USON vs.

DEL ROSARIO
FACTS: Faustino Nebreda died in 1945 leaving as an only heir his estranged wife Maria
Uson, the petitioner. The latter sued to recover the ownership and possession of five
parcels of land occupied by defendant Maria del Rosario, decedent's common-lawspouse and her children. As a defense, defendant presented a deed of separation
agreed upon and signed Faustino and Uson containing among others an statement
giving a parcel of land to Uson as an alimony and the latter renouncing her rights to any
inheritance
from
Faustino.
The defendant also contends that while it is true that the four minor defendants are
illegitimate children of the decedent and under the old Civil Code are not entitled to any
successional rights, however, under the new Civil Code they are given the status and
rights of natural children and are entitled to the successional rights which the law
accords to the latter (article 2264 and article 287, new Civil Code), and because these
successional rights were declared for the first time in the new code, they shall be given
retroactive effect even though the event which gave rise to them may have occurred
under the prior legislation (Article 2253, new Civil Code).
ISSUE: Are the contentions of the defendants correct?
HELD: No. It is evident that when the decedent died in 1945 the five parcels of land he
was seized of at the time passed from the moment of his death to his only heir, his
widow Maria Uson (Article 657, old Civil Code). As this Court aptly said, "The property
belongs to the heirs at the moment of the death of the ancestor as completely as if the
ancestor had executed and delivered to them a deed for the same before his death"
(Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that moment, therefore, the rights of
inheritance of Maria Uson over the lands in question became vested.
The claim of the defendants that Uson had relinquished her right over the lands in
question in view of her expressed renunciation to inherit any future property that her
husband may acquire and leave upon his death in the deed of separation they had
entered into cannot be entertained for the simple reason that future inheritance cannot
be
the
subject
of
a
contract
nor
can
it
be
renounced.
Nor does the contention that the provisions of the New Civil Code shall apply and be
given retroactive effect. Article 2253 above referred to provides indeed that rights which
are declared for the first time shall have retroactive effect even though the event which

gave rise to them may have occurred under the former legislation, but this is so only
when the new rights do not prejudice any vested or acquired right of the same origin...
As already stated in the early part of this decision, the right of ownership of Maria Uson
over the lands in question became vested in 1945 upon the death of her late husband
and this is so because of the imperative provision of the law which commands that the
rights to succession are transmitted from the moment of death (Article 657, old Civil
Code). The new right recognized by the new Civil Code in favor of the illegitimate
children of the deceased cannot, therefore, be asserted to the impairment of the vested
right of Maria Uson over the lands in dispute.

Inheritance vs Succession (Art. 776)

G.R. No. L-44837
November 23, 1938
SOCORRO LEDESMA and ANA QUITCO LEDESMA, plaintiffs-appellees,
vs.
CONCHITA MCLACHLIN, ET AL., defendants-appellants.
Facts:
In the year 1916, the plaintiff Socorro Ledesma lived maritally with Lorenzo M. Quitco,
while the latter was still single, of which relation, lasting until the year 1921, was born a
daughter who is the other plaintiff Ana Quitco Ledesma. In 1921, it seems the relation
between Socorro Ledesma and Lorenzo M. Quitco came to an end, but the latter
executed a deed, acknowledging the plaintiff Ana Quitco Ledesma as his natural
daughter and on January 21, 1922, he issued in favor of the plaintiff Socorro Ledesma a
promissory note.
Lorenzo Quitco, died in 1930, leaving defendant Mclachlin and her children as heirs.
Plaintiff Ana Ledesma, spurious/illegitimate child of Lorenzo Quitco, and her mother,
sued to declare her as compulsory heir which the court however denied. Two years
later, Lorenzo's father Eusebio died, and because he left some personal and real
properties without a will, an intestate proceeding was instituted and a court order
declaring his compulsory heirs did not of course include Ana as one. Following such
court action, the plaintiff proceeded to collect the sum payable on a promissory note
then issued in favor of her by Lorenzo by filing a claim in the intestate proceedings of
Eusebio's Estate claiming that the sum be paid out of the properties inherited by the
defendants represents that of the successional rights of Lorenzo as a compulsory heir
of his father Eusebio.
Issue:
Whether the plaintiff the right collect the sum promised by her father from her
grandfather's estate.
Ruling:
No. The properties inherited by the defendants from their deceased grandfather by
representation are not subject to the payment of debts and obligations of their deceased
father, who died without leaving any property. While it is true that under the provisions of

Articles 924 to 927 of the Civil Code, a child presents his father or mother who died
before him in the properties of his grandfather or grandmother, this right of
representation does not make the said child answerable for the obligations contracted
by his deceased father or mother, because, as may be seen from the provisions of the
Code of Civil Procedure referring to partition of inheritances, the inheritance is received
with the benefit of inventory, that is to say, the heirs only answer with the properties
received from their predecessor. The herein defendants, as heirs of Eusebio Quitco, in
representation of their father Lorenzo M. Quitco, are not bound to pay the indebtedness
of their father from whom they did not inherit anything.

Atty. Ferrer vs Sps. Diaz

Facts:
Reina Commandante borrowed money from Atty. Ferrer to finance a business venture.
To secure the loan, she signed an instrument entitled, Waiver of Hereditary Rights and
Interest Over a Real Property (Still Undivided) involving a property of her parents, who
were both still alive at the time of the execution of the instrument. Ferre then executed
an Affidavit of Adverse Claim and caused the same to be annotated on the transfer
certificate of title of said property in order to protect my (his) interest over said property
as a Recipient/Benefactor, for the registered owners/parents might dispose (of) and/or
encumber the same in a fraudulent manner without my (his) knowledge and consent,
for the owner's duplicate title was not surrendered to me.
Unfortunately, Reinas business venture failed and she ended up reneging on her
obligation.
Meanwhile, the same property was sold by Reina to Sps.Pangan by virtue of a special
power of attorney executed by Reinas parents. The couple immediately took
possession of the property without anyone complaining or protesting. Soon after
however, they were surprised to learn of the adverse claim upon being informed by
Ferrer. They asserted that the annotation of Ferrer's adverse claim on the TCT cannot
impair their rights as new owners of the subject property. They claimed that the Waiver
of Hereditary Rights and Interest Over a Real Property (Still Undivided) upon which
Ferrer's adverse claim is anchored cannot be the source of any right or interest over
the property.
Issue: Is a waiver of hereditary rights in favor of another by a future heir while her
parents are still living valid?
Is an adverse claim annotated on the title of a property on the basis of such waiver
likewisw valid and effective as to bind the subsequent owners and hold them liable to
the claimant?
Yes. The Supreme Court stressed that Article 1347 of the Civil Code provides that no
contract may be entered into upon a future inheritance except in cases expressly
authorized by law. For the inheritance to be considered "future", the succession must
not have been opened at the time of the contract. A contract may be classified as a
contract upon future inheritance, prohibited under the second paragraph of Article
1347, where the following requisites concur:
(1) That the succession has not yet been opened; (2) That the object of the contract
forms part of the inheritance; and (3) That the promissor has, with respect to the object,

an expectancy of a right which is purely hereditary in nature.

Being an expectancy of a right, as shown by the facts, the Waiver of Hereditary Rights
and Interest Over a Real Property (Still Undivided) executed by Reina in favor of
Ferrer is not valid and that same cannot be the source of any right or create any
obligation between them for being violative of the second paragraph of Article 1347 of
the Civil Code.
On the validity and effectivity of petitioner/lender's adverse claim, Section 70 of PD
1529 provides that it is necessary that the claimant has a right or interest in the
registered land adverse to the registered owner and that it must arise subsequent to
registration. Here, as no right or interest on the subject property flows from Reina's
invalid waiver of hereditary rights upon Ferrer, the latter is thus not entitled to the
registration of his adverse claim. Therefore, petitioner's adverse claim is without any
basis and must consequently be adjudged invalid and ineffective and necessarily be
cancelled.
It is clear that both Reina and Ferrer relied on Reinas future inheritance from her
parents to secure her loan from Ferrer. They signed an instrument for Reina to
relinquish a property that she had yet to inherit, anchored merely on the expectancy
that upon the death of her parents some of their properties would be passed on to her
anyway.

G.R. No. 179859

IN RE: PETITION FOR PROBATE OF LAST WILL AND TESTAMENT OF BASILIO
SANTIAGO,
MA. PILAR SANTIAGO and CLEMENTE SANTIAGO,
vs.
ZOILO S. SANTIAGO, FELICIDAD SANTIAGO-RIVERA, HEIRS OF RICARDO
SANTIAGO,
HEIRS OF CIPRIANO SANTIAGO, HEIRS OF TOMAS SANTIAGO,
FILEMON SOCO, LEONILA SOCO, ANANIAS SOCO, URBANO SOCO,
GERTRUDES SOCO
AND HEIRS OF CONSOLACION SOCO, Oppositors.
Facts: Basilio Santiago contracted three marriages and bore heirs from three wives.
After Basilio died testate on September 16 1973, his daughter by his 2 nd marriage,
petitioner Ma Pilar filed before the regional trial court of Bulacan a petition for the
probate of Basilios will. The will was admitted to Probate by branch 10 of the RTC and
Pilar was appointed as executrix.
Oppositors heirs of the first marriage filed a complaint in intervention which was
denied by the RTC stating their decision of final accounting of the will. Oppositors filed a
complaint for completion of legitime and maintained that they were preterited by Basilios
will because their legitime was reduced
RTC Branch 17 decided the completion of legitime in favor of oppositors.
On appeal the CA annulled the decision of the RTC holding the oppositors in favor of
the oppositors
In the interregnum respondenr heirs of the second marriage filed for a motion for
termination of administration for transfer of names and title to legatees
Oppositors states that the executrix Clemente and Pilar should have ceased as
administrators as the 20 year period have lapsed
Opposing the motion of the heirs of the first marriage, petitioners argued that with the
approval of the final accounting, partition and distribution in accordance with the will, the
case has been closed and terminated stating that Res Judicata shall apply
Issue: WON Res Judicata shall apply and shall it estop the proceedings
Ruling: The Principle of Res Judicata does not apply in the present probate proceeding
which is continuing in character, and terminated only after and until the final distribution

of the whole estate of the deceased in accordance with the provision of the will of the
testator

