petitioners appealed the
trial court's decision to the Intermediate Appellate Court
which, on June 7, 1985, affirmed the order. The petitioners'
motion for reconsideration of the adverse decision proved to
be of no avail, hence, this petition.
For a better understanding of the controversy, a factual
account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs
her niece and nephews, the petitioners Aldina MalotoCasiano and Constancio Maloto, and the private respondents
Panfilo Maloto and Felino Maloto. Believing that the
deceased did not leave behind a last will and testament,
these four heirs commenced on November 4, 1963 an
intestate proceeding for the settlement of their aunt's estate.
The case was instituted in the then Court of First Instance of
Iloilo and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be exact
on February 1, 1964, the partiesAldina, Constancio,
Panfilo, and Felinoexecuted an agreement of extrajudicial
settlement of Adriana's estate. The agreement provided for
the division of the estate into four equal parts among the
parties. The Malotos then presented the extrajudicial
settlement agreement to the trial court for approval which
2

the court did on March 21, 1964. That should have signalled
the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty.
Sulpicio Palma, a former associate of Adriana's counsel, the
late Atty. Eliseo Hervas, discovered a document entitled
"KATAPUSAN NGA PAGBULUT-AN (Testamento)," dated
January 3, 1940, and purporting to be the last will and
testament of Adriana. Atty. Palma claimed to have found the
testament, the original copy, while he was going through
some materials inside the cabinet drawer formerly used by
Atty. Hervas. The document was submitted to the office of the
clerk of the Court of First Instance of Iloilo on April 1, 1967.
Incidentally, while Panfilo and Felino are still named as heirs
in the said will, Aldina and Constancio are bequeathed much
bigger and more valuable shares in the estate of Adriana
than what they received by virtue of the agreement of
extrajudicial settlement they had earlier signed. The will
likewise gives devises and legacies to other parties, among
them being the petitioners Asilo de Molo, the Roman Catholic
Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by
the other devisees and legatees named in the will, filed in
Special Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance
of the will. When the trial court denied their motion, the
petitioner came to us by way of a petition for certiorari and
mandamus assailing the orders of the trial court. As we
stated earlier, we dismissed that petition and advised that a
separate proceeding for the probate of the alleged will would
3

be the appropriate vehicle to thresh out the matters raised by

the petitioners.
Significantly, the appellate court while finding as
inconclusive the matter on whether or not the document or
papers allegedly burned by the househelp of Adriana,
Guadalupe Maloto Vda, de Coral, upon instructions of the
testatrix, was indeed the will, contradicted itself and found
that the will had been revoked. The respondent court stated
that the presence of animus revocandi in the destruction of
the will had, nevertheless, been sufficiently proven. The
appellate court based its finding on the facts that the
document was not in the two safes in Adriana's residence, by
the testatrix going to the residence of Atty. Hervas to retrieve
a copy of the will left in the latter's possession, and, her
seeking the services of Atty. Palma in order to have a new
will drawn up. For reasons shortly to be explained, we do not
view such facts, even considered collecti vely, as sufficient
bases for the conclusion that Adriana Maloto's will had been
effectively revoked.
There is no doubt as to the testamentary capacity of the
testatrix and the due execution of the will. The heart of the
case lies on the issue as to whether or not the will was
revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue
can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
1. (1)By implication of law; or
2. (2)By some will, codicil, or other writing executed as
provided in case of wills; or

3. (3)By burning, tearing, cancelling, or obliterating the will

with the intention of revoking it, by the testator himself, or
by some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by some
other person, without the express direction of the testator,
the will may still be established, and the estate distributed
in accordance therewith, if its contents, and due execution,
and the fact of its unauthorized destruction, cancellation,
or obliteration are established according to the Rules of
Court.(Italics Supplied.)

It is clear that the physical act of destruction of a will, like

burning in this case, does not per se constitute an effective
revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that
the physical destruction be done by the testator himself. It
may be performed by another person but under the express
direction and inthe presence of the testator. Of course, it goes
without saying that the document destroyed must be the will
itself.
In this case, while animus revocandi, or the intention to
revoke, may be conceded, for that is a state of mind, yet that
requisite alone would not suffice, "Animus revocandi is only
one of the necessary elements for the effective revocation of a
last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator
or by another person in his presence and under his express
direction. There is paucity of evidence to show compliance
with these requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not satisfactorily

established to be a will at all, much less the will of Adriana

Maloto. For another, the burning was not proven to have been
done under the express direction of Adriana. And then, the
burning was not in herpresence. Both witnesses, Guadalupe
and Eladio, were one in stating that they were the only ones
present at the place where the stove (presumably in the
kitchen) was located in which the papers proffered as a will
were burned.
The respondent appellate court in assessing the evidence
presented by the private respondents as oppositors in the
trial court, concluded that the testimony of the two witnesses
who testified in favor of the will's revocation appear
"inconclusive." We share the same view. Nowhere in the
records before us does it appear that the two witnesses,
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates,
were unequivocably positive that the document burned was
indeed Adriana's will. Guadalupe, we think, believed that the
papers she destroyed was the will only because, according to
her, Adriana told her so. Eladio, on the other hand, obtained
his information that the burned document was the will
because Guadalupe told him so, thus, his testimony on this
point is double hearsay.
At this juncture, we reiterate that "(it) is an important
matter of public interest that a purported will is not denied
legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its
very foundations x x x."
The private respondents in their bid for the dismissal of
the present action for probate instituted by the petitioners
argue that the same is already barred byres adjudicata. They
4

claim that this bar was brought about by the petitioners'

failure to appeal timely from the order dated November
16,1968 of the trial court in the intestate proceeding (Special
Proceeding No. 1736) denying their (petitioners') motion to
reopen the case, and their prayer to annul the previous
proceedings therein and to allow the last will and testament
of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the
present controversy. For a judgment to be a bar to a
subsequent case, the following requisites must concur: (1) the
presence of a final former judgment; (2) the former judgment
was rendered by a court having jurisdiction over the subject
matter and the parties; (3) the former judgment is a
judgment on the merits; and (4) there is, between the first
and the second action, identity of parties, of subject matter,
and of cause of action. We do not find here the presence of all
the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment
rendered insofar as the probate of Adriana Maloto's will is
concerned. The decision of the trial court in Special
Proceeding No. 1736, although final, involved only the
intestate settlement of the estate of Adriana. As such, that
judgment could not in any manner be construed to be final
with respect to the probate of the subsequently discovered
will of the decedent. Neither is it a judgment on the merits of
the action for probate. This is understandably so because the
trial court, in the intestate proceeding, was without
jurisdiction to rule on the probate of the contested will. After
all, an action for probate, as it implies, is founded on the
presence of a will and with the objective of proving its due
5

execution and validity, something which can not be properly

done in an intestate settlement of estate proceeding which is
predicated on the assumption that the decedent left no will.
Thus, there is likewise no identity between the cause of
action in intestate proceeding and that in an action for
probate. Be that as it may, it would be remembered that it
was precisely because of our ruling in G.R. No. L-30479that
the petitioners instituted this separate action for the probate
of the late Adriana Maloto's will.
Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained.
One last note. The private respondents point out that
revocation could be inferred from the fact that "(a) major and
substantial bulk of the properties mentioned in the will had
been disposed of: while an insignificant portion of the
properties remained at the time of death (of the testatrix);
and, furthermore, more valuable properties have been
acquired after the execution of the will on January 3, 1940."7
Suffice it to state here that as these additional matters raised
by the private respondents are extraneous to this special
proceeding, they could only be appropriately taken up after
the will has been duly probated and a certificate of its
allowance issued.
WHEREFORE,
judgment
is
hereby
rendered
REVERSING and SETTING ASIDE the Decision dated June
7, 1985 and the Resolution dated October 22, 1986, of the
respondent Court of Appeals, and a new one ENTERED for
the allowance of Adriana Maloto's last will and testament.
Costs against the private respondents.

ur.

This Decision is IMMEDIATELY EXECUTORY,

SO ORDERED.
Yap (Chairman),Melencio-Herrera, and ParasJJ., conc
Padilla, J., no part in the deliberation.
Judgment reversed and set aside.

Testate Estate of the Deceased MARIANO MOLO Y

LEGASPI.

JUANA

JUAN

VDA.

DE

MOLO,

petitioner and appellee, vs. Luz, GLICERIA and

CORNELIO MOLO, oppositors and appellants.

The facts are stated in the opinion of the Court.

Claro M. Recto andSerafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:

1. 2.ID.; PROBATE;DEPENDENT
RELATIVE
REVOCATION.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 where it is founded on the mistaken belief
that the later will has been validly executed and would be
given due effect. The earlier will can still be admitted to
probate under the principle of "dependent relative
revocation". The theory on which this principle is
predicated is that the testator did not intend to die
intestate. And this intention is clearly manifest where he
executed two wills on two different occasions and
instituted his wife as his universal heir.

This is an appeal from an order of the Court of First Instance

of Rizal admitting to probate the last will and testament of
the deceased Mariano Molo y Legaspi executed on August 17,
1918. The oppositors-appellants brought the case on appeal
to this Court for the reason that the value of the properties
involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the
municipality of Pasay, province of Rizal, without leaving any
forced heir either in the descending or ascending line. He was
survived, however, by his wife, the herein petitioner Juana
Juan Vda. de Molo, and by his nieces and nephew, the
oppositors-appellants, Luz, Gliceria and Cornelio, all
surnamed Molo, who were the legitimate children of Candido
Molo y Legaspi, deceased brother of the testator. Mariano
Molo y Legaspi left two wills, one executed on August 17,
1918, (Exhibit A) and another executed on June 20, 1939,
(Exhibit I). The latter will contains a clause which expressly
revokes the will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo filed in the
Court of First Instance of Rizal a petition, which was
docketed as special proceeding No. 8022, seeking the probate
of the will executed by the deceased on June 20, 1939.

APPEAL from an order of the Court of First Instance of

Rizal. Tan, J.

There being no opposition, the will was probated. However,

upon petition filed by the herein oppositors, the order of the

1. 1.WILLS; REVOCATION
BY
SUBSEQUENT
WILL; EFFECT OF VOID REVOCATORY CLAUSE.A
subsequent will containing a clause revoking a previous
will, having been disallowed for the reason that it was not
executed in conformity with the provisions of section 618 of
the Code of Civil Procedure as to the making of wills,
cannot produce the effect of annuling the previous will,
inasmuch
as
said
revocatory
clause
is
void
(Samson vs. Naval, 41 Phil., 838).

court admitting the will to probate was set aside and the case
was reopened. After hearing, at which both parties presented
their evidence, the court rendered decision denying the
probate of said will on the ground that the petitioner failed to
prove that the same was executed in accordance with law.
In view of the disallowance of the will executed on June
20, 1939, the widow on February 24, 1944, filed another
petition f or the probate of the will executed by the deceased
on August 17, 1918, which was docketed as special proceeding
No. 56, in the same court. Again, the same oppositors filed an
opposition to the petition based on three grounds: (1) that
petitioner is now estopped from seeking the probate of the
will of 1918; (2) that said will has not been executed in the
manner required by law and (3) that the will has been
subsequently revoked. But before the second petition could be
heard, the battle for liberation came and the records of the
case were destroyed. Consequently, a petition for
reconstitution was filed, but the same was found to be
impossible because neither petitioner nor oppositors could
produce the copies required for its reconstitution. As a result,
petitioner filed a new petition on September 14, 1946, similar
to the one destroyed, to which the oppositors filed an
opposition based on the same grounds as those contained in
their former opposition. Then, the case was set for trial, and
on May 28, 1948, the court issued an order admitting the will
to probate as already stated in the early part of this decision.
From this order the oppositors appealed assigning six errors,
to wit:
1. "I.The probate court erred in not holding that the present
petitioner voluntarily and deliberately frustrated the

probate of the will dated June 20, 1939, in special

proceeding No, 8022, in order to enable her to obtain the
probate of another alleged will of Molo dated 1918.
2. "II.The court a quo erred in not holding that the petitioner
is now estopped from seeking the probate of Molo's alleged
will of 1918.
1. "III.The lower court erred in not holding that petitioner
herein has come to court with 'unclean hands' and as such
is not entitled to relief.
2. "IV.The probate court erred in not holding that Molo's
alleged will of August 17, 1918 was not executed in the
manner required by law.
3. "V.The probate court erred in not holding that the alleged
will of 1918 was deliberately revoked by Molo himself.
4. "VI.The lower court erred in not holding that Molo's will of
1918 was subsequently revoked by the decedent's will of
1939."

In their first assignment of error, counsel for oppositors

contend that the probate court erred in not holding that the
petitioner voluntarily and deliberately frustrated the probate
of the will dated June 20, 1939, in order to enable her to
obtain the probate of the will executed by the deceased on
August 17, 1918, pointing out certain facts and circumstances
which in their opinion indicate that petitioner connived with
witness Canuto Perez in an effort to defeat and frustrate the
probate of the 1939 will because of her knowledge that said
will was intrinsically defective in that "the one and only
testamentary disposition thereof was a 'disposicin
captatoria' ". These circumstances, counsel for the appellants

contend, constitute a series of steps deliberately taken by

petitioner with a view to insuring the realization of her plan
of securing the probate of the 1918 will which she believed
would better safeguard her right to inherit from the
deceased.
These imputations of fraud and bad faith allegedly
committed in connection with special proceedings No. 8022,
now closed and terminated, are vigorously met by counsel for
petitioner who contends that to raise them in these
proceedings which are entirely new and distinct and
completely independent from the other is improper and
unfair as they find no support whatsoever in any evidence
submitted by the parties in this case. They are merely based
on presumptions and conjectures not supported by any proof.
For this reason, counsel contends, the lower court was
justified in disregarding them and in passing them sub
silentio in its decision.
A careful examination of the evidence available in this case
seems to justify this contention. There is indeed no evidence
which may justify the insinuation that petitioner had
deliberately intended to frustrate the probate of the 1939 will
of the deceased to enable her to seek the probate of another
will other than a mere conjecture drawn from the apparently
unexpected testimony of Canuto Perez that he went out of the
room to answer an urgent call of nature when Artemio Reyes
was signing the will and the failure of petitioner later to
impeach the character of said witness in spite of the
opportunity given her by the court to do so. Apart from this
insufficiency of evidence, the record discloses that this failure

has been explained by petitioner when she informed the court

that she was unable to impeach the character of her witness
Canuto Perez because of her inability to find witnesses who
may impeach him, and this explanation stands
uncontradicted. Whether this explanation is satisfactory or
not, it is not now for us to determine. It is an incident that
comes within the province of the former case. The failure of
petitioner to present the testimony of Artemio Reyes at the
rehearing has also been explained, and it appears that
petitioner has failed because his whereabouts could not be
found. Whether this is true or not is not also for this Court to
determine. It is likewise within the province and function of
the court in the former case. And the unfairness of this
imputation becomes more glaring when we take stock of the
developments that had taken place in these proceedings
which show in bold relief the true nature of the conduct,
behavior and character of the petitioner so bitterly assailed
and held in disrepute by the oppositors.
It should be recalled that the first petition f or the probate
of the will executed on June 20, 1939, was filed on February
7, 1941, by the petitioner. There being no opposition, the will
was probated. Subsequently, however, upon petition of the
herein oppositors, the order of the court admitting said will
to probate was set aside, over the vigorous opposition of the
herein petitioner, and the case was reopened. The reopening
was ordered because of the strong opposition of the oppositors
who contended that the will had not been executed as
required by law. After the evidence of both parties had been
presented, the oppositors filed an extensive memorandum
wherein they reiterated their view that the will should be

denied probate. And on the strength of this opposition, the

court disallowed the will.
If petitioner then knew that the 1939 will was inherently
defective and would make the testamentary disposition in
her favor invalid and ineffective, because it is a "disposicin
captatoria", which knowledge she may easily acquire through
consultation with a lawyer, there was no need for her to go
through the ordeal of filing the petition for the probate of the
will. She could accomplish her desire by merely suppressing
the will or tearing or destroying it, and then take steps
leading to the probate of the will executed in 1918. But her
conscience was clear and bade her to take the only proper
step possible under the circumstances, which is to institute
the necessary proceedings for the probate of the 1939 will.
This she did and the will was admitted to probate. But then
the unexpected happened. Over her vigorous opposition, the
herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was
reopened. Her motion for reconsideration was denied. Is it
her fault that the case was reopened? Is it her fault that the
order admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants
not filed their opposition to the probate of the will and had
they limited their objection to the intrinsic validity of said
will, their plan to defeat the will and secure the intestacy of
the deceased would have perhaps been accomplished. But
they failed in their strategy. If said will was denied probate it
is due to their own effort. It is now unfair to impute bad faith
to petitioner simply because she exerted every effort to

protect her own interest and prevent the intestacy of the

deceased to happen.
Having reached the foregoing conclusions, it is obvious
that the court did not commit the second and third errors
imputed to it by the counsel for appellants. Indeed, petitioner
cannot be considered guilty of estoppel which would prevent
her from seeking the probate of the 1918 will simply because
her effort to obtain the allowance of the 1939 will has failed
considering that in both the 1918 and 1939 wills she was
instituted by her husband as his universal heir. Nor can she
be charged with bad faith far having done so because of her
desire to prevent the intestacy of her husband. She cannot be
blamed for being zealous in protecting her interest.
The next contention of appellants refers to the revocatory
clause contained in the 1939 will of the deceased which was
denied probate. They contend that, notwithstanding the
disallowance of said will, the revocatory clause is valid and
still has the effect of nullifying the prior will of 1918. Counsel
for petitioner meets this argument by invoking the doctrine
laid down in the case of Samsonvs. Naval, (41 Phil., 838). He
contends that the facts involved in that case are on all fours
with the facts of this case. Hence, the doctrine in that case is
here controlling.
There is merit in this contention. We have carefully read
the facts involved in the Samson case and we are indeed
impressed by their striking similarity with the facts of this
case. We do not need to recite here what those facts are; it is
enough to point out that they contain many points and
circumstances in common. No reason, therefore, is seen why

the doctrine laid down in that case (which we quote

hereunder) should not apply and control the present case.

"A subsequent will, containing a clause revoking a previous will,

having been disallowed, for the reason that it was not executed in
conformity with the provisions of section 618 of the Code of Civil
Procedure as to the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said revocatory clause is
void." (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the

remark that, while they do not disagree with the soundness
of the ruling laid down in the Samson case, there is reason to
abandon said ruling because it is archaic or antiquated and
runs counter to the modern trend prevailing in American
jurisprudence. They maintain that said ruling is no longer
controlling but merely represents the point of view of the
minority and should, therefore, be abandoned, more so if we
consider the fact that section 623 of our Code of Civil
Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing
trend of the majority view in the United States. A long line of
authorities is cited in support of this contention. And these
authorities hold the view, that "an express revocation is
immediately effective upon the execution of the subsequent
will, and does not require that it first undergo the formality
of a probate proceeding". (p. 63, appellants' brief).
While there are many cases which uphold the view
entertained by counsel for oppositors, and that view appears
to be controlling in the states where the decisions had been
promulgated, however, we are reluctant to fall in line with
the assertion that that is now the prevailing view in the

United States. In the search we have made of American

authorities on the subject, we found ourselves in a pool of
conflicting opinions perhaps because of the peculiar
provisions contained in the statutes adopted by each State on
the subject of revocation of wills. But the impression we
gathered from a review and study of the pertinent authorities
is that the doctrine laid down in the Samson case is still a
good law. On page 328 of the American Jurisprudence, Vol.
57, which is a revision published in 1948, we found the
following passages which in our opinion truly reflect the
present trend of American jurisprudence on this matter
affecting the revocation of prior wills:

"SEC. 471. Observance of Formalities in Execution of Instrument.

Ordinarily, statutes which permit the revocation of a will by
another writing provide that to be effective as a revocation, the
writing must be executed with the same formalities which are
required to be observed in the execution of a will. Accordingly,
where, under the statutes, attestation is necessary to the making
of a valid will, an unattested nontestamentary writing is not
effective to revoke a prior will. It has been held that a writing fails
as a revoking instrument where it is not executed with the
formalities requisite for the execution of a will, even though it is
inscribed on the will itself, although it may effect a revocation by
cancellation or obliteration of the words of the will. A testator
cannot reserve to himself the power to modify a will by a written
instrument subsequently prepared but not executed in the manner
required for a will.
"SEC. 472. Subsequent Unexecuted, Invalid, or Ineffective Will
or Codicil.A will which is invalid because of the incapacity of the
testator or of undue influence can have no effect whatever as a
revoking will. Moreover, a will is not revoked by the unexecuted
draft of a later one. Nor is a will revoked by a defectively executed

will or codicil, even though the latter contains a clause expressly

revoking the former will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a testamentary
instrument is sufficient to revoke a will, for the simple reason that
there is no revoking will. Similarly where the statute provides that
a will may be revoked by a subsequent will or other writing
executed with the same formalities as are required in the execution
of wills, a defectively executed will does not revoke a prior will,
since it cannot be said that there is a writing which complies with
the statute. Moreover, a will or codicil which, on account of the
manner in which it is executed, is sufficient to pass only personally
does not affect dispositions of real estate made by a former will,
even though it may expressly purport to do so. The intent of the
testator to revoke is immaterial, if he has not complied with the
statute." (57 Am. Jur., 328, 329.)

We find the same opinion in the American Law Reports,

Annotated, edited in 1939. On page 1400, Volume 123, there
appear many authorities on the "application of rules where
second will is invalid", among which a typical one is the
following:
"It is universally agreed that where the second will is invalid on
account of not being executed in accordance with the provisions of
the statute, or where the testator has not sufficient mental
capacity to make a will or the will is procured through undue
influence, or the such, in other words, where the second will is
really no will, it does not revoke the first will or affect it in any
manner." Mort vs. Baker University (1935) 229 Mo. App., 632, 78
S. W. (2d), 498."

These treaties cannot be mistaken. They uphold the view on

which the ruling in the Samson case is predicated. They
reflect the opinion that this ruling is sound and good and for

this reason we see no justification for abandoning it as now

suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of
Civil Procedure) provides that a will may be revoked "by some
will, codicil, or other writing executed as provided in case of
wills"; but it cannot be said that the 1939 will should be
regarded, not as a will within the meaning of said word, but
as "other writing executed as provided in the case of wills",
simply because it was denied probate. And even if it be
regarded as anyother writing within the meaning of said
clause, there is authority for holding that unless said writing
is admitted to probate, it cannot have the effect of revocation.
(See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contend that, regardless of said
revocatory clause, said will of 1918 cannot still be given effect
because of the presumption that it was deliberately revoked
by the testator himself. The oppositors contend that the
testator, after executing the 1939 will, and with full
knowledge of the revocatory clause contained in said will,
himself deliberately destroyed the original of the 1918 will,
and that for this reason the will submitted by petitioner for
probate in these proceedings is only a duplicate of said
original.
There is no evidence which may directly indicate that the
testator deliberately destroyed the original of the 1918 will
because of his knowledge of the revocatory clause contained
in the will he executed in 1939. The only evidence we have is
that when the first will was executed in 1918, Juan Salcedo,
who prepared it, gave the original and copies to the testator
himself and apparently they remained in his possession until

he executed his second will in 1939. And when the 1939 will
was denied probate on November 29, 1943, and petitioner
was asked by her attorney to look for another will, she found
the duplicate copy (Exhibit A) among the papers or files of
the testator. She did not find the original.
If it can be inferred that the testator deliberately
destroyed the 1918 will because of his knowledge of the
revocatory clause of the 1939 will, and it is true that he gave
a duplicate copy thereof to his wife, the herein petitioner, the
most logical step for the testator to take is to recall said
duplicate copy in order that it may likewise be destroyed. But
this was not done as shown by the fact that said duplicate
copy remained in the possession of petitioner. It is possible
that because of the long lapse of twenty-one (21) years since
the first will was executed, the original of the will had been
misplaced or lost, and forgetting that there was a copy, the
testator deemed it wise to execute another will containing
exactly the same testamentary dispositions. Whatever may
be the conclusion we may draw from this chain of
circumstances, the stubborn fact is that there is no direct
evidence of voluntary or deliberate destruction of the first
will by the testator. This matter cannot be left to mere
inference or conjecture.
Granting for the sake of argument that the earlier will
was voluntarily destroyed by the testator after the execution
of the second will, which revoked the first, could there be any
doubt, under this theory, that said earlier will was destroyed
by the testator in the honest belief that it was no longer
necessary because he had expressly revoked it in his will of
1939? In other words, can we not say that the destruction of

the earlier will was but the necessary consequence of the

testator's belief that the revocatory clause contained in the
subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the
earlier will can still be admitted to probate under the
principle of "dependent relative revocation".
"This doctrine is known as that of dependent relative revocation,
and is usually applied where the testator cancels or destroys a will
or executes an instrument intended to revoke a will with a present
intention to make a new testamentary disposition as a substitute
for the old, and the new disposition is not made or, if made, fails of
effect for some reason. The doctrine is not limited to the existence
of some other document, however, and has been applied where a
will was destroyed as a consequence of a mistake of law * * *." (68
C. J. p. 799).
"The rule is established that where the act of destruction is
connected with the making of another will so as fairly to raise the
inference that the testator meant the revocation of the old to
depend upon the efficacy of the new disposition intended to be
substituted, the revocation will be conditional and dependent upon
the efficacy of the new disposition; and if, for any reason, the new
will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force."
(Gardner, pp. 232, 233.)
"This is the doctrine of dependent relative revocation. The
failure of the new testamentary disposition, upon whose validity
the revocation depends, is equivalent to the 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." (1 Alexander, p. 751; Gardner, p. 233.)

We hold, therefore, that even in the supposition that the

destruction of the original will by the testator could be
presumed from the failure of the petitioner to produce it in
court, such destruction cannot have the effect of defeating the
prior will of 1918 because of the fact that it is founded on the
mistaken belief that the will of 1939 has been validly
executed and would be given due effect. The theory on which
this principle is predicated is that the testator did not intend
to die intestate. And this intention is clearly manifest when
he executed two wills on. two different occasions and
instituted his wife as his universal heir. There can therefore
be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the
sufficiency of the evidence to prove the due execution of the
will.
The will in question was attested, as required by law, by
three witnesses, Lorenzo Morales, Rufino Enriquez, and
Angel Cuenca. The first two witnesses died before the
commencement of the present proceedings. So the only
instrumental witness available was Angel Cuenca and under
our law and precedents, his testimony is sufficient to prove
the due execution of the will. However, petitioner presented
not only the testimony of Cuenca but placed on the witness
stand Juan Salcedo, the notary public who prepared and
notarized the will upon the express desire and instruction of
the testator. The testimony of these witnesses shows that the
will had been executed in the manner required by law. We

have read their testimony and we were impressed by their

readiness and sincerity. We are convinced that they told the
truth.
Wherefore, the order appealed from is hereby affirmed,
with costs against the appellants.
Pars, C. J., Feria,Pablo, Bengzon, Tuason, andJugo,
JJ., concur.
Reyes, J., concurs in the result.
Order affirmed.

[No. 35993.December 19, 1932]

In re Estate of the deceased Gregorio Tolentino.ADELAIDA
TOLENTINO, petitioner and appellee,vs. NATALIA FRANCISCO ET AL., oppositors and appellants.
WILLS; PROBATE GRANTED WHERE TWO ATTESTING WITNESSES
DENY PROPER EXECUTION OF WILL.When a will is
contested it is the duty of the proponent to call all of the
attesting witnesses, if available, but the validity of the
will in no wise depends upon the united support of the will
by all of those witnesses. A will may be admitted to
probate notwithstanding the fact that one or more of the
subscribing witnesses do not unite with the other, or
others, in proving all the facts upon which the validity of
the will rests. It is sufficient if the court is satisfied from
all the proof that the will was executed and attested in the
manner required by law.
APPEAL from an order of the Court of First Instance of
Manila.Imperial, J.
The facts are stated in the opinion of the court.
Laurel, Del Rosario & Lualhati for appellants.
Eduardo Gutierrez Repidefor appellee.
STREET,J.:
This petition was filed in the Court of First Instance of
Manila by Adelaida Tolentino de Concepcion, for the purpose
of procuring probate of the will of Gregorio Tolentino,
deceased, who died at the hand of an assassin, in his home,

No. 2541 Lico Street, in the District of Santa Cruz, Manila,

on November 9, 1930. In the inception of the proceedings
Eugene de Mitkiewicz was appointed special coadministrator,
and he joined as coplaintiff in the petition. Opposition was
made to the probate of the will by Ciriaco Francisco, Natalia
Francisco, and Gervasia Francisco, all cousins of the
deceased and residents of the City of Manila. Upon hearing
the cause the trial court overruled the opposition, declared
the will to have been properly executed, and allowed the
probate thereof. From this order the three opponents
appealed.chanroblesvirtualawlibrary chanrobles virtual law
library
At the time of his death on November 9, 1930, Gregorio
Tolentino was sixty-six years of age. During the more
vigorous years of his life he had been married to Benita
Francisco, but she predeceased him years ago. By their
industry and frugality the two had accumulated a very
considerable estate which does not appear to have suffered
any material diminution in the years of Tolentino's
widowhood. The pair had no children, and the generous
instincts of the survivor prompted him to gather around him
in his comfortable and commodious home a number of his
wife's kin; and by him various younger members of the
connection were supported and educated. At one time
Tolentino contemplated leaving his property mainly to these
kin of his wife, of the surname Francisco; and for several
years prior to his death, he had kept a will indicating this
desire. However, in October, 1930, strained relations,
resulting from grave disagreements, developed between

Tolentino and the Francisco relations and he determined to

make a new will in which, apart from certain legacies in favor
of a few individuals, the bulk of his estate, worth probably
about P150,000, should be given to Adelaida Tolentino de
Concepcion, as his universal heir.
To this end, on October 17, 1930, Tolentino went to the office
of Eduardo Gutierrez Repide, an attorney at 97 General
Luna, Manila, and informed him that he wanted to make a
new will and desired Repide to draft it for him. After the
necessary preliminary inquiries had been made, the attorney
suggested to Tolentino to return later, bringing a copy of the
will previously made. Accordingly, on the second day
thereafter, Tolentino again appeared in Repide's office with
the prior will; and the attorney proceeded to reduce the new
will to proper form. As the instrument was taking shape
Tolentino stated that he wanted the will to be signed in
Repide's office, with Repide himself as one of the attesting
witnesses. For the other two witnesses Tolentino requested
that two attorneys attached to the office, namely, Leoncio B.
Monzon and Ramon L. Sunico, should serve. For this reason,
in the draft of the will, as it at first stood, the names of the
three above mentioned were inserted as the names of the
three attesting witnesses.
When the instrument had been reduced to proper form it
was placed in the hands of Tolentino, the testator, in order
that he might take it home to reflect over its provisions and
consider whether it conformed in all respects to his wishes.
On the morning of October 21 he again appeared in Repide's
office and returned to him the draft of the will with certain

corrections. Among the changes thus made was the

suppression of the names of Monzon, Sunico, and Repide as
attesting witnesses, these names being substituted by the
names of Jose Syyap, Agustin Vergel de Dios, and Vicente
Legarda. The explanation given by the testator for desiring
this change was that he had met Jose Syyap on the Escolta,
the day before, and had committed the indiscretion of
communicating the fact that he (Tolentino) was having a new
will made in which Monzon, Sunico, and Repide would
appear as the attesting witnesses. Now Syyap had been the
draftsman of the former will of Tolentino, and in this same
will the name of Syyap appeared as one of the attesting
witnesses, the other two being Vicente Legarda and Vergel de
Dios. When, therefore, Syyap learned that a new will was
being drawn up without his intervention, he showed profound
disappointment, saying to Tolentino that he considered it a
gross offense that he, Legarda, and Vergel de Dios should be
eliminated as witnesses to the new will. Upon this
manifestation of feeling by Syyap, Tolentino decided to avail
himself of Syyap, Legarda, and Vergel de Dios as witnesses to
this will also, and he therefore requested Repide to change
the names of the attesting witnesses. After this point had
been settled Tolentino stated that he would request Syyap,
Legarda, and Vergel de Dios to appear at the office of Repide
for the purpose of signing the will. To this end Tolentino went
away but returned later saying that he had spoken to Syyap
about it and that the latter strenuously objected, observing
that the will should be signed at a chop-suey restaurant
( panciteria). Tolentino further stated to his attorney in this
conversation that he had arranged with Syyap and the other

two intending witnesses to meet at five o'clock in the

afternoon of the next day, which was October 22, for the
purpose of executing the will.
Pursuant to these instructions Repide made the desired
changes in the will; and just before twelve o'clock noon of the
next day Tolentino returned to Repide's office and received
from him the criminal document with a carbon copy thereof.
Repide advised the testator that the copy should be executed
with the same formality as the original in order that the
intention of the testator should not be frustrated by the
possible loss or destruction of the original.
It is a custom in the office of Repide not to number the
consecutive pages of a will, on the typewriting machine, the
duty of numbering the pages being left to the testator
himself. This precaution appears to have been born of
experience, and has been adopted by Repide to prevent the
possible destruction of a will by the mere erasure of the
figures or letters indicating the pagination, - a disaster
which, in Repide's experience, had occurred in at least one
case. Accordingly, upon delivering the completed will and
carbon copy to the testator, Repide took particular pains to
instruct the testator to write the consecutive paging of both
original and duplicate before signing the instrument.
At his interview the testator suggested to Repide that the
latter should also go to the place where the will was to be
executed, so that he might be present at the formality. The
attorney replied that it was impossible for him to do so as he

had another engagement for the hour indicated, which would

prevent his attendance.
At about 4:30 p. m. on the same day, which was October 22,
Tolentino started in his car to pick up Syyap and Vergel de
Dios at their respective homes on Antipolo and Benavides
streets. He then caused his chauffeur to drive with the three
to La Previsora Filipina, on Rizal Avenue, where Vicente
Legarda, the third intending witness was to be found.
Arriving at this place, the three entered the office of Legarda,
who was manager of the establishment, and they were
invited to take seats, which they did. Tolentino then
suggested that the three should go as his guests to
a panciteria, where they could take refreshments and the will
could be executed. Legarda replied that he must decline the
invitation for he had an engagement to go to the Cosmos
Club the same afternoon. Upon this Tolentino asked Legarda
to permit the will to be signed in his office, and to this
request Legarda acceded.
Tolentino thereupon drew two documents from his pocket
saving that it was his last will and testament, done in
duplicate, and he proceeded to read the original to the
witnesses. After this had been completed, Legarda himself
took the will in hand and read it himself. He then returned it
to Tolentino, who thereupon proceeded, with pen and ink, to
number the pages of the will thus, "Pagina Primera", "Pagina
Segunda", etc. He then paged the duplicate copy of the will in
the same way. He next proceeded to sign the original will and
each of its pages by writing his name "G. Tolentino" in the
proper places. Following this, each of the three witnesses

signed their own respective names at the end of the will, at

the end of the attesting clause, and in the left margin of each
page of the instrument. During this ceremony all of the
persons concerned in the act of attestation were present
together, and all fully advertent to the solemnity that
engaged their attention.
After the original of the will had been executed in the
manner just stated, the testator expressed his desire that the
duplicate should be executed in the same manner. To this
Syyap objected, on the ground that it was unnecessary; and
in this view he was supported by Vergel de Dios, with the
result that the wishes of the testator on this point could not
be carried out. As the party was about to break up Tolentino
used these words: "For God's sake, as a favor, I request you
not to let any one know the contents of this will." The
meeting then broke up and Tolentino returned Syyap and
Vergel de Dios to their homes in his car. He then proceeded to
the law office of Repide, arriving about 6:15 p. m. After
preliminary explanations had been made, Tolentino
requested Repide to keep the will overnight in his safe, as it
was already too late to place it in the compartment which
Tolentino was then renting in the Oriental Safe Deposit, in
the Kneedler Building. In this connection the testator stated
that he did not wish to take the will to his home, as he knew
that his relatives were watching him and would take
advantage of any carelessness on his part to pry into his
papers. Also, in this conversation Tolentino informed Repide
of the refusal of Syyap to execute the duplicate of the will.

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

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

present at the time and place then being arranged for the
execution of the will, he requested Syyap, as a mere matter of
complaisance, to sign the will then, which Syyap did. Vergel
de Dios has another story to tell of isolated action, claiming
that he signed the will in the evening of October 22 at the
Hospital of San Juan de Dios in Intramuros.
We are unable to give any credence to the testimony of these
two witnesses on this point, the same being an evident
fabrication designed for the purpose of defeating the will. In
the first place, the affirmative proof showing that the will was
properly executed is adequate, consistent, and convincing,
consisting of the testimony of the third attesting witness,
Vicente Legarda, corroborated by Miguel Legarda and
Urbana Rivera, two disinterested individuals, employees of
La Previsora Filipina, who were present in Legarda's office
when the will was executed and who lent a discerning
attention to what was being done. In the second place, each
of the seven signatures affixed to his will by Syyap appear to
the natural eye to have been made by using the same pen and
ink that was used by Legarda in signing the will. The same is
also probably true of the seven signatures made by Vergel de
Dios. This could hardly have happened if the signatures of
Syyap and Vergel de Dios had been affixed, as they now
pretend, at different times and places. In the third place,
Both Syyap and Vergel de Dios are impeached by proof of
contradictory statements made by them on different
occasions prior to their appearance as witnesses in this case.
In this connection we note that, after the murder of Gregorio
Tolentino, and while the police authorities were investigating

his death, Nemesio Alferez, a detective, sent for Syyap and

questioned him concerning his relations with the deceased.
Upon this occasion Syyap stated that Gregorio Tolentino had
lately made a will, that it had been executed at the office of
La Previsora Filipina under the circumstances already
stated, and that he himself had served as one of the attesting
witnesses.
With respect to Vergel de Dios we have the following fact: On
the day that Gregorio Tolentino was buried, Ramon Llorente,
a member of the city police force, was sent out to the
cemetery in order that he might be present and observe the
demeanor on that occasion of such Tolentino's kin as might
be present. Llorente arrived before the funeral cortege,
having been taken out to the cemetery by Repide. While the
two were waiting at the cemetery, Llorente noted the
presence of Vergel de Dios, he requested the policeman to
introduce him. In the conversation that ensued Vergel de
Dios stated with considerable detail that Gregorio Tolentino
had made a will just before his death, that it was executed at
La Previsora Filipina, and that he was one of the witnesses
who attested the instrument at that time and place.
Again, on a certain occasion subsequent to the death of
Gregorio Tolentino, Juan Concepcion the husband of
Adelaida Tolentino, accompanied by Genoveva de Mendoza,
called upon Vergel de Dios, and in the conversation that
resulted Vergel de Dios told them that the will was properly
executed, that he was one of the attesting witnesses, and that
it had been signed by all of them in the office of La Previsora
Filipina.

These circumstances and other incidents revealed in the

proof leave no room for doubt in our mind that Syyap and
Vergel de Dios have entered into a conspiracy between
themselves, and in concert with the opponents, to defeat the
will of Gregorio Tolentino although they are well aware that
said will was in all respects properly executed; and the trial
court, in our opinion, committed no error in admitting the
will to probate.
When a will is contested it is the duty of the proponent to call
all of the attesting witnesses, if available but the validity of
the will in no wise depends upon the united support of the
will by all of those witnesses. A will may be admitted to
probate notwithstanding the fact that one or more of the
subscribing witnesses do not unite with the other, or others,
in proving all the facts upon which the validity of the will
rests. (Fernandez vs. Tantoco, 49 Phil., 380.) It is sufficient if
the court is satisfied from all the proof that the will was
executed and attested in the manner required by law. In this
case we feel well assured that the contested will was properly
executed and the order admitting to it probate was entirely
proper.
The order appealed from will therefore be affirmed, with
costs against the appellants. So ordered.

ATILANO

G.

MERCADO,

petitioner, vs. ALFONSO

SANTOS, Judge of First Instance of Pampanga, and

IIGO S. DAZA, Provincial Fiscal of Pampanga,

respondents. ROSARIO BASA DE LEON ET AL.,
intervenors.

1. 1.WlLLS;CONCLUSIVENESS OF THE DUE EXECUTION

OF A PROBATED WILL.Section 625 of the Code of Civil
Procedure is explicit as to the conclusiveness of the due
execution of a probated will. It provides: "No will shall
pass either the real or personal estate, unless it is proved
and allowed in the Court of First Instance, or by appeal to
the Supreme Court; and the allowance by the court of a
will of real and personal estate shall be conclusive as to its
due execution."
1. 2.ID.; ID.The probate of a will by the probate court
having jurisdiction thereof is considered as conclusive as to
its due exeeution and validity, and is also conclusive that
the testator was of sound and disposing mind at the time
when he executed the will, and was not acting under
duress, menace, fraud, or undue influence, and that the
will is genuine and not a forgery.
1. 3.ID.; ID.; PROCEEDING "IN REM".The probate of a will
in this jurisdiction is a proceeding in rem. The provision of
notice by publication as a prerequisite to the allowance of a
will is constructive notice to the whole world, and when
probate is granted, the judgment of the court is binding
upon everybody, even against the State.

1. 4.ID.; ID.; CONCLUSIVE

PRESUMPTTON.Conclusive
presumptions are inferences which the law makes so
peremptory that it will not allow them to be overturned by
any contrary proof however strong. The will in question
having been probated by a competent court the law -will
not admit any proof to overthrow the legal presumption
that it is genuine and not a forgery.
1. 5.ID.; ID.; CRIMINAL ACTION AGAINST FORGER OF A
DULY PROBATED WILL.Upon the facts stated in the
opinion of the court, it was held: That in view of the
provisions of sections 306, 333 and 625 of the Code of Civil
Procedure, criminal action will not lie in this jurisdiction
against the forger of a will which had been duly admitted
to probate by a court of competent Jurisdiction.
1. 6.CRIMINAL
LAW;PROSECUTION
OF
OFFENSES; RIGHT TO A SPEEDY TRIAL.The
prosecution of offenses is a matter of public interest and it
is the duty of the government or those acting in its behalf
to prosecute all cases to their termination without
oppressive, capricious and vexatious delay. The
Constitution does not say that the right to a speedy trial
may be availed of only where the prosecution for crime is
commenced and undertaken by the fiscal. It does not
exclude from its operation cases com-menced by private
individuals. Where once a person is prose-cuted criminally,
he is entitled to a speedy trial, irrespective of the Nature
of the offense or the manner in which it is authorized to be
commenced. In any event, even the actuations of the fiscal
himself to this case is not entirely free from criticism.

1. 7.ID.; ID.; ID.In Kalawvs. Apostol (G. R. No. 45591, Oct.

15, 1937), the Supreme Court observed that the
prosecuting officer is in charge and has under the direction
and control all prosecutions for public offenses (secs. 1681
and 2465 of the Rev. Adm. Code), and that it is his duty to
see that criminal cases are beard without vexatious,
capricious and oppressive delays so that the courts of
justice may dispose of them on the merits and determine
whether the accused is guilty or not. This is as clear an
admonition as could be made. An accused person is
entitled to a trial at -the earliest opportunity. (Sutherland
on the Constitution, 664; United States vs. Fox, 3 Mont.,
512.) He cannot be oppressed by delaying the
commencement of trial for an unreasonable length of time.
If the proceedings pending trial are deferred, the trial
itself is necessarily delayed.
1. 8.ID.; ID.; ID.it is not to be supposed, of course, that the
Constitution intends to remove from the prosecution every
reasonable opportunity to prepare for trial. Impossibilities
cannot be expected or extraordinary efforts required on the
part of the prosecutor or the court. As stated by the
Supreme Court of the United States, "The right of a
speedy trial is necessarily relative. It is consistent with
delays and depends upon circumstances. It secures rights
to a defendant. It does not preclude the rights of public
justice." (beaversvs. Haubert [1905], 198 U. S., 86; 25 S.
Ct, 573; 49 Law. ed., 950, 954.)

PETITION f or review on. certiorari.

The facts are stated in the opinion of the court.
Claro M. Recto andBenigno S. Aquino for petitioner.

Esperanza
de
la Cruz andHeracuo
respondents.
Sotto & Sotto for intervenors.

Abistado for

LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of
First instance ofPampanga a petition for the probate of the
will of his deceased wife, mes Basa. v without any opposition,
and upon the testimony ofBenigno F. Gabino, one 01 the
attesting witnesses, the probate court, on June 27, 1931,
admitted the will to probate. Almost three years later, on
April 11, 1934 the five intervenors herein moved ex parte
to reopen the proceedings, alleging lack of jurisdiction 01 the
court to probate the will and to close the proceedings.
Because filed ex parte, the motion was denied. The same
motion was filed a second time, but with notice to the adverse
party. The motion was nevertheless denied by the probate
court on May 24, 1934. On appeal to this court, the order of
denial was affirmed on July 26, 1935, (Basa vs. Mercado, 33
Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months
after the probate of the will of Ines Basa, intervenor Rosario
Basa de Leon filed with the justice of the peace court of San
fernando, Pampanga, a complaint against the petitioner
herein, or falsification or forgery of the will probated us above
indicated. The petitioner was arrested. He put up a bond in
the sum of P4,000 and engaged the services of an attorney to
undertake his defense. Preliminary investigation of the case
was continued twice upon petition of the complainant. The
complaint was finally dismissed, at the instance of the

complainant herself, in an order dated December 1932. 1932.

Three months later, or on March 2, 1933, the same
intervenor charged the petitioner for the second time with
the same offense, presenting the complaint this time in the
justice of the peace court of Mexico, Pampanga. The
petitioner was again arrested, again put up a bond in the
sum of P4,000, and engaged the services of counsel to defend
him. This second complaint, after investigation, was also
dismissed, again at the instance of the complainant herself
who alleged that the petitioner was in poor health. That was
on April 27, 1933. Some nine months later, on February
2,1934, to be exact, the same intervenor accused the same
petitioner for the third time of the same offense. The
information was filed by the provincial fiscal of Pampanga in
the justice of the peace court of Mexico. The petitioner was
again arrested, again put up a bond of P4,000, and engaged
the services of defense counsel. The case was disimssed on
April 24, 1934, after due investigation, on the ground that
the will alleged to have been falsified had already been
probated and there was no evidence that the petitioner had
forged the signature of the testatrix appearing thereon, but
that on the contrary, the evidence satisfactorily established
the authenticity of the signature aforesaid. Dissatisfied with
the result, the provincial fiscal, on May 9, 1934, moved is the
Court of of first Instance of Pampanga for reinvestigation of
the case. The motion was granted on May 23, 1934, and, for
the fourth time, the petitioner was arrested, filed a bond and
engaged the services of counsel to handle his defense the
reinvestigation dragged on for almost a year until February
18, 1934, when the Court of First Instance ordered that the

case be tried On the merits. The petitioner interposed a

demurrer on November 25, 1935, on the ground that the will
alleged to have been forged had already been probated. This
demurrer was overruled on December 24; 1935, whereupon
an exception was taken and a motion for reconsideration and
notice of appeal were filed. The motion for reconsideration
and the proposed appeal were denied on January 14, 1936.
The case proceeded to trial, and forthwith petitioner moved
to dismiss the case claiming again that the will alleged to
have been forged had already been probated and, further,
that the order probating the will is conclusive as to the
authenticity and due execution thereof. The motion was
overruled and the petitioner filed with the Court of Appeals a
petition for certiorari with preliminary injunction to enjoin
the trial court from further proceedings in the matter. The
injunction was issued and thereafter, on June 19, 1937, the
Court of Appeals denied the petition f or certiorari, and
dissolved the writ of preliminary injunction. Three justices
dissented in a separate opinion. The case is now before this
court for review on certiorari.
Petitioner contends: (1) that the probate of the will of his
deceased wife is a bar to his criminal prosecution for the
alleged forgery of the said will; and, (2) that he has been
denied the constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to
the effect of judgments:
"SEC. 306. Effect of judgment.The effect of a judgment or final
order in an action or special proceeding before a court or judge of
the Philippine Islands or of the United States, or of any State or
Territory of the United States, having jurisdiction to pronounce the
judgment or order, may be as follows:

"1. In case of a judgment or order against a specific thing,

or in respect to the probate of a will, or the administration of
the estate of a deceased person, or in respect to the personal,
political, or legal condition or relation of a particular
person, the judgment or order is conclusive upon the title of
the thing, the will or administration, or the condition or
relation of the person: Provided, That the probate of a will or
granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate: *
(Underscoring ours.)
Section 625 of the same Code is more explicit as to the
conclusiveness of the due execution of a probated will. It says:

"SEC. 625. Allowance Necessary, and Conclusive as to Execution.

No will shall pass either the real or personal estate, unless it is
proved and allowed in the Court of First instance, or by appeal to
the Supreme Court; and the allowance of the court of a will of real
and personal estate shall be conclusive as to its due
execution." (Underscoring ours.)

In Manahan vs. Manahan(58 Phil., 448, 451), we held:

"* * * The decree of probate is conclusive with respect to the due

execution thereof and it cannot be impugned on any of the grounds
authorized by law, except that of fraud, in any separate or
independent action or proceeding. (Sec. 625, Code of Civil
Procedure; Castaneda vs.Alemany, 3
Phil.,
426; Pimentelvs. Palanca, 5 Phil., 436;Sahagun vs. De Gorostiza, 7
Phil.,
347; Limjuco
vs.
Ganara,
H
Phil.,
393; Montaano vs.Suesa, 14 Phil., 676; in reEstate of Johnson, 39
Phil.,
156;Riera vs. Palmaroli, 40
Phil.,
105; Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur,42
Phil., 855; and Chiong Joc-soy vs. Vano, 8 Phil., 119."

In 28 R. C. L., p. 377, section 378, it is said:

"The probate of a will by the probate court having jurisdiction

thereof is usually considered as conclusive as to its due execution
and validity, and is also conclusive that the testator was of sound
and disposing mind at the time when he executed the will, and was
not acting under duress, menace, fraud, or undue influence, and
that the will is genuine and not a forgery."(Underscoring ours.)

As our law on wills, particularly section 625 of our Code of

Civil Procedure aforequoted, was taken almost bodily from
the Statutes of Vermont, the decisions of the Supreme Court
of that State relative to the effect of the probate of a will are
01 persuasive authority in this jurisdiction. The Vermont
statute as to the conclusiveness of the due execution of a
probated will reads as follows:

"SEC. 2356. No will shall pass either real or personal estate unless
it is proved and allowed in the probate court, or Uy appeal in the
county or supreme court; and the probate of a will of real or
personal estate shall be conclusive as to its due execution."
(Vermont Statutes, p. 451.)

Said the Supreme Court of Vermont in the case ofMissionary

Society vs. Eells(68 Vt., 497, 504) : "The probate of a will by
the probate court having jurisdiction thertof, upon the due
notice, is conclusive as to its due execution against the whole
world. (Vt. St., sec. 2336; Foster's Exrs. vs.Dickerson, 64 Vt.,
233.)"
The probate of a will in this jurisdiction is a proceeding in
rem. The provision of notice by publication as a prerequisite
to the allowance of a will is constructive notice to the whole
world, and when probate is granted, the judgment of the
court is binding upon everybody, even against the State. This

court held in the case ofManalo vs. Paredes and Philippine

Food Co. (47 Phil., 938):

"The proceeding for the probate of a will is one in rem (40 Cyc.,
1265), and the court acquires jurisdiction over all the persons
interested, through the publication of the notice prescribed by
section 630 of the Code of Civil Procedure, and any order that may
be entered therein is binding against all of them.
"Through the publication of the petition for the probate of the
will, the court acquires jurisdiction over all such persons as are
interested in said will; and any judgment that may be rendered
after said proceeding is binding against the whole world."

In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court
of Vermont held:
"In this State the probate of a will is a proceeding in rem,being in f
form and substance upon the will itself to determine its validity.
The judgment determines the status of the instrument, whether it
is or is not the will of the testator. When the proper steps required
by law have been taken the judgment is binding upon everybody,
and makes the inmstrument as to all the world just what the
judgment de-clares it to be. Woodruff vs.Taylor, 20 Vt., 65
73; Burbeckvs. Little, 50 Vt., 713, 715;Missionary Society vs. Bells,
68 Vt, 497, 504; 35 Atl., 463.) the proceedings before the probate
court are statutory and are not governed by common-law rules as
to parties or causes of action. (Holdrige vs. Holdrige's Estate, 53
Vt., 546, 550; Purdy vs.Estate of Purdy, 67 Vt. 50, 55; 30 At]., 695.)
No process is issued against anyone in such proceedings but all
persons interested in determining the state or conditions of the
instrument are constructively notified by the publication of notice
as required by G. L. 3219. (Woodruff vs Taylor, supra; In
re Warner's Estate 98 Vt., 254; 271; 127 Atl., 362.)" '

Section 333, paragraph 4, of the Code of Civil Procedure

establishes an incontrovertible presumption in favor of
judgments declared by it to be conclusive:
"SEC. 333. Conclusive Presumptions.The following presumptions
or deductions, which the law expressly directs to be made from
particular facts, are deemed conclusive: '*
"4. The judgment or order of a court, when declared by this code
to be conclusive."

Conclusive presumptions are inferences which the law makes

so peremptory that it will not allow them to be overturned by
any contrary proof however strong. (Brantvs. Morning
Journal Ass'n., 80 N. Y. S., 1002, 1004; 81 App. Div.,
183; see, also,Joslyn vs. Puloer, 59 Hun., 129, 140; 13 N. Y. S.,
311.) The will in question having been probated by a
competent court, the law will not admit any proof to
overthrow the legal presumption that it is genuine and not a
forgery.
The majority decision of the Court of Appeals cites English
decisions to bolster up its conclusion that "the judgment
admitting the will to probate is binding upon the whole world
as to the due execution and genuineness of the will insofar as
civil rights and liabilities are concerned, but not for the
purpose of punishment of a crime." The cases of Dominus
Rex vs.Vincent, 93 English Reports, Full Reprint, 648
andDominus Rex vs. Rhodes, 93 English Reports, Full
Reprint, 795, the first case being decided in 1721, were cited
to illustrate the earlier English decisions to the effect that
upon indictment for forging a will, the probating of the same
is conclusive evidence in the defendant's favor of its genuine
character. Reference is made, however, to the cases
of Rex vs. Gibson, 168 English Reports, Full Reprint, 836,

footnote (a), decided in 1802, and Rex vs.Buttery and

Macnamarra, 168 English Reports, Full Reprint, 836,
decided in 1818, which establish. a contrary rule. Citing
these later cases, we find the following quotation from Black
on Judgments, Vol. II, page 764:
"A judgment admitting a will to probate cannot be attacked
collaterally although the will was forged; and a payment to the
executor named therein of a debt due the decedent will discharge
the same, notwithstanding the spurious character of the
instrument probated. It has also been held that, upon an
indictment for forging a will, 'he probate of the paper in question is
conclusive evidence in the defendant's favor of its genuine
character. But this particular point has lately been ruled
otherwise."

It was the case of Rex vs.Buttery, supra, which induced the

Supreme
Court
of
Massachussetts
in
the
case
of Waters vs. Stickney(12 Allen 1; 90 Am. Dec., 122) also cited
by the majority opinion, to hold that "according to later and
sounder decisions, the probate, though conclusive until set
aside of the disposition of the property, does not protect the
forger from punishment." This was reproduced in 28 R. C. L,
p. 376, and quoted in Barry vs.Walker (103 Fla., 533; 137 So.,
711, 715), andThompson vs. Freeman (149 So., 740, 742), also
cited in support of the majority opinion of the Court of
Appeals. The dissenting opinion of the Court of Appeals in
the instant case under review makes a cursory study of the
statutes obtaining in England, Massachussetts and Florida,
and comes to the conclusion that the decisions cited in the
majority opinion do not appear to "have been promulgated in
the face of statutes similar to ours." The dissenting opinion
cites Wharton's Criminal Evidence (11th ed., sec. 831), to

show that the probate of a will in England is only prima

facie proof of the validity of the will (Op. Cit.
quotingMarriot vs. Marriot, 93 English Reprint, 770); and 21
L. R. A. (pp. 686-689 and note), to show that in
Massachussetts there is no statute making the probate of a
will conclusive, and that in Florida the statute (sec. 1810,
Revised Statutes) makes the probate conclusive evidence as
to the validity of the will with regard to personal, andprima
facie as to real estate. The cases decided by the Supreme
Court of Florida cited by the majority opinion, supra, refer to
wills of both personal and real estate.
The petitioner cites the case of State vs. McGlynn(20 Cal.,
233, decided in 1862), in which Justice Norton of the
Supreme Court of California, makes the following review of
the nature of probate proceedings in England with respect to
wills personal and real property:
"In England, the probate of wills of personal estate belongs to the
Ecclesiastical Courts. No probate of a will relating to real estate is
there necessary. The real estate, upon the death of the party
seized, passes immediately to the devisee under the will if there be
one; or if there be no will, to the heir at law. The person who thus
becomes entitled takes possession. If one person claims to be the
owner under a will, and another denies the validity of the will and
claims to be the owner as heir at law, an action of ejectment is
brought against the party who may be in possession by the adverse
claimant; and on the trial of such an action, the validity of the will
is contested, and evidence may be given by the respective parties
as to the capacity of the testator to make a will, or as to any fraud
practiced upon him, or as to the actual execution of it, or as to any
other circumstance affecting its character as a valid devise of the
real estate in dispute. The decision upon the validity of the will in
such action becomes res adjudicata, and is binding and conclusive

upon the parties to that action and upon any person who may
subsequently acquire the title from either of those parties; but the
decision has no effect upon other parties, and does not settle what
may be called the status or character of the will, leaving it subject to
be enforced as a valid will, or defeated as invalid, whenever other
parties may have a contest depending upon it. A probate of a will of
personal property, on the contrary, is a judicial determination of
the character of the will itself. It does not necessarily or ordinarily
arise from any controversy between adverse claimants, but is
necessary in order to authorize a disposition of the personal estate
in pursuance of its provisions. In case of any controversy between
adverse claimants of the personal estate, the probate is given in
evidence and is binding upon the parties, who are not at liberty to
introduce any other evidence as to the validity of the will."