G.R. No. 151153

December 10, 2007

SPOUSES CHARLITO COJA and ANNIE MESA COJA, petitioners,

vs.
HON. COURT OF APPEALS and HEIRS OF FELICIANO AQUILLO, SR., namely:
QUINCIANO VICTOR, SR., LORNA A. VICTOR, ANTONIO VICTOR, QUINCIANO A.
VICTOR, JR., SUSANA A. VICTOR, CLARA AQUILLO, CARMENCITA AQUILLO,
AGAPITO AQUILLO, NOEL AQUILLO, ADONIS AQUILLO, FELICIANO AQUILLO,
JR., RONALD AQUILLO and ALDRIN AQUILLO, respondents.
FACTS:
Luz Aquillo Victor (hereafter Luz) and Feliciano Aquillo, Jr. (hereafter Feliciano Jr.), both
deceased, were the legitimate children of the late spouses Feliciano Aquillo, Sr.
(hereafter Feliciano Sr.) and Lorenza Mangarin Aquillo (hereafter Lorenza). During their
marriage, Feliciano Sr. and Lorenza acquired a 120-square meter lot located at
Poblacion, Mandaon, Masbate, upon which they built their conjugal home. After the
death of Lorenza, Feliciano Sr. cohabited with Paz Lachica and lived at the aforesaid
house and her heirs failed to partition their hereditary shares in their inheritance.
On February 27, 1960, while Lorenza was cohabiting with Feliciano Sr., Paz Lachica
purchased a 192-square meter lot from the heirs of Juan Rivas of which, 40.10 square
meters were sold to Isabel L. de Real leaving her with only 151.9 square meters.
On July 7, 1965, or two (2) days before he died, Feliciano Sr. married Paz
Lachica.8 After Feliciano Sr. died, his heirs also failed to partition among themselves
their hereditary shares in their inheritance.
On December 18, 1986, Paz Lachica and herein petitioners, Spouses Charlito Coja and
Annie Mesa Coja, executed a Deed of Absolute Sale 16 wherein the former sold the 336square meter parcel of land.
Sometime in 1987, Charlito Coja filed an application for the issuance of title with the
RTC. Luz, being one of the heirs of Feliciano Sr., opposed the application for
registration. Likewise, the Office of the Solicitor General (OSG) opposed the application.
The OSG alleged, among other things, that the applicant or his predecessors-ininterest had not been in open, continuous, exclusive, and notorious possession of the
subject land within the period required by law. During the pendency of the case, Luz
died. She was substituted by her spouse, Quinciano Victor, Sr., and her children, Lorna,
Antonio, Quinciano Jr., and Susana.
On November 3, 1989, respondents filed an action for recovery of possession and
ownership with damages against the petitioners and Paz Lachica. Respondents claimed
that they are the true and lawful heirs of the Spouses Feliciano Sr. and Lorenza; that
Paz Lachica refused to deliver the property to its rightful owners despite repeated
demands; that Paz Lachica appropriated the subject property to herself; that Paz

Lachica sold the property to the Spouses Coja; and that the Spouses Coja failed to
deliver the subject property to the rightful heirs despite repeated demands.
In their Answer, defendants therein alleged that Paz Lachica acquired the subject
property before her marriage to Feliciano Sr. and that she had been in actual and
physical possession of the same for more than fifteen (15) years before she sold the
property to the Spouses Coja; that they acquired the property by purchasing it from Paz
Lachica; that they are buyers in good faith and for value; and that the property in
question was the paraphernal property of Paz Lachica and, therefore, plaintiffs therein
have no right and interest over the same.
RTC ruled in favor of the defendants-applicants declaring the defendants-applicants
spouses Charlito Coja and Annie Mesa, the absolute owner of the land subject of the
application. The RTC opined that since the land in question is registered in the name of
Paz Lachica alone, it is assumed that it is not part of the conjugal partnership properties
of Feliciano Sr., and Lorenza, for if it was their conjugal property, it should have been
registered in their names. As such, when the Spouses Coja purchased the property
from Paz Lachica, they were of the honest belief that the latter was the true and lawful
owner. Likewise, on the basis of the evidence adduced, the RTC held that defendantsapplicants possess good title proper for registration and confirmation.
Aggrieved, plaintiffs-oppositors appealed from the decision to the CA, and Ca ruled that
the sale of the property by Paz Lachica to Spouses Charlito Coja and Annie Mesa Coja
insofar as the shares of appellants is (sic) concerned is NULLIFIED;
The CA concluded that the property with an area of 120 square meters, is the conjugal
property of Feliciano Sr. and Lorenza having been acquired during their marriage.
Under the law, upon the death of Lorenza, one-half of said property, or 60 square
meters, was transmitted to her heirs, namely Feliciano Sr., Feliciano Jr., and Luz, at 20
square meters each, while the remaining one-half pertained to Feliciano Sr. alone as his
share in the conjugal property. Upon the death of Feliciano Sr., his rights over the
property, consisting of his inheritance from his wife and his share in the conjugal
partnership, or a total of 80 square meters, were transmitted to his heirs, Feliciano Jr.,
Luz, and his widow, Paz Lachica. Thus, Paz Lachica is entitled to only 26.6666 square
meters and the heirs of Feliciano Jr. and Luz are entitled to the remaining 93.3333
square meters of the subject property. Therefore, Paz Lachica had no authority to sell
their portions of the property.
Applicants-appellees therein filed a motion for reconsideration but it was denied hence,
this petition.
ISSUE:
WHETHER OR NOT SPOUSES COJAS ARE THE LAWFUL OWNERS OF THE LAND.
RULING:
NO.

It is a basic principle in civil law that before a property owned in common is actually
partitioned, all that the co-owner has is an ideal or abstract quota or proportionate share
in the entire property. A co-owner has no right to demand a concrete, specific or
determinate part of the thing owned in common because until division is effected his
right over the thing is represented only by an ideal portion. As such, the only effect of an
action brought by a co-owner against a co-owner will be to obtain recognition of the coownership; the defendant cannot be excluded from a specific portion of the property
because as a co-owner he has a right to possess and the plaintiff cannot recover any
material or determinate part of the property. A co-owner may file an action for recovery
of possession against a co-owner who takes exclusive possession of the entire coowned property. However, the only effect of such action is a recognition of the coownership. The courts cannot proceed with the actual partitioning of the co-owned
property. In fine, judicial or extrajudicial partition is necessary to effect physical division
of the subject 120-square meter property.
Under Article 996 of the Civil Code, upon the death of Lorenza Mangarin, one-half of
said property, or 60 square meters, is transmitted to her heirs, namely: Feliciano Aquillo,
Sr., Feliciano Aquillo, Jr., and Luz Aquillo, at 20 square meters each, while the
remaining one-half is transmitted to Feliciano Aquillo, Sr. Upon the death of Feliciano
Aquillo, Sr., his rights over the property, consisting of the 20 square meter-inheritance
from his late wife and his 60 square meter-share in the conjugal partnership, or a total of
80 square meters were transmitted to his heirs, namely: Feliciano Aquillo, Jr., Luz
Aquillo, and his widow, Paz Lachica. The surviving spouse is entitled to the same share
as that of the legitimate children, to the portion of one-third each or 26.6666 square
meters each. Thus, as a result of the death of Feliciano Aquillo, Sr., a regime of coownership exists among Feliciano, Jr., Luz Aquillo, and Paz Lachica, with respect to the
undivided 80 square meters.
The 120 square meters less the hereditary share of Paz Lachica which is 26.6666
square meters, or the 93.3333 square meters of the property belong to the appellants,
being the heirs of the late Feliciano Aquillo, Jr. and Luz Aquillo. Considering that Paz
Lachica owns only 26.6666 square meters of the 120-square meter property and the
remaining 93.3333-square meter portion thereof is owned by the respondents, the
former could only validly sell the portion which rightfully belonged to her. However,
considering that Paz Lachica, the predecessor-in-interest of the Spouses Coja, was a
co-owner of the subject 120-square meter property; and considering further that
partition of the property is wanting, this Court is precluded from directing the Spouses
Coja to return specific portions of the property to respondents.

In re: Will of Rev Abadia

Enriquez vs. Abadia
FACTS:
Fr Abadia executed a document purportedly his Last Will and Testament (Exhibit A). He
died Jan 14, 1943, and left properties estimated at Php8k
One of the legatees, Enriquez, filed a petition for its probate before CFI Cebu. Some
cousins and nephews, who would inherit had there been no will, opposed.
Two of the 3 witnesses already died. The remaining witness testified that in his
presence and the other 2 co-witnesses, Fr Abadia wrote out in long hand in Spanish
said will; that Fr Abad spoke and understood.; that he signed on the left hand margin of
the front page of each of the 3folios and numbered the same with Arabic numerals; all
this in the presence of the 3 attesting witnesses who signed their names on the last
page after the attestation clause I his presence and in the presence of each other. The
oppositors did not submit any evidence.
CFI Cebu declared said document as a holographic will and was admitted to probate.
It was in the handwriting of the testator
At the time of execution, and at the time of testators death, holographic wills were not permitted by
law.
At the time case was decided, New Civil Code already in force, allowing holographic
wills. The trial court also the controlling factor, which is the intention of the testator,
overrides any defect in form
Oppositors appeal involved questions of law, thus certified to the Supreme Court
ISSUE: WON Fr Abadias holographic will maybe admitted to probate
HELD:
Order appealed from is reversed. Exhibit A is denied probate.
The validity of a will as to its form depends upon the observance of the law in force at
the time it is made
From the day of the death of the testator, if he leaves a will, the title of the legatees and
devisees under it becomes a vested right, protected under the due process clause of
the constitution against a subsequent change in the statute adding new legal
requirements of execution of wills which would invalidate such a will

Although the will operates upon and after the death of the testator, the wishes of the
testator about the disposition of his estate among his heirs and among the legatees is
given solemn expression at the time the will is executed, and in reality, the legacy or
bequest then becomes a completed act. This ruling has been laid down by this court in
the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be
followed.
At the time that the will was executed in 1923 and at the time that Father Abadia died in
1943, holographic wills were not permitted, and the law at the time imposed certain
requirements for the execution of wills, such as numbering correlatively each page (not
folio or sheet) in letters and signing on the left hand margin by the testator and by the
three attesting witnesses, requirements which were not complied with in Exhibit "A"
because the back pages of the first two folios of the will were not signed by any one, not
even by the testator and were not numbered, and as to the three front pages, they were
signed only by the testator.

JIMENEZ vs. FERNANDEZ

Facts: Fermin Jimenez owned the 2, 932 sqm lot in Pangasinan. He has two sons,
Fortunato and Carlos Jimenez. Fortunato predeceased his father leaving his daughter
Sulpicia. So when Fermin died, the land was registered in the name of Sulpicia and
Carlos (niece and uncle) in equal shares, pro indiviso. On 28 February 1933, OCT
#50933 was issued in their names, co-equal. And on 9 July 1936, Carlos died leaving
his illegitimate daughter Melecia Cayabyab AKA Melecia Jimenez. She then took
possession of the eastern portion of property, which is the land in question, 436sqm, in
which she later sold to Cagampan. Cagampan then contracted with Grado who
executed a contract of Exchange of Real Properties, whereby the former transferred
said 436sqm to Grado.
On the other hand, Sulpicia executed an affidavit adjudicating unto herself the other half
of the property of his uncle upon manifestation that she is the only heir of Carlos. So,
TCT #82275 was issued in Sulpicias name alone, covering the entire land (2,932sqm).
Later on, she and her husband instituted an action for recovery of the land in questioned
which is in possession of Grado.
Issue: WON Melecia has a right over the property in question, being an illegitimate
daughter.
Ruling: No, she has no right. Art. 2263 of the Civil Code provides as follows:
Rights to the inheritance of a person who died with or without a will, before the
effectivity of this Code, shall be governed by the Civil Code of 1889, by other
previous laws, and by the Rules of Court.
In the case at bar, Carlos died on 9 July 1936 way before the effectivity of the Civil Code
of the Philippines. Hence, the successional rights pertaining to his estate must be
determined in accordance with the Civil Code of 1889.
To be an heir under the rules of Civil Code of 1889 (which was the law in force
when Carlos Jimenez died and which should be the governing law in so far as
the right to inherit from his estate was concerned), a child must be either a child
legitimate, legitimated, or adopted, or else an acknowledged natural child for
illegitimate not natural are disqualified to inherit. (Civil Code of 1889, Art. 807,
935)
The court also said that Melecia could not even be considered an acknowledged natural
child because Carlos was then legally married to Susana Abalos and therefore not
qualified to marry Maria, the mother of Melecia. Consequently, Melecia was an
illegitimate spurious child and not entitled to any successional rights pertaining to

Carlos estate, and there can be no question that she could not have validly acquired,
nor legally transferred to Cagampan the land in question.

Testate Estate of Joseph G. Brimo, JUAN MICIANO as Administrator v. ANDRE

BRIMO
G.R. No. L-22595 | November 1, 1927
Digest:
Facts:
-

Juan Miciano, filed a scheme of partition of the estate of Joseph Brimo, a Turkish
national.

The latter died leaving a will which one of the clauses states that the law of the
Philippines shall govern the partition and not the law of his nationality, and that
legatees have to respect the will, otherwise the dispositions accruing to them
shall be annulled.
o Second. I like desire to state that although by law, I am a Turkish citizen,
this citizenship having been conferred upon me by conquest and not by
free choice, nor by nationality and, on the other hand, having resided for a
considerable length of time in the Philippine Islands where I succeeded in
acquiring all of the property that I now possess, it is my wish that the
distribution of my property and everything in connection with this, my will,
be made and disposed of in accordance with the laws in force in the
Philippine islands, . requesting all of my relatives to respect this
wish, otherwise, I annul and cancel beforehand whatever disposition found
in this will favorable to the person or persons who fail to comply with this
request.

By virtue of such condition, his brother, Andre Brimo, an instituted heir was thus
excluded because, by his action of having opposed the partition scheme, he did
not respect the will. Andre sued contending that the conditions are void being
contrary to law which provides that the will shall be probated according to the
laws of the nationality of the decedent.

Issue: 1. Re: execution of the Will, which law shall govern, Philippine or Turkish Law?
2. Re: Condition, is it void? Can Andre Brimo acquire the legacy appointed to
him?
Ruling:
1. Turkish Law. Article 10, CC (now Article 16, NCC) provides that,

o Real property as well as personal property is subject to the law of the

country where it is stipulated. However, intestate and testamentary
successions, both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be
found
2. Void because the condition imposed is that they must respect the will to be
executed in accordance with Philippine laws, which is void as mentioned above.
Therefore, Andre Brimo is entitled to the legacy. Article 792, CC (now Article 873,
NCC) provides that,
o Impossible conditions and those contrary to law or good customs shall be
considered as not imposed and shall in no manner prejudice the heir, even
if the testator should otherwise provide.

Llorente vs CA
Facts: The deceased Lorenzo Llorente was an enlisted US Navy serviceman from
March 10, 1927 to September 30, 1957.
Sometime in 1937, 1937, Lorenzo married Paula Llorente (petitioner) in the Philippines.
Thereafter, Lorenzo left for the United States while Paula stayed in Camarines Sur.
On November 30, 1943, Lorenzo acquired US citizenship. After the Philippine liberation
from America in 1945, he came home to the Philippines only to discover that his wife
Paula was pregnant and living in with his brother Ceferino Llorente.
Lorenzo went back to the United States and obtained a divorce decree against Paula in
the California court, which decree became final in 1952.
In 1958, Lorenzo married Alicia Llorente (respondent) in Manila and their 25 year union
produced three offsprings. Alicia had no knowledge of the first marriage even if they
resided in the same town as Paula, who did not oppose the marriage or cohabitation.
Lorenzo executed a last will and testament wherein he bequeathed all his property to
Alicia and their three children. He appointed Alicia as the administratrix of his estate.
Lorenzo filed a petition to probate the will but Lorenzo died before the proceedings
could be terminated. Paula intervened and sought to be appointed as the administratrix
over Lorenzo's estate contending that she was Lorenzo's surviving spouse and the
various property were acquired during their marriage.
The lower court granted in favor of paula finding that the divorce obtained by Lorenzo
was void and inapplicable in the Philippines, thus his marriage to Alicia is void and
making Paula the legal surviving spouse.
Held:
Nationality Principle
1. The Civil Code clearly provides:
Art. 15. Laws relating to family rights and duties, or to the status , condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad.
Art. 16. Real property as well as personal property is subject to the law of the country
where it is situated.
However, intestate and testamentary succession, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of

testamentary provisions , shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.
Foreign Laws
2. Foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like any other fact, they must be alleged and
proved.
3. The trial court declared that American law follows the 'domiciliary theory' hence,
Philippine law applies when determining the validity of Lorenzo's will.
4. The "national law" indicated in Article 16 of the Civil Code cannot possibly apply to
general American law. Each State of the union has its own law applicable to its citizens
and in force only within the State. It can therefore refer to no other than the law of the
State of which the decedent was a resident.
Validity of Foreign Divorce
5. In Van Dorn v. Romillo, Jr. the court held that owing to the nationality principle
embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the
policy against absolute divorces, the same being considered contrary to our concept of
public policy and morality. In the same case, the Court ruled that aliens may obtain
divorces abroad, provided they are valid according to their national law.
6. In Quita v. Court of Appeals, it was held that once proven that a party was no longer a
Filipino citizen when he obtained the divorce, the ruling in Van Dorn would become
applicable. (divorce recognized in Philippines provided valid according to national law of
divorcing spouse)
7. The divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and
recognized in this jurisdiction as a matter of comity.
Validity of Will
8. Lorenzo was already a US citizen at the time he executed his will up to the time of his
death. He was not covered by Philippine laws on "family rights and duties, status,
condition and legal capacity."
9. Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues
best proved by foreign law which must be pleaded and proved. Congress specifically
left the amount of successional rights to the decedent's national law.

10. As to extrinsic validity of the will, i.e., whether the will was executed in accordance
with the formalities required is answered by referring to Philippine law. In fact, the will
was duly probated.

JULIANA BAGTAS vs. ISIDRO PAGUIO

G.R. No. L-6801. March 14, 1912. TRENT, J.:

FACTS:
1. Testator, Pioquinto Paguio, 14 years prior to his death suffered from a left-sided
paralysis: impaired hearing, loss of speech, facial paralysis with drooling of saliva.
He retained the use of his right hand and was able to write fairly well. He indicated
his wishes to his wife and to other family members thru medium of signs. The
testator died on the 28 September 1909.
2. The testator, wrote out on pieces of paper notes and items relating to the disposition
of his property, and these notes were in turn delivered to Seor Marco, who
transcribed them and put them in form. The witnesses testify that the pieces of paper
upon which the notes were written are delivered to attorney by the testator; that the
attorney read them to the testator asking if they were his testamentary dispositions;
that the testator assented each time with an affirmative movement of his head; that
after the will as a whole had been thus written by the attorney, it was read in a loud
voice in the presence of the testator and the witnesses; that Seor Marco gave the
document to the testator; that the latter, after looking over it, signed it in the
presence of the 4 subscribing witnesses Agustin-, Anacleto-, and Pedro- Paguios,
and Florentino Ramos.; and that they in turn signed it in the presence of the testator
and each other.
3. Admitting to probate was his last will and testament which purports to have been
executed in Pilar, Bataan, on 19 April 1908. It was propounded by the executrix,
Juliana Bagtas, his widow, and the opponents are a son and several grandchildren
by a former marriage, the latter being the children of a deceased daughter.
Opponents questioned the testators mental incapacity at the time of the execution of
the will.
ISSUE: Whether the testator was in the full of enjoyment and use of his mental faculties
and was with the mental capacity necessary to execute a valid will.
RULING: Yes.
The rule of law relating to the presumption of mental soundness is well established, and
the testator in the case at bar never having been adjudged insane by a court of
competent jurisdiction, this presumption continues, and it is therefore incumbent
upon the opponents to overcome this legal presumption by proper evidence. It was
stated that the presumption of law is in favor of the mental capacity of the testator

and the burden is upon the contestants of the will to prove the lack thereof. The
right to dispose of property by testamentary disposition is as sacred as any other right
which a person may exercise and this right should not be nullified unless mental
incapacity is established in a positive and conclusive manner. To constitute a sound and
disposing mind, it is not necessary that the mind shall be wholly unbroken,
unimpaired, or unshattered by disease or otherwise, or that the testator should be
in the full possession of his reasoning faculties.
Neither age, nor sickness, nor extreme distress, nor debility of body will affect the
capacity to make a will, if sufficient intelligence remains. The failure of memory is not
sufficient to create the incapacity, unless it be total, or extend to his immediate family or
property. . .
Affirmed.

G.R. No. 122880

FELIX AZUELA, vs.COURT OF APPEALS, GERALDA AIDA
CASTILLO
FACTS: Petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E.
Igsolo, which was notarized on 10 June 1981. Petitioner is the son of the cousin of the
decedent.
The will, consisting of two (2) pages.The three
named witnesses to the will affixed their signatures on the left-hand margin of both
pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to
have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo, who represented herself as
the attorney-in-fact of "the 12 legitimate heirs" of the decedent. 2 Geralda Castillo
claimed that the will is a forgery, and that the true purpose of its emergence was so it
could be utilized as a defense in several court cases filed by oppositor against
petitioner.
Oppositor Geralda Castillo also argued that the will was not executed and
attested to in accordance with law. She pointed out that decedents signature did not
appear on the second page of the will, and the will was not properly acknowledged.
These twin arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate,the RTC favorably took
into account the testimony of the three (3) witnesses to the will, Quirino Agrava,
Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern
tendency in respect to the formalities in the execution of a will x x x with the end in view
of giving the testator more freedom in expressing his last wishes;" 7 and from this
perspective, rebutted oppositors arguments that the will was not properly executed and
attested to in accordance with law.
On
the
oppositors
contention that the attestation clause was not signed by the subscribing witnesses at
the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation
clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the
purpose of identification and attestation of the will.
With regard to the oppositors argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the attestation did not
state the number of pages thereof, it is worthy to note that the will is composed of only
two pages. The first page contains the entire text of the testamentary dispositions, and
the second page contains the last portion of the attestation clause and
acknowledgement. Such being so, the defects are not of a serious nature as to
invalidate the will. For the same reason, the failure of the testatrix to affix her signature
on the left margin of the second page, which contains only the last portion of the

attestation clause and acknowledgment is not a fatal defect.