The intervenors, on the other hand, attempt to show that the

English law on wills is different from that stated in the case
of State vs,McGlynn, supra, citing the following statutes:
1. 1.The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. 2.The Court of Probate Act, 1857 (20 & 21 Vict. c. 77).
3. 3.The Judicature Act, 1873 (36 & 37 Vict. c. 66).

The Wills Act of 1837 provides that probate may be granted

of "every instrument purporting to be testamentary and
executed in accordance with the statutory requirements * * *
if it disposes of property, whether personal or real." The
Ecclesiastical Courts which took charge of testamentary
causes (Ewell's Blackstone [1910], p. 460), were determined
by the Court of Probate Act of 1857, and the Court of Probate
in turn was, together with other courts, incorporated into the
Supreme Court of Judicature, and transformed into the
Probate Division thereof, by the Judicature Act of 1873. (Lord

Halsbury, The Laws of England [1910], pp. 151-156.) The

intervenors overlook the fact, however, that the case
of Rexvs. Buttery and Macnamarra, supra, upon which they
rely in support of their theory that the probate of a forged
will does not protect the forger from punishment, was decided
long before the foregoing amendatory statutes to the English
law on wills were enacted. The case of State vs.McGlynn may
be considered, therefore, as more or less authoritative on the
law of England at the time of the promulgation of the
decision in the case of Rex vs. Buttery and Macnamarra.
In the case of State vs.McGlynn, the Attorney-General of
California filed an information to set aside the probate of the
will of one Broderick, after the lapse of one year provided by
the law of California for the review of an order probating a
will, in order that the estate may be escheated to the State of
California, on the ground that the probated will was forged
and that Broderick therefore died intestate, leaving no heirs,
representatives or devisees capable of inheriting his estate.
Upon these facts, the Supreme Court of California held:
"The fact that a will purporting to be the genuine will of Broderick,
devising his estate to a devisee capable of inheriting and holding it,
has been admitted to probate and established as a genuine will by
the decree of a Probate Court having jurisdiction of the case,
renders it necessary to decide whether that decree and the will
established by it, or either of them, can be set aside and vacated by
the judgment of any other court. If it shall be found that the decree
of the Probate Court, not reversed by the appellate court, is final
and conclusive, and not liable to be vacated or questioned by any
other court, either incidentally or by any direct proceeding, for the
purpose of impeaching it, and that so long as the probate stands
the will must be recognized and admitted in all courts to be valid,

then it will be immaterial and useless to inquire whether the will

in question was in fact genuine or forged." (State vs. McGlynn, 20
Cal., 233; 81 Am. Dec., 118, 121.)

Although in the foregoing case the information filed by the

State was to set aside the decree of probate on the ground
that the will was forged, we see no difference in principle
between that case and the case at bar. 'A subtle distinction
could perhaps be drawn between setting aside a decree of
probate, and declaring a probated will to be a forgery. It is
clear, however, that a duly probated will cannot be declared to
be a forgery without disturbing in a way the decree allowing
said will to probate. It is at least anomalous that a will
should be regarded as genuine for one purpose and spurious
for another.
The American and English cases show a conflict of
authorities on the question as to whether or not the probate
of a will bars criminal prosecution of the alleged forger of the
probated will. We have examined some important cases and
have come to the conclusion that no fixed standard may be
adopted or drawn therefrom, in view of the conflict no less
than of diversity of statutory provisions obtaining in different
jurisdictions. It behooves us, therefore, as the court of last
resort, to choose that rule most consistent with our statutory
law, having in view the needed stability of property rights
and the public interest in general. To be sure, we have
seriously reflected upon the dangers of evasion from
punishment of culprits deserving of the severity of the law in
cases where, as here, forgery is discovered after the probate
of the will and the prosecution is had before the prescription
of the offense. By and large, however, the balance seems

inclined in favor of the view that we ha\ e taken. Not only

does the law surround the execution of the will with the
necessary formalities and require probate to be made after
an elaborate judicial proceeding, but section 113, not to speak
of section 513, of our Code of Civil Procedure provides for an
adequate remedy to any party who might have been
adversely affected by the probate of a forged will, much in the
same way as other parties against whom a judgment is
rendered under the same or similar circumstances.
(Pecson vs.Coronel, 43 Phil., 358.) The aggrieved party may
file an application for relief with the proper court within a
reasonable time, but in no case exceeding six months after
said court has rendered the judgment 01 probate, on the
ground of mistake, inadvertence, suprise or excusable
neglect. An appeal lies to review the action of a court of first
instance when that court refuses to grant relief. (Banco
Espaol-Fiiipino vs. Palanca, 37
Phil.,
921; Philippine
Manufacturing
Co. vs.Imperial, 47
Phil.,
810;Samia vs. Medina, 56 Phil., 613.) After a judgment
allowing a will to be probated has become final and
unappealable, and after the period fixed by section 113 of the
(Code of Civil Procedure has expired, the law as an
expression of the legislative wisdom goes no further and the
case ends there.
"* * * The court of chancery has no capacity, as the authorities
have settled, to judge or decide whether a will is or is not a forgery;
and hence there would be an incongruity in its assuming to set
aside a probate decree establishing a will, on the ground that the
decree was procured by fraud, when it can only arrive at the fact of
such fraud by first deciding that the will was a f forgery. There
seems, therefore, to be a substantial reason, so long as a court of

chancery is not allowed to judge of the validity of a will, except as

shown by the probate, for the exception of probate decrees from the
jurisdiction which courts of chancery exercise in setting aside other
judgments obtained by fraud. But whether the exception be
founded in good reason or otherwise, it has become too firmly
established to be disregarded. At the present day, it would not
be & greater assumption to deny the general rule that courts of
chancery may set aside judgments procured by fraud, than to deny
the exception to that rule in the case of probate decrees. We must
acquiesce in the principle established by the authorities, if we are
unable to approve of the reason. Judge Story was a staunch
advocate for the most enlarged jurisdiction of courts of chancery,
and was reluctant to allow the exception in cases of wills, but was
compelled to yield to the weight of authority. He says: 'No other
excepted case is known to exist; and it is not easy to discover the
grounds upon which this exception stands, in point of reason or
principle, although it is clearly settled by authority.' (1 Story's Eq.
Jur. sec. 440.)" (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118,
129. See,also, Tracy vs. Muir, 121 American State Reports, 118,
125.)

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

306, 333 and 625 of our Code of Civil Procedure, criminal
action will not lie in this jurisdiction against the forger of a
will which had been duly admitted to probate by a court of
competent jurisdiction.
The resolution of the foregomg legal question is sufficient
to dispose of the case. However, the other legal question with
reference to the denial to the accused of his right to a speedy
trial having been squarely raised and submitted we shall
proceed to consider the same in the light of cases already
adjudicated by this court.

2. The Constitution of the Philippines provides that "In,

all criminal prosecutions the accused " * * shall enjoy the
right * * * to have a speedy * * * trial * * * (Art. III, sec. 1,
par. 17. See, also, G. O. No. 58, sec. 15, No. 7.) Similar
provisions are to be found in the President's Instructions to
the Second Philippine Commission (par. 11), the Philippine
Bill of July 1, 1902 (sec. 5, par. 2) and the Jones Act of August
29,1916 (sec. 3, par. 2). The provisions in the f foregoing
organic acts appear to have been taken from similar
provisions in the Constitution of the United States (6th
Amendment and those of the various states of the American
Union. A similar injunction is contained in the Malolos
Constitution (art. 8, Title IV), not to speak of other
constitutions. More than once this court had occasion to set
aside the proceedings in criminal cases to give effect to the
constitutional injunction of speedy trial. (Conde vs. Judge of
First Instance and Fiscal of Tayabas [1923], 45 Phil.,
173; Conde vs. Rivera
and
Unson [1924], 45
Phil.,
650;People vs. Castaeda and Fernandez [1936]), 35 Off.
Gaz., 1269; Kalaw vs.Apostol, Oct. 15, 1937, G. R. No.
45591; Esguerra vs. De la Costa, Aug. 30, 1938, G. R. No.
46039.)
In Conde vs. Rivera and Unson, supra, decided before the
adoption of our Constitution, we said: that in all criminal
prosecutions the accused shall enjoy the right to have a
speedy trial. Aurelia Conde, like all other accused persons,
has a right to a speedy trial in order that if innocent she may
go free, and she has been deprived of that right in defiance of
law. Dismissed from her humble position, and compelled to
dance attendance on courts while investigations and trials

are arbitrarily postponed without her consent, is palpably

and openly unjust to her and a detriment to the public. By
the use of reasonable diligence, the prosecution could have
settled upon the appropriate information, could have
attended to the formal preliminary examination, and could
have prepared the case for a trial free from vexatious,
capricious, and oppressive delays."
In People vs. Castaeda and Fernandez, supra, this court
found that the accused had not been given a fair and
impartial trial. The case was to have been remanded to the
court a quo for a new trial before an impartial judge. This
step, however, was found unnecessary. A review of the
evidence convinced this Court that a judgment of conviction
for theft, as charged, could not be sustained and, having in
view the right to a speedy trial guaranteed by the
Constitution to every person accused of crime, entered a
judgment acquitting the accused, with costs de oficio.We said:

"* * * The Constitution, Article III, section 1, paragraph 17,

guarantees to every accused person the right to a speedy trial. This
criminal proceeding has been dragging on for almost five years
now. The accused have twice appealed to this court for redress
from the wrong that they have suffered at the hands of the trial
court. At least one of them, namely Pedro Fernandez alias Piro,
had been confined in prison from July 20, 1932 to November 27,
1934, for inability to post the required bond of P3,000 which was
finally reduced to P300. The Government should be the last to set
an example of delay and oppression in the administration of justice
and it is the moral and legal obligation of this court to see that the
criminal proceedings against the accused come to an end and that
they be immediately discharged from the custody of the law(Conde vs. Rivera and Unson, 45 Phil., 651.)"

In Kalaw vs. Apostol, supra,the petitioner invoked and this

court applied and gave effect to the doctrines stated in the
second Conde case,supra. In granting the writs prayed for,
this court, after referring to the constitutional and statutory
provisions guaranteeing to persons accused of crime the right
to a speedy trial, said:

"Se infiere de los preceptos legales transcritos que todo acusado en

causa criminal tiene derecho a ser juzgado pronta y pblicaente.
Juicio rapido significa un juicio que se celebra de acuerdo con la ley
de procedimiento criminal y los reglamentos, libre de dilaciones
vejatorias, caprichosas y opresivas (Burnett vs. State, 76 Ark., 295;
88 S. W., 956; 113 AMSR, 94; Stewart vs. State, 13 Ark.,
720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon vs. State,
10 Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P.,
736; Statevs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe,
17 Wyo., 227, 98 p., 122; 22 IRANS, 896; 17 Ann. Cas., 161). Segn
los hechos admitidos resulta que al recurrente se le concedi vista
parcial del asunto, en el Juzgado de Primera Instancia de Smar,
slo despus de haber transcurrido ya ms de un ao y medio
desde la presentacin de la primera querella y desde la recepcin
de la causa en dicho Juzgado, y despus de haberse transferido dos
veces la vista del asunto sin su consentimiento. .A esto debe
aadirse que la primera transferencia de vista era claramente
injustificada porque el motivo que se aleg consisti nicamente en
la conveniencia personal del ofendido y su abogado, no habindose
probado suficientemente la alegacin del primero de que se hallaba
enfermo. Es cierto que el recurrente haba pedido que, en vez de
sealarse a vista el asunto para el mayo de 1936, lo fuera para el
noviembre del mismo ao pero, aparte de que la razn que aleg
era bastante fuerte porque su abogado se oponi a comparecer por
compromisos urgentes contrados con anterioridad y en tal
circunstancia hubiera quedado indefenso si hubiese sido obligado a

entrar en juicio, aparece que la vista se pospuso por el Juzgado

a motu proprio,por haber cancelado todo el calendario judicial
preparado por el Escribano para el mes de junio. Declaramos, con
visto de estos hechos, que al recurrente se !e priv de su derecho
fundamental de ser juzgado prontamente."

Esguerra vs. De la Costa,supra, was a petition for mandamus

to compel the respondent judge of the Court of First Instance
of Rizal to dismiss the complaint filed in a criminal case
against the petitioner, to cancel the bond put up by the said
petitioner and to declare the costs de oficio. In accepting the
contention that the petitioner had been denied speedy trial,
this court said:
"Consta que en menos de un ao el recurrente fu procesado
criminalmente por el alegado delito de abusos deshonestos, en el
Juzgado de Paz del Municipio de Cainta, Rizal. Como consecuencia
de las denuncias que contra el se presentaron fu arrestado tres
veces y para gozar de libertad provisional, en espera de los juicios,
se vi obligado a prestar tres fianzas por la suma de P1,000 cada
una. Si no se d fin al proceso que ltimamente se -ha incoado
contra el recurrente la incertidumbre continuar cernindose sobre
61 y las consiguientes molestias y preocupaciones continuarn
igualmente abrumndole. El Ttulo III, artculo 1, No. 17, de la
Constitucin precepta que en todo proceso criminal e! acusado
tiene derecho de ser juzgado pronta y pblicamente. El Artculo 15,
No. 7, de la Orden General No. 58 dispone asimismo que en las
causas criminales el acusado tendr derecho a ser juzgado pronta y
pblicamente. Si el recurrente era realmente culpable del delito
que se le imput, tena de todos modos derechos a que fuera
juzgado pronta y pblicamente y sin dilaciones arbitrarias y
vejatorias. Hemos declarado reiteradamente que existe un remedio
positivo para los casos en que se viola el derecho constitucional del
acusado de ser juzgado prontamente. El acusado que es privado de

su derecho fundamental de ser enjuiciado rpidamente tiene

derecho a pedir que se le ponga en libertad, si estuviese detenido, o
a que la causa que pende contra el sea sobreseda definitivamente.
(Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the matter of
Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512;
Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937;
Pueblocontra Castaeda y Fernandez, 35 Gac. Of., 1357.)"

We are again called upon to vindicate the fundamental right

to a speedy trial. The facts of the present case may be at
variance with those of the cases hereinabove referred to.
Nevertheless, we are of the opinion that, under the
circumstances, we should consider the substance of the right
instead of indulging in more or less academic or undue
factual differentiations. The petitioner herein has been
arrested four times, has put up a bond in the sum of P4,000
and has engaged the services of counsel to undertake his
defense an equal number of times. The first arrest was made
upon a complaint filed by one of the intervenors herein for
alleged falsification of a will which, sixteen months before,
had been probated in court. This complaint, after
investigation, was dismissed at the complainant's own
request. The second arrest was made upon a complaint
charging the same offense and this complaint, too, was
dismissed at the behest of the complainant herself who
alleged the quite startling ground that the petitioner was in
poor health. The third arrest was made following the filing of
an information by the provincial fiscal of Pampanga, which
information was dismissed, after due investigation, because
of insufficiency of the evidence. The fourth arrest was made
when the provincial fiscal secured a reinvestigation of the
case against the petitioner on the pretext that he had

additional evidence to present, although such evidence does

not appear to have ever been presented.
It is true that the provincial fiscal did not intervene in the
case until February 2, 1934, when he presented an
information charging the petitioner, for the third time, of the
offense of falsification. This, however, does not matter. The
prosecution of offenses is a matter of public interest and it is
the duty of the government or those acting in its behalf to
prosecute all cases to their termination without oppressive,
capricious and vexatious delay. The Constitution does not say
that the right to a speedy trial may be availed of only where
the prosecution for crime is commenced and undertaken by
the fiscal. It does not exclude f from its operation cases
commenced by private individuals. Where once a person is
prosecuted criminally, he is entitled to a speedy trial,
irrespective of the nature of the offense or the manner in
which it is authorized to be commenced. In any event, even
the actuations of the fiscal himself in this case is not entirely
free from criticism. From October 27, 1932, when the first
complaint was filed in the justice of the peace court of San
Fernando, to February 2, 1934, when the provincial fiscal
filed his information with the justice of the peace of Mexico,
one year, three months and six days transpired; and from
April 27, 1933, when the second criminal complaint was
dismissed by the justice of the peace of Mexico, to February 2,
1934, nine months and six days elapsed. The investigation
following the fourth arrest, made after the fiscal had secured
a reinvestigation of the case, appears also to have dragged on
for about a year. There obviously has been a delay, and
considering the antecedent facts and circumstances within

the knowledge of the fiscal, the delay may not at all be

regarded as permissible. InKalaw vs. Apostol, supra, we
observed that the prosecuting officer is in charge of and has
under his direction and control all prosecutions for public
offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and
that it is his duty to see that criminal cases are heard
without vexatious, capricious and oppressive delays so that
the courts of justice may dispose of them on the merits and
determine whether the accused is guilty or not. This is as
clear an admonition as could be made. An accused person is
entitled to a trial at the earliest opportunity. (Sutherland on
the Constitution, p. 664; United States vs. Fox, 3 Mont., 512.)
He cannot be oppressed by delaying the commencement of
trial for an unreasonable length of time. If the proceedings
pending trial are deferred, the trial itself is necessarily
delayed. It is not to be supposed, of course, that the
Constitution intends to remove from the prosecution every
reasonable opportunity to prepare for trial. Impossibilities
cannot be expected or extraordinary efforts required on the
part of the prosecutor or the court. As stated by the Supreme
Court of the United States, "The right of a speedy trial is
necessarily relative. It is consistent with delays and depends
upon circumstances. It secures rights to a defendant. It does
not
preclude
the
rigths
of
public
justice."
(Beavers vs.Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49
Law. ed., 950, 954.)
It may be true, as seems admitted by counsel for the
intervenors, in paragraph 8, page 3 of his brief, that the
delay was due to "the efforts towards reaching an amicable
extrajudicial compromise," but this fact, we think, casts doubt

instead upon the motive which led the intervenors to bring

criminal action against the petitioner. The petitioner claims
that the intention of the intervenors was to press upon
settlement, with the continuous threat of criminal
prosecution, notwithstanding the probate of the will alleged
to have been falsified. Argument of counsel for the petitioner
in this regard is not without justification. Thus after the
filing of the second complaint with the justice of the peace
court of Mexico, complainant herself, as we have seen, asked
for dismissal of the complaint, on the ground that "el acusado
tena la salud bastante delicada," and, apparently because of
failure to arrive at any settlement, she decided to renew her
complaint.
Counsel for the intervenors contendand the contention
is sustained by the Court of Appealsthat the petitioner did
not complain heretofore of the denial of his constitutional
right to a speedy trial. This is a mistake. When the
petitioner, for the fourth time, was ordered arrested by the
Court of First Instance of Pampanga, he moved for
reconsideration of the order of arrest, alleging, among other
things, "Que
por
estas
continuas
acusaciones
e
investigaciones, el acusado compareciente no obstante su mal
estado de salud desde el ao 1932 en que tuvo que ser operado
por padecer de tuberculosis ha tenido que sostener litigios y
ha sufrido la mar de humiliaciones y zozobras y ha incurrido
en enormes gastos y molestias y ha desatendido su
quebrantada salud." The foregoing allegation was inserted on
page 6 of the amended petition for certiorari presented to the
Court of Appeals. The constitutional issue also appears to

have been actually raised and considered in the Court of

Appeals. In the majority opinion of that court, it is stated:

"Upon the foregoing facts, counsel for the petitioner submits for the
consideration of this court the following questions of law: First,
that the respondent court acted arbitrarily and with abuse of its
authority, with serious damage and prejudice to the rights and
interests of the petitioner, in allowing that the latter be prosecuted
and arrested for the fourth time, and that he be subjected, also for
the fourth time, to a preliminary investigation for the same
offense, thereby converting the court into an instrument of
oppression and vengeance on the part of the alleged offended
parties, Rosario Basa et al.; * * *."

And in the dissenting opinion, we find the following opening

paragraph:

"We cannot join in a decision declining to stop a prosecution that

has dragged for about five years and caused the arrest on four
different occasions of a law abiding citizen for the alleged offense of
falsifiying a will that years before, had been declared genuine and
valid by a court of competent jurisdiction."

From the view we take of the instant case, the petitioner is

entitled to have the criminal proceedings against him
quashed. The judgment of the Court of Appeals is hereby
reversed, without pronouncement regarding costs. So
ordered.
Avancea,
C.
J., VillaReal, Imperial, Diaz, andConcepcion, JJ., concur.

TESTATE ESTATE OF MARIA MANUEL VDA. DE

BIASCAN, petitioner, vs.ROSALINA C. BIASCAN,
respondent.

Actions; Special
Proceedings; Estate
Proceedings;Probate
Proceedings; Appeals;An appeal is allowed in the cases mentioned
in Section 1, Rule 109 as these orders, decrees or judgments issued
by a court in a special proceeding constitute a final determination
of the rights of the parties so appealing.An appeal is allowed in
these aforesaid cases as these orders, decrees or judgments issued
by a court in a special proceeding constitute a final determination
of the rights of the parties so appealing. In contrast, interlocutory
orders are not appealable as these are merely incidental to judicial
proceedings. In these cases, the court issuing such orders retains
control over the same and may thus modify, rescind, or revokethe
same on sufficient groundsatanytime before final judgment.
Same; Same; Same; Same;Same; The trial court, by so ruling
that certain persons are entitled to participate in the settlement
proceedings, has effectively determined that the said persons are the
lawful heirs of the deceased, and said ruling may be the proper
subject of an appeal.In the instant case, the Order dated April 2,
1981 of the trial court decreed, among others, that Maria Manuel
Vda. De Biascan, the lawful wife of the deceased Florencio Biascan,
private respondent Rosalina Biascan and her brother, German
Biascan, are entitled to participate in the settlement proceedings.
Moreover, the said Order likewise denied Marias motion to set
aside the order appointing private respondent as regular
administratrix of the estate. These rulings of the trial court were
precisely questioned by Maria in her Motion for Reconsideration
dated June 6, 1981. The ruling of the trial court that Maria,
private respondent Rosalina Biascan and German Biascan were
entitled to participate in the settlement proceedings falls squarely

under paragraph (b), Section 1, Rule 109 of the Rules of Court as a

proper subject of appeal. By so ruling, the trial court has effectively
determined that the three persons are the lawful heirs of the
deceased. As such, the same may be the proper subject of an
appeal.
Same; Same; Same; Same;Same; Administrators; An order of
the trial court appointing a regular administrator of a deceased
persons estate is a final determination of the rights of the parties
thereunder, and is thus, appealable.The ruling of the trial court
denying petitioners motion to set aside the order appointing
private respondent as the regular administratrix of the estate of
Florencio Biascan is likewise a proper subject of an appeal. We
have previously held that an order of the trial court appointing a
regular administrator of a deceased persons estate is a final
determination of the rights of the parties thereunder, and is thus,
appealable. This is in contrast with an order appointing a special
administrator who is appointed only for a limited time and for a
specific purpose. Because of the temporary character and special
character of this appointment, the Rules deem it not advisable for
any party to appeal from said temporary appointment. Considering
however that private respondent has already been appointed as
regular administratrix of the estate of Florencio Biascan, her
appointment as such may be questioned before the appellate court
by way of appeal.
Same; Same; Same; Same;Same; Pleadings and Practice;In
special proceedings, such as a proceeding for the settlement of
estate, the period of appeal from any decision or final order
rendered therein is thirty (30) days, a notice of appeal and a record
on appeal being required.It is thus clear that the Order dated
April 2, 1981 may be the proper subject of an appeal in a special
proceeding. In special proceedings, such as the instant proceeding
for settlement of estate, the period of appeal from any decision or
final order rendered therein is thirty (30) days, a notice of appeal

and a record on appeal being required. The appeal period may only
be interrupted by the filing of a motion for new trial or
reconsideration. Once the appeal period expires without an appeal
or a motion for reconsideration or new trial being perfected, the
decision or order becomes final.
Same; Same; Same; Same;Same; It
is
well-settled
that
judgments or orders become final and executory by operation of law
and not by judicial declaration, and it is of no moment that the
opposing party failed to object to the timeliness of the motion for
reconsideration or that the court denied the same on grounds other
than timeliness.It is well-settled that judgments or orders
become final and executory by operation of law and not by judicial
declaration. Thus, finality of a judgment becomes a fact upon the
lapse of the reglementary period of appeal if no appeal is perfected
or motion for reconsideration or new trial is filed. The trial court
need not even pronounce the finality of the order as the same
becomes final by operation of law. In fact, the trial court could not
even validly entertain a motion for reconsideration filed after the
lapse of the period for taking an appeal. As such, it is of no
moment that the opposing party failed to object to the timeliness of
the motion for reconsideration or that the court denied the same on
grounds other than timeliness considering that at the time the
motion was filed, the Order dated April 2, 1981 had already
become final and executory. Being final and executory, the trial
court can no longer alter, modify, or reverse the questioned order.
The subsequent filing of the motion for reconsideration cannot
disturb the finality of the judgment or order.
Same; Same; Same; Same;Same; The
rules
on
special
proceedings recognize that a motion for extension of time to file the
notice of appeal and record of appeal may be granted.Considering
that it is clear from the records that petitioners notice of appeal
was filed on September 20, 1996, the same was clearly filed out of
time as it only had until August 22, 1996 within which to file the

said pleading. And while the rules on special proceedings recognize

that a motion for extension of time to file the notice of appeal and
record of appeal may be granted, no such motion was ever filed by
petitioner before the trial court. Consequently, the trial court
committed no error when it dismissed the appealof petitioner.

PETITION for review on certiorari of a decision of the Court

of Appeals.
The facts are stated in the opinion ofthe Court.
Siguion Reyna,Montecillo & Ongsiako for petitioner.
Virgilio B. Gezmundofor private respondent.
GONZAGA-REYES, J.:
This is a petition for review of the decision of the Court of
Appeals in CA-G.R. SP Case No. 44306 affirming the orders
dated October 22, 1996 and February 12, 1997 of the
Regional Trial Court, Branch 4, Manila. These orders
dismissed the appeal of petitioner from the orders dated
April 2, 1981 and April 30, 1985 of the same RegionalTrial
Court.
The factsof the case are as follows:
On June 3, 1975, private respondent Rosalina J. Biascan
filed a petition, denominated as Special Proceeding No. 98037
at the then Court of First Instance, Branch 4, Manila praying
for her appointment as administratrix of the intestate estate
of Florencio Biascan and Timotea Zulueta. In an Order dated
August 13, 1975, private respondentwas appointed as regular
administratrix of the estates.
On October 10, 1975, Maria Manuel Vda. De Biascan, the
legal wife of Florencio Biascan entered her appearance as
1

Oppositor-Movant in SP. Proc. No. 98037. Simultaneous with

her appearance, she filed a pleading containing several
motions including a motion for intervention, a motion for the
setting aside of private respondents appointment as special
administratrix and administratrix, and a motion for her
appointment as administratrix of the estate of Florencio
Biascan.
After an exchange of pleadings between the parties, Judge
Serafin Cuevas, then presiding judge of CFI Manila, Branch
4, issued an Omnibus Order dated November 13, 1975 which,
among others, granted Marias intervention and set for trial
the motion to set aside the Orders appointingrespondent as
administratrix.
On April 2, 1981, the trial court issued an Order resolving
that: (1) Maria is the lawful wife of Florencio; (2) respondent
and her brother are the acknowledged natural children of
Florencio; (3) all three are the legal heirs of Florencio who
are entitled to participate in the settlement proceedings; (4)
the motion to set aside the order appointing private
respondent as administratrix is denied; and (5) the motion to
approve inventory and appraisal of private respondent be
deferred. Maria, through her counsel, received a copy of this
April 2, 1981 Order on April 9, 1981.
On June 6, 1981, or fifty-eight (58) days after the receipt of
the April 2, 1981 Order, Maria filed her motion for
reconsideration which private respondent opposed.
On November 15, 1981, the fourth floor of the City Hall of
Manila was completely gutted by fire. The records of the
settlement proceedings were among those lost in the fire.
3

Thus, on January 2, 1985, private respondent filed a Petition

for Reconstitution of the said records.
Due to the delay caused by the fire and the reconstitution
of the records, it was only on April 30, 1985 that the Regional
Trial Court of Manila, Branch 4 issued an Order denying
Marias June 6, 1981 Motion for Reconsideration.
Sometime thereafter, Maria died and her testate estate
also became the subject of settlement proceedings. Atty.
Martial F. Lopez was appointed as interim special
administrator and engaged the services of the Siguion Reyna,
Montecillo and Ongsiako Law Offices on behalf of the estate.
On August 21, 1996, the law firm was allegedly made
aware of and given notice of the April 30, 1985 Order when
its associate visited Branch 4 of the Regional Trial Court of
Manila to inquire about the status of the case. The associate
checked the records if there was proof of service of the April
30, 1985 Order to the former counsel of Maria, Atty. Martial
F. Lopez, but he discovered that there was none. He was able
to secure a certification from the Clerk of Court of the
Regional Trial Court of Manila, Branch 4 which stated that
there was no proof of service of the Order dated April 30,
1985contained in the recordsof SP. Proc. No.98037.
10

11

12

13

A Notice of Appeal dated April 22, 1996 was filed by

petitioner from the Orders dated April 2, 1981 nd April 30,
1985 of the trial court. While the said notice of appeal was
dated April 22, 1996, the stamp of the trial court on the first
page of the notice clearly indicated that the same was
received by the trial court on September 20, 1996. A Record
14

of Appeal dated September 20, 1996 was likewise filed

bypetitioner.
On October 22, 1996, the trial court issued an
Order denying petitioners appeal on the ground that the
appeal was filed out of time. The trial court ruled that the
April 2, 1981 Order which was the subject of the appeal
already became final as the Motion for Reconsideration
thereof was filed sixty-five (65) days after petitioner received
the same. In addition, the court ruled that the notice of
appeal itself was filed manifestly late as the same was filed
more than 11 years after the issuance of the June 11, 1985
Order denying petitioners Motion for Reconsideration. The
Motion for Reconsideration dated November 13, 1996 of
petitioner was likewise denied by the trial court in an
Order dated February 12, 1997.
Not satisfied with this decision, petitioner filed a Petition
for Certiorari with Prayer for Mandatory Injunction with the
Court of Appeals questioning the October 12, 1996 and
February 12, 1997 Orders of theRegional TrialCourt.
In a Decision dated February 16, 1999, the First Division
of the Court of Appeals denied the petition for certiorari of
petitioner. Petitioners Motion for Reconsideration was
likewise denied by the appellate court in a Resolution dated
May18,1999.
Hence, this Petition for Review on Certiorari where
petitioner sets forth the following ground for the reversal of
the decision of the appellate court:
15

16

17

18

19

20

THE FIRST DIVISION OF THE COURT OF APPEALS

(REVIEWING COURT) HAS SANCTIONED THE DEPARTURE
BY THE REGIONAL TRIAL COURT OF MANILA BRANCH 4

(TRIAL COURT) FROM THE USUAL COURSE OF JUDICIAL

PROCEEDINGS IN ISSUING THE ASSAILED 16 FEBRUARY
1999 DECISION AND THE 18 MAY 1999 RESOLUTION WHEN
IT AFFIRMED THE ERRONEOUS FINDING OF THE TRIAL
COURT THAT THE ORDER DATED APRIL 2, 1981 BECAME
FINAL AND EXECUTORY DESPITE THE FACT THAT NO
OPPOSITION ON ITS TIMELINESS WAS FILED AND
MOREOVER NO RULING AS REGARDS ITS TIMELINESS WAS
MADE.
21

There is no merit in the petition.