The Order was appealed to the Court of
Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law,
Geralda Castillo, the Court of Appeals reversed the trial court and ordered the dismissal
of the petition for probate. 9 The Court of Appeals noted that the attestation clause failed
to state the number of pages used in the will, thus rendering the will void and
undeserving of probate.10Hence, the present petition ISSUES : WON the failure to state
the number of pages used in the will renders the will a nugatory.
HELD : In
ruling that the will could not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day: "The purpose of requiring the
number of sheets to be stated in the attestation clause is obvious; the document might
easily be so prepared that the removal of a sheet would completely change the
testamentary dispositions of the will and in the absence of a statement of the
total number of sheets such removal might be effected by taking out the sheet
and changing the numbers at the top of the following sheets or pages. If, on the
other hand, the total number of sheets is stated in the attestation clause the falsification
of the document will involve the inserting of new pages and the forging of the signatures
of the testator and witnesses in the margin, a matter attended with much greater
difficulty."16 The transcendent legislative intent, even as expressed in the cited
comments of the Code Commission, is for the fruition of the testators
incontestable desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals.
However, an examination of the will itself reveals a couple of even more critical defects
that should necessarily lead to its rejection.
A will whose attestation clause does not contain the number of pages on which
the will is written is fatally defective. A will whose attestation clause is not signed
by the instrumental witnesses is fatally defective. And perhaps most importantly,
a will which does not contain an acknowledgment, but a merejurat, is fatally
defective. Any one of these defects is sufficient to deny probate. A notarial will
with all three defects is just aching for judicial rejection.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan
ko at ninotario ko ngayong10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By
no manner of contemplation can those words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a deed in going before some
competent officer or court and declaring it to be his act or deed. 41 It involves an extra
step undertaken whereby the signor actually declares to the notary that the executor of
a document has attested to the notary that the same is his/her own free act and deed.
It might be possible to
construe the averment as a jurat, even though it does not hew to the usual language

thereof. A jurat is that part of an affidavit where the notary certifies that before him/her,
the document was subscribed and sworn to by the executor. 42 Ordinarily, the language
of the jurat should avow that the document was subscribed and sworn before the notary
public, while in this case, the notary public averred that he himself "signed and
notarized" the document. Possibly though, the word "ninotario" or "notarized"
encompasses the signing of and swearing in of the executors of the document, which in
this case would involve the decedent and the instrumental witnesses.
Yet
even if we consider what was affixed by the notary public as a jurat, the will would
nonetheless remain invalid, as the express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and the instrumental
witnesses executed or signed the will as their own free act or deed. The
acknowledgment made in a will provides for another all-important legal safeguard
against spurious wills or those made beyond the free consent of the testator. An
acknowledgement is not an empty meaningless act. 43 The acknowledgment coerces the
testator and the instrumental witnesses to declare before an officer of the law that they
had executed and subscribed to the will as their own free act or deed. Such declaration
is under oath and under pain of perjury, thus allowing for the criminal prosecution of
persons who participate in the execution of spurious wills, or those executed without the
free consent of the testator. It also provides a further degree of assurance that the
testator is of certain mindset in making the testamentary dispositions to those persons
he/she had designated in the will.
It may not have been said before,
but we can assert the rule, self-evident as it is under Article 806. A notarial will that is
not acknowledged before a notary public by the testator and the witnesses is
fatally defective, even if it is subscribed and sworn to before a notary public .
WHEREFORE, the petition is DENIED. Costs against
petitioner.

Leticia Valmonte Ortega vs. Josefina C. Valmonte

Facts:
-

Placido toiled and live for a long time in US until he finally reached his retirement.

1980, he finally came home to stay in the Phil. for good and lived in the house
and lot located in Makati which he owned in common with his sister(deceased)
and titled in their names.

Feb. 05, 1982, at the age of 80, he wed Josefina who was then 28 years old and
a little more than 2 years of wedding bliss he died.

He executed a will and testament written in English consisting 2pages dated

June 15, 1983 and acknowledged only August 09, 1983 in which he gave devise
and bequeath his wife Josefina all his real and personal properties and appoint
her as sole executrix of his last will and testament.

The allowance to probate of the will was opposed by Leticia V. Ortega

challenging the validity of the will and mental capacity of the testator because the
testator was already 83 years old and was no longer of sound mind. His physical
and mental condition showed deterioration, aberration and senility and that the
signature of the testator was procured by fraud, or trick and he did not intend that
the instrument should be his will at the time of affixing his signature thereto.

Lower court ruled in favor of Leticia which disallowed the allowance to probate.

Josefina was able to testified and proved the validity of the will and mental
capacity of the testator and her statement was corroborated by the three
instrumental witnesses and the notary public.

Court of Appeals reversed the decision of the lower court and admitted the will
of Placido Valmonte.

Hence, this appeal.

Issue:
1 WON the findings of the probate court are entitled to great respect.

2 WON the signature of Placido Valmonte in the subject will was procured by fraud,
or trickery and that he never intended that the instrument should be his last will
and testament.
3 WON Placido Valmonte has testamentary capacity at the time he allegedly
executed the subject will.
Held: The petition has no merit.
1 The fact that the public policy favors the probate of the will does not necessary
mean that every will presented for probate should be allowed.

Art. 839 of the Civil Code provides cases that probate should be disallowed:
1 If formalities required have not been complied with
2 If the testator was insane or mentally incapable of making a will at the time of
execution.
3 Will was executed through force or under duress, or under the influence of
fear or threat.
4 If it was procured by undue and improper pressure of influence, on the part of
the beneficiary or of some other person.
5 If the signature of the testator was procured by fraud.
6 If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.

In this case, petitioner assails the validity of Placido Valmontes will by imputing fraud in
its execution and challenging the testators state of mind.
2 Existence of fraud in the execution of a will.
-

Petitioner does not dispute the observance of the formalities in the execution of
the will but maintains that the circumstances surrounding it are indicative of the
existence of fraud. She alleges that the respondent conspired with the notary
public and the three attesting witnesses in deceiving Placido to sign it.

The party challenging the will bears the burden of proving the existence of fraud
at the time of its execution. UNFORTUNATELY, no evidence of fraud ever
presented by the petitioner.

The conflict between the dates appearing on the will does not
invalidate the document BECAUSE the law does not even require that
a notarial will be executed and acknowledged on the same occasion.

The will must be subscribed by the testator and the 3 or more credible witnesses as well
who must also attest to it in the presence of the testator and of one another. Both must
acknowledge the will before notary public.
3 Capacity to make a will. Art. 799 Civil Code gives the following guidelines that the
testator must have the ability to know to be considered of sound mind are as
follows:
a The nature of the estate to be disposed of
b The proper object of the testators bounty
c The character of the testamentary act
Noted: Despite of the testators advance age, he was still able to identify accurately the
kinds of property he owned, the extent of his shares in them and even its locations and
as to proper object of his bounty it was sufficient that he identified his wife as sole
beneficiary.
To constitute a sound and disposing mind it is not necessary that the mind be unbroken,
unimpaired, or unshattered by disease or otherwise. It has been held that testamentary
capacity does not necessary require that a person shall actually be insane or of
unsound mind. So long as he knows what he is going to do and how or to whom he will
dispose his property.
PETITION DENIED. CA assailed decisions are affirmed. Cost against petitioner.

JABONETA vs. GUSTILO

G.R. No. 1641
January 19, 1906

FACTS:
In 1901, Macario Jaboneta executed under the following circumstances will in question;
Being in the house of Arcadio Jarandilla, in Jaro, Iloilo, he ordered that the document in
question be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as
witnesses, executed the said document as his will. They were all together, and were in
the room where Jaboneta was, and were present when he signed the document,
Isabelo Jena signing afterwards as a witness, at his request, and in his presence and in
the presence of the other two witnesses. Aniceto Jalbuena then signed as a witness in
the presence of the testator, and in the presence of the other two persons who signed
as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and
left the room. As he was leaving the house Julio Javellana took the pen in his hand and
put himself in position to sign the will as a witness, but did not sign in the presence of
Isabelo Jena; but nevertheless, after Jena had left the room,Julio Javellana signed as a
witness in the presence of the testator and of the witness Aniceto Jalbuena.
In these proceedings probate was denied the last will and testament of the deceased,
because the lower court was of the opinion from the evidence adduced at the hearing
that Julio Javellana, one of the witnesses, did not attach his signature thereto in the
presence of Isabelo Jena, another witness, as required by the provisions of section 618
of the Code of Civil Procedure.
ISSUE:
Whether or not the will and testament of Macario Jaboneta may be
probate?
RULING:

admitted to

Yes.
The true test of presence of the testator and of the witnesses in the execution of a will is
not whether they actually saw each other sign, but whether they might have seen each
other sign, they had chosen to do so, considering their mental and physical condition
and position with relation to each other at the moment of the inscription of each
signature.
CANEDA VS. CA
222 SCRA 781
Facts: on December 5, 1978, Mateo Caballero executed a last will and testament at his
before three attesting witnesses. The said testator was duly assisted by his lawyer in
the preparation of that last will. Four months later, Mateo Caballero himself filed a
petition seeking the probate of his last will and testament. The probate court set the
petition for hearing but the same and subsequent scheduled hearings were postponed
for one reason to another. On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court. Thereafter, herein petitioners,
claiming to be nephews and nieces of the testator, instituted a second petition, entitled
"In the Matter of the Intestate Estate of Mateo Caballero". On October 18, 1982, herein
petitioners opposed thereat the probate of the Testator's will and the appointment of a
special administrator for his estate. Benoni Cabrera died on February 8, 1982 hence
the probate court, appointed William Cabrera as special administrator on June 21, 1983.
In the course of the hearing petitioners appeared as oppositors and objected to the
allowance of the testator's will on the ground that on the alleged date of its execution,
the testator was already in the poor state of health such that he could not have possibly
executed the same. Petitioners likewise reiterated the issue as to the genuineness of
the signature of the testator therein. On the other hand, one of the attesting witnesses,
Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that the testator
executed the will in question in their presence while he was of sound and disposing
mind and that, contrary to the assertions of the oppositors. On April 5, 1988, the probate
court rendered a decision declaring the will in question as the last will and testament of
the late Mateo Caballero. Undaunted by the said judgment of the probate court,
petitioners elevated the case in the Court of Appeals. They asserted therein that the will
in question is null and void for the reason that its attestation clause is fatally defective
since it fails to specifically state that the instrumental witnesses to the will witnessed the
testator signing the will in their presence and that they also signed the will and all the
pages thereof in the presence of the testator and of one another. CA affirmed that of the
trial court, and ruling that the attestation clause in the last will of Mateo Caballero
substantially complies with Article 805 of the Civil Code.

Issue: whether or not the attestation clause contained in the last will and testament of
the late Mateo Caballero complies with the requirements of Article 805, in relation to
Article 809, of the Civil Code.
Held: An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the manner
of the execution the same. It is a separate memorandum or record of the facts
surrounding the conduct of execution and once signed by the witnesses, it gives
affirmation to the fact that compliance with the essential formalities required by law has
been observed. It is made for the purpose of preserving in a permanent form a record
of the facts that attended the execution of a particular will, so that in case of failure of
the memory of the attesting witnesses, or other casualty, such facts may still be proved.
Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause. The attestation clause,
therefore, provide strong legal guaranties for the due execution of a will and to insure
the authenticity thereof. As it appertains only to the witnesses and not to the testator, it
need be signed only by them. Where it is left unsigned, it would result in the invalidation
of the will as it would be possible and easy to add the clause on a subsequent occasion
in the absence of the testator and its witnesses.
It will be noted that Article 805 requires that the witness should both attest and
subscribe to the will in the presence of the testator and of one another. "Attestation" and
"subscription" differ in meaning. Attestation is the act of senses, while subscription is the
act of the hand. The former is mental, the latter mechanical, and to attest a will is to
know that it was published as such, and to certify the facts required to constitute an
actual and legal publication; but to subscribe a paper published as a will is only to write
on the same paper the names of the witnesses, for the sole purpose of identification. 31
In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from with such facts
may be plausibly deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements by the
instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic
evidence to prove the same and would accordingly be doing by the indirection what in
law he cannot do directly.
It may thus be stated that the rule, as it now stands, is that omissions which can be
supplied by an examination of the will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which cannot be supplied

except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of
respondent court is hereby REVERSED and SET ASIDE. SO ORDERED.

G.R. No. 192916

October 11, 2010

MANUEL
A.
vs.
DOZEN CONSTRUCTION AND DEVELOPMENT
REGISTER OF DEEDS OF CEBU CITY, Respondents.

ECHAVEZ, Petitioner,
CORPORATION

and

THE

FACTS:
Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City, which
includes Lot No. 1956-A and Lot No. 1959 (subject lots). On September 7, 1985,
Vicente donated the subject lots to petitioner Manuel Echavez (Manuel) through a Deed
of Donation Mortis Causa.1 Manuel accepted the donation.
In March 1986, Vicente executed a Contract to Sell over the same lots in favor of Dozen
Construction and Development Corporation (Dozen Corporation). In October 1986, they
executed two Deeds of Absolute Sale over the same properties covered by the previous
Contract to Sell.
On November 6, 1986, Vicente died. Emiliano Cabanig, Vicentes nephew, filed a
petition for the settlement of Vicentes intestate estate. On the other hand, Manuel filed
a petition to approve Vicentes donation mortis causa in his favor and an action to annul
the contracts of sale Vicente executed in favor of Dozen Corporation. These cases were
jointly heard.
The Regional Trial Court (RTC) dismissed Manuels petition to approve the donation
and his action for annulment of the contracts of sale. 2 The RTC found that the execution
of a Contract to Sell in favor of Dozen Corporation, after Vicente had donated the lots to
Manuel, was an equivocal act that revoked the donation. The Court of Appeals (CA)
affirmed the RTCs decision.3 The CA held that since the donation in favor of Manuel
was a donation mortis causa, compliance with the formalities for the validity of wills
should have been observed. The CA found that the deed of donation did not contain an
attestation clause and was therefore void.
ISSUE:

Whether the deed of donation mortis causa was validly executed?

RULING:
The CA correctly declared that a donation mortis causa must comply with the formalities
prescribed by law for the validity of wills, 4 "otherwise, the donation is void and would
produce no effect." 5 Articles 805 and 806 of the Civil Code should have been applied.
As the CA correctly found, the purported attestation clause embodied in the
Acknowledgment portion does not contain the number of pages on which the deed was
written.lavvphilThe exception to this rule in Singson v. Florentino 6and Taboada v. Hon.
Rosal,7 cannot be applied to the present case, as the facts of this case are not similar
with those of Singson and Taboada. In those cases, the Court found that although the
attestation clause failed to state the number of pages upon which the will was written,
the number of pages was stated in one portion of the will. This is not the factual
situation in the present case.
Even granting that the Acknowledgment embodies what the attestation clause requires,
we are not prepared to hold that an attestation clause and an acknowledgment can be
merged in one statement.
That the requirements of attestation and acknowledgment are embodied in two separate
provisions of the Civil Code (Articles 805 and 806, respectively) indicates that the law
contemplates two distinct acts that serve different purposes. An acknowledgment is
made by one executing a deed, declaring before a competent officer or court that the
deed or act is his own. On the other hand, the attestation of a will refers to the act of the
instrumental witnesses themselves who certify to the execution of the instrument before
them and to the manner of its execution.81avvphi1
Although the witnesses in the present case acknowledged the execution of the Deed of
Donation Mortis Causa before the notary public, this is not the avowal the law requires
from the instrumental witnesses to the execution of a decedents will. An attestation
must state all the details the third paragraph of Article 805 requires. In the absence of
the required avowal by the witnesses themselves, no attestation clause can be deemed
embodied in the Acknowledgement of the Deed of Donation Mortis Causa.
Finding no reversible error committed by the CA, the Court hereby DENIES Manuels
petition for review on certiorari.

Acknowledgment of Wills (Art. 806)

Garcia vs. Gatchalian
G.R. L-20357
November 25, 1967

FACTS:

Gregorio Gatchalian who is a widower of 71 years of age and with no forced heirs
instituted Pedro Garcia as sole heir. After Gatchalian died in the Municipality of Pasig,
Province of Rizal on March 15, 1967, Garcia filed a petition for the probate of the will
with the Court of First Instance of Rizal. Felipe Gatchalian, Aurora G. Camins, Angeles
G. Cosca, Federico G. Tubog, Virginia G. Talanay and Angeles G. Talanay opposed the
petition on the ground that the will was procured by fraud; that the deceased did not
intend the instrument signed by him to be his will and that the deceased was physically
and mentally incapable of making a will at the time of the alleged execution of said will.

After due trial, the court rendered a decision finding the will to be the authentic
last will of the deceased but disallowing it for failure to comply with the mandatory
requirement of Article 806 of the New Civil Code that the will must be acknowledged
before a notary public by the testator and the witnesses.

An examination of the document shows that the same was acknowledged before
a notary public by the testator but not by the instrumental witnesses.

ISSUE:

Whether the will may be probated without the instrumental witnesses acknowledging the
same before a notary public?

HELD:
Art. 806 of the New Civil Code:
Every will must be acknowledged before a notary public by the testator and the
witnesses.
Compliance with the requirement contained in the above provision to the effect
that a will must be acknowledged before a notary public by the testator and also by the
witnesses is indispensable for its validity. As the document under consideration does not
comply with this requirement, it is obvious that the same may not be probated.

Cruz v. Villasor
G.R. L-32213 November 26, 1973

Facts:
The CFI of Cebu allowed the probate of the last will and testament of the late Valente
Cruz. However, the Agapita Cruz, the petitoner and surviving spouse opposed the
allowance of the will alleging that it was executed through fraud, deceit,
misrepresentation, and undue influence. He further alleged that the instrument was
executed without the testator having been informed of its contents and finally, that it was
not executed in accordance with law.
The witll had three witnesses namely: Deogracias Jamaloas, Francisco Paares and
Angel Teves Jr.. Teves was also the notary before whom the will was acknowledged.
Despite the objection, the lower court admitted the will to probate on the ground that
there is substantial compliance with the legal requirements of having at least 3
witnesses even if the notary public was one of them.
Issue: Whether or not the will is valid in accordance with Art. 805 and 806 of the NCC
HELD: NO.
The will is not valid. The notary public cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his having signed the said will. An
acknowledging officer cannot serve as witness at the same time.
To acknowledge before means to avow, or to own as genuine, to assent, admit, and
'before' means in front of or preceding in space or ahead of. The notary cannot split his
personality into two so that one will appear before the other to acknowledge his
participation int he making of the will. To permit such situation would be absurd.
Finally, the function of a notary among others is to guard against any illegal or immoral
arrangements, a function defeated if he were to be one of the attesting or instrumental

witnesses. He would be interested in sustaining the validity of the will as it directly

involves himself and the validity of his own act. he would be in an inconsistent position,
thwarting the very purpose of the acknowledgment, which is to minimize fraud.
Had the will had 4 witnesses it can be allowed since in essence there are only 3
witnesses but if there are only 3 witnesses and one of whom was the notary public, then
in truth and in fact there were only 2 witnesses. As such it fails to comply with the
requirements of the law.

G.R no. 74695

Alvarado vs. Gaviola

Brigido Alvarado executed a holographic will and then later on executed notarial will
revising the holographic will to indicate that his son Cesar Alvarado was to be
disinherited. The will was read aloud by Brigidos lawyer in front of the witnesses and
the notary public who read the will silently.
The will was presented for probate and J. Gaviola decided to honor the notarial will.
Cesar sought to reverse the decision on the basis that Brigido was to be considered a
bind testator and the formalities of the law, under Article 808 of the Civil Code was not
followed to the letter.
Issue: Whether or not the notarial will is valid based on Article 808.
Ruling: The notarial will is valid. While testator Brigido may be considered as blind, the
spirit of the law was upheld.

G.R. No. 106720 September 15, 1994

SPOUSES
ROBERTO
AND
THELMA
AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
FACTS:
On January 20, 1983, petitioners instituted for allowance of decedent's (Annie sand)
holographic will. They alleged that at the time of its execution, she was of sound and
disposing mind, not acting under duress, fraud or undue influence, and was in every
respect capacitated to dispose of her estate by will.
This was opposed on the grounds that: neither the testament's body nor the signature th
erein was indecedent's handwriting; it contained alterations and corrections which were
not duly signed by decedent; and, the will was procured by petitioners through improper
pressure and undue influence. The petition was like wise opposed by Dr. Jose Ajero. He
contested the disposition in the will of a house and lot located in Cabadbaran, Agusan
Del Norte. He claimed that said property could not be conveyed by decedent in its
entirety, as she was not its sole owner. The trial court having found that the holographic
will in question was written entirely, dated and signed in the handwriting of the testatrix
with three (3) witnesses to have explicitly and categorically identified the handwriting
with which the holographic will in question was written to be the genuine handwriting
and signature of the testatrix admitted the probate, however on appeal with CA this was
reversed and the petition for probate was dismissed on the ground that it fails to meet
the requirements for its validity by not complying articles 813 and 814 of the NCC which
read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will are signed
without being dated, and the last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the
testator must authenticate the same by his full signature. It alluded to certain
dispositions in the will which were either unsigned and undated, or signed but not dated.