Section 1, Rule 109 of the Rules of Court enumerates the
orders and judgments in special proceedings which may be
the subject of an appeal. Thus:
Section 1. Orders or judgments from which appeals may be taken.
An interested person may appeal in a special proceeding from an
order or judgment rendered by a Regional Trial Court or a
Juvenile and Domestic Relations Court, wheresuch order or
judgment:
1. (a)Allows or disallows a will;
2. (b)Determines who are the lawful heirs of a deceased
person, or the distributive shares of the estate to which
such person is entitled; (c) Allows, or disallows, in whole or
in part, any claim against the estate of a deceased person,
or any claim presented on behalf of the estate in offset to a
claimagainst it;
3. (d)Settles the account of an executor, administrator, trustee
or guardian;
4. (e)Constitutes, in proceedings relating to the settlement of
the estate of a deceased person, or the administration of a
trustee or guardian, a final determination in the lower
court of the rights of the party appealing, except that no

appeal shall be allowed from the appointment of a special

administrator; and
5. (f)Is the final order or judgment rendered in the case, and
affects the substantial rights of the person appealing,
unless it be an order granting or denying a motion fornew
trial or for reconsideration.

An appeal is allowed in these aforesaid cases as these orders,

decrees or judgments issued by a court in a special
proceeding constitute a final determination of the rights of
the parties so appealing. In contrast, interlocutory orders are
not appealable as these are merely incidental to judicial
proceedings. In these cases, the court issuing such orders
retains control over the same and may thus modify, rescind,
or revoke the same on sufficient grounds at any time before
final judgment.
In the instant case, the Order dated April 2, 1981 of the
trial court decreed, among others, that Maria Manuel Vda.
De Biascan, the lawful wife of the deceased Florencio
Biascan, private respondent Rosalina Biascan and her
brother, German Biascan, are entitled to participate in the
settlement proceedings. Moreover, the said Order likewise
denied Marias motion to set aside the order appointing
private respondent as regular administratrix of the estate.
These rulings of the trial court were precisely questioned by
Maria in her Motion for Reconsideration dated June6, 1981.
The ruling of the trial court that Maria, private
respondent Rosalina Biascan and German Biascan were
entitled to participate in the settlement proceedings falls
22

23

squarely under paragraph (b), Section 1, Rule 109 of the

Rules of Court as a proper subject of appeal. By so ruling, the
trial court has effectively determined that the three persons
are the lawful heirs of the deceased. As such, the same may
be the propersubject of an appeal.
Similarly, the ruling of the trial court denying petitioners
motion to set aside the order appointing private respondent
as the regular administratrix of the estate of Florencio
Bisacan is likewise a proper subject of an appeal. We have
previously held that an order of the trial court appointing a
regular administrator of a deceased persons estate is a final
determination of the rights of the parties thereunder, and is
thus, appealable. This is in contrast with an order
appointing a special administrator who is appointed only for
a limited time and for a specific purpose. Because of the
temporary character and special character of this
appointment, the Rules deem it not advisable for any party to
appeal from said temporary appointment. Considering
however that private respondent has already been appointed
as regular administratrix of the estate of Florencio Biascan,
her appointment as such may be questioned before the
appellate courtbyway of appeal.
It is thus clear that the Order dated April 2, 1981 may be
the proper subject of an appeal in a special proceeding. In
special proceedings, such as the instant proceeding for
settlement of estate, the period of appeal from any decision or
final order rendered therein is thirty (30) days, a notice of
appeal and a record on appeal being required. The appeal
period may only be interrupted by the filing of a motion for
new trial or reconsideration. Once the appeal period expires
24

25

26

without an appeal or a motion for reconsideration or new

trial being perfected, thedecision or order becomes final.
With respect to the Order dated April 2, 1981 issued by
the trial court, petitioner admits that Maria Manuel Vda. De
Biascan, its predecessor-in-interest, received a copy of the
same of April 9, 1981. Applying these rules, Maria or her
counsel had thirty (30) days or until May 9 within which to
file a notice of appeal with record on appeal. She may also file
a motion for reconsideration, in which case the appealperiod
is deemed interrupted.
Considering that it was only on June 6, 1981, or a full
fifty-eight (58) days after receipt of the order, that a motion
for reconsideration was filed, it is clear that the same was
filed out of time. As such, when the said motion for
reconsideration was filed, there was no more appeal period to
interrupt as the Order had already become final.
Petitioner insists, however, that the order dated April 2,
1981 of the trial court did not become final and executory as
no opposition on its timeliness was filed and no ruling as
regards its timeliness was made. Petitioner argues that
although its motion for reconsideration was denied in the
OrderdatedApril 30, 1985, thedenial was made on grounds
other than its failure to ask for a reconsideration within the
period prescribed by law. As such, petitioner concludes, any
procedural defect attending the Motion for Reconsideration
was deemed cured when the trial court, in its Order dated
April 30, 1935, took cognizance of the same and rendered its
ruling thereon.
There is no merit in this argument.

It is well-settled that judgments or orders become final

and executory by operation of law and not by judicial
declaration. Thus, finality of a judgment becomes a fact upon
the lapse of the reglementary period of appeal if no appeal is
perfected or motion for reconsideration or new trial is filed.
The trial court need not even pronounce the finality of the
order as the same becomes final by operation of law. In fact,
the trial court could not even validly entertain a motion for
reconsideration filed after the lapse of the period for taking
an appeal. As such, it is of no moment that the opposing
party failed to object to the timeliness of the motion for
reconsideration or that the court denied the same on grounds
other than timeliness considering that at the time the motion
was filed, the Order dated April 2, 1981 had already become
final and executory. Being final and executory, the trial court
can no longer alter, modify, or reverse the questioned
order. The
subsequent
filing
of
the
motion
for
reconsideration cannot disturb the finality of the judgment or
order.
Even if we assume that the Motion for Reconsideration
filed by petitioner had the effect of suspending the running of
the appeal period for the April 2, 1981 Order, it is clear that
petitioners notice of appealof the ordersof thetrial court was
still filed out of time.
Under Section 3, Rule 41 of the Rules of Court then
applicable, the time during which a motion to set aside the
judgment or order or for a new trial shall be deducted from
the period from which to make an appeal. The rule further
states that where the motion was filed during office hours of
the last day of the appeal period, the appeal must be
27

28

29

30

perfected within the day following that in which the party

appealingreceivednoticeof the denial of said motion.
The Order of the trial court denying petitioners Motion for
Reconsideration of the April 2, 1981 Order was issued on
April 30, 1985. Allegedly, petitioner was only made aware of
this April 30, 1985 Order on August 21, 1996 when it
inquired from the trial court about the status of the case.
Giving petitioner the benefit of the doubt that it had indeed
received notice of the order denying its motion for
reconsideration on August 21, 1996, it follows that petitioner
only had until the following day or on August 22, 1996 within
which to perfect the appeal.
At this point, we note with disapproval petitioners
attempt to pass off its Notice of Appeal as having been filed
on August 22, 1996. In all its pleadings before this Court and
the Court of Appeals, petitioner insists that its Notice of
Appeal was filed the day after it secured the August 21, 1996
Certification from the trial court. While the Notice of Appeal
was ostensibly dated August 22, 1996, it is clear from the
stamp of the trial court that the same was received only on
September 20, 1996. Moreover, in the Order dated October
22, 1996 of the trial court denying petitioners appeal, the
court clearly stated that the Notice of Appeal with
accompanying Record on Appeal was filed on September 20,
1996.
Considering that it is clear from the records that
petitioners notice of appeal was filed on September 20, 1996,
the same was clearly filed out of time as it only had until
August 22, 1996 within which to file the said pleading. And
while the rules on special proceedings recognize that a
31

motion for extension of time to file the notice of appeal and

record of appeal may be granted, no such motion was ever
filed by petitioner before the trial court. Consequently, the
trial court committed no error when it dismissed the appeal
of petitioner.
WHEREFORE, premises considered, we hereby DISMISS
the petition for lack of merit. The decision dated February 16,
1999 and the Resolution dated May 18, 1999 of the Court of
Appeals are hereby AFFIRMED.
SO ORDERED.
Melo (Chairman),Vitug and Panganiban, JJ., concur.
Petition dismissed, judgmentand resolutionaffirmed.
32

REMEDIOS

No. L-23445. June 23, 1966.

NUGUID, petitioner and

appellant,

vs.FELIX NuGUID and PAZ SALONGA NUGUID,

oppositors and appellees.

Wills; Succession; Probate of will; Courts area of inquiry is

limited to extrinsic validity of will; When Court may rule on
intrinsic validity.In a proceeding for the probate of a will, the
courts area of inquiry is limited to an examination of, and
resolution on, the extrinsic validity of the will, the due execution
thereof, the testatrixs 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 that issue.
Same; Preterition; Omission of forced heirs in the will.Where
the deceased left no descendants, legitimate or illegitimate, but
she left forced heirs in the direct ascending lineher parents, and
her holographic will does not explicitly disinherit them but simply
omits their names altogether, the case is one of preterition of the
parents, not a case of ineffective disinheritance.
Same; Preterition
distinguished
from
disinheritance.
Preterition consists in the omission in the testators will of the
forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither
instituted
as
heirs
nor
are
expressly
disinherited.
(Neri vs. Akutin, 72 Phil., 325). Disinheritance, in turn, is
a testamentarydisposition depriving any compulsory heir of his
share in the legitime for a cause authorized by law. (Justice J.B.L.
Reyes and R.C. Puno, An Outline of Philippine Civil Law, 1966

ed., Vol. III, p. 8, citing cases.) Disinheritance is always

voluntary; preterition, upon the other hand, is presumed to be
involuntary (Snchez Romn, Estudios de Derecho Civil, 2nd
edition, Volumen 2.o, p. 1131).
Same; Effects flowing from preterition and disinheritance.
The effects flowing from preterition are totally different from those
of disinheritance. Preterition under Article 854 of the New Civil
Code shall annul the institution of heir. This annulment is in
toto, unless in the will there are, in addition, testamentary
dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such
disinheritance shall also annul the institution of heirs, but only
insofar as it may prejudice the person disinherited, which last
phrasewas omitted in the case of preterition (III Tolentino, Civil
Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of
which the disinherited heirs have been illegally deprived.
Same; When institution of heirs is void.Where the
onesentence will institutes the petitioner as the sole, universal heir
and preterits the parents of the testatrix, and it contains no specif
ic legacies or bequests, such universal institution of petitioner, by
itself, is void. And intestate succession ensues.
Same; When legacies and devises merit consideration.
Legacies and devises merit consideration only when they are so
expressly given as such in a will. Nothing in Article 854 of the New
Civil Code suggests that the mere institution of a universal heir in
a willvoid because of preteritionwould give the heir so
instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a
testamentary disposition granting him bequests or legacies apart
and separate from the nullified institution of heir.
Same; Institution of heirs cannot be considered a legacy.If
every case of institution of heirs may be made to fall into the

concept of legacies and betterments reducing the bequest

accordingly, then the provisions of Articles 814 and 851 of the old
Civil Code, regarding total or partial nullity of the institution,
would be absolutely meaningless and will never have any
application at all. And the remaining provisions contained in said
articles concerning the reduction of inofficious legacies or
betterments would be a surplusage because they would be
absorbed by Article 817 of the same Code.

APPEAL from an order of the Court of First Instance of

Rizal, San Diego, J.
The facts are stated in the opinion of the Court.
Custodio O. Partadefor petitioner and appellant.
Beltran,
Beltran andBeltran for
oppositors
appellees.

and

SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December
30, 1962, single, without descendants, legitimate or
illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and
sisters, namely: Alfredo, Federico, Remedios, Conrado,
Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the
Court of First Instance of Rizal a holographic will allegedly
executed by Rosario Nuguid on November 17, 1951, some 11
years before her demise. Petitioner prayed that said will be
admitted to probate and that letters of administration with
the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,

concededly the legitimate father and mother of the deceased
Rosario Nuguid, entered their opposition to the probate of
her will. Ground therefor,inter alia, is that by the institution
of petitioner Remedios Nuguid as universal heir of the
deceased, oppositorswho are compulsory heirs of the
deceased in the direct ascending linewere illegally
preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition
for probate and objection thereto, oppositors moved to
dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition
to the motion to dismiss.
The courts order of November 8, 1963, held that the will
in question is a complete nullity and will perforce create
intestacy of the estate of the deceased Rosario Nuguid and
dismissed the petition without costs.
A motion to reconsider having been thwarted below,
petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our
attention. The case is for the probate of a will. The courts
area of inquiry is limitedto an examination of, and
resolution on, the extrinsicvalidity of the will. The due
execution thereof, the testatrixs testamentary capacity, and
the compliance with the requisites or solemnities by law
prescribed, are the questionssolely to be presented, and to be
acted upon, by the court Said court at this stage of the
proceedingsis
not
called
upon
to
rule
on

theintrinsic validity or efficacy of the provisions of the will,

the legality of any devise or legacy therein.
A peculiar situation is here thrust upon us. The parties
shunted aside the question of whether or not the will should
be allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after
the court has declared that the will has been duly
authenticated. But petitioner and oppositors, in the court
below and here on appeal, travelled on the issue of law, to
wit: Is the will intrinsically a nullity? We pause to reflect. If
the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the
event of probate or if the court rejects the will, probability
exists that the case will come up once again before us on the
same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question. After all,
there exists a justiciable controversy crying for solution.
2. Petitioners sole assignment of error challenges the
correctness of the conclusion below that the will is a complete
nullity. This exacts from us a study of the disputed will and
the applicable statute.
Reproduced hereunder is the will:
1

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and
memory, having amassed a certain amount of property, do hereby
give, devise, and bequeath all of the property which I may have
when I die to my beloved sister Remedios Nuguid, age 34, residing

with me at 38-B Iriga, Q.C. In witness whereof, I have signed my

name this seventh day of November, nineteen hundred and fiftyone.
(Sgd.) Illegible
T/ ROSARIO NUGUID"

The statute we are called upon to apply in Article 854 of the

Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of
the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious. x x x

Except for inconsequential variation in terms, the foregoing

is a reproduction of Article 814 of the Civil Code of Spain of
1889, which is similarly herein copied, thus

Art. 814. The preterition of one or all of the forced heirs in the
direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall void the institution of
heir; but the legacies and betterments shall be valid, in so far as
they are not inofficious. x x x
4

A
comprehensive
understanding
of
the
term
preterition employed in the law becomes a necessity. On this
point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O
no se le nombra siquiera, o aun nombrandole como padre, hijo, etc.,
no se le instituya heredero ni se le deshereda expresamente, ni se
le asigna parte alguna de los bienes, resultando privado de un
modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta
que en el testamento omita el testador a uno cualquiera de
aquellos a quienes por su muerte corresponda la herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero

forzoso. b) Que la omision sea completa; que el heredero forzoso
nada reciba en el testamento."
5

It may now appear trite but nonetheless helpful in giving us

a clear perspective of the problem before us, to have on hand
a clear-cut definition of the word annul:
To annul means to abrogate, to make void; x x x In reMorrows
Estate, 54 A. 342, 343, 204 Pa. 484."
The word annul as used in statute requiring court to annul
alimony provisions of divorce decree upon wifes remarriage means
to reduce to nothing; to annihilate; obliterate; blot out; to make
void or of no effect; to nullify; to abolish. N.J.S.A. 2:5038 (now
N.J.S. 2A:3435).Madden vs. Madden, 40 A. 2d 611, 614, 136 N.J
Eq. 132."
ANNUL. To reduce to nothing; annihilate; obliterate; to make
void or of no effect; to nullify; to abolish; to do away with. Ex
parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774."
6

And now, back to the facts and the law. The deceased Rosario
Nuguid left no descendants, legitimate or illegitimate. But
she left forced heirs in the direct ascending lineher
parents, now oppositors Felix Nuguid and Paz Salonga
Nuguid. And, the will completely omits both of them: They
thus received nothing by the testament; tacitly, they were
deprived of their legitime; neither were they expressly
disinherited. This is a clear case of preterition, Such
preterition in the words of Manresa anulara siempre la
institucion de heredero,dando caracter absoluto a este
ordenamiento, referring to the mandate of Article 814, now
854 of the Civil Code. The one-sentence will here institutes
petitioner as the sole, universal heirnothing more. No
specif ic legacies or bequests are therein provided for. It is in
9

this posture that we say that the nullity is complete. Perforce,

Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula
deja de existir, en todo o en parte? No se aade limitacion alguna,
como en el articulo 851, en el que se expresa que se anulara la
institucion de heredero en cuanto perjudique a la legitima del
deseheredado. Debe, pues, entenderse que la anulacion es completa
o total, y que este articulo como especial en el caso que le motiva,
rige con preferencia al 817."
10

The same view is expressed by Sanchez Roman:

La consecuencia de la anulacion o nulidad de la institucion de
heredero por pretericion de uno, varios o todos los forzosos en linea
recta, es la apertura de la sucesion intestada, total o parcial. Sera
total, cuando el testador que comete la pretericion, hubiese
dispuesto de todos los bienes por titulo universal de herencia en
favor de los herederos instituidos, cuya institucion se anula, porque
asi lo exige la generalidad del precepto legal del art. 814, al
determinar, como efecto de la pretericion, el de que anulara la
institucion de heredero/ x x x"
11

Really, as we analyze the word annul employed in the

statute, there is no escaping the conclusion that the universal
institution of petitioner to the entire inheritance results
in totally abrogating the will. Because, the nullification of
such institution of universal heirwithout any other
testamentary disposition in the willamounts to a
declaration that nothing at all was written. Carefully worded
and in clear terms, Article 854 offers no leeway for inferential
interpretation. Giving it an expansive meaning will tear up
by the roots the fabric of the statute. On this point, Sanchez
Roman cites the Memoria annual del Tribunal Supremo,
correspondiente a 1908", which in our opinion expresses the
rule of interpretation, viz:

x x x El art. 814, que preceptua en tales casos de pretericion la

nulidad de la institucion de heredero, no consiente interpretacion
alguna favorable a la persona instituida en el sentido antes
expuesto, aun cuando parezca, y en algun caso pudiera ser, mas o
menos equitativa, porque una nulidad no significa en Derecho sino
la suposicion de que el hecho o el acto no se ha realizado, debiendo,
por lo tanto, procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es
obligado llamar a los herederos f orzosos en todo caso, como habria
que llamar a los de otra clase, cuando el testador no hubiese
distribudo todos sus bienes en legados, siendo tanto mas obligada
esta consecuencia legal cuanto que, en materia de testamentos,
sabido es, segun tiene declarado la jurisprudencia, con repeticion,
que no basta que sea conocida la voluntad de quien testa si esta
voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar como
legatario a un heredero cuya institucion fuese anulada con pretexto
de que esto se acomodaba mejor a la voluntad del testador, pues
aun cuando asi f uese, sera esto razon para modif icar la ley, pero
no autoriza a una interpretacion contraria a sus terminos y a los
principios que informan la testamentifaccion, pues no porque
parezca mejor una cosa en el terreno del Derecho constituyente,
hay razon para convereste juicio en regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que el
legislador quiere establecer."
12

3. We should not be led astray by the statement in Article 854

that, annullment notwithstanding, the devises and legacies
shall be valid insofar as they are not inofficious. Legacies
and devises merit consideration only when they are so
expressly given as such in a will. Nothing in Article 854
suggests that the mereinstitution of a universal heir in a will

void because of preteritionwould give the heir so

instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a
testamentary disposition granting him bequests or legacies
apart and separate from the nullified institution of heir.
Sanchez Roman, speaking of the two component parts of
Article 814, now 854, states that preterition annuls the
institution of the heir totalmente por la pretericion; but
added (in reference to legacies and bequests), pero
subsistiendo, x x x todas aquellas otras disposiciones que no
se refieren a la nstitucion de heredero x x x". As Manresa
puts it, annulment throws open to intestate succession the
entire inheritance including la porcion libre (que) no hubiese
dispuesto en virtud de legado, mejora o donacion."
As aforesaid, there is noother provision in the will before
us except the institution of petitioner as universal heir. That
institution, by itself, is null and void. And, intestate
succession ensues,
4. Petitioners mainstay is that the present is a case of
ineffective
disinheritance
rather
than
one
of
preterition From this, petitioner draws the conclusion that
Article 854 does not apply to the case at bar. This argument
fails to appreciate the distinction between preterition and
disinheritance.
Preterition consists in the omission in the testators will
of the forced heirs or anyone of them, either because they are
not mentioned therein, or, though mentioned, they are
neither
instituted
as
heirs
nor
are
expressly
disinherited." Disinheritance,
in
turn,
is
atestamentary disposition depriving any compulsory heir of
13

14

15

16

his share in the legitime for a cause authorized by law." In

Manresas own words: La privacion expresa de la legitima
constituye ladesheredacion. La privacion tacita de la misma
se denomina pretericion." Sanchez Roman emphasizes the
distinction
by
stating
that
disinheritance
es
siempre voluntaria;preterition, upon the other hand, is
presumed to beinvoluntaria". Express as disinheritance
should be, the same must be supported by a legal cause
specified in the will itself.
The will here does not explicitly disinherit the testatrixs
parents, the forced heirs. It simply omits their names
altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs
suffer from preterition.
On top of this is the fact that the effects flowing from
preterition are totally different from those of disinheritance.
Preterition under Article 854 of the Civil Code, we repeat,
shall annul the institution of heir. This annulment is in
toto, unless in the will there are, in addition, testamentary
dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such
disinheritance shall also annul the institution of heirs, put
only insofar as it may prejudice the person disinherited,
which
last
phrase was
omitted in
the
case
of
preterition. Better stated yet, in disinheritance the nullity
is limited to that portion of the estate of which the
disinherited heirs have been illegally deprived. Manresas
expressive language, in commenting on the rights of the
preterited heirs in the case of preterition on the one hand
and
legal
disinheritance
on
the
other,
runs
17

18

19

20

21

thus:Preteridos, adquiren
el
derecho
a
todo; desheredadossolo les corresponde un tercio o dos
tercios, el caso."
5. Petitioner insists that the compulsory heirs ineffectively
disinherited are entitled to receive their legitimes, but that
the institution of heir is not invalidated, although the
inheritance of the heir so instituted is reduced to the extent
of said legitimes. ,
This is best answered by a reference to the opinion of Mr.
Chief Justice Moran in the Neri case heretofore cited, viz:
22

23

24

But the theory is advanced that the bequest made by universal

title in f avor of the children by the second marriage should be
treated as legado andmejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted, will
result in a complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made to fall into
the concept of legacies and betterments reducing the bequest
accordingly, then the provisions of Articles 814 and 851 regarding
total or partial nullity of the institution, would be absolutely
meaningless and will never have any application at all. And the
remaining provisions contained in said article concerning the
reduction of inofficious legacies or betterments would be a
surplusage because they would be absorbed by Article 817. Thus,
instead of construing, we would be destroying integral provisions of
the Civil Code.
The destructive effect of the theory thus advanced is due mainly
to a failure to distinguish institution of heirs from legacies and
betterments, and a general from a special provision. With
reference to article 814, which is the only provision material to the
disposition of this case, it must be observed that the institution of
heirs is therein dealt with as a thing separate and distinct from
legacies or betterments. And they are separate and distinct not

only because they are distinctly and separately treated in said

article but because they are in themselves different. Institution of
heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property bequeathed by a
particular or special title. x x x But again an institution of heirs
cannot be taken as a legacy."
25

The disputed order, we observe, declares the will in question

a complete nullity. Article 854 of the Civil Code in turn
merely nullifies the institution of heir. Considering,
however, that the will before us solely provides for the
institution of petitioner as universal heir, and nothing more,
the result is the same. The entire will is null.
Upon the view we take of this case, the order of November
8, 1963 under review is hereby affirmed. No costs allowed. So
ordered.
Chief
Justice
Concepcionand Justices
J.B.L.
Reyes,Barrera, Dizon, Regala,Makalintal, J.P.
Bengzonand Zaldivar, concur.
Order affirmed.

The Incompetent, CARMEN CAIZA, represented by

her

legal

guardian,

petitioner,vs. COURT

AMPARO

OF

EVANGELISTA,

APPEALS

(SPECIAL

FIRST DIVISION), PEDRO ESTRADA and his wife,

LEONORA ESTRADA, respondents.

Actions; Pleadings and Practice; What determines the nature

of an action as well as which court has jurisdiction over it are the
allegations of the complaint and the character of the relief sought.
It is axiomatic that what determines the nature of an action as
well as which court has jurisdiction over it, are the allegations of
the complaint and the character of the relief sought. An inquiry
into the averments of the amended complaint in the Court of origin
is thus in order.
Same; Same; Ejectment;Unlawful Detainer; A complaint for
unlawful detainer is sufficient if it alleges that the withholding of
possession or the refusal to vacate is unlawful without necessarily
employing the terminology of the law.Undoubtedly, a cause of
action for desahucio has been adequately set out. It is settled that
in an action for unlawful detainer, to allege that the defendant is
unlawfully withholding possession from the plaintiff is deemed
sufficient, and a complaint for unlawful detainer is sufficient if it
alleges that the withholding of possession or the refusal to vacate
is unlawful without necessarily employing the terminology of the
law.
Same; Same; Same; Same;An owners act of allowing another
to occupy her house, rent-free, does not create a permanent and
indefeasible right of possession in the latters favor.The argument
is arrant sophistry. Caizas act of allowing the Estradas to occupy
her house, rent-free, did not create a permanent and indefeasible
right of possession in the latters favor. Common sense, and the
most rudimentary sense of fairness clearly require that that act of

liberality be implicitly, but no less certainly, accompanied by the

necessary burden on the Estradas of returning the house to Caiza
upon her demand. More than once has this Court adjudged that a
person who occupies the land of another at the latters tolerance or
permission without any contract between them is necessarily
bound by an implied promise that he will vacate upon demand,
failing which a summary action for ejectment is the proper remedy
against him. The situation is not much different from that of a
tenant whose lease expires but who continues in occupancy by
tolerance of the owner, in which case there is deemed to be an
unlawful deprivation or withholding of possession as of the date of
the demand to vacate. In other words, one whose stay is merely
tolerated becomes a deforciant illegally occupying the land or
property the moment he is required to leave.
Same; Same; Same; Same;Where there had been more than
one demand to vacate, the one-year period for filing the complaint
for unlawful detainer must be reckoned from the date of the last
demand, the reason being that the lessor has the option to waive his
right of action based on previous demands and let the lessee remain
meanwhile in the premises.It may not be amiss to point out in
this connection that where there had been more than one demand
to vacate, the one-year period for filing the complaint for unlawful
detainer must be reckoned from the date of the last demand, the
reason being that the lessor has the option to waive his right of
action based on previous demands and let the lessee remain
meanwhile in the premises. Now, the complaint filed by Caizas
guardian alleges that the same was filed within one (1) year from
the date of the first letter of demand dated February 3, 1990.
Although this averment is not in accord with law because there is
in fact a second letter of demand to vacate, dated February 27,
1990, the mistake is inconsequential, since the complaint was
actually filed on September 17, 1990, well within one year from
the second (last)written demand to vacate.