It also found that the erasures, alterations and cancellations made thereon had not been
authenticated by decedent.
ISSUE:
Whether the Court of Appeals was correct in disallowing the probate of the will based
on the provisions of Art Art 813 and Art 814?
RULING:
The Court said it is erroneous for the CA to say that the holographic will of Anne Sand
was not executed in accordance with the formalities prescribed by law and held that
Articles 813 and 814 of the New Civil Code were not complied with, hence, it disallowed
the probate of said will. The Court cited:
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed
inany of the following cases:
(a) If not executed and attested as required by law;(b) If the testator was insane, or
otherwise mentally incapable to make a will, at the time of its execution;(c) If it was
executed under duress, or the influence of fear, or threats;(d) If it was procured by
undue and improper pressure and influence, on the part of the beneficiary, or of some
other person for his benefit;(e) If the signature of the testator was procured by fraud or
trick, and he did not intend that the instruments hould be his will at the time of fixing his
signature thereto. In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied with;(2) If the testator was
insane, or otherwise mentally incapable of making a will, at the time of its execution;(3)
If it was executed through force or under duress, or the influence of fear, or threats;(4) If
it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;(5) If the signature of the testator was procured by
fraud;(6) If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto. These lists are exclusive;
no other grounds can serve to disallow a will
Thus, in a petition to admit a holographic will to probate, the only issues to be resolved
are
: (1) whether the instrument submitted is, indeed, the decedent's last will and testament;
(2) whether said will was executed in accordance with the formalities prescribed by law;
(3) whether the decedent had the necessary testamentary capacity at the time the will
was executed; and, (4) whether the execution of the will and its signing were the

voluntary acts of the decedent. In the case of holographic wills what assures
authenticity is the requirement that they be totally handwritten by the testator himself, as
provided under Article 810 of the New Civil Code, thus: A person may execute a
holographic will which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed. (Emphasis supplied.)Failure to strictly observe
other formalities will not result in the disallowance of a holographic will that is
unquestionably handwritten by the testator. A reading of Article 813 of the
New Civil Code shows that its requirement
affects the
validity of the
dispositions
contained in the holographic will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole testament void.

ROSA K. KALAW vs. HJ BENJAMIN RELOVA (PJ/CFI, Batangas Br. VI, Lipa City) and
GREGORIO K. KALAW
G.R. No. L-40207. September 28, 1984. MELENCIO-HERRERA, J.:

FACTS:
1. Natividad K. Kalaw executed a holographic will which reads in full as follows:
My Last Will and Testament
In the name of God, Amen.
I, Natividad K. Kalaw, Filipino 63 years of age, single, and a resident of Lipa City, being
of sound and disposing mind and memory, do hereby declare thus to be my last will and
testament.
It is my will that I'll be buried in the cemetery of the catholic church of Lipa City. In
accordance with the rights of said Church, and that my executrix hereinafter named
provide and erect at the expose of my state a suitable monument to perpetuate my
memory.
2. Originally, she named Rosa K. Kalaw as the sole heir but she eventually changed it
by crossing out Rosas name and replacing it with Gregorio K. Kalaw. However, she
failed to properly authenticate such alteration with her full signature.
3. GREGORIO filed a petition for the probate of her holographic will which ROSA
opposed. The holographic was even examined by the National Bureau of
Investigation and confirmed that the original writings and those of the alterations
were written by the same person. ROSA's position was that the holographic Will, as
first written, should be given effect and probated so that she could be the sole heir
thereunder.

4. Judge Relova denied the probate on the will. GREGORIOs motion for
reconsideration was denied on the ground that Art. 814 being, clear and explicit,
requires no necessity for interpretation.
5. ROSA filed this Petition for Review on certiorari.
ISSUE: Whether the original unaltered text, after subsequent alterations and insertions
but lack authentication by the full signature of the testatrix, should be probated or not,
with her as sole heir.
RULING: No.
Ordinarily, when a number of erasures, corrections, and interlineations made by the
testator in a holographic Will not been noted under his signature, ... the Will is not
thereby invalidated as a whole, but at most only as respects the particular words
erased, corrected or interlined. However, when the holographic Will in dispute had only
one substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication by the full
signature of the testator, the effect must be that the entire Will is voided or revoked for
the simple reason that nothing remains in the Will after that which could remain valid. To
state that the Will as first written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But that change of mind can neither be given effect
because she failed to authenticate it in the manner required by law by affixing her full
signature.
The ruling in Velasco, must be held confined to such insertions, cancellations, erasures
or alterations in a holographic Will, which affect only the efficacy of the altered words
themselves but not the essence and validity of the Will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix herein, her real intention cannot be
determined with certitude. It is necessary that the changes does not substantially affect
or alter the mode or the express will of the testator expressed in the document.
Dismissed.

MARCELA RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL.

1982-12-07 | G.R. No. L-58509
Facts:
On January 11, 1977, Marcela Rodelas filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. Petition was opposed by the appellees Amparo Aranza
Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and Ephraim Bonilla.
Ground: The alleged holographic will itself, and not an alleged copy thereof, must be
produced, otherwise it would produce no effect. Lost or destroyed holographic wills
cannot be proved by secondary evidence unlike ordinary wills.
The court dismissed the petition for the probate of the will of Ricardo B. Bonilla. "that
once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu
of the original."
Issue: Whether a holographic will which was lost or can not be found can be proved by
means of a photostatic copy.
Held: YES.
If the holographic will has been lost or destroyed and no other copy is available, the will
can not be probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will. But, a photostatic copy
or xerox copy of the holographic will may be allowed because comparison can be made
with the standard writings of the testator.
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be
determined by the probate court.

UY KIAO ENG VS. NIXON LEE

Facts: Respondent Nixon Lee filed a petition for mandamus with damages against his
mother Uy Kiao Eng, herein petitioner, before the RTC of Manila to compel petitioner to
produce the holographic will of his father so that probate proceedings for the allowance
thereof could be instituted. Respondent had already requested his mother to settle and
liquidate the patriarchs estate and to deliver to the legal heirs their respective
inheritance, but petitioner refused to do so without any justifiable reason. Petitioner
denied that she was in custody of the original holographic will and that she knew of its
whereabouts. The RTC heard the case. After the presentation and formal offer of
respondents evidence, petitioner demurred, contending that her son failed to prove that
she had in her custody the original holographic will. The RTC, at first, denied the
demurrer to evidence. However, it granted the same on petitioners motion for
reconsideration. Respondents motion for reconsideration of this latter order was
denied. Hence, the petition was dismissed. Aggrieved, respondent sought review from
the appellate court. The CA initially denied the appeal for lack of merit. Respondent
moved for reconsideration. The appellate court granted the motion, set aside its earlier
ruling, issued the writ, and ordered the production of the will and the payment of
attorneys fees. It ruled this time that respondent was able to show by testimonial
evidence that his mother had in her possession the holographic will. Dissatisfied with
this turn of events, petitioner filed a motion for reconsideration. The appellate court
denied this motion. Left with no other recourse, petitioner brought the matter before this
Court, contending in the main that the petition for mandamus is not the proper remedy
and that the testimonial evidence used by the appellate court as basis for its ruling is
inadmissible.

Issue: Whether or not mandamus is the proper remedy of the respondent.

Held: The Court cannot sustain the CAs issuance of the writ.

Mandamus is a command issuing from a court of law of competent jurisdiction, in the

name of the state or the sovereign, directed to some inferior court, tribunal, or board, or
to some corporation or person requiring the performance of a particular duty therein
specified, which duty results from the official station of the party to whom the writ is
directed or from operation of law. This definition recognizes the public character of the
remedy, and clearly excludes the idea that it may be resorted to for the purpose of
enforcing the performance of duties in which the public has no interest. The writ is a
proper recourse for citizens who seek to enforce a public right and to compel the
performance of a public duty, most especially when the public right involved is
mandated by the Constitution. As the quoted provision instructs, mandamus will lie if the
tribunal, corporation, board, officer, or person unlawfully neglects the performance of an
act which the law enjoins as a duty resulting from an office, trust or station.

The writ of mandamus, however, will not issue to compel an official to do anything which
is not his duty to do or which it is his duty not to do, or to give to the applicant anything
to which he is not entitled by law. Nor will mandamus issue to enforce a right which is in
substantial dispute or as to which a substantial doubt exists, although objection raising a
mere technical question will be disregarded if the right is clear and the case is
meritorious. As a rule, mandamus will not lie in the absence of any of the following
grounds: [a] that the court, officer, board, or person against whom the action is taken
unlawfully neglected the performance of an act which the law specifically enjoins as a
duty resulting from office, trust, or station; or [b] that such court, officer, board, or person
has unlawfully excluded petitioner/relator from the use and enjoyment of a right or office
to which he is entitled. On the part of the relator, it is essential to the issuance of a writ
of mandamus that he should have a clear legal right to the thing demanded and it must
be the imperative duty of respondent to perform the act required.

Recognized further in this jurisdiction is the principle that mandamus cannot be used to
enforce contractual obligations. Generally, mandamus will not lie to enforce purely
private contract rights, and will not lie against an individual unless some obligation in the
nature of a public or quasi-public duty is imposed. The writ is not appropriate to enforce
a private right against an individual.] The writ of mandamus lies to enforce the execution
of an act, when, otherwise, justice would be obstructed; and, regularly, issues only in
cases relating to the public and to the government; hence, it is called a prerogative writ.
To preserve its prerogative character, mandamus is not used for the redress of private
wrongs, but only in matters relating to the public.

Moreover, an important principle followed in the issuance of the writ is that there should
be no plain, speedy and adequate remedy in the ordinary course of law other than the
remedy of mandamus being invoked. In other words, mandamus can be issued only in
cases where the usual modes of procedure and forms of remedy are powerless to
afford relief. Although classified as a legal remedy, mandamus is equitable in its nature
and its issuance is generally controlled by equitable principles. Indeed, the grant of the
writ of mandamus lies in the sound discretion of the court.

In the instant case, the Court, without unnecessarily ascertaining whether the obligation
involved herethe production of the original holographic willis in the nature of a
public or a private duty, rules that the remedy of mandamus cannot be availed of by
respondent Lee because there lies another plain, speedy and adequate remedy in the
ordinary course of law. Let it be noted that respondent has a photocopy of the will and
that he seeks the production of the original for purposes of probate. The Rules of Court,
however, does not prevent him from instituting probate proceedings for the allowance of
the will whether the same is in his possession or not.

There being a plain, speedy and adequate remedy in the ordinary course of law for the
production of the subject will, the remedy of mandamus cannot be availed of. Suffice it
to state that respondent Lee lacks a cause of action in his petition. Thus, the Court
grants the demurrer.

Codoy vs Calugay
G.R. No. 123486 August 12, 1999

FACTS:

The deceased Matilde Seno Vda de Ramonal executed a holographic will on August 30,
1978.Respondents Calugay, Salcedo and Patigas are devisees and legatees of the
holographic will of the deceased. They filed with the RTC of Misamis a petition for
probate of the will of Matilde who died on 16 January 1990. Petitioners Eugenia Codoy
and Manuel Ramonal filed an opposition to the probate stating that the holographic will
was a forgery and the same was illegible. Respondents however contend that the
deceased was of sound and disposing mind when she executed the will and that
no fraud or undue influence and duress happened and that the will was written
voluntarily.