Same; Same; Same; Same;Guardianship; A judicial guardian

is clothed with authority to withdraw the wards earlier express
permission given to third persons to occupy a certain property.
The Estradas possession of the house stemmed from the owners
express permission. That permission was subsequently withdrawn
by the owner, as was her right; and it is immaterial that the
withdrawal was made through her judicial guardian, the latter
being indisputably clothed with authority to do so. Nor is it of any
consequence that Carmen Caiza had executed a will bequeathing
the disputed property to the Estradas; that circumstance did not
give them the right to stay in the premises after demand to vacate
on the theory that they might in the future become owners thereof,
that right of ownership being at best inchoate, no transfer of
ownership being possible unless and until the will is duly probated.
Same; Same; Same; Same;Where the issue is possession de
facto, not de jure, the proper remedy is ejectment, not accion
publiciana.In any case, the only issue that could legitimately be
raised under the circumstances was that involving the Estradas
possession by tolerance, i.e., possession de facto, not de jure. It is
therefore incorrect to postulate that the proper remedy for Caiza
is not ejectment but accion publiciana, a plenary action in the RTC
or an action that is one for recovery of the right to possession de
jure.
Wills and Succession; A will is essentially ambulatoryat any
time prior to the testators death, it may be changed or revoked, and
until admitted to probate, it has no effect whatever and no right
can be claimed thereunder; An owners intention to confer title in
the future to persons possessing property by his tolerance is not
inconsistent with the formers taking back possession in the
meantime for any reason deemed sufficient.A will is essentially
ambulatory; at any time prior to the testators death, it may be
changed or revoked; and until admitted to probate, it has no effect
whatever and no right can be claimed thereunder, the law being

quite explicit: No will shall pass either real or personal property

unless it is proved and allowed in accordance with the Rules of
Court (ART. 838, id.). An owners intention to confer title in the
future to persons possessing property by his tolerance, is not
inconsistent with the formers taking back possession in the
meantime for any reason deemed sufficient. And that in this case
there was sufficient cause for the owners resumption of possession
is apparent: she needed to generate income from the house on
account of the physical infirmities afflicting her, arising from her
extreme age.
Guardianship; The ward has no right to possession or control
of his property during his or her incompetency.Amparo
Evangelista was appointed by a competent court the general
guardian of both the person and the estate of her aunt, Carmen
Caiza. Her Letters of Guardianship dated December 19, 1989
clearly installed her as the guardian over the person and
properties of the incompetent CARMEN CAIZA with full
authority to take possession of the property of said incompetent in
any province or provinces in which it may be situated and to
perform all other acts necessary for the management of her
properties **. By that appointment, it became Evangelistas duty
to care for her aunts person, to attend to her physical and spiritual
needs, to assure her well-being, with right to custody of her person
in preference to relatives and friends. It also became her right and
duty to get possession of, and exercise control over, Caizas
property, both real and personal, it being recognized principle that
the ward has no right to possession or control of his property
during her incompetency. That right to manage the wards estate
carries with it the right to take possession thereof and recover it
from anyone who retains it, and bring and defend such actions as
may be needful for this purpose.
Actions; Ejectment; Even when, in forcible entry and unlawful
detainer cases, the defendant raises the question of ownership in his

pleadings and the question of possession cannot be resolved without

deciding the issue of ownership, the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts
nevertheless have the undoubted competence to resolve the issue of
ownership only to determine the issue of possession.It may be
pointed out in relation to the Estradas defenses in the ejectment
action, that as the law now stands, even when, in forcible entry
and unlawful detainer cases, the defendant raises the question of
ownership in his pleadings and the question of possession cannot
be resolved without deciding the issue of ownership, the
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts nevertheless have the undoubted competence
to resolve the issue of ownership ** only to determine the issue of
possession.
Same; Same; Parties; An ejectment case survives the death of a
party.To be sure, an ejectment case survives the death of a party.
Caizas demise did not extinguish thedesahucio suit instituted by
her through her guardian. That action, not being a purely personal
one, survived her death; her heirs have taken her place and now
represent her interests in the appeal at bar.

PETITION for review on certiorari of a decision of the Court

of Appeals.
The facts are stated in the opinion of the Court.
Priscilla A. Villacortafor petitioner.
Montilla Law Office for private respondents.
NARVASA, C.J.:
On November 20, 1989, being then ninety-four (94) years of
age, Carmen Caiza, a spinster, a retired pharmacist, and
former professor of the College of Chemistry and Pharmacy

of the University of the Philippines, was declared

incompetent by judgment of the Regional Trial Court of
Quezon City, Branch 107, in a guardianship proceeding
instituted by her niece, Amparo A. Evangelista. She was so
adjudged because of her advanced age and physical
infirmities which included cataracts in both eyes and
senile dementia. Amparo A. Evangelista was appointed legal
guardian of her person and estate. Caiza was the owner of a
house and lot at No. 61 Tobias St., Quezon City. On
September 17, 1990, her guardian Amparo Evangelista
commenced a suit in the Metropolitan Trial Court (MetroTC)
of Quezon City (Branch 35) to eject the spouses Pedro and
Leonora Estrada from said premises. The complaint was
later amended to identify the incompetent Caiza as
plaintiff, suing through her legal guardian, Amparo
Evangelista.
The amended Complaint pertinently alleged that plaintiff
Caiza was the absolute owner of the property in question,
covered by TCT No. 27147; that out of kindness, she had
allowed the Estrada Spouses, their children, grandchildren
and sons-in-law to temporarily reside in her house, rent-free;
that Caiza already had urgent need of the house on account
of her advanced age and failing health, so funds could be
raised to meet her expenses for support, maintenance and
medical treatment; that through her guardian, Caiza had
asked the Estradas verbally and in writing to vacate the
house but they had refused to do so; and that by the
defendants act of unlawfully depriving plaintiff of the
possession of the house in question, they ** (were) enriching
themselves at the expense of the incompetent, because, while
1

they ** (were) saving money by not paying any rent for the
house, the incompetent ** (was) losing much money as her
house could not be rented by others. Also alleged was that
the complaint was filed within one (1) year from the date of
first letter of demand dated February 3, 1990.
In their Answer with Counterclaim, the defendants
declared that they had been living in Caizas house since
the 1960s; that in consideration of their faithful service they
had been considered by Caiza as her own family, and the
latter had in fact executed a holographic will on September 4,
1988 by which she bequeathed to the Estradas the house
and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992
in Caizas favor, the Estradas being ordered to vacate the
premises and pay Caiza P5,000.00 by way of attorneys fees.
But on appeal, the decision was reversed by the Quezon
City Regional Trial Court, Branch 96. By judgment rendered
on October 21, 1992, the RTC held that the action by which
the issue of defendants possession should be resolved
is accion publiciana, the obtaining factual and legal situation
** demanding adjudication by such plenary action for
recovery of possession cognizable in the first instance by the
Regional Trial Court.
6

Caiza sought to have the Court of Appeals reverse the

decision of October 21, 1992, but failed in that attempt. In a
decision promulgated on June 2, 1993, the Appellate
Court affirmed the RTCs judgment in toto. It ruled that (a)
the proper remedy for Caiza was indeed anaccion
publiciana in the RTC, not an accion interdictal in the
10

11

MetroTC, since the defendants have not been in the subject

premises as mere tenants or occupants by tolerance, they
have been there as a sort of adopted family of Carmen
Caiza, as evidenced by what purports to be the holographic
will of the plaintiff; and (b) while said will, unless and until
it has passed probate by the proper court, could not be the
basis of defendants claim to the property, ** it is indicative of
intent and desire on the part of Carmen Caiza that
defendants are to remain and are to continue in their
occupancy and possession, so much so that Caizas
supervening incompetency can not be said to have vested in
her guardian the right or authority to drive the defendants
out.
Through her guardian, Caiza came to this Court praying
for reversal of the Appellate Courts judgment. She contends
in the main that the latter erred in (a) holding that she
should have pursued an accion publiciana, and not anaccion
interdictal; and in (b) giving much weight to a xerox copy of
an alleged holographic will, which is irrelevant to this case.
In the responsive pleading filed by them on this Courts
requirement, the Estradas insist that the case against them
was really not one of unlawful detainer; they argue that since
possession of the house had not been obtained by them by any
contract, express or implied, as contemplated by Section 1,
Rule 70 of the Rules of Court, their occupancy of the premises
could not be deemed one terminable upon mere demand
(and hence never became unlawful) within the context of the
law. Neither could the suit against them be deemed one of
forcible entry, they add, because they had been occupying the
property with the prior consent of the real owner, Carmen
12

13

14

Caiza, which occupancy can even ripen into full ownership

once the holographic will of petitioner Carmen Caiza is
admitted to probate. They conclude, on those postulates,
that it is beyond the power of Caizas legal guardian to oust
them from the disputed premises.
Carmen Caiza died on March 19, 1994, and her heirs
the aforementioned guardian, Amparo Evangelista, and
Ramon C. Nevado, her niece and nephew, respectivelywere
by this Courts leave, substituted for her.
Three issues have to be resolved: (a) whether or not an
ejectment action is the appropriate judicial remedy for
recovery of possession of the property in dispute; (b)
assuming desahucio to be proper, whether or not Evangelista,
as Caizas legal guardian had authority to bring said action;
and (c) assuming an affirmative answer to both questions,
whether or not Evangelista may continue to represent Caiza
after the latters death.
I
It is axiomatic that what determines the nature of an action
as well as which court has jurisdiction over it, are the
allegations of the complaint and the character of the relief
sought. An inquiry into the averments of the amended
complaint in the Court of origin is thus in order.
The amended Complaint alleges:
15

16

17

18

19

1. 6.That the plaintiff, Carmen Caiza, is the sole and

absolute owner of a house and lot at No. 61 Scout Tobias,
Quezon City, which property is now the subject of this
complaint;
**
**
**

2. 9.That the defendants, their children, grandchildren and

sons-in-law, were allowed to live temporarily in the house
of plaintiff, Carmen Caiza, for free, out of her kindness;
3. 10.That the plaintiff, through her legal guardian, has duly
notified the defendants, for them to vacate the said house,
but the two (2) letters of demand were ignored and the
defendants refused to vacate the same. **
4. 11.That the plaintiff, represented by her legal guardian,
Amparo Evangelista, made another demand on the
defendants for them to vacate the premises, before
Barangay Captain Angelina A. Diaz of Barangay Laging
Handa, Quezon City, but after two (2) conferences, the
result was negative and no settlement was reached. A
photocopy of the Certification to File Action dated July 4,
1990, issued by said Barangay Captain is attached,
marked Annex D and made an integral part hereof;
5. 12.That the plaintiff has given the defendants more than
thirty (30) days to vacate the house, but they still refused
to vacate the premises, and they are up to this time
residing in the said place;
6. 13.That this complaint is filed within one (1) year from the
date of first letter of demand dated February 3, 1990
(Annex B) sent by the plaintiff to the defendants, by her
legal guardianAmparo Evangelista;
1. 14.By the defendants act of unlawfully depriving the
plaintiff of the possession of the house in question, they
are enriching themselves at the expense of the
incompetentplaintiff, because, while they are saving
money by not paying any rent for the house, the plaintiff is

losing much money as her house could not be rented by

others;

meet her expenses for her support, maintenance and

medical treatment;

2. 15.That the plaintiffshealth is failing and she needs the

house urgently, so that funds could be raised to meet her
expenses for her support, maintenance and medical
treatment;

3. 3)that through her general guardian, Caiza requested the

Estradas several times, orally and in writing, to give back
possession of the house;

3. 16.That because of defendants refusal to vacate the house

at No. 61 Scout Tobias, Quezon City, the plaintiff, through
her legal guardian, was compelled to go to court for justice,
and she has to spend P10,000.00 as attorneys fees.

Its prayer is quoted below:

20

WHEREFORE, in the interest of justice and the rule of

law,plaintiff, Carmen Caiza, represented by her legal guardian,
Amparo Evangelista, respectfully prays to this Honorable Court, to
render judgment in favor of plaintiff and against the defendants as
follows:
1. 1.To order the defendants, their children, grandchildren,
sons-in-law and other persons claiming under them, to
vacate the house and premises at No. 61 Scout Tobias,
Quezon City, so that its possession can be restored to the
plaintiff, Carmen Caiza; and
2. 2.To pay attorneys fees in the amount of P10,000.00;
3. 3.To pay the costs of the suit.

In essence, the amended complaint states:

1. 1)that the Estradas were occupying Caizas house by

tolerancehaving been allowed to live temporarily **
(therein) for free, out of ** (Caizas) kindness;
2. 2)that Caiza needed the house urgently because her
health ** (was) failing and she ** (needed) funds ** to

1. 4)that the Estradas refused and continue to refuse to give

back the house to Caiza, to her continuing prejudice; and
2. 5)that the action was filed within one (1) year from the last
demand to vacate.

Undoubtedly, a cause of action for desahucio has been

adequately set out. It is settled that in an action for unlawful
detainer, it suffices that the defendant is unlawfully
withholding possession from the plaintiff is deemed
sufficient, and a complaint for unlawful detainer is sufficient
if it alleges that the withholding of possession or the refusal
to vacate is unlawful without necessarily employing the
terminology of the law.
The Estradas first proffered defense derives from a literal
construction of Section 1, Rule 70 of the Rules of Court
which inter alia authorizes the institution of an unlawful
detainer suit when the possession of any land or building is
unlawfully withheld after the expiration or termination of the
right to hold possession, by virtue of any contract, express or
implied. They contend that since they did not acquire
possession of the property in question by virtue of any
contract, express or impliedthey having been, to repeat,
allowed to live temporarily ** (therein) for free, out of **
(Caizas) kindnessin no sense could there be an
21

22

expiration or termination of ** (their) right to hold

possession, by virtue of any contract, express or implied. Nor
would an action for forcible entry lie against them, since
there is no claim that they had deprived (Caiza) of the
possession of ** (her property) by force, intimidation, threat,
strategy, or stealth.
The argument is arrant sophistry. Caizas act of allowing
the Estradas to occupy her house, rent-free, did not create a
permanent and indefeasible right of possession in the latters
favor. Common sense, and the most rudimentary sense of
fairness clearly require that that act of liberality be
implicitly, but no less certainly, accompanied by the
necessary burden on the Estradas of returning the house to
Caiza upon her demand. More than once has this Court
adjudged that a person who occupies the land of another at
the latters tolerance or permission without any contract
between them is necessarily bound by an implied promise
that he will vacate upon demand, failing which a summary
action for ejectment is the proper remedy against him. The
situation is not much different from that of a tenant whose
lease expires but who continues in occupancy by tolerance of
the owner, in which case there is deemed to be an unlawful
deprivation or withholding of possession as of the date of the
demand to vacate. In other words, one whose stay is merely
tolerated becomes a deforciant illegally occupying the land or
property the moment he is required to leave. Thus, inAsset
Privatization Trust vs. Court of Appeals, where a company,
having lawfully obtained possession of a plant upon its
undertaking to buy the same, refused to return it after
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26

failing to fulfill its promise of payment despite demands, this

Court held that (a)fter demand and its repudiation, ** (its)
continuing possession ** became illegal and the complaint for
unlawful detainer filed by the ** (plants owner) was its
proper remedy.
It may not be amiss to point out in this connection that where
there had been more than one demand to vacate, the oneyear period for filing the complaint for unlawful detainer
must be reckoned from the date of the last demand, the
reason being that the lessor has the option to waive his right
of action based on previous demands and let the lessee
remain meanwhile in the premises. Now, the complaint filed
by Caizas guardian alleges that the same was filed within
one (1) year from the date of the first letter of demand dated
February 3, 1990. Although this averment is not in accord
with law because there is in fact a second letter of demand to
vacate, dated February 27, 1990, the mistake is
inconsequential, since the complaint was actually filed on
September 17, 1990, well within one year from the second
(last)written demand to vacate.
The Estradas possession of the house stemmed from the
owners express permission. That permission was
subsequently withdrawn by the owner, as was her right; and
it is immaterial that the withdrawal was made through her
judicial guardian, the latter being indisputably clothed with
authority to do so. Nor is it of any consequence that Carmen
Caiza had executed a will bequeathing the disputed
property to the Estradas; that circumstance did not give
them the right to stay in the premises after demand to vacate
27

28

on the theory that they might in the future become owners

thereof, that right of ownership being at best inchoate, no
transfer of ownership being possible unless and until the will
is duly probated.
Thus, at the time of the institution of the action
ofdesahucio, the Estradas had no legal right to the property,
whether as possessors by tolerance or sufferance, or as
owners. They could not claim the right of possession by
sufferance that had been legally ended. They could not assert
any right of possession flowing from their ownership of the
house; their status as owners is dependent on the probate of
the holographic will by which the property had allegedly been
bequeathed to theman event which still has to take place;
in other words, prior to the probate of the will, any assertion
of possession by them would be premature and inefficacious.
In any case, the only issue that could legitimately be
raised under the circumstances was that involving the
Estradas possession by tolerance, i.e., possession de
facto, not de jure. It is therefore incorrect to postulate that
the proper remedy for Caiza is not ejectment but accion
publiciana, a plenary action in the RTC or an action that is
one for recovery of the right to possession de jure.
II
The Estradas insist that the devise of the house to them by
Caiza clearly denotes her intention that they remain in
possession thereof, and legally incapacitated her judicial
guardian, Amparo Evangelista, from evicting them
therefrom, since their ouster would be inconsistent with the
wards will.

A will is essentially ambulatory; at any time prior to the

testators death, it may be changed or revoked; and until
admitted to probate, it has no effect whatever and no right
can be claimed thereunder, the law being quite explicit: No
will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court
(ART. 838, id.). An owners intention to confer title in the
future to persons possessing property by his tolerance, is not
inconsistent with the formers taking back possession in the
meantime for any reason deemed sufficient. And that in this
case there was sufficient cause for the owners resumption of
possession is apparent: she needed to generate income from
the house on account of the physical infirmities afflicting her,
arising from her extreme age.
29

30

Amparo Evangelista was appointed by a competent court the

general guardian of both the person and the estate of her
aunt, Carmen Caiza. Her Letters of Guardianship dated
December 19, 1989 clearly installed her as the guardian over
the person and properties of the incompetent CARMEN
CAIZA with full authority to take possession of the
property of said incompetent in any province or provinces in
which it may be situated and to perform all other acts
necessary for the management of her properties **. By that
appointment, it became Evangelistas duty to care for her
aunts person, to attend to her physical and spiritual needs,
to assure her wellbeing, with right to custody of her person in
preference to relatives and friends. It also became her right
and duty to get possession of, and exercise control over,
Caizas property, both real and personal, it being recognized
31

32

33

principle that the ward has no right to possession or control

of his property during her incompetency. That right to
manage the wards estate carries with it the right to take
possession thereof and recover it from anyone who retains
it, and bring and defend such actions as may be needful for
this purpose.
Actually, in bringing the action of desahucio, Evangelista
was merely discharging the duty to attend to the
comfortable and suitable maintenance of the ward explicitly
imposed on her by Section 4, Rule 96 of the Rules of
Court, viz.:
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35

36

SEC. 4. Estate to be managed frugally, and proceeds applied to

maintenance of ward.A guardian must manage the estate of his
ward frugally and without waste, and apply the income and profits
thereof, so far as may be necessary, to the comfortable and suitable
maintenance of the ward and his family, if there be any; and if such
income and profits be insufficient for that purpose, the guardian
may sell or encumber the real estate, upon being authorized by
order to do so, and apply to such of the proceeds as may be
necessary to such maintenance.

Finally, it may be pointed out in relation to the Estradas

defenses in the ejectment action, that as the law now stands,
even when, in forcible entry and unlawful detainer cases, the
defendant raises the question of ownership in his pleadings
and the question of possession cannot be resolved without
deciding the issue of ownership, the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts nevertheless have the undoubted competence to
resolve the issue of ownership ** only to determine the issue
of possession.
37

III
As already stated, Carmen Caiza passed away during the
pendency of this appeal. The Estradas thereupon moved to
dismiss the petition, arguing that Caizas death
automatically terminated the guardianship, Amparo
Evangelista lost all authority as her judicial guardian, and
ceased to have legal personality to represent her in the
present appeal. The motion is without merit.
While it is indeed well-established rule that the
relationship of guardian and ward is necessarily terminated
by the death of either the guardian or the ward, the rule
affords no advantage to the Estradas. Amparo Evangelista,
as niece of Carmen Caiza, is one of the latters only two (2)
surviving heirs, the other being Caizas nephew, Ramon C.
Nevado. On their motion and by Resolution of this Court of
June 20, 1994, they were in fact substituted as parties in the
appeal at bar in place of the deceased, in accordance with
Section 17, Rule 3 of the Rules of Court, viz.:
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SEC. 18. Death of a party.After a party dies and the claim is not
thereby extinguished, the court shall order, upon proper notice, the
legal representative of the deceased to appear and be substituted
for the deceased within a period of thirty (30) days, or within such
time as may be granted. If the legal representative fails to appear
within said time, the court may order the opposing party to
procure the appointment of a legal representative of the deceased
within a time to be specified by the court, and the representative
shall immediately appear for and on behalf of the interest of the
deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered
as costs. The heirs of the deceased may be allowed to be substituted
for the deceased, without requiring the appointment of an executor

or administrator and the court may appoint guardian ad litemfor

the minor heirs.

To be sure, an ejectment case survives the death of a party.

Caizas demise did not extinguish the desahuciosuit
instituted by her through her guardian. That action, not
being a purely personal one, survived her death; her heirs
have taken her place and now represent her interests in the
appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of
the Court of Appeals promulgated on June 2, 1993
affirming the Regional Trial Courts judgment and
dismissing petitioners petition forcertiorariis REVERSED
and SET ASIDE, and the Decision dated April 13, 1992 of the
Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case
No. 3410 is REINSTATED and AFFIRMED. Costs against
private respondents.
SO ORDERED.
Davide,
Jr., Melo,Francisco and Panganiban,
JJ., concur.
Petition granted. Judgment reversed and set aside, that of
the court a quo reinstated and affirmed.
41

In re will of Dolores Coronel, deceased. LORENZO

PECSON,

applicant

and

appellee, vs. AGUSTIN

CORONEL ET AL., opponents and appellants.

1. 1.WILLS; FREEDOM TO MAKE A WILL.Although

family ties in this country are very strongly knit, the
exclusion of relatives, who are not forced heirs, from the
inheritance is not an exceptional case. The inhabitants of
the Archipelago do not appear to be averse to the freedom
to make a will enshrined by article 783 of the Civil Code,
which has been in force in the Philippines since the year
1889. But even if the appointment of a beneficiary do not
seem to be the most usual and ordinary because the
beneficiary is not a relative of the testatrix who has
relatives by blood, this alone will not render the
appointment void per se.
1. 2.ID.; CONTEST OF;BURDEN OF PROOF.Where the
will is contested on the ground that the person who read
the will to the testator, following instructions from the heir
named therein, read one thing for another, the party
alleging such a fraud is bound to present said
person as witness for the purpose of proving the alleged
fraud, and the omission not accounted for of said proof
gives rise to a presumption that, if it were presented, it
would have been adverse to said party.
1. 3.ID.; NAMING OF HEIR;His APPOINTMENT AS
EXECUTOR;FUNCTIONS OF EXECUTOR.The fact
that the only heir named in the will is appointed executor
is no proof that the testator's intention was that said
executor should distribute the estate among the relatives

of the testator, and not that said executor, named as sole

heir, should get all the estate; for to be an heir is not
incompatible with being an executor, inasmuch as the
function of an executor is not limited merely to
distributing the inheritance, but he has other duties and
powers, such as to preserve, defend, and liquidate the
inheritance until it is delivered to the person entitled to it.
1. 4.ID.; ATTESTATION
CLAUSE; CLERICAL
OR
GRAMMATICAL ERRORS; THE EVIDENT INTENTION
PREVAILS.Clerical or grammatical errors are ordinarily
not considered of vital importance where the intention is
manifest. Thus the expression "cada uno de nosotros lo
firmamos en presencia de otros" (each of us signed in the
presence of others), which appears to be ambiguous on
account of the article "los" (the) being lacking before
"otros" (others), will not vitiate the attestation clause
where it is evident that its omission was due to
carelessness of the clerk or to lack of mastery of the
language, and that what was meant is that the witnesses
signed in the presence of each other.

APPEAL from a judgment of the Court of First Instance of

Pampanga. Guevara, J.
The facts are stated in the opinion of the court.
Fisher, DeWitt, Perkins & Brady for appellants.
Ross & Lawrence andGuillermo Lualhati for appellee.
ROMUALDEZ, J.;
On November 28, 1922, the Court of First Instance of
Pampanga probated as the last will and testament of Dolores

Coronel, the document Exhibit A, which translated is as

follows:

"In the name of God, Amen:

"I, Dolores Coronel, resident of Betis, Guagua, Pampanga,
Philippine Islands, in the full exercise of my mental faculties, do
hereby make my last will and testament, and revoke all former
wills by me executed.
"I direct and order that my body be buried in conf ormity with
my social standing.
"That having no forced heirs, I will all my properties, both
movable and immovable, to my nephew, Lorenzo Pecson, who is
married to my niece Angela Coronel, in consideration of the good
services which he has rendered, and is rendering to me with good
will and disinterestedness and to my full satisfaction.
"I name and appoint my aforesaid nephew, Lorenzo Pecson,
executor of all that is willed and ordained in this my will, without
bond. Should he not be able to discharge his duties as such
executor for any reason whatsoever, I name and appoint as
substitute executor my grandson Victor Pecson, a native and
resident of the town of Betis, without requiring him to give bond.
"All my real and paraphernal property as well as my credits, for
I declare that I have no debts, are specified in an inventory.
"In testimony whereof and as I do not know how to write my name,
I have requested Vicente J. Francisco to write my name at the foot
hereof and on the left margin of each of its sheets before me and all
the undersigned witnesses this July 1, 1918.
"VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel
"The foregoing document was executed and declared by Dolores
Coronel to be her last will and testament in our presence, and as
the testatrix does not know how to write her name, she requested
Vicente J. Francisco to sign her name under her express direction

in our presence, at the f oot, and on the left t margin of each and
every sheet, hereof. In testimony whereof, each of us signed these
presents in the presence of others and of the testatrix at the foot
hereof and on the margin of each and everyone of the two sheets of
which this document is composed, which are numbered "one" and
"two" on the upper part of the face thereof.
(Sgd.) "MAXIMO VERGARA
SOTERO DUMAUAL
MARCOS DE LOS SANTOS
MARIANO L. CRISOSTOMO
PABLO BARTOLOME
MARCOS DE LA CRUZ
DAMIAN CRISOSTOMO
"On. the left margin of the two sheets of the will the following
signatures also appear:
''Mariano L. Crisostomo, Vicente J. Francisco for the testatrix
Dolores Coronel, M. Vergara, Pablo Bartolome, Sotero Dumaual,
Damian Crisostomo, Marcos de la, Cruz, Marcos de los Santos."

The petitioner for the probate of the will is Lorenzo Pecson,

husband of Angela Coronel, who is a niece of the deceased
Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian
Gozum, Cirila Santiago, widow of the deceased Macario
Gozum, in her own behalf and that of her three minor
children, Hilarion Coronel, Geronimo Coronel, Maria Coronel
and her husband Eladio Gongco, Juana Bituin, widow of the
deceased Hipolito Coronel, in her own behalf and that of her
three children, Generosa, Maria, and Jose, all minors,
Rosario Coronel, Agustin Coronel, Filomeno Coronel,
Casimiro Coronel, Alejo Coronel, Maria Coronel, Severina
Coronel, Serapia Coronel, Maria Juana de Ocampo, widow of

the deceased Manuel Coronel, Dionisia Coronel, and her

husband Pantaleon Gunlao.
The probate of this will is impugned on the following
grounds: (a) That the proof does not show that the document
Exhibit A above copied contains the last will of Dolores
Coronel, and (b) that the attestation clause is not in
accordance with the provisions of section 618 of the Code of
Civil Procedure, as amended by Act No. 2645.
These are the two principal questions which are debated
in this case and which we will now examine separately.
As to the first, which is the one raised in the first
assignment of error, the appellants argue: First, that it was
improbable and exceptional that Dolores Coronel should
dispose of her estate, as set forth in the document Exhibit A,
her true will being that the same be distributed among her
blood relatives; and second, -that if such will was not
expressed in fact, it was due to extraneous illegal influence.
Let us examine the first point.
The opponents contend that it was not, nor could it be, the
will of the testatrix, because it is not natural nor usual that
she should completely exclude her blood relatives from her
vast estate, in order to will the same to one who is only a
relative by affinity, there appearing no sufficient motive for
such exclusion, inasmuch as until the death of Dolores
Coronel, she maintained very cordial relations with the
aforesaid relatives who had helped her in the management
and direction of her lands. It appears, however, from the
testimony of Attorney Francisco (page 71, transcript of the
stenographic notes) that Dolores Coronel revealed to him her

suspicion against some of her nephews as having been

accomplices in a robbery of which she had been a victim.
As to whether or not Lorenzo Pecson rendered services to
Dolores Coronel, the opponents admit that he rendered them
at least from the year 1914, although there is proof showing
that he rendered such services long before that time.
The appellants emphasize the f act that f amily ties in this
country are very strongly knit and that the exclusion of
relative from one's estate is an exceptional case. It is true
that the ties of relationship in the Philippines are very
strong, but we understand that cases of preterition of
relatives from the inheritance are not rare. The liberty to
dispose of one's estate by will when there are no forced heirs
is rendered sacred by the Civil Code in force in the
Philippines since 1889. It is so provided in the first
paragraph of article 763 in the following terms:
"Any person who has no forced heirs may dispose by will of all his
property or any part of it in favor of any person qualified to acquire
it."