They presented six witnesses with various documentary evidence. Petitioners on their
part filed a demurrer to evidence claiming that respondents failed to establish sufficient
factual and legal basis for the probate of the holographic will of the deceased Matilde
Seo Vda. de Ramonal. All the 6 witnesses that respondents presented expressed
familiarity with the deceaseds signature. But there was no mention of the fact that there
were witnesses at the time Matilde executed the will. The lower court denied the
probate.

On appeal, respondents again reiterated the testimony of the witnesses Augusto,

Generosa, Matilde Binanay,Teresita, Fiscal Waga, and Evangeline. The CA sustained
the authenticity of the holographic.

ISSUE:
Whether or not the provisions of Article 811 of the Civil Code are mandatory?

HELD:

Yes, the Court ruled that it is mandatory. Article 811 provides, as a requirement for the
probate of a contested holographic will, that at least three witnesses explicitly declare
that the signature in the will is the
genuine signature of the testator. The word shall connotes a mandatory order.

Fiscal Waga one of the witnesses expressed doubts as to the signature of the
deceased. Evangeline, on her part, testified that as towhy she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document. In Matildes
testimony, she saw pre-prepared receipts and letters of the deceased, which she either
mailed or gave to her tenants. She did not declare that she saw the deceased sign
a document or write a note. Furthermore, in her testimony it was also evident that Ms.
Binanay kept the fact about the will from petitioners, the legally adopted children of the
deceased. The will was also not found in the possession of the deceased when she
died. Such actions putin issue her motive of keeping the will a secret to petitioners and
revealing it only after the death of MatildeSeo Vda. de Ramonal.

Comparing the signature in the holographic will dated August 30, 1978, and the
signatures in several documents such as the application letter for pasture permit dated
December 30, 1980, and a letter dated June 16, 1978, the strokes are different. The
court could not be certain that the holographic will was in the handwriting by the
deceased.

G.R. No. L-20234

December 23, 1964

PAULA
DE
LA
CERNA,
ET
AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Facts:
1. The spouses Bernabe Dela Serna and Gerasisa Rebabca executed a joint will where
they gave two (2) parcels of land to manuela Rebaca, a niece, as they didn't have their
own child. When Bernabe died, the said will was probated in 1939.
2. Another petition for probate of the same will insofar as Gervasia was concerned was
filed in 1952 but due to the failure of the petitioner (Manuela) to appears, the same was
dismissed in 1954.
3. The CFI held the petition (Bernabe probate) to be null and void as it is contrary to law.
While the Court of Appeals reversed and held that the decree of probate in 1939 was
issued by a court of probate jurisdiction and conclusive as to the due execution of the
will. Hence this appeal.
ISSUE:
Whether or not the will is valid?
RULING:
The Supreme Court affirmed the CA decision and held that Once a decree of probate
becomes final in accordance with the rules of procedure, it is res judicata. The final
decree of probate entered in 1939 in the CFI of Cebu is conclusive as to the last will of

Bernabe despite the fact that even then the Civil Code already decreed the invalidity of
joint wills. (There was an error on the court but the decree has now become final.)
The probate court committed an error of law which should have been corrected on
appeals but which did not affect the jurisdiction of the probate court, nor the conclusive
effect of its final decision. A decision which is binding upon the whole world.
Nevertheless, the probate in 1939 only affected the share of Bernabe and could not
include the disposition of the share of his wife which was still alive then, her properties
were still not within the jurisdiction of the court. Hence, the validity of the will with
respect to her, must be on her death, be re-examined and adjudicated de novo -- since
a joint will is considered a separate will of each testator.

Qualifications/Disqualifications (Arts. 820-821)

G.R. No. L-37453 May 25, 1979
RIZALINA
GABRIEL
GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
Facts:

Private respondent Lutgarda Santiago filed a petition with the Court of First Instance of
Rizal for the probate of a will alleged to have been executed by the deceased Isabel
Gabriel and designating therein petitioner as the principal beneficiary and executrix.

The late Isabel Andres Gabriel died as a widow and without issue in the municipality of
Navotas, province of Rizal on June 7, 1961 at the age of eighty-five (85). Private
respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of
the deceased.

The will submitted for probate which is typewritten and in Tagalog, is executed in Manila
on the 15th day of April, 1961. It consists of five (5) pages, including the pages whereon
the attestation clause and the acknowledgment of the notary public were written. The
signatures of the deceased Isabel Gabriel appear at the end of the will on page four and
at the left margin of all the pages.

At the bottom, under the heading "Pangalan", are written the signatures of Matilde D.
Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the
heading "Tirahan", are their respective places of residence, 961 Highway 54, Philamlife,
for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their
signatures also appear on the left margin of all the other pages. The WW is paged by
typewritten words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang
Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.

The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the
document purporting to be the will of the deceased on the followillg grounds:
A that the same is not genuine; and in the alternative
B that the same was not executed and attested as required by law;
C that, at the time of the alleged execution of the purported wilt the decedent
lacked testamentary capacity due to old age and sickness; and in the second
alternative
D That the purported WW was procured through undue and improper pressure
and influence on the part of the principal beneficiary, and/or of some other
person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition. The court a quo disallowed the
probate as the last will and testament of the deceased Isabel Gabriel. Lutgarda
Santiago appealed to the Court of Appeals, hence, the only issue decided on appeal
was whether or not the will in question was executed and attested as required by law.
The Court of Appeals held that the will in question was signed and executed by the
deceased Isabel Gabriel in the presence of the three attesting witnesses, Matilde
Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in
the presence of the deceased and of each other as required by law, hence allowed
probate.

Oppositor Rizalina Gabriel Gonzales moved for reconsideration but respondent Court
denied the motion for reconsideration. Gonzales went to the Supreme Court and
appealed the decision of the CA. The oppositor-appellee contends that the
preponderance of evidence shows that the supposed last will and testament of Isabel
Gabriel was not executed in accordance with law because the same was signed on

several occasions, that the testatrix did not sign the will in the presence of all the
instrumental witnesses did not sign the will in the presence of each other.
The judgement appealed from is affirmed by the Supreme Court.

Issue:
a Whether the respondent Court of Appeals erred in holding that the will was
executed and attested as required by law when there was absolutely no proof
that the three instrumental witnesses were credible witness.
b Whether the Court of Appeals erred in holding that the fact that the three
typewritten lines under the typewritten words "Pangalan" and "Tinitirahan" were
left blank shows beyond cavil that the three attesting witnesses were all present
in the same occasion.
c

Whether the Court of Appeals erred in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed.

Ruling:

a NO, the CA did not commit error in holding that the will was executed and
attested as required by law when there was absolutely no proof that the three
instrumental witnesses were credible witness. Credibility is not a requirement or
qualification to be a witness to a will, competency is. It is enough that the
qualifications enumerated in Article 820 of the Civil Code are complied with, such
that the soundness of his mind can be shown by or deduced from his answers to
the questions propounded to him, that his age (18 years or more) is shown from
his appearance, testimony , or competently proved otherwise, as well as the fact
that he is not blind, deaf or dumb and that he is able to read and write to the
satisfaction of the Court, and that he has none of the disqualifications under
Article 821 of the Civil Code.
b NO, the CA did not err in holding that the fact that the three typewritten lines
under the typewritten words "Pangalan" and "Tinitirahan" were left blank shows
beyond cavil that the three attesting witnesses were all present in the same
occasion. The SC approved because this conclusion is supported and borne out
by the evidence found by the appellate court that the names, residence tax

certificate numbers, dates and places of issuance of said certificates pertaining to

the three (3) witnesses were personally handwritten by Atty. Paraiso.
c

NO, the CA did not err in holding that the trial court gave undue importance to the
picture takings as proof that the will was improperly executed. Picture taking is
not a requirement for a will to be effective. The picture taking made is only upon
the request of the testatrix which inconsistency of dates of photograph and that of
the execution of the will is immaterial to its validity. Such inconsistency is brought
about by re-enactment only.

Mercado vs Santos

FACTS:

[May 28, 1931] Petitioner Antilano Mercado filed a petition for the probate of the
will of his deceased wife, Ines Basa, with the Pampanga CFI.

[June 31, 1931] The will was admitted to probate.

[October 27, 1932] Intervenor Rosario Basa de Leon filed with the justice of the
peace court of San Fernando, Pampanga, a complaint against Mercado for
falsification/forgery of the will probated. Mercado was arrested. The complaint
was subsequently dismissed at the instance of de Leon herself.

[March 2, 1933] Same intervenor charged Mercado with the same offense, this
time in the justice of the peace court of Mexico, Pampanga. Mercado was
arrested again. The complaint was likewise dismissed, again at de Leons
instance.

[February 2, 1934] Same banana as on March 2, 1933. Upon due investigation,

the case was dismissed on the ground that the will alleged to have been falsified
has already been probated and that there was no evidence that Mercado had

forged the signature of the testatrix but that, on the contrary, satisfactory
evidence was presented that established the authenticity of said signature.

[April 11, 1934] Rosario Basa de Leon and other intervenors moved ex parte to
reopen the probate proceedings, alleging lack of jurisdiction to probate the will
and to close the proceedings. This motion was denied, having been filed ex
parte.

[May 9, 1934] The provincial fiscal moved for reinvestigation of the criminal case
for forgery before the Pampanga CFI. The motion was granted, and for the fourth
time, Mercado was arrested. The reinvestigation dragged on for almost a year

[May 24, 1934] A second motion to reopen and close probate proceedings was
filed, this time with notice to the adverse party. Same was denied.

[February 18, 1935] until the CFI ordered the forgery case to be tried on the
merits.

[July 26, 1935] Intervenors motion was appealed to the Supreme Court, which
affirmed the probate courts order of denial.

[c. 1936~37] Mercado 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 CFI overruled the motion. Mercado thus filed a petition for certiorari
with preliminary injunction with the Court of Appeals, which promptly denied
same.

HENCE, THIS PETITION.

ISSUE:
1 WON the probate of Ines Basas will is a bar to Mercados criminal prosecution
for the alleged forgery of said will.
RULING:

Applicable law: Code of Civil Procedure (then governing the law on wills)
o Sec. 306 provides, as re: the effect of judgments: in case of a
judgment/order in respect to the probate of a will, such judgment/order is
conclusive upon the the will.

o Sec. 333 establishes an incontrovertible presumption in favor of

judgments declared by the Code to be conclusive.
o Sec. 625 provides, as re: conclusiveness of the due execution of a
probate will: the allowance by the court of a will of real and personal
estate shall be conclusive as to its due execution.

Basis for PH law on wills (particularly Sec. 625 of the Code of Civil Procedure)
Statutes of [the US state of] Vermont.
o Decisions of the Supreme Court of Vermont re: effect of probate of a will
are of persuasive authority in PH.
o Says the Vermont SC in Missionary Society vs. Eells: The probate of a
will by the probate court having jurisdiction thereof, upon the due notice, is
conclusive as to its due execution against the whole world.

In view of the provisions of Secs. 306, 333 and 625 of the Code of Civil
Procedure, a criminal action will not lie against the forger of a will which
had been duly admitted to probate by a court of competent jurisdiction.