Even ignoring the precedents of this legal precept, the Code

embodying it has been in force in the Philippines for more
than a quarter of a century, and for this reason it is not
tenable to say that the exercise of the liberty thereby granted
is necessarily exceptional, where it is not shown that the
inhabitants of this country whose customs must have been
taken into consideration by the legislator in adopting this
legal precept, are averse to such a liberty.
As to the preference given to Lorenzo Pecson, -it is not
purely arbitrary, nor a caprice or a whim of the 'moment. The
proof adduced by this appellee, although contradicted, shows

by a preponderance of evidence that besides the services

which the opponents admit had been rendered by him to
Dolores Coronel since the year 1914, he had also rendered
services prior to that time and was the administrator and
manager of the affairs of said Dolores in the last years of her
life. And that this was not a whim of the moment is shown by
the fact that six years before the execution of the will in
question, said Lorenzo Pecson was named and appointed by
Dolores Coronel as her sole heir in the document Exhibit B,
which, translated, is as follows:

1. "1.That my present property was acquired by me by

inheritance from my parents, but a great part thereof was
acquired by me by my own efforts and exertions;
2. "2.That I have made no inventory of my properties, but they
can be seen in the title deeds in my possession and in the
declarations of ownership;
3. "3.That I institute Lorenzo .Pecson, married to Angela
Coronel, and a known resident of the town, my heir to
succeed to all my properties;
4. "4. That I appoint my said heir, Lorenzo Pecson, as executor,
and, in his default, Victor Pecson, a resident of the same
town;
5. "5.That as to my burial and other things connected with the
eternal rest of my soul, I leave them to the sound
discretion of the af oresaid Lorenzo Pecson;
6. "6.That as I cannot write I requested Martin Pangilinan, a
native and resident of this town, to write this will in
accordance with my wishes and precise instructions.

"In testimony whereof I had the said Martin Pangilinan write my

name and surname, and affixed my mark between my name and
surname, and Don Francisco Dumaual, Don Mariano Sunglao, Don
Sotero Dumaual, Don Marcos de la Cruz and Don Martin
Pangilinan signed as witnesses, they having been present at the
beginning of, during, and after, the execution of this my last will.
(Sgd.) "DOLORES CORONEL
Witnesses:
(Sgd.) "MARIANO SUNGLAO
MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"

The appellants find in the testament Exhibit B something to

support their contention that the intention of Dolores
Coronel was to institute the said Pecson not as sole
beneficiary, but simply as executor and distributor of all her
estate among her heirs, for while Lorenzo Pecson's contention
that he was appointed sole beneficiary is based on the fact
that he enjoyed the confidence of Dolores Coronel in 1918 and
administered all her property, he did not exclusively have this
confidence and administration in the year 1912. Although
such administration and confidence were enjoyed by Pecson
always jointly with others and never exclusively, this fact
does not show that the will of the testatrix was to appoint
Pecson only as executor and distributor of her estate among
the heirs, nor does it prevent her, the testatrix, from
instituting him in 1912 or 1918 as sole beneficiary; nor does
it constitute, lastly, a test for determining whether or not

such institution in favor of Pecson was the true will of the

testatrix.
We find, therefore, nothing strange in the preterition made
by Dolores Coronel of her blood relatives, nor in the
designation of Lorenzo Pecson as her sole beneficiary.
Furthermore, although the institution of the beneficiary here
would not seem the most usual and customary, still this
would not be null per se.
"In the absence of any statutory restriction every person
possesses absolute dominion over his property, and may
bestow it upon whomsoever he pleases without regard to
natural or legal claim upon his bounty. If the testator
possesses the requisite capacity to make a will, and the
disposition of his property is not affected by fraud or undue
influence, the will is not rendered invalid by the fact that it is
unnatural, unreasonable, or unjust. Nothing can prevent the
testator from making a will as eccentric, as injudicious, or as
unjust as caprice, frivolity, or revenge can dictate. However,
as has already been shown, the unreasonableness or injustice
of a will may be considered on the question of testamentary
capacity." (40 Cyc., 1079.)
The testamentary capacity of Dolores Coronel is not
disputed, this case.
Passing to the second question, to wit, whether or not the
true last will of Dolores Coronel was expressed in the
testament Exhibit A, we will begin with expounding how the
idea of making the aforesaid will here controverted was borne
and carried out.
About the year 1916 or 1917, Dolores Coronel showed the
document Exhibit B to Attorney Francisco who was then her

legal adviser and who, considering that in order to make the

expression of her last will more legally valid, thought it
necessary that the testament be prepared in conformity with
the laws in force at the time of the death of the testatrix, and
observing that the will Exhibit B lacked the extrinsic
formalities required by Act No. 2645 enacted after its
execution, advised Dolores Coronel that the will be remade.
She followed the advice, and Attorney Francisco, after
receiving her instructions, drew the will Exhibit A in
accordance therewith, and brought it to the house of Dolores
Coronel for its. execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her
presence and that of the witnesses and asked her whether
the will was in accordance with her wishes. Dolores Coronel
answered that it was, and requested her attorney, Mr.
Francisco, to sign the will for her, which the attorney
accordingly did in the presence of the witnesses, who in turn
signed it bef ore the testatrix and in the presence of each
other.
Upon the filing of the motion for a rehearing on the first
order allowing the probate of the will, the opponents
presented an affidavit of Pablo Bartolome to the effect that,
following instructions of Lorenzo Pecson, he had informed the
testatrix that the contents of the will were that she entrusted
Pecson with the distribution of all her property among the
relatives of the said Dolores. But during the new trial Pablo
Bartolome, in spite of being present in the court room on the
day of the trial, was not introduced as a witness, without
such an omission having been satisfactorily accounted for.

While it is true that the petitioner was bound to present

Pablo Bartolome, being one of the witnesses who signed the
will, at the second hearing when the probate was
controverted, yet we cannot consider this point against the
appellee for this was not raised in any of the assignments of
error made by the appellants. (Art. 20, Rules of the Supreme
Court.)
On the other hand, it was incumbent upon the opponents
to present Pablo Bartolome to prove before the court the
statement made by him in his affidavit, since it was their
duty to prove what they alleged, which was that Dolores
Coronel had not understood the true contents of the will
Exhibit A. Having suppressed, without explanation, the
testimony of Pablo Bartolome, the presumption is against the
opponents and that is, that such a testimony would have been
adverse had it been produced at the hearing of the case
before the court. (Sec. 334, subsec. 5, Code of Civil
Procedure.)
The opponents call our attention to the fourth clause of
the document which says: "I name and appoint my aforesaid
nephew, Lorenzo Pecson, executor of all that is willed and
ordained in this my will, without bond. Should he not be able
to discharge his duties as such executor for any reason
whatsoever, I name and appoint as a substitute executor my
grandson Victor Pecson, resident of the town of Betis,
without requiring him to give bond," and contend that this
clause is repugnant to the institution of Lorenzo Pecson as
sole beneficiary of all her estate, for if such was the intention
of the testatrix, there would have been no necessity of
appointing an executor, nor any reason for designating a

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

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

such a promise into account, for even if such a promise was in

fact made, Dolores Coronel could retract or forget it
afterwards and dispose of her estate as she pleased. Wills
themselves, which contain more than mere promises, are
essentially revocable.
It is said that the true will of Dolores Coronel not expressed
in the will can be inferred from the phrase used by Jose M.
Reyes in his deposition when speaking of the purpose for
which Lorenzo Pecson was to receive the estate, to wit:
"in order that the latter might dispose of the estate in the
most appropriate manner."
Weight is given to this phrase from the circumstance that its
author was requested by Attorney Francisco to explain the
contents of Exhibit B and had acted as interpreter between
Dolores Coronel and Attorney Francisco at their interviews
previous to the preparation of Exhibit A, and had translated
into the Pampango dialect this last document, and, lastly,
was present at the execution of the will in question.
The disputed phrase "in order that the latter might
dispose of the estate in the most appropriate manner" was
used by the witness Reyes while sick in a hospital and
testifying in the course of the taking of his deposition.
The appellants interpret the expression "dispose in the
most appropriate manner" as meaning to say "distribute it
among the heirs." Limiting ourselves to its meaning, the
expression is a broad one, for the disposition may be effected
in several and various ways, which may not necessarily be a
"distribution among the heirs," and still be a "disposition in

the most appropriate manner." "To dispose" is not the same

as "to distribute."
To judge correctly the import of this phrase, the
circumstances under which it was used must be taken into
account in this particular instance. The witness Reyes, the
author of the phrase, was not expressing his own original
ideas when he used it, but was translating into Spanish what
Dolores Coronel had told him. According to the facts, the said
witness is not a Spaniard, that is to say, the Spanish
language is not his native tongue, but, perhaps, the
Pampango dialect. It is an admitted fact based on reason and
experience that when a person translates from one language
to another, it is easier for him to express with precision and
accuracy when the version is from a foreign language to a
native one than vice-versa. The witness Reyes translated
from the Pampango dialect, which must be more familiar to
him, to the Spanish language which is not his own tongue.
And judging from the language used by him during his
testimony in this case, it cannot be said that this witness
masters the Spanish language. Thus is explained the f act
that when asked to give the reason f or the appointment of an
executor in the will, he should say at the morning session
that "Dolores Coronel did appoint Don Lorenzo Pecson and in
his default, Victor Pecson, to act during her lifetime, but not
after her death," which was explained at the afternoon
session by saying "that Dolores Coronel did appoint Don
Lorenzo Pecson executor of all her estate during his lifetime
and that in his default, either through death or incapacity,
Mr. Victor Pecson was appointed executor." Taking into
account all the circumstances of this witness, there is ground

to attribute his inaccuracy as to the discharge of the duties of

an executor, not to ignorance of the elementary rule of law on
the matter, for the practice of which he was qualified, but to a
non-mastery of the Spanish language. We find in this detail
of translation made by the witness Reyes no sufficient reason
to believe that the will expressed by Dolores Coronel at the
said interview with Attorney Francisco was to appoint
Lorenzo Pecson executor and mere distributor of her estate
among her heirs.
As to whether or not the burden of proof was on the
petitioner to establish that he was the sole legatee to the
exclusion of the relatives of Dolores Coronel, we understand
that it was not his duty to show the reasons which the
testatrix may have had for excluding her relatives from her
estate, giving preference to him. His duty was to prove that
the will was voluntary and authentic and he, who alleges
that the estate was willed to another, has the burden of
proving his allegation.
Attorney Francisco is charged with having employed
improper means for making Lorenzo Pecson appear in the
will as sole beneficiary. However, after an examination of all
the proceedings had, we cannot find anything in the behavior
of this lawyer, relative to the preparation and execution of the
will, that would justify an unfavorable conclusion as to his
personal and professional conduct, nor that he should harbor
any wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising
Dolores Coronel to make a new will other than the last one,
Exhibit B (in the drawing of which he does not appear to have
intervened), so that the instrument might be executed with

all the new formalities required by the laws then in force; nor
in the preparation of the new will substantially in accordance
with the old one; nor in the selection of attesting witnesses
who were persons other than the relatives of Dolores Coronel.
Knowing, as he did, that Dolores Coronel was excluding her
blood relatives from the inheritance, in spite of her having
been asked by him whether their exclusion was due to a mere
inadvertence, there is a satisfactory explanation, compatible
with honorable conduct, why said attorney should prescind
from such relatives in the attesting of the will, to the end
that no obstacle be placed in the way to the probating thereof.
The fact that this attorney should presume that Dolores
was to ask him to sign the will for her and that he should
prepare it containing this detail is not in itself fraudulent.
There was in this case reason so to presume, and it appears
that he asked her, through Pablo Bartolome, whom she
wanted to sign the document in her stead.
No imputation can be made to this attorney of any interest
in favoring Lorenzo Pecson in the will, because the latter was
already his client at the execution of said will.
Attorney Francisco denied this fact, which we cannot
consider proven after examining the evidence.
The conduct observed by this attorney after the death of
Dolores Coronel in connection with the attempted
arrangement between Lorenzo Pecson and the opponents,
does not, in our opinion, constitute any data leading to the
conclusion that an heir different from the true one intended
by the testatrix should have been fraudulently made to
appear instituted in the will Exhibit A. His attitude towards

the opponents, as can be gathered from the proceedings and

especially from his letter Exhibit D, does not show any
perverse or fraudulent intent, but rather a conciliatory
purpose. It is said that such a step was well calculated to
prevent every possible opposition to the probate of the will.
Even admitting that one of his objects in entering into such
negotiations was to avoid every possible opposition to the
probate of the will, such object is not incompatible with good
faith, nor does it necessarily justify the inference that the
heir instituted in the instrument was not the one whom the
testatrix wanted appointed.
The appellants find rather suspicious the interest shown
by the said attorney in trying to persuade Lorenzo Pecson to
give them some share of the estate. These negotiations were
not carried out by the attorney out of his own initiative, but
at the instance of the same opponent, Agustin Coronel, made
by the latter in his own behalf and that of his copponents.
As to Lorenzo Pecson, we do not find in the record
sufficient proof to believe that he should have tried, through
fraud or any undue influence, to frustrate the alleged
intention of the testatrix to leave her estate to her blood
relatives. The opponents insinuate that Lorenzo Pecson
employed Attorney Francisco to carry out his reproachable
designs, but such depraved instrumentality was not proven,
nor was it shown that said lawyer, or Lorenzo Pecson, should
have contrived or put into execution any condemnable plan,
nor that both should have conspired for illegal purposes at
the time of the preparation and execution of the will Exhibit
A.

Although Norberto Paras testified having heard, when the

will was being read to Dolores Coronel, the provision whereby
the estate was ordered distributed among the heirs, the
preponderance of the evidence is to the effect that said
Norberto Paras was not present at such reading of the will.
Appellants do not insist on the probative force of the
testimony of this witness, and do not oppose its being
stricken out.
The data furnished by the case do not show, to our mind,
that Dolores Coronel should have had the intention of giving
her estate to her blood relatives instead of to Lorenzo Pecson
at the time of the execution of the will Exhibit A, nor that
fraud or whatever other illegal cause or undue influence
should have intervened in the execution of said testament.
Neither fraud nor evil is presumed and the record does not
show either.
Turning to the second assignment of error, which is made
to consist in the will having been probated in spite of the fact
that the attestation clause was not in conformity with the
provision of section 618 of the Code of Civil Procedure, as
amended by Act No. 2645, let us examine the tenor of such
clause which literally is as follows:
"The foregoing document was executed and declared by
Dolores Coronel to be her last will and testament in our
presence, and as the testatrix does not know how to write her
name, she requested Vicente J. Francisco to sign her name
under her express direction in our presence at the foot and on
the left margin of each and every sheet hereof. In testimony
whereof, each of us signed these presents in the presence of
others and of the testatrix at the foot hereof and on the

margin of each and everyone of the two pages of which this

document is composed. These sheets are numbered
correlatively with the words "one" and "two" on the upper
part of the face thereof.
(Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los
Santos, Mariano L. Crisostomo, Pablo Bartolome, Marcos de
la Cruz, Damian Crisostomo."
Appellants remark that it is not stated in this clause that
the will was signed by the witnesses in the presence of the
testatrix andof each other, as required by section 618 of the
Code of Civil Procedure, as amended, which on this
particular point provides the following:

"The attestation shall state the number of sheets or pages used,

upon which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and signed
the will and all pages thereof in the presence of the testator and of
each other."

Stress is laid on the phrase used in the attestation clause

above copied, to wit:
"each of us signed in the presence of others."

Two interpretations can absolutely be given here to the

expression "of others."One, that insinuated by the appellants,
namely, that it is equivalent to "of other persons," and the
other, that contended by the appellee, to wit, that the phrase
should be held to mean "of the others," the article "the"having
inadvertently been omitted.
Should the first interpretation prevail and"other
persons" be taken to mean persons different from the
attesting witnesses, then one of the solemnities required by

law would be lacking. Should the second be adopted and "of

others"construed as meaning the other witnesses to the will,
then the law would have been complied with in this respect.
Including the concomitant words, the controverted phrase
results thus: "each of us signed these presents in the presence
of others and of the testatrix."
If we should omit the words "of others and," the expression
would be reduced to "each of us signed these presents in the
presence of the testatrix," and the statement that the
witnesses signed each in the presence of the others would be
lacking. But as a matter of fact, these words "of others
and" are present. Then, what for are they there? Is it to say
that the witnesses signed in the presence of other persons
foreign to the execution of the will, which is completely
useless and to no purpose in the case, or was it for some
useful, rational, necessary object, such as that of making it
appear that the witnesses signed the will each in the
presence of the others? The first theory presupposes that the
one who drew the will, who is Attorney Francisco, was an
unreasonable man, which is an inadmissible hypothesis,
being repugnant to the facts shown by the record. The second
theory is the most obvious, logical and reasonable under the
circumstances. It is true that the expression proved to be
deficient. The deficiency may have been caused by the drawer
of the will or by the typist. If by the typist, then it must be
presumed to have been merely accidental. If by the drawer, it
is explainable taking into account that Spanish is not only
not the native language of the Filipinos, who, in general, still
speak until nowadays their own dialects, but also that such a

language is not even the only official language since several

years ago.
In Re will of Abangan (40 Phil., 476), this court said:

"The object of the solemnities surrounding the execution of wills is

to close the door against bad faith and fraud, to avoid substitution
of wills and testaments and to guarantee their truth and
authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But,
on the other hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the
right to make a will. So when an interpretation already given
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."

We believe it to be more reasonable to construe the disputed

phrase "of others"as meaning "of the other witnesses" and that
a grammatical or clerical error was committed consisting in
the omission of the article"the." Grammatical or clerical
errors are not usually considered of vital importance when
the intention is manifest in the will.
"The court may correct clerical mistakes in writing, and
disregard technical rules of grammar as to the construction
of the language of the will when it becomes necessary for it to
do so in order to effectuate the testator's manifest intention
as ascertained from the context of the will. But unless a
different construction is so required the ordinary rules of
grammar should be adhered to in construing the will." (40
Cyc., 1404).

And we understand that in the present case the

interpretation we adopt is imperative, being the most
adequate and reasonable.
The case of In the matter of the estate of Geronima Uy
Coque (43 Phil., 405), decided by this court and invoked by
the appellants, refers, so far as pertinent to the point herein
at issue, to an attestation clause wherein the statement that
the witnesses signed the will in the presence of each other is
totally absent. In the case at bar, there is the expression "in
the presence of others" whose reasonable interpretation is, as
we have said, "in the presence of the other witnesses." We do
not find any parity between the present case and that of Re
estate of Geronima Uy Coque above cited.
Finally, we will take up the question submitted by the
opponents as to the alleged insufficiency of the evidence to
show that the attesting witnesses Damian Crisostomo and
Sotero Dumaual were present at the execution of the 'will in
controversy. Although this point is raised in the first
assignment of error made by the appellants, and not in the
second, it is discussed in this place, because it refers to the
very fact of attestation. However, we do not believe it
necessary to analyze in detail the evidence of both parties on
this particular point. The evidence leads us to the conclusion
that the two witnesses aforementioned were present at the
execution and signing of the will. Such is also the conclusion
of the trial judge who, in this respect, states the following, in
his decision:
"As to the question of whether or not the testatrix and the
witnesses signed the document Exhibit A in accordance with
the provisions of law on the matter, that is, whether or not

the testatrix signed the will, or caused it to be signed, in the

presence of the witnesses, and the latter in turn signed in her
presence and that of each other, the court, after observing the
demeanor of the witnesses for both parties, is of the opinion
that those for the petitioner spoke the truth. It is neither
probable nor likely that a man versed in the law, such as
Attorney Francisco, who was present at the execution of the
will in question, and to whose conscientiousness in the
matter of compliance with all the extrinsic f ormalities of the
execution of a will, and to nothing else, was due the fact that
the testatrix had canceled her former will (Exhibit B) and
had a new one (Exhibit A) prepared and executed, should
have consented the omission of a formality compliance with
which would have required little or no effort; namely, that of
seeing to it that the testatrix and the attesting witnesses
were all present when their respective signatures were
affixed to the will." And the record does not furnish us
sufficient ground for deviating from the line of reasoning and
findings of the trial judge.
In conclusion we hold that the assignments of error made
by the appellants are not supported by the evidence of record.
The judgment appealed from is affirmed with costs against
the appellants. So ordered.
Araullo,
C.
J., Johnson,Street, Malcolm, Avancea,Villamor, and Johns,
JJ.,concur.
Judgment affirmed.

CONSTANTINO

C.

INTERMEDIATE

ACAIN,

petitioner, vs. HON.

APPELLATE

COURT

(Third

Special Cases Division), VIRGINIA A. FERNANDEZ

and ROSA DIONGSON, respondents.

Civil Law; Succession;Preterition, meaning of; Article 854 of

the Civil Code not applicable to the surviving spouse; Adoption
makes the adopted the legal heir of the adopter.Preterition
consists in the omission in the testators will of the forced heirs or
anyone of them either because they are not mentioned therein, or,
though mentioned, they are neither instituted as heirs nor are
expressly disinherited
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court
of Appeals, 114 SCRA [1982]. Insofar as the widow is concerned,
Article 854 of the Civil Code may not apply as she does not ascend
or descend from the testator, although she is a compulsory heir.
Stated otherwise, even if the surviving spouse is a compulsory heir,
there is no preterition even if she is omitted from the inheritance,
for she is not in thedirect line. (Art. 854, Civil Code) However, the
same thing cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has not been
questioned by petitioner (Memorandum for the Petitioner, pp. 8-9).
Under Article 39 of P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted person the same rights
and duties as if he were a legitimate child of the adopter and
makes the adopted person a legal heir of the adopter. It cannot be
denied that she was totally omitted and preterited in the will of the
testator and that both adopted child and the widow were deprived
of at least their legitime. Neither can it be denied that they were
not expressly disinherited. Hence, this is a clear case of preterition
of the legally adopted child.

Same; Same; Same;Preterition annuls the institution of an

heir and creates intestate succession but legacies and devises are
valid and respected insofar as they are not inofficious.Preterition
annuls the institution of an heir and annulment throws open to
intestate succession the entire inheritance including la portion
libre (que) no hubiese dispuesto en virtual de legado, mejora o
donation (Manresa, as cited in Nuguid v. Nuguid,supra; Maninang
v. Court of Appeals, 114 SCRA [1982]). The only provisions which
do not result in intestacy are the legacies and devises made in the
will for they should stand valid and respected, except in so far as
the legitimes are concerned.
Same; Same; Same; Same;Institution of petitioner and his
brothers and sisters to the entire inheritance totally abrogates the
will.The universal institution of petitioner together with his
brothers and sisters to the entire inheritance of the testator results
in totally abrogating the will because the nullification of such
institution of universal heirswithout any other testamentary
disposition in the willamounts to a declaration that nothing at
all was written. Carefully worded and in clear terms, Article 854 of
the Civil Code offers no leeway for inferential interpretation
(Nuguid v. Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has been
left by universal title to petitioner and his brothers and sisters.
The effect of annulling the institution of heirs will be, necessarily,
the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943])
except that proper legacies and devises must, as already stated
above, be respected.
Same; Same; Probate of a will; Petitioner has no legal
standing to petition for the probate of the will of the deceased, hence
Special Proceeding No. 591-A-CEB must be dismissed.In order
that a person may be allowed to intervene in a probate proceeding
he must have an interest in the estate, or in the will, or in the
property to be affected by it either as executor or as a claimant of

the estate and an interested party is one who would be benefited

by the estate such as an heir or one who has a claim against the
estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967).
Petitioner is not the appointed executor, neither a devisee or a
legatee there being no mention in the testamentary disposition of
any gift of an individual item of personal or real property he is
called upon to receive (Article 782, Civil Code). At the outset, he
appears to have an interest in the will as an heir, defined under
Article 782 of the Civil Code as a person called to the succession
either by the provision of a will or by operation of law. However,
intestacy having resulted from the preterition of respondent
adopted child and the universal institution of heirs, petitioner is in
effect not an heir of the testator. He has no legal standing to
petition for the probate of the will left by the deceased and Special
Proceedings No. 591-A-CEB must be dismissed.
Same; Same; Same; Rule that probate Courts authority is
limited only to the extrinsic validity of the will, not inflexible and
absolute; Court may pass upon the intrinsic validity of the will
under exceptional circumstances.Special Proceedings No. 591CEB is for the probate of a will. As stated by respondent Court, the
general rule is that the probate courts authority is limited only to
the extrinsic validity of the will, the due execution thereof, the
testators testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of
the will normally come only after the Court has declared that the
will has been duly authenticated. Said court at this stage of the
proceedings is not called upon to rule on the intrinsic validity or
efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA
449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonidas, 129 SCRA
522 [1984]); and Nepomuceno v. Court of Appeals, 139 SCRA 206
[1985]). The rule, however, is not inflexible and absolute. Under
exceptional circumstances, the probate court is not powerless to do

what the situation constrains it to do and pass upon certain

provisions of the will (Nepomuceno v. Court of Appeals, supra). In
Nuguid v. Nuguid the oppositors to the probate moved to dismiss
on the ground of absolute preterition. The probate court acting on
the motion held that the will in question was a complete nullity
and dismissed the petition without costs. On appeal the Supreme
Court upheld the decision of the probate court, induced by
practical considerations.
Same; Same; Same; Same;Trial Court could have denied
outright the probate of the will or have passed upon its intrinsic
validity where on its face it appears to be intrinsically void.For
private respondents to have tolerated the probate of the will and
allowed the case to progress when on its face the will appears to be
intrinsically void as petitioner and his brothers and sisters were
instituted as universal heirs coupled with the obvious fact that one
of the private respondents had been preterited would have been an
exercise in futility. It would have meant a waste of time, effort,
expense, plus added futility. The trial court could have denied its
probate outright or could have passed upon the intrinsic validity of
the testamentary provisions before the extrinsic validity of the will
was
resolved
(Cayetano
v.
Leonidas, supra;Nuguid
v.
Nuguid, supra). The remedies of certiorari and prohibition were
properly availed of by private respondents.
Certiorari; Remedy of Certiorari cannot be a substitute for
appeal, exception.As a general rule certiorari cannot be a
substitute for appeal, except when the questioned order is an
oppressive exercise of judicial authority (People v. Villanueva, 110
SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573
[1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984];
and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic
that the remedies of certiorari and prohibition are not available
where the petitioner has the remedy of appeal or some other plain,
speedy and adequate remedy in the course of law (D.D.

Comendador Construction Corporation v. Sayo (118 SCRA 590

[1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where
the dismissal is founded on valid grounds (Vda. de Bacang v. Court
of Appeals, 125 SCRA 137 [1983]).
Same; Same; Certiorari may be entertained where appeal will
not afford a speedy and adequate relief.Thus, this Court ruled
that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and
adequate remedies of certiorari and prohibition to correct a grave
abuse of discretion, amounting to lack of jurisdiction, committed by
the trial court in not dismissing the case, (Vda. de Bacang v. Court
of Appeals, supra) and even assuming the existence of the remedy
of appeal, the Court harkens to the rule that in the broader
interests of justice, a petition for certiorari may be entertained,
particularly where appeal would not afford speedy and adequate
relief.

PETITION for certiorari to review the decision of the Court

of Appeals. Melo, J.
The facts are stated in the opinion of the Court.
PARAS, J.:
This is a petition for review on certiorari of the decision of
respondent Court of Appeals in AC-G.R. SP No.
05744 promulgated on August 30, 1985 (Rollo, p. 108)
ordering the dismissal of the petition in Special Proceedings
No. 591-A-CEB and its Resolution issued on October 23, 1985
(Rollo, p. 72) denying respondents (petitioners herein)
motion for reconsideration.
**

The dispositive portion of the questioned decision reads as

follows:
WHEREFORE, the petition is hereby granted and respondent
Regional Trial Court of the Seventh Judicial Region, Branch XIII
(Cebu City), is hereby ordered to dismiss the petition in Special
Proceedings No. 591-A-CEB. No special pronouncement is made as
to costs.

The antecedents of the case, based on the summary of the

Intermediate Appellate Court, now Court of Appeals, (Rollo,
pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed in the
Regional Trial Court of Cebu City Branch XIII, a petition for
the probate of the will of the late Nemesio Acain and for the
issuance to the same petitioner of letters testamentary,
docketed as Special Proceedings No. 591-A-CEB (Rollo, p. 29),
on the premise that Nemesio Acain died leaving a will in
which petitioner and his brothers Antonio, Flores and Jose
and his sisters Anita, Concepcion, Quirina and Laura were
instituted as heirs. The will allegedly executed by Nemesio
Acain on February 17, 1960 was written in Bisaya (Rollo, p.
27) with a translation in English (Rollo, p. 31) submitted by
petitioner without objection raised by private respondents.
The will contained provisions on burial rites, payment of
debts, and the appointment of a certain Atty. Ignacio G.
Villagonzalo as the executor of the testament. On the
disposition of the testators property, the will provided:
THIRD: All my shares that I may receive from our properties,
house, lands and money which I earned jointly with my wife Rosa
Diongson shall all be given by me to my brother SEGUNDO
ACAIN, Filipino, widower, of legal age and presently residing at
357-C Sanciangko Street, Cebu City. In case my brother Segundo

Acain predeceases me, all the money properties, lands, houses

there in Bantayan and here in Cebu City which constitute my
share shall be given by me to his children, namely: Anita,
Constantino, Concepcion, Quirina, Laura, Flores, Antonio and
Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus, it is the

children of Segundo who are claiming to be heirs, with
Constantino as the petitioner in Special Proceedings No. 591A-CEB.
After the petition was set for hearing in the lower court on
June 25, 1984 the oppositors (respondents herein Virginia A.
Fernandez, a legally adopted daughter of the deceased and
the latters widow Rosa Diongson Vda. de Acain) filed a
motion to dismiss on the following grounds: (1) the petitioner
has no legal capacity to institute these proceedings; (2) he is
merely a universal heir and (3) the widow and the adopted
daughter have been preterited. (Rollo, p. 158). Said motion
was denied by the trial judge.
After the denial of their subsequent motion for
reconsideration in the lower court, respondents filed with the
Supreme Court a petition for certiorari and prohibition with
preliminary injunction which was subsequently referred to
the Intermediate Appellate Court by Resolution of the Court
dated March 11, 1985 (Memorandum for Petitioner, p. 3;
Rollo, p. 159).
Respondent Intermediate Appellate Court granted private
respondents petition and ordered the trial court to dismiss
the petition for the probate of the will of Nemesio Acain in
Special Proceedings No. 591-A-CEB.
His motion for reconsideration having been denied,
petitioner filed this present petition for the review of

respondent Courts decision on December 18, 1985 (Rollo, p.

6). Respondents Comment was filed on June 6, 1986 (Rollo,
p. 146).
On August 11, 1986 the Court resolved to give due course
to the petition (Rollo, p. 153). Respondents Memorandum
was filed on September 22, 1986 (Rollo, p. 157); the
Memorandum for petitioner was filed on September 29, 1986
(Rollo, p. 177).
Petitioner raises the following issues (Memorandum for
Petitioner, p. 4):

1. (A)The petition filed inAC-G.R. No. 05744for certiorari and

prohibition with preliminary injunction is not the proper
remedy under the premises;
2. (B)The authority of the probate courts is limited only to
inquiring into theextrinsic validity of the will sought to be
probated and it cannot pass upon the intrinsic validity
thereof before it is admitted to probate;
3. (C)The will of Nemesio Acain is valid and must therefore, be
admitted to probate. The preterition mentioned in Article
854 of the New Civil Code refers to preterition of
compulsory heirs in the direct line, and does not apply to
private respondents who are not compulsory heirs in the
direct line; their omission shall not annul the institution of
heirs;
4. (D)DICAT TESTATOR ET ERIT LEX. What the testator
says will be the law;
5. (E)There may be nothing in Article 854 of the New Civil
Code, that suggests that mere institution of a universal
heir in the will would give the heir so instituted a share in
the inheritance but there is a definite distinct intention of

the testator in the case at bar, explicitly expressed in his

will. This is what matters and should be inviolable.
1. (F)As an instituted heir, petitioner has the legal interest
and standing to file the petition in Sp. Proc. No. 591-ACEB for probate of the will of Nemesio Acain; and
2. (G)Article 854 of the New Civil Code is a bill of attainder. It
is therefore unconstitutional and ineffectual.

The pivotal issue in this case is whether or not private

respondents have been preterited. Article 854 of the Civil
Code provides:
Art. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of
the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devisees and legacies
shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator,
the institution shall be effectual, without prejudice to the right of
representation.

Preterition consists in the omission in the testators will of

the forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited (Nuguid v.
Nuguid, 17 SCRA 450[1966]; Maninang v. Court of
Appeals, 114 SCRA 478[1982]). Insofar as the widow is
concerned, Article 854 of the Civil Code may not apply as she
does not ascend or descend from the testator, although she is
a compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even if she
is omitted from the inheritance, for she is not in

the direct line. (Art. 854, Civil Code) However, the same thing
cannot be said of the other respondent Virginia A. Fernandez,
whose legal adoption by the testator has not been questioned
by petitioner (Memorandum for the Petitioner, pp. 8-9).
Under Article 39 of P.D. No. 603, known as the Child and
Youth Welfare Code, adoption gives to the adopted person the
same rights and duties as if he were a legitimate child of the
adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she was totally omitted and
preterited in the will of the testator and that both adopted
child and the widow were deprived of atleast their legitime.
Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the
legally adopted child.
Preterition annuls the institution of an heir and
annulment throws open to intestate succession the entire
inheritance including la portion libre (que) no hubiese
dispuesto en virtual de legado, mejora o donation (Manresa,
as cited in Nuguid v. Nuguid, supra;Maninang v. Court of
Appeals, 114 SCRA [1982]). The only provisions which do not
result in intestacy are the legacies and devises made in the
will for they should stand valid and respected, except insofar
as the legitimes are concerned.
The universal institution of petitioner together with his
brothers and sisters to the entire inheritance of the testator
results in totally abrogating the will because the nullification
of such institution of universal heirswithout any other
testamentary disposition in the willamounts to a
declaration that nothing at all was written. Carefully worded
and in clear terms, Article 854 of the Civil Code offers no

leeway for inferential interpretation (Nuguid v. Nuguid),

supra. No legacies nor devises having been provided in the
will the whole property of the deceased has been left by
universal title to petitioner and his brothers and sisters. The
effect of annulling the institution of heirs will be, necessarily,
the opening of a total intestacy (Neri v. Akutin, 74 Phil.
185 [1943]) except that proper legacies and devises must, as
already stated above, be respected.
We now deal with another matter. In order that a person
may be allowed to intervene in a probate proceeding he must
have an interest in the estate, or in the will, or in the
property to be affected by it either as executor or as a
claimant of the estate and an interested party is one who
would be benefited by the estate such as an heir or one who
has a claim against the estate like a creditor (Sumilang v.
Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
appointed executor, neither a devisee or a legatee there being
no mention in the testamentary disposition of any gift of an
individual item of personal or real property he is called upon
to receive (Article 782, Civil Code). At the outset, he appears
to have an interest in the will as an heir, defined under
Article 782 of the Civil Code as a person called to the
succession either by the provision of a will or by operation of
law. However, intestacy having resulted from the preterition
of respondent adopted child and the universal institution of
heirs, petitioner is in effect not an heir of the testator. He has
no legal standing to petition for the probate of the will left by
the deceased and Special Proceedings No. 591-A-CEB must
be dismissed.

As a general rule certiorari cannot be a substitute for

appeal, except when the questioned order is an oppressive
exercise of judicial authority (People v. Villanueva, 110 SCRA
465[1981]; Vda. de Caldito v. Segundo, 117 SCRA
573[1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA
308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587[1985]).
It is axiomatic that the remedies of certiorari and prohibition
are not available where the petitioner has the remedy of
appeal or some other plain, speedy and adequate remedy in
the course of law (D.D. Comendador Construction
Corporation v. Sayo (118 SCRA 590 [1982]). They are,
however, proper remedies to correct a grave abuse of
discretion of the trial court in not dismissing a case where
the dismissal is founded on valid grounds (Vda. de Bacang v.
Court of Appeals, 125 SCRA 137[1983]).
Special Proceedings No. 591-CEB is for the probate of a
will. As stated by respondent Court, the general rule is that
the probate courts authority is limited only to the extrinsic
validity of the will, the due execution thereof, the testators
testamentary capacity and the compliance with the requisites
or solemnities prescribed by law. The intrinsic validity of the
will normally comes only after the Court has declared that
the will has been duly authenticated. Said court at this stage
of the proceedings is not called upon to rule on the intrinsic
validity or efficacy of the provisions of the will (Nuguid v.
Nuguid,17
SCRA
449 [1966];Sumilang
v.
Ramagosa,supra; Maninang v. Court of Appeals, 114 SCRA
478[1982]; Cayetano v. Leonidas, 129 SCRA 522[1984];
and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).

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

exceptional circumstances, the probate court is not powerless
to do what the situation constrains it to do and pass upon
certain provisions of the will (Nepomuceno v. Court of
Appeals, supra). In Nuguid v. Nuguid the oppositors to the
probate moved to dismiss on the ground of absolute
preterition. The probate court acting on the motion held that
the will in question was a complete nullity and dismissed the
petition without costs. On appeal the Supreme Court upheld
the decision of the probate court, induced by practical
considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of
the will, nothing will be gained. On the contrary, this litigation will
be protracted. And for aught that appears in the record, in the
event of probate or if the court rejects the will, probability exists
that the case will come up once again before us on the same issue
of the intrinsic validity or nullity of the will. Result: waste of time,
effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will
in question. After all there exists a justiciable controversy crying
for solution.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to

dismiss the petition by the surviving spouse was grounded on
petitioners lack of legal capacity to institute the proceedings
which was fully substantiated by the evidence during the
hearing held in connection with said motion. The Court
upheld the probate courts order of dismissal.
In Cayetano v. Leonidas,supra one of the issues raised in
the motion to dismiss the petition deals with the validity of
the provisions of the will. Respondent Judge allowed the

probate of the will. The Court held that as on its face the will
appeared to have preterited the petitioner the respondent
judge should have denied its probate outright. Where
circumstances demand that intrinsic validity of testamentary
provisions be passed upon even before the extrinsic validity of
the will is resolved, the probate court should meet the issue.
(Nepomuceno v. Court of Appeals, supra; Nuguid v.
Nuguid, supra).
In the instant case private respondents filed a motion to
dismiss the petition in Sp. Proceedings No. 591-CEB of the
Regional Trial Court of Cebu on the following grounds: (1)
petitioner has no legal capacity to institute the proceedings;
(2) he is merely a universal heir; and (3) the widow and the
adopted daughter have been preterited (Rollo, p. 158). It was
denied by the trial court in an order dated January 21, 1985
for the reason that the grounds for the motion to dismiss are
matters properly to be resolved after a hearing on the issues
in the course of the trial on the merits of the case (Rollo, p.
32). A subsequent motion for reconsideration was denied by
the trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of
the will and allowed the case to progress when on its face the
will appears to be intrinsically void as petitioner and his
brothers and sisters were instituted as universal heirs
coupled with the obvious fact that one of the private
respondents had been preterited would have been an exercise
in futility. It would have meant a waste of time, effort,
expense, plus added futility. The trial court could have denied
its probate outright or could have passed upon the intrinsic
validity of the testamen-tary provisions before the extrinsic

validity of the will was resolved (Cayetano v.

Leonidas,supra; Nuguid v. Nuguid,supra). The remedies of
certiorari and prohibition were properly availed of by private
respondents.
Thus, this Court ruled that where the grounds for
dismissal are indubitable, the defendants had the right to
resort to the more speedy, and adequate remedies of
certiorari and prohibition to correct a grave abuse of
discretion, amounting to lack of jurisdiction, committed by
the trial court in not dismissing the case, (Vda. de Bacang v.
Court of Appeals,supra) and even assuming the existence of
the remedy of appeal, the Court harkens to the rule that in
the broader interests of justice, a petition for certiorari may
be entertained, particularly where appeal would not afford
speedy and adequate relief. (Maninang v. Court of
Appeals, supra).
PREMISES CONSIDERED, the petition is her eby
DENIED for lack of merit and the questioned decision of
respondent Court of Appeals promulgated on August 30,
1985 and its Resolution dated October 23, 1985 are hereby
AFFIRMED.
SO ORDERED.
Teehankee (C.J.),Yap, Fernan, Narvasa,Gutierrez, Jr.,
Cruz, Feliciano, Gancayco,Padilla, Bidin, Sarmientoand
Cortes, JJ., concur.

[No. 47799.May 21, 1943]

Administrative of the estate of Agripino Neri y
Chavez. ELEUTERIO NERI ET AL., petitioners, vs.IGNACIA
AKUTIN AND HER CHILDREN, respondents.
1.DESCENT AND DISTRIBUTION; EFFECT OF PRETERITION.
According to the findings of fact in this case, the testator
left all his property by universal title to the children by his
second marriage, and that without expressly disinheriting
the children by his first marriage, he left nothing to them.
Held: That this is a case of preterition govern by article
814 of the Civil Code, which provides that the institution
of heirs shall be annulled and intestate succession should
be declared.
2.ID.; ID.; RESPECTIVE SCOPE OF ARTICLES 814, 817, AND 851
OF THE CIVIL CODE.The folliwing example will make the
question clearer: The testator has two legistimate sons, A
and B, and in his will he leaves all his property to A, with
total preterition of B. Upon these facts, shall the court
annul entirely the institution of heir in favor of A and
declare a total intestacy, or shall it merely refuse the
bequest left to A. giving him two-thirds, that is, one-third
of free disposal and one-third of betterments, plus one-half
of the other third as strict legitime, and awarding B only
the remaining one-half of the strict legitime? If the court
does the first, it applies article 814; if the second, it
applies article 851 or 817. But article 851 applies only in
case of unfounded disinheritance, and all are agreed that
the present case is not one of disinheritance but of

preterition. Article 817 is merely a general rule

inapplicable to specific cases provided by law, such as that
of pretertion or disinheritance.
3.ID.; ID.; ID.; LEGACIES AND BETTERMENTS SHOULD BE
RESPECTED IN SO FAR AS THEY ARE NOT INOFFICIOUS OR
EXCESSIVE.The annulment of the institution of heirs in
cases of pretetion does not always carry with it the
ineffictiveness of the whole will. Neither Manresa nor
Sanchez Roman northis court has ever said so. If, aside
from the institution of heirs, there are in the will
provisions leaving to the heirs so instituted or to other
persons some specific properties in the form of legacies or
mejoras, such testamentary provisions shall be effective
and the legacies and mejoras shall be respected in so far
as they are not inofficious or excessive, according to article
814. in the instant case, however, no legacies or mejoras
are provided in the will, the whole property of the
deceased having been left by universal title to the children
of the second marriage. The effect, therefore, of annulling
the institution of heirs will be necessaroly the opening of a
total intestacy.
4.ID.; ID.; ID.; INSTITUTION OF HEIRS DISTINGUISHED FROM
LEGACIES AND BETTERMENTS.The theory is advaced that
the bequest made by universal title in favor of the children
by
the
second
marraige
should
be
treated
aslegado and majora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of article 814
and 851 of the Civil Code. If every case of institution of
heirs maybe made to fall into the concept of legacies and

betterments reducing the bequest accordingly, then the

provisions of article 814 and 815 regarding total or partial
nullity of the institution, would be absolutely meaningless
and will never have any application at all. And the
remaining provisions contained in said article concerning
the reduction of inofficious legacies or betterments would
be absorbed by article 817. This, instead of construing, this
visions of the Civil Code.
5.ID.; ID.; ID.; ID.The distructive effect of the theory thus
advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a
general from a special provision. With reference to article
814, which is the only provition material to the disposition
of this case, it must be observed that the institution of
heirs is therein dealt with as a thing separate and distinct
from legacies or betterment. And they are separate and
distinct not only because they are distinctly and separately
treated in said article but beacuase they are in themselves
different. Institution of heirs is a bequest by universal title
of property that is undetermined. Legacy refers to pacific
property bequeathed by a particular or special title. The
first is also different from a betterment which whould be
made expressly as such (article 828). The only instance of
implied betterment recognized by law is wher legacies are
made which cannot be included in the free portion (article
828). But again an institution of heirs cannot be taken as
a legacy.
6.ID.; ID.; ID.; ID.It is clear, therefore, that article 814
referes to two different things which are the two different
objects of it s two different provisions. One of these objects

cannot be made to merge in the other without mutilating

the whole article with all its multifarious connections with
a great number of provisions spread throughout the Civil
Code on the matter of succession. It should be borne in
mind, further, that althought article 814 contains two
different provisions, its special purpose is to establich a
specific rule concerning a specific testamentary provision;
namely, the institution of heirs in a case of preterition. Its
other provision regarding the validity of legacies and
betterments if not inofficious is a mere reiteration of the
general rule contained in order provisions (article 815 and
817) and signifies merely that it also applies in case of
preterition.
7.ID.; ID.; ID.; ID.; STATUTORY CONSTRUCTION.As regards
testamentary dispositions in general, the general rule is
that all "testamentary dispositions which dimmish the
legitime of the forced heirs shall be reduced on petition of
the same in so far as they are inofficious or excessive"
(article 817). But this general rule does not apply to the
specific instance of a testamentary disposition containing
an institution of heirs in a case of preterition, which is
made the main and specific subject of article 814. In such
instance, according to article 814, the testamentary
disposition containing the institution of heirs should be
not only reduced but annulled in its entirely and all the
forced heirs, including the omitted ones, are entitled to
inherit in accordance with the law of intestate succession.
It is thus evident that, if, in construing arcticle 814, the
institution of heirs therein dealt with is to be treated as
legacies or betterments, the special object of said article

would be destroyed, its specific purpose completely

defeated, and in that wise the special rule therein
established would be rendered nugatory. And this is
contrary to the most elementary rule of statutory
construction. In construing several provisions of a
particular statute, such construction shall be adopted as
will give effect to all, and when general and particular
provisions are consistent the latter shall over the former.
(Act No. 190, secs. 287 and 288.)
8.ID.; ID.; ID.; ID.; ID.; "HEREDERO" UNDER THE CIVIL CODE
AND "HEIR" UNDER THE CODE OF CIVIL PROCEDURE.It is
maintained that the word "heredero" under the Civil Code,
is not synonymous with the term "heir" under the Code of
Civil Procedure, and that the "heir" under the latter Code
is no longer personally liable for the debts of the deceased
as was the "heredero" under the Civil Code, should his
acceptance be pure and simple, and from all these the
conclusion is drawn that the provisions of article 814 of
the Civil Code regarding the total nullity of the institution
of heirs has become obsolete. This conclusion is erroneous.
It confuses form with substance. It must be observed, in
this connection, that in construing and applying a
provision of the Civil Code, such meaning of its words and
phrases as has been intended by the framers thereof shall
be adopted. If thus construed it is inconsistent with the
provisions of the Code of Civil Procedure, then it shall be
deemed repealed; otherwise it is in force. Repeals by
implication are not favored by the court and when there
are two acts upon the same subject, effect should be given

to both if possible (Posadas vs. National City Bank, 296 U.

S., 497).
9.ID.; ID.; ID.; ID.; ID.; ID.The word "heir" as used in article
814 of the Civil Code may not have the meaning that it has
under the Code of Civil Procedure, but this in no wise can
prevent a bequest from being made by univesal title as is
in substance the subject matter of article 814 of the Civil
Code. Again, it may also be true that heirs under the Code
of Civil Procedure may recieve the bequest only after
payment of debts left by the deceased and not before as
under the Civil Code, but this may have a bearing only
upon the question as to when succession becomes effective
and can in no way destroy the fact that succession may
still be by universal or special title. Since a bquest may
still be made by universal title and with pretetion of forced
heirs, its nullity as provided in article 814 still applies
there being nothing inconsistent with it in the Code of
Civil Procedure. What is imporatant and is the basis for
its nullity is the nature and effect of the bequest and not
its possible name nor the moment of its effectiveness
under the Code of Civil Procedure.
PETITION for review on certiorari.
The facts are stated in the opinion of the court.
Ozamis & Capistrano for petitioners.
Gullas, Leuterio, Tanner& Laput for respondents.
MORAN,J.:
This is the case where the testator in his will left all his
property by universal title to the children by his second
marriage,the herein respondents, with preterition of the

children by his firts marriage, the herein retitioners. This

Court annulled the institution of heirs and declaired a total
intestacy.
A motion for reconsideration has been filed by the
respondents on the ground (1) that there is no pretetion as to
the children of the first marriage who have receive their
shares in the property left by the testator, and (2) that, even
assuming that there has been a pretetion, the effect would
not be the annulment of the institution of heirs but simply
the reduction of the bequest made to them.
1.The findings of the trial court and those of the Court of
Appeals are contrary to respondents' first contention. The children of
the first marriage are Eleuterio, Agripino, Agapita, Getulia (who died a
little less than eight years before the death of her father Agripino Neri,
leaving seven children), Rosario and Celerina.
As to Eleuterio, the trial court said that "it is not, therefore, clear
that Eleuterio has received his share out of the properties left by his
father." It is true that Eleuterio appears to have received, as a
donation from his father, parcel of land No. 4, but the
question of whether there has been a donation or not is
apparently left for decision in an independent action, and to
that effect Ignacia Akutin has been appointed special
administratrix for the purpose of instituing such action.
With respect to Agripino and Agapita, the parcels of land
which they have occupied, according to the trial Court, "are a
part of public land which had been occupied by Agripino Neri
Chaves, and, therefore, were not a part of the estate of the
latter."
Concerning Getulia who did about eight years before the
death of her father Agripino Neri, the trial Court found that

"neither Getulia nor her heirs received any share of the

properties."
And with respect to Rosario and Celerina, the trial Court
said that "it does not appear clear, therefore, that Celerina
and Rosario received their shares in the estate left by their
father Agripino Neri Chaves.
This is connection with the property, real or personal, left
by the deceased. As to money advances, the trial Court found:
"It is contended, furthermore, that the children of Agripino Neri
Chaves in his first marriage received money from their father. It
appears that Nemesio Chaves is indebted in the amount of P1,000;
Agripino, in the amount of P500 as appears in Exhibits 14 and 15;
Getulia, in the amount of P155 as appears in Exhibits 16, 17 and
18; Celerina in the amount of P120 as appears in Exhibits 19, 19-A
and 19-B."

From these findings of the trial Court it is clear that

Agapita, Rosario and the children of Getulia had received
from the testator no property whatsoever, personal, real or in
cash.
But clause 8 of the will is invoked wherein the testator
made the statement that the children by his first marriage
had already received their shares in his property excluding
what he had given them as aid during their financial trouble
and the money they had borrowed from him which he
condoned in the will. Since, however, this is an issue of fact
tried by the Court of First Instance, and we are reviewing the
decision of the Court of Appeals upon a question of law
regarding that issue, we can rely only upon the findings of
fact made by the latter Court, which are as follows:

"Since all the parcels that corresponded to Agripino Neri y

Chaves are now in the administrator's possession, as appears in
the inventory filed in court, it is clear that the property of the
deceased has remained intact and that no portion thereof has been
given to the children of the first marriage.

*******
"Its is stated by the court and practically admitted by the
appellants that a child of the first marriage named Getulia, or her
heirs after her death, did not receive any share of the property of
her father."

It is true that in the decision of the Court of Appeals

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

the testator to the children by his first marriage; but the

Court of Appeals belied this claim. "It is not true," says that
Court, " that this parcel containing 182.6373 hectares is now
assessed in the names of some of the children of the first
marriage, for as shown on Tax Declaration No. 9395, Exhibit
11-g, the owners of the property are Agapita Neri de Chaves
y Hermanos," that is, the children of both marriages. And the
Court of Appeals added that "apparently, the said land is still
claimed to be the property not only of the children of the first
marriage but alsso of those of the second marriage," which is
another way of stating that the property could not have been
advanced by the testator to the children by the first marriage,
for otherwise the children by the second marriage would not
lay a claim on it.
We conclude, therefore, that according to the findings of
fact made by the court of appeals, the testator left all his
property by universal title to the children by his second
marriage, and that without expressly disinheriting the
children by his first marriage, he left nothing to them or, at
least, some of them. this is, accordingly a case of preterition
governed by article 814 of the Civil Code, which provides that
the institution of heirs shall be annulled and intestate
succession should be declared open.
2.Upon the second question propounded in the motion for
reconsideration, respondents seems to agree that article 814 of the
Civil Code is the law applicable but, in their discussion as to the effect
of preterition, they confuse article 814 with article 817 and 851 and
other articles of the Civil Code. These three articles read:
"ART. 814.The preterition of one or of all of the forced
heirs in the direct line, wether living at the execution of the
will or born after the death of the testator, shall annul the

institution of heirs; but the legacies and betterments shall be

valid in so far as they are not inofficious.
"The preterrition of the widower or widow does not annul
the institution; but the person omitted shall retain all the
rights granted to him by article 834, 835, 836, and 837 of this
Code.
"If the forced heirs omitted die before the testator, the
institution shall become operatives."
"ART. 817.Testamentary disposition which diminish the
legitime of the forced heirs shall be reduced on petition of the
same in so far as they are inofficious or excessive."
"ART.851.Disinheritance made without a statement of
the cause, or for a cause the truth of which, if contested, is
not shown or which is not one of those stated in the
four following articles shall anul the institution of heirs in so
far as it is prejudicial to the disinherited persons; but the
legacies, betterments, and other testamentary dispositions
shall be valid in so far as they are not prejudicial to said
legitime." disinheritance but of preterition. Article 817 is
merely a general rule inapplicable to specific cases provided
by law, such as that of preterition or disinheritance. The
meaning of article 814 and 851, their difference and
philosophy, and their relation to article 817, are lucidly
explained by Manresa in the following manner:
"Cuando la legitime no es usufructuaria, como ocurre en
los dems casos, la pretericin no puede menos de alterar
esencialmente la institucin de heredero. Esta ha de
anularse, pero en todo o en parte, esto es, slo en cuanto
perjudique el derecho del legitimario? El articulo 814 opta
por la primera solucin, ya que hemos de atenernos

estrictsmente al texto de la ley; mientras que el articulo 851,

en casos anlogos, opta por la segunda.
"En efecio; la desheredacin sin justa causa no produce el
efecto de desheredar. El heredero conserva derecho a su
legitima, pero nada ms que a su legitima. Los legados, las
mejoras, si las hay, y aun la institucin de heredero, son
vlidas en cuanto no perjudiquen al heredero forzoso.
"La diferencia se notar perfectamente con un ejemplo. Un
soltern, sin descendientes ni ascendientes legitimos, hace
testamento instituyendo por heredero a un pariente lejano.
Despus reconoce un hijo natural, o se casa y tiene
descendencia, y muere sin modificar su disposicin
testamentaria. A su muerte, el hijo natural, o los legitimos,
fundndose en la nulidad total de la institucin, con arreglo
al articulo 814, piden toda la herencia. En el caso del articulo
851 slo podrian pedir su legitima. Preteridos, adquieren
derecho a todo; desheredados, slo les corresponde un tercio o
dos tercios, segn el caso.
"En el fondo la cuestin es idntica. El testador puede
siempre disponer a su arbitrio de la parte libre. El
legitimario, contra la voluntad expresa del testador, slo
tiene derecho a su legitima. Preterido o desheredado sin justa
causa la legitima es suya. Desheredado o preterido, la porcin
libre no le corresponde, cuando el testador la asigna a otro.
Lgicamente no cabe que el legitimario, en caso de
pretericin, reciba todos los bienes cuando el testador haya
dispuesto de ellos a titulo de fterencia, y no cuando haya
dispuesto del tercio libre a titulo de legado.
"Cul es la razn de esta diferencia? En la generalidad de
los casos puede fundarse el precepto en la presunta voluntad

del testador. Este, al desheredar, revela que existe alguna

razn o motivo que le impulsa a obrar as; podr no ser
bastante para privar al heredero de su legitima, pero siempre
ha de estimarse suficiente para privarle del resto de la
herencia, pues sobre sta no puede pretender ningn derecho
el desheredado. El heredero preterido no ha sido privado
expresamente de nada; el testador, en los casos normales,
obra s por descuido o por error. Hemos visto un testamento
en el que no se institua heredera a una hija monja, por creer
la testadora que no poda heredar. En otros casos se ignora la
existencia de un descendiente o de un ascendiente. Cuando el
preterido es una persona que ha nacido despus de muerto el
testador o despus de hecho el testamento, la razn es an
ms clara; la omisin ha de presumirse involuntaria; el
testador debe suponerse que hubiera instituido heredero a
esa persona si hubiera existido al otorgarse el testamento, y
no slo en cuanto a la legtima, sino en toda la herencia, caso
de no haber otros herederos forzosos, y en iguales trminos
que los dems herederos no mejorados de un modo expreso.
"La opinin contraria puede tambin defenderse,
suponiendo que la ley anula el ttulo de heredero, mas no en
absolute la participacin en el caudal; que as como al
exceptuar la mejora se refiere a todo el tercio o a la parte de
1 que haya distribuido el causante, al exceptuar los legados
se refiere a la parte libre de que haya dispuesto el mismo
testador, considerando como un simple legatario de esa porcin a la persona a quien el testador design como heredero.
Abonara esta solucin el articulo 817, al declarar que las
disposiciones testamentarias que menguan la legtima de los
herederos forzosos han de reducirse en cuanto fueren

inoficiosas, pues amparado en este articulo el heredero

voluntario, puede pretender que la disposicin a su favor sea
respetada en cuanto no perjudique a las legtimas.
"La jurisprudencia no ha resuelto de frente esta cuestin,
porque no se le ha presentado en los terminos propuestos;
pero ha demostrado su criterio.
"Hemos citado las Resoluciones de la Direc-cin de 30 de
octubre de 1896 y de 20 de mayo de 1898. En la primera se
decide con valenta, con arreglo al texto expreso del articulo
814; la institucin de heredero se anula en absolute, y se abre
para toda la herencia la sucesin intestada. En la segunda se
rehuye la cuestin, fundndose en circunstancias
secundarias. En el artculo siguiente examinaremos la
senten-cia de 16 de enero de 1895.
"La interpretacin que rectamente se desprende del art.
814, es la de que slo valen, y eso en cuanto no sean
inoficiosas, las disposiciones hechas a titulo de legado o
mejora. En cuanto a la institucin de heredero, se anula. Lo
que se anula deja de existir, en todo, o en parte? No se aade
limitacin alguna, como en el articulo 851, en el que se
expresa que se anular la institucin de heredero en cuanto
perjudique a la legitima del desheredado. Debe, pues,
entenderse que la anulacin es com-pleta o total, y que este
articulo, como especial en el caso que le motiva, rige con
preference al 817." (6 Manresa, 3.' ed., pgs. 351-353.) (Italics
supplied).
The following opinion of Snchez Roman is to the same
effect and dispels all possible doubt on the matter:

"La consecuencia de la anulacin o nulidad de la institucin de

heredero por pretericin de uno, varios o todos los forzosos en linea
recta, es la apertura de la sucesin intestada, total o parcial. Ser
total, cuando el testador que comete la pretericin, hubiere
dispuesto de todos los bienes por titulo universal de herencia en
favor de los herederos instituidos, cuya institucin se anula, porque
as lo exige la generalidad del precepto legal del articulo 814, al
determinar, como efecto de la pretericin, el de que 'anular la
institucin de heredero'. Cierto es que la pretericin est
mtroducida, como remedio juridico, por sus efectos, en nombre y
para garantia de la integridad de la legitima de los herederos
forzosos y como consecuencia del precepto del 813, de que 'el
testador no podra privar a los herederos de su legitima, sino en los
casos expresamente determinados por la ley', que son los de desheredacin con justa causa.
"Cierto es, tambin, que en la desheredacin es muy otro el
criterio del Cdigo y que su frmula legal, en cuanto a sus efectos,
es de alcance ms limitado, puesto que, conforme al articulo 851, la
desheredacin hecha sin condiciones de validez, 'anular la
institucin de heredero', lo mismo que la pretericin, pero slo 'en
cuanto perjudique la desheredado': es decir, nada mas que en lo
que menoscabe o desconozca sus derechos a la legitima, y, por
tanto en la parte cuota o cantidad que repre-sente en el caudal
hereditario, atendida la condition de legitimario del desheredado
de modo ilegal e ineficaz; salvedad o limitacin de los efectos de
nulidad de la institucin hecha en el testamento, que no existe,
segn se ha visto en el 814, por el que se declara, en forma general
e indistinta, que anulara la institucin de heredero sin ninguna
atenuacin respecto de que perjudique o no, total o parcialmente,
la cuantia de la legitima del heredero forzoso en linea recta,
preterido.
"El resultado de ambos criterios y frmulas legates,
tnanifestamente distintas, tiene que ser muy diverse En el caso de

la pretericin, pro-piamente tal o totalpues si fuera parcial y se

la dejara algo al heredero forzoso por cual-quier titulo, aunque ese
algo no fuere sufi-ciente al pago de sus derechos de legitima, no
seria caso de pretericin, regulado por el articulo 814, sino de
complemento, regido por el 815 v la institucin no se anularia sino
que se modificara o disminuira en lo necesario para dicho
complementoo de institucin de heredero en toda la herencia, al
anularse la institucin, por efecto de la pretericin, se abre la
intestada en favor del preterido o preteridos, respecto de toda la
herencia, tambin; mientras que en el caso de desheredacin y de
institucin en la totalidad de la herencia a favor de otra persona,
slo se anular en la parte precisa para no perjudicar la legitima
del desheredado, que aun siendo en este caso la lata, si no hubo
mejoras, porque no se establecieron o porque los institudos eran
herederos voluntaries, dejaria subsistente la institucin en la parte
correspondiente al tercio de libre disposicin. As es que los
preteridos, en el supuesto indicado, suceden abintestate en todo, en
concurrence con los dems herederos forzosos o llamados por la ley
al abintestate; los desheredados, nicamente en dos tercios o en
uno tan slo, en la hiptesis de haberse orde-nado mejoras.
"En cambio, ni por la desheredacin ni por la pretericin pierde
su fuerza el testamento, en cuanto a dicho tercio libre, si se trata
de descendientes; o la mitad, si se trata de ascendientes, ya
desheredados, ya preteridos, porque, ni por el uno ni por el otro
medio, se anula ms que la institucin de heredero, en general, y
totalmente por la pretericin, y slo en cuanto perjudique a la
legtima del desheredado por la desheredacin; pero subsistiendo,
en ambos casos, todas aquellas otras disposiciones que no se
refieren a la institucin de heredero y se hallen dentro del limite
cuantitativo del tercio o mitad de libre disposicin, segun que se
trate de descendientes o ascendientes, preteridos o desheredados.
"La invocacin del articulo 817 para modi-ficar estos efectos de
la pretericin, procurando limitar la anulacion de la institucin de

heredero slo en cuanto perjudique a la legitima, fundndose en

que dicho artculo establece que 'las disposiciones testamentarias
que menguan la legitima de los herederos forzosos se re-ducirn, a
peticin de stos, en lo que fueren inoficiosas o excesivas,' no es
aceptable ni puede variar aquellos resultados, porque es un
precepto de carcter general en toda otra clase de disposiciones
testamentarias que produzcan el efecto de menguar la legtima,
que no puede anteponerse, en su aplicacin, a las de indole especial
para senalar los efectos de la pretericin o de la desheredacin,
regulados priva-tiva y respectivamerite por los articulos 814 y 851.
"No obstante la pretericin, 'valdran las man-das y legados en
cuanto no sean inoficiosas.' El texto es terminante y no necesita
mayor explication, despus de lo dicho, que su propia letra, a no ser
para observar que constituye una confirmacin indudable de los
efectos de la pretericin, en cuanto alcanzan slo, pero totalmente,
a la anulacion de la institucin de heredero, pero no a la de las
mandas y mejoras en cuanto no sean inoficwsas o perjudiquen a la
legitima de los preteridos; calificativo de tales, como sinonimo legal
de excesivas, que en otros artculos, como el 817, establece la ley."
(6 Snchez Roman, Volumen 2.o pgs. 1140-1141.)

These comments should be read with care if we are to

avoid misunderstanding. Manresa, for instance, starts
expounding the meaning of the law with an illustration. He
says that in case of pretention (article 814), the nullity of the
institution of heirs is total, whereas in case of disinheritance
(article 851), the nullity is partial, that is, in so far as the
institution affects the legitime of the disinherited
heirs. "Preteridos, adquieren
derecho
a
todo;desheredados, slo les corresponde un tercio o dos
tercios, segn el caso." He then proceeds to comment upon
the wisdom of the distinction made by law, giving two views

thereon. He first lays the view contrary to the distinction

made by law, then the arguments in support of the
distinction, and lastly a possible defense against said
arguments. And after stating that the Spanish jurisprudence
has not as yet decided squarely the question, with an allusion
to two resolutions of the Spanish Administrative Direction,
one in favor of article 814 and another evasive, he concludes
that the construction which may rightly be given to article
814 is that in case of preterition, the institution of heirs is
null in toto whereas in case of disinheritance the nullity is
limited to that portion of the legitime of which the disinherited heirs have been illegally deprived. He further makes
it clear that in cases of preterition, the property bequeathed
by universal title to the instituted heirs should not be merely
reduced according to article 817, but instead, intestate succession should be opened in connection therewith under
article 814, the reason being that article 814, "como especial
en el caso que le motiva, rige con preferencia al 817." Sanchez
Roman is of the same opinion when he said: "La invocacin
del artculo 817 para modificar estos efectos de la pretericin,
procurando limitar la anulacin de la institucin de heredero
slo en cuanto perjudique a la legtima, fun-dndose en que
dicho artculo establece que 'las disposiciones testamentarias
que menguan la legitima de los herederos for-zosos se
reduciran, a peticin de stos, en lo que fueren inoficiosas o
excesivas,' no es aceptable ni puede variar aquellos
resultados, porque es un precepto de carcter general en toda
otra clase de disposiciones testamentarias que produzcan el
efecto de menguar la legtima, que no puede anteponerse, en
su aplicacin, a las de indole especial para sealar los efectos

de la pretericin o de la desheredacin, regulados privativa y

respectivamente por los artculos 814 y 851."
Of course, the annulment of the institution of heirs in
cases of preterition does not always carry with it the
ineffectiveness of the whole will. Neither Manresa nor
Sanchez Roman nor this Court has ever said so. If, aside from
the institution of heirs, there are in the will provisions
leaving to the heirs so instituted or to other persons some
specific properties in the form of legacies or mejoras, such
testamentary provisions shall be effective and the legacies
and mejoras shall be respected in so far as they are not
inofficious or excessive, according to article 814. In the
instant case, however, no legacies or mejoras are provided in
the will, the whole property of the deceased having been left
by universal title to the children of the second marriage. The
effect, therefore. of annulling the institution of heirs will be
necessarily the opening of a total intestacy.
Provisions of articles 814 and 851 regarding total or partial
nullity of the institution, would be absolutely meaningless
and will never have any application at all. And the remaining
provisions contained in said article concerning the reduction
of inofficious legacies or betterments would be a surplusage
because they would be absorbed by article 817. Thus, instead
of construing, we would be destroying integral provisions of
the Civil Code.
The destructive effect of the theory thus advanced is due
mainly to a failure to distinguish institution of heirs from
legacies and betterments, and a general from a special
provision. With reference to article 814, which is the only
provision material to the disposition of this case, it must be

observed that the institution of heirs is therein dealt with as

a thing separate and distinct from legacies or betterment.
And they are separate and distinct not only because they are
distinctly and separately treated in said article but because
they are in themselves different. Institution of heirs is a
bequest by universal title of property that is undetermined.
Legacy refers to specific property bequeathed by a particular
or special title. The first is also different from a betterment
which should be made expressly as such (article 828). The
only instance of implied betterment recognized by law is
where legacies are made which cannot be included in the free
portion (article 828). But again an institution of heirs cannot
be taken as a legacy.
It is clear, therefore, that article 814 refers to two different
things which are the two different objects of its two different
provisions. One of these objects cannot be made to merge in
the other without mutilating the whole article with all its
multifarious connections with a great number of provisions
spread throughout the Civil Code on the matter of
succession. It should be borne in mind, further, that although
article 814 contains two different provisions, its special
purpose is to establish a specific rule concerning a specific
testamentary provision. namely, the institution of heirs in a
case of preterition. Its other provision regarding the validity
of legacies and betterments if not inofficious is a mere reiteration of the general rule contained in other provisions
(articles 815 and 817) and signifies merely that it also applies
in cases of preterition. As regards testamentary dispositions
in general, the general rule is that all "testamentary
dispositions which diminish the legitime of the forced heirs

shall be reduced on petition of the same in so far as they are

inofficious or excessive" (article 817). But this general rule
does not apply to the specific instance of a testamentary
disposition containing an institution of heirs in a case of
preterition, which is made the main and specific subject of
article 814. In such instance, according to article 814, the
testamentary disposition containing the institution of heirs
should be not only reduced, but annulled in its entirety and
all the forced heirs, including the omitted ones, are entitled
to inherit in accordance with the law of intestate succession.
It is thus evident that, if, in construing article 814, the
institution of heirs therein dealt with is to be treated as
legacies or betterments, the special object of said article
would be destroyed, its specific purpose completely defeated,
and in that wise the special rule therein established would be
rendered nugatory. And this is contrary to the most
elementary rule of statutory construction. In construing
several provisions of a particular statute, such construction
shall be adopted as will give effect to all, and when general
and particular provisions are inconsistent, the latter shall
prevail over the former. (Act No. 190, secs. 287 and 288.)
The question herein propounded has been squarely
decided by the Supreme Court of Spain in a case wherein a
bequest by universal title was made with preterition of heirs
and the theory was advanced that the instituted heirs should
be treated as legatarios. The Supreme Court of Spain said:
"El articulo 814, que precepta en tales casos de
pretericin la nulidad de la institucin de heredero, no
consiente interpretacin alguna favorable a la persona
instituda en el sentido antes expuesto, aun cuando parezca,

y en algn caso pudiera ser, ms o menos equitativa, porque

una nulidad no significa en Derecho sino la suposicin de que
el hecho o el acto no se ha realizado, debiendo, por lo tanto,
procederse sobre tal base o supuesto, y consiguientemente, en
un testamento donde falte la institucin, es obligado llamar a
los herederos forzosos en todo caso, como habra que llamar a
los de otra clase, cuando el testador no hubiese distribudo
todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos,
sabido es, segn tiene declarado la jurisprudencia, con
repeticin, que no basta que sea conocida la voluntad de
quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea vlido y eficaz,
por lo que constituira una interpretacin arbitraria, dentro
del derecho positivo, reputar como legatario a un heredero
cuya institucin juese anulada con pretexto de que sto se
acomodaba mejor a la voluntad del testador, pues aun cuando
as fuese, ser esto razn para modificar la ley, pero que no
autoriza a una interpretacin contraria a sus trminos y a los
principios que informan la testamentificacin, pues no porque
parezca mejor una cosa en el terreno del Derecho
constituyente, hay razn para convertir este juicio en regla de
interpretacin, desvirtuando y anulando por este
procedimiento lo que el legislador quiere establecer." (6
Snchez Roman, Volumen 2.o, p. 1138.)
It is maintained that the word "heredero" under the Civil
Code, is not synonymous with the term "heir" under the Code
of Civil Procedure, and that the "heir" under the latter Code
is no longer personally liable for the debts of the deceased as
was the "heredero" under the Civil Code, should his

acceptance be pure and simple, and from all these the conclusion is drawn that the provisions of article 814 of the Civil
Code regarding the total nullity of the institution of heirs has
become obsolete. This conclusion is erroneous. It confuses
form with substance. It must be observed, in this connection,
that in construing and applying a provision of the Civil Code,
such meaning of its words and phrases as has been intended
by the framers thereof shall be adopted. If thus construed it
is inconsistent with the provisions of the Code of Civil
Procedure, then it shall be deemed repealed; otherwise it is
in force. Repeals by implication are not favored by the courts
and when there are two acts upon the same subject, effect
should be given to both' if possible (Posadas vs. National City
Bank, 296 U. S., 497). The word "heir" as used in article 814
of the Civil Code may not have the meaning that it has under
the Code of Civil Procedure, but this in no wise can prevent a
bequest from being made by universal title as is in substance
the subject-matter of article 814 of the Civil Code. Again, it
may also be true that heirs under the Code of Civil Procedure
may receive the bequest only after payment of debts left by
the deceased and not before as under the Civil Code, but this
may have a bearing only upon the question as to when
succession becomes effective and can in no way destroy the
fact that succession may still be by universal or special title.
Since a bequest may still be made by universal title and with
preterition of forced heirs, its nullity as provided in article
814 still applies there being nothing inconsistent with it in
the Code of Civil Procedure. What is important and is the
basis for its nullity is the nature and effect of the bequest and

not its possible name nor the moment of its effectiveness

under the Code of Civil Procedure.
Furthermore, there were in the Code of Civil Procedure
sections Nos. 755 and 756 which read:
"Sec. 755.Share of child born after making will.When
a child of a testator is born after the making of a will, and no
provision is therein made for him, such child shall have the
same share in the estate of the testator as if he had died
intestate; and the share of such child shall be assigned to him
as in cases of intestate estates, unless it is apparent from the
will that it was the intention of the testator that no provision
should be made for such child."
"Sec 756.Share of child or issue of child omitted from
will.When a testator omits to provide in his will for any of
his children, or for issue of a deceased child, and it appears
that such omission was made by mistake, or accident, such
child, or the issue of such child, shall have the same share in
the estate of the testator as if he had died intestate, to be
assigned to him as m the case of intestate estates."
It is these provisions of the Code of Civil Procedure that
have affected substantially articles 814 and 851 of the Civil
Code, but they have been expressly repealed by Act No. 2141,
section 1 of which reads as follows :

"Sections seven hundred and fifty-five, seven hundred and fiftysix, seven hundred and fifty-seven, seven hundred and fifty-eight,
and seven hundred and sixty of Act Numbered One hundred and
ninety, entitled 'An Act providing a Code of Procedure in Civil
Actions and Special Proceedings in thePhilippine Islands are hereby repealed and such provisions oj the Civil Code as may have been
amended or repealed by said sections are hereby restored to jull
jorce and effect." (Italics ours.)

Among the provisions of the Civil Code which are thus

expressly restored to full force are undoubtedly articles 814
and 851. There can be no possible doubt, therefore, that those
two articles are in force.
Article 1080 of the Civil Code that is also invoked deserves
no consideration except for the observation that it has no
relevancy in the instant case.
Our attention is directed to the case of Escuin vs. Escuin
(11 Phil., 332). We have never lost sight of the ruling laid
down in that case which has been reiterated in Eleazar vs.
Eleazar (37 Off. Gaz., p. 1782). In the Escuin case, the deceased left all his property to his natural father (not a forced
heir) and his wife with total preterition of an acknowledged
natural child; and, in the Eleazar case the deceased left all
his property to a friend with total preterition of his father
and wife. Without reconsidering the correctness of the ruling
laid down in these two cases, we will note that the doctrine
stands on facts which are different from the facts in the
present case. There is certainly a difference between a case of
preterition in which the whole property is left to a mere
friend and a case of pretention in which the whole property is
left to one or some forced heirs. If the testamentary
disposition be annulled totally in the first case, the effect
would
be a total deprivation of the friend of his share in the
inheritance. And this is contrary to the manifest intention of
the testator. It may fairly be presumed that, under such
circumstances, the testator would at least give his friend the
portion of free disposal. In the second case, the total nullity of
the testamentary disposition would have the effect, not of

depriving totally the instituted heir of his share in the

inheritance, but of placing him and the other forced heirs
upon the basis of equality. This is also in consonance with the
presumptive intention of the testator. Preterition, generally
speaking, is due merely to mistake or inadvertence without
which the testator may be presumed to treat alike all his
children.
And specially is this true in the instant case where the
testator omitted the children by his first marriage upon the
erroneous belief that he had given them already more shares
in his property than those given to the children by his second
marriage. It was, therefore, the thought of the testator that
the children by his first marriage should not receive less than
the children by his second marriage, and to that effect is the
decision of this Court sought to be reconsidered. Motion for
reconsideration is hereby denied.
Yulo, C. J., I concur in the result.
Generoso, J., concurs.

REBECCA VIADO NON, JOSE A. NON and DELIA VIADO,

petitioners, vs. THE HONORABLE COURT OF APPEALS,
ALICIA N. VIADO, CHERRI VIADO and FE FIDES VIADO,
respondents.
Succession; Partition; Every act intended to put an end to
indivision among co-heirs and legatees or devisees would be a
partition although it would purport to be a sale, an exchange, a
compromise, a donation or an extrajudicial settlement.When
Virginia P. Viado died intestate in 1982, her part of the conjugal
property, the Isarog property in question included, was
transmitted to her heirsher husband Julian and their children
Nilo Viado, Rebecca Viado, Leah Viado and Delia Viado. The
inheritance, which vested from the moment of death of the
decedent, remained under a co-ownership regime among the heirs
until partition. Every act intended to put an end to indivision
among co-heirs and legatees or devisees would be a partition
although it would purport to be a sale, an exchange, a compromise,
a donation or an extrajudicial settlement.
Same; Same; The fact alone that two deeds were registered five
years after the date of their execution does not adversely affect their
validity nor would such circumstance alone be indicative of fraud.
The fact alone that the two deeds were registered five years after
the date of their execution did not adversely affect their validity
nor would such circumstance alone be indicative of fraud. The
registration of the documents was a ministerial act and merely
created a constructive notice of its contents against all third
persons. Among the parties, the instruments remained completely
valid and binding.
Same; Same; Preterition;Where the preterition is not attended
by bad faith and fraud, the partition shall not be rescinded but the
preterited heir shall be paid the value of the share pertaining to her.

The exclusion of petitioner Delia Viado, alleged to be a retardate,

from the deed of extrajudicial settlement verily has had the effect
of preterition. This kind of preterition, however, in the absence of
proof of fraud and bad faith, does not justify a collateral attack on
Transfer Certificate of Title No. 373646. The relief, as so correctly
pointed out by the Court of Appeals, instead rests on Article 1104
of the Civil Code to the effect that where the preterition is not
attended by bad faith and fraud, the partition shall not be
rescinded but the preterited heir shall be paid the value of the
share pertaining to her. Again, the appellate court has thus acted
properly in ordering the remand of the case for further proceedings
to make the proper valuation of the Isarog property and
ascertainment of the amount due petitioner Delia Viado.

PETITION for review on certiorari of a decision of the Court

of Appeals.
The facts are stated in the opinion of the Court.
Imelda A. Herrera for petitioners.
Abundio J. Macaranasfor private respondents.
VITUG, J.:
Petitioners, in their petition for review on certiorariunder
Rule 45 of the Rules of Court, seek a reversal of the 29th May
1996 decision of the Court of Appeals, basically affirming
that rendered on 30 April 1991 by the Regional Trial Court
(RTC) of Quezon City, Branch 23, adjudicating the property
subject matter of the litigation to respondents. The case and
the factual settings found by the Court of Appeals do not
appear to deviate significantly from that made by the trial
court.

During their lifetime, the spouses Julian C. Viado and

Virginia P. Viado owned several pieces of property, among
them a house and lot located at 147 Isarog Street, La Loma,
Quezon City, covered by Transfer Certificate of Title No.
42682. Virginia P. Viado died on 20 October 1982. Julian C.
Viado died three years later on 15 November 1985. Surviving
them were their childrenNilo Viado, Leah Viado Jacobs,
and herein petitioners Rebecca Viado, married to Jose Non,
and Delia Viado. Nilo Viado and Leah Viado Jacobs both died
on 22 April 1987. Nilo Viado left behind as his own sole heirs
herein respondentshis wife Alicia Viado and their two
children Cherri Viado and Fe Fides Viado.
Petitioners and respondents shared, since 1977, a common
residence at the Isarog property. Soon, however, tension
would appear to have escalated between petitioner Rebecca
Viado and respondent Alicia Viado after the former had
asked that the property be equally divided between the two
families to make room for the growing children. Respondents,
forthwith, claimed absolute ownership over the entire
property and demanded that petitioners vacate the portion
occupied by the latter. On 01 February 1988, petitioners,
asserting coownership over the property in question, filed a
case for partition before the Quezon City RTC (Branch 93).
Respondents predicated their claim of absolute ownership
over the subject property on two documentsa deed of
donation executed by the late Julian Viado covering his onehalf conjugal share of the Isarog property in favor of Nilo
Viado and a deed of extrajudicial settlement in which Julian
Viado, Leah Viado Jacobs (through a power of attorney in
favor of Nilo Viado) and petitioner Rebecca Viado waived in

favor of Nilo Viado their rights and interests over their share
of the property inherited from Virginia Viado. Both
instruments were executed on 26 August 1983 and registered
on 07 January 1988 by virtue of which Transfer Certificate of
Title No. 42682 was cancelled and new Transfer Certificate of
Title No. 373646 was issued to the heirs of Nilo Viado.
Petitioners, in their action for partition, attacked the
validity of the foregoing instruments, contending that the
late Nilo Viado employed forgery and undue influence to
coerce Julian Viado to execute the deed of donation.
Petitioner Rebecca Viado, in her particular case, averred that
her brother Nilo Viado employed fraud to procure her
signature to the deed of extrajudicial settlement. She added
that the exclusion of her retardate sister, Delia Viado, in the
extrajudicial settlement, resulted in the latters preterition
that should warrant its annulment. Finally, petitioners
asseverated that the assailed instruments, although executed
on 23 August 1983, were registered only five years later, on
07 January 1988, when the three parties thereto, namely,
Julian Viado, Nilo Viado and Leah Viado Jacobs had already
died.
Assessing the evidence before it, the trial court found for
respondents and adjudged Alicia Viado and her children as
being the true owners of the disputed property.
On appeal, the Court of Appeals affirmed the decision of
the trial court with modification by ordering the remand of
the records of the case to the court a quo for further
proceedings to determine the value of the property and the
amount respondents should pay to petitioner Delia Viado for

having been preterited in the deed of extrajudicial

settlement.
Petitioners are now before the Supreme Court to seek the
reversal of the decision of the Court of Appeals.
The appellate court ruled correctly.
When Virginia P. Viado died intestate in 1982, her part of
the conjugal property, the Isarog property in question
included, was transmitted to her heirsher husband Julian
and their children Nilo Viado, Rebecca Viado, Leah Viado
and Delia Viado. The inheritance, which vested from the
moment of death of the decedent, remained under a coownership regime among the heirs until partition. Every act
intended to put an end to indivision among co-heirs and
legatees or devisees would be a partition although it would
purport to be a sale, an exchange, a compromise, a donation
or an extrajudicial settlement.
In debunking the continued existence of a co-ownership
among the parties hereto, respondents rely on the deed of
donation and deed of extrajudicial settlement which
consolidated the title solely to Nilo Viado. Petitioners assail
the due execution of the documents on the grounds heretofore
expressed.
Unfortunately for petitioners, the issues they have raised
boil down to the appreciation of the evidence, a matter that
has been resolved by both the trial court and the appellate
court. The Court pf Appeals, in sustaining the court
aquo, has found the evidence submitted by petitioners to be
utterly wanting, consisting of, by and large, self-serving
testimonies. While asserting that Nilo Viado employed fraud,
forgery and undue influence in procuring the signatures of
1

the parties to the deeds of donation and of extrajudicial

settlement, petitioners are vague, however, on how and in
what manner those supposed vices occurred. Neither have
petitioners shown proof why Julian Viado should be held
incapable of exercising sufficient judgment in ceding his
rights and interest over the property to Nilo Viado. The
asseveration of petitioner Rebecca Viado that she has signed
the deed of extrajudicial settlement on the mistaken belief
that the instrument merely pertained to the administration
of the property is too tenuous to accept. It is also quite
difficult to believe that Rebecca Viado, a teacher by
profession, could have misunderstood the tenor of the
assailed document.
The fact alone that the two deeds were registered five
years after the date of their execution did not adversely affect
their validity nor would such circumstance alone be
indicative of fraud. The registration of the documents was a
ministerial act and merely created a constructive notice of its
contents against all third persons. Among the parties, the
instruments remained completely valid and binding.
The exclusion of petitioner Delia Viado, alleged to be a
retardate, from the deed of extrajudicial settlement verily has
had the effect of preterition. This kind of preterition, however,
in the absence of proof of fraud and bad faith, does not justify
a collateral attack on Transfer Certificate of Title No.
373646. The relief, as so correctly pointed out by the Court of
Appeals, instead rests on Article 1104 of the Civil Code to the
effect that where the preterition is not attended by bad faith
and fraud, the partition shall not be rescinded but the
preterited heir shall be paid the value of the share pertaining
5

to her. Again, the appellate court has thus acted properly in

ordering the remand of the case for further proceedings to
make the proper valuation of the Isarog property and
ascertainment of the amount due petitioner Delia Viado.
WHEREFORE, the instant petition is DENIED, and the
decision, dated 29 May 1996, in CA-G.R. No. 37272 of the
Court of Appeals is AFFIRMED. No special pronouncement
on costs.
SO ORDERED.
Melo (Chairman),Panganiban, Purisima andGonzagaReyes, JJ., concur.
Petition denied, judgment affirmed.
Note.The intrinsic validity of a will may be passed upon
by a probate court where practical considerations
demanded it as when there is preterition of heirs or the
testamentary provisions are of doubtful legality, or where the
parties agree that the intrinsic validity be first determined.
(Reyes vs. Court of Appeals,281 SCRA 277 [1997])