Disposition: Mercado is entitled to have the criminal proceedings against him

quashed; CA judgment is reversed, without pronouncement as to costs.

Dy Yieng Seangio, et al. v. Hon. Amor Reyes, et al.,

G.R. No. 140371-72, November 27, 2006

Facts:

There was a petition for the probate of an alleged holographic will which was
denominated as Kasulatan sa pag-aalis ng mana. The private respondents moved for
the dismissal of the probate proceedings primarily on the ground that the document
purporting to be the holographic will of Segundo did not contain any disposition of the
estate of the deceased and thus did not meet the definition of a will under Article 783 of
the Civil Code. According to private respondents, the will only showed an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other
compulsory heirs were not named nor instituted as heir, devisee or legatee, hence there
was preterition which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called upon to rule only on
the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of
the same, and ordering the dismissal of the petition for probate when on the face of the
will it is clear that it contains no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: (1)
generally, the authority of the probate court is limited only to a determination of the

extrinsic validity of the will; (2) private respondents question the intrinsic and not the
extrinsic validity of the will; (3) disinheritance constitutes a disposition of the estate of a
decedent; and (4) the rule on preterition did not apply because Segundos will did not
constitute a universal heir or heirs to the exclusion of one or more compulsory heirs.
The RTC issued an order dismissing the petition for probate proceedings,
hence, a petition for certiorari was filed where petitioners argued as follows:
First, respondent judge did not comply with Sections 3 and 4 of the Rule 76 of
the Rules of Court which respectively mandate the court to: (a) fix the time and place for
proving the will when all concerned may appear to contest the allowance thereof, and
cause notice of such time and place to be published three weeks successively previous
to the appointed time in a newspaper of general circulation; and (b) cause the mailing of
said notice to the heirs, legatee and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but
rather, as its title clearly states, Kasulatan ng Pag-alis ng Mana, simply contains a
disinheritance of a compulsory heir. Thus, there is no preterition in the decedents will
and the holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private
respondents alike, with the sole exception of Alfredo, to inherit his estate. None of the
compulsory heirs in the direct line of Segundo were preterited in the holographic will
since there was no institution of an heir;
Fourth, as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work
injustice to petitioners, and will render nugatory the disinheritance of Alfredo.

Issue:

Whether the document executed by Segundo can be considered as a holographic will.

Held:

A holographic will, as provided under Article 810 of the Civil Code, must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be witnessed.
The document, although it may initially come across as a mere disinheritance
instrument, conforms to the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of the testator himself. An intent to dispose mortis
causa (Article 783) can be clearly deduced from the terms of the instrument, and while it
does not make an affirmative disposition of the latters property, the disinheritance of the
son nonetheless, is an act of disposition in itself. In other words, the disinheritance
results in the disposition of the property of the testator in favor of those who would
succeed in the absence of the eldest son.
Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized as the
supreme law in succession. All rules of construction are designed to ascertain and give
effect to that intention. It is only when the intention of the testator is contrary to law,
morals, or public policy that it cannot be given effect.
Holographic wills, therefore, being usually prepared by one who is not learned
in the law should be construed more liberally than the ones drawn by an expert, taking
into account the circumstances surrounding the execution of the instrument and the
intention of the testator. In this regard, the document, even if captioned as Kasulatan ng
Pag-alis ng Mana, was intended by the testator to be his last testamentary act and was
executed by him in accordance with law in the form of a holographic will. Unless the will
is probated, the disinheritance cannot be given effect.

MALOLES II vs. PHILIPS

Facts: On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City,
filed a petition for probate of his will [1] in the Regional Trial Court, Branch 61. Dr. De
Santos alleged that he had no compulsory heirs; that he had named in his will as sole
legatee and devisee the Arturo de Santos Foundation, Inc.; that he disposed by his will
his properties with an approximate value of not less than P2,000,000.00; and that
copies of said will were in the custody of the named executrix, private respondent Pacita
de los Reyes Phillips. RTC-Makati, Branch 61 issued an order granting the petition and
allowing the will. As prayed for by the testator himself, the petition for the allowance of
the Last Will and Testament of Arturo de Santos is hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.
On April 3, 1996 petitioner Octavio S. Maloles II filed a motion for intervention claiming
that, as the only child of Alicia de Santos (testators sister) and Octavio L. Maloles, Sr.,
he was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise
alleged that he was a creditor of the testator. Petitioner thus prayed for the
reconsideration of the order allowing the will and the issuance of letters of
administration in his name.
Issue: WON petitioner is entitled in his claims to the right to intervene in and opposition
in the petition for issuance of letters testamentary filed by executrix Philips.
Ruling: No.
The Maloles II herein is not an heir or legatee under the will of the decedent Arturo de
Santos. Neither is he a compulsory heir of the latter. As the only and nearest collateral
relative of the decedent, he can inherit from the latter only in case of intestacy. Since the
decedent has left a will which has already been probated and disposes of all his

properties the private respondent can inherit only if the said will is annulled. His interest
in the decedents estate is, therefore, not direct or immediate. The opposition must come
from one with a direct interest in the estate or the will.
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered
an "heir" of the testator. It is a fundamental rule of testamentary succession that one
who has no compulsory or forced heirs may dispose of his entire estate by will. Thus,
Art. 842 of the Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate or any part of it in
favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testators (1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil Code. [18]
Petitioner, as nephew of the testator, is not a compulsory heir who may have been
preterited in the testators will. Nor does he have any right to intervene in the settlement
proceedings based on his allegation that he is a creditor of the deceased. Since the
testator instituted or named an executor in his will, it is incumbent upon the Court to
respect the desires of the testator.

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE

PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC v.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA
ESCOBAR DE FAUSTO
G.R. No. L-22036 April 30, 1979
Digest:
Facts:
-

August 1935, Father Rigor, the parish priest of Pulilan, Bulacan died leaving a
will
o executed on October 29, 1933
o probated by CFI,Tarlac on December 5, 1935
o named as devisees in the will were the testators nearest relatives,
namely, his three sisters:

Florencia Rigor-Escobar,

Belina Rigor-Manaloto and

Nestora Rigor-Quiambao.

o The testator gave a devise to his cousin, Fortunato Gamalinda.

o in the interim to be administered by the actual Catholic Priest of the
Roman Catholic Church of Victoria, Tarlac, Philippines, or his successors

o CONTROVERSIAL DISPOSITION in the will

bequeath 4 parcels of land to his nearest relative who would pursue

priesthood

March 1957, sisters prayed that the bequest be inoperative and that they be
adjudged as the persons entitled to the said ricelands since, as admitted by the
parish priest of Victoria, "no nearest male relative of" the testator "has ever
studied for the priesthood". That petition was opposed by the parish priest of
Victoria.

June 1957, CFI ruled in favor of the sisters.

Priest of Victoria MRd.

December 1957, MR granted because,

o testator had a grandnephew named Edgardo G. Cunanan (the grandson
of his first cousin) who was a seminarian in the San Jose Seminary of the
Jesuit Fathers in Quezon City. The administrator was directed to deliver
the ricelands to the parish priest of Victoria as trustee.

Sisters appeal to CA

CA favored sister,
o Father Rigor had created a testamentary trust for his nearest male relative
who would take the holy orders but that such trust could exist only for
twenty years because to enforce it beyond that period would violate "the
rule against perpetuities (article 870 of the new Civil Code)

Ruling:
-

We hold that the said bequest refers to the testator's nearest male relative living
at the time of his death and not to any indefinite time thereafter pursuant to
Article 1025, NCC which provides,
o "In order to be capacitated to inherit, the heir, devisee or legatee must be
living at the moment the succession opens, except in case of
representation, when it is proper"

In 1935, when the testator died, his nearest legal heirs were his three sisters or
second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao.
Obviously, when the testator specified his nearest male relative, he must have
had in mind his nephew or a son of his sister, who would be his third-degree

relative, or possibly a grandnephew. But since he could not prognosticate the

exact date of his death or state with certitude what category of nearest male
relative would be living at the time of his death, he could not specify that his
nearest male relative would be his nephew or grandnephews (the son of his
nephew or niece) and so he had to use the term "nearest male relative"
-

Had the testator intended that the "cualquier pariente mio varon mas cercano
que estudie la camera eclesiatica" would include indefinitely anyone of his
nearest male relatives born after his death, he could have so specified in his will
He must have known that such a broad provision would suspend for an unlimited
period of time the efficaciousness of his bequest

The Court of Appeals correctly ruled that this case is covered by article 888 of the
old Civil Code, now article 956, which provides that if "the bequest for any reason
should be inoperative, it shall be merged into the estate, except in cases of
substitution and those in which the right of accretion exists"

This case is also covered by article 912(2) of the old Civil Code, now article 960
(2), which provides that legal succession takes place when the will "does not
dispose of all that belongs to the testator." There being no substitution nor
accretion as to the said ricelands the same should be distributed among the
testator's legal heirs. The effect is as if the testator had made no disposition as to
the said ricelands

Art. 845,
o Every disposition in favor of an unknown person shall be void, unless by
some event or circumstance his identity becomes certain

We find no merit in the appeal The Appellate Court's decision is affirmed. Costs
against the petitioner

G.R. No. L-23445

REMEDIOS NUGUID, vs. FELIX NUGUID and PAZ SALONGA
NUGUID
FACTS : Rosario Nuguid died 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.
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.
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, oppositors who are compulsory heirs of the deceased in the
direct ascending line were illegally preterited and that in consequence the institution
is void.1.t
The court's 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. An MR having
been thwarted below, petitioner came to this Court on appeal
ISSUE :. Whether the case at bar is an ineffective disinheritance or one of preterition.
HELD : Preterition "consists in
the omission in the testator's will of the forced heirs or anyone of them, either because
they are not mentioned therein, or, though mentioned, they are neither instituted as
heirs
nor
are
expressly
disinherited." 16 Disinheritance,
in
turn,
"is
a testamentary disposition depriving any compulsory heir of his share in the legitime for
a cause authorized by law. "
The will here does not explicitly disinherit the testatrix's 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.
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 under review is hereby affirmed. No costs
allowed. So ordered.

NERI
GR
74 PHIL 185

v.
No.L-47799,

May

21,

AKUTIN
1943

FACTS: This is a case where the testator Agripino Neri in his will left all his property by
universal title to the children by his second marriage, the herein respondents, with
omission of the children by his first marriage, the herein petitioner. The omission of the
heirs in the will was contemplated by the testator with the belief that he had already
given each of the children portion of the inheritance, particularly a land he had
abandoned was occupied by the respondents over which registration was denied for it
turned out to be a public land, and an aggregate amount of money which the
respondents were indebted to their father.

ISSUE: Should there be cancellation of the will, in view of the omission of heirs? Is there
disinheritance in this case?

HELD: Yes. The Court annulled the institution of heirs and declared a total intestacy on
the ground that testator left all his property by universal title to the children by his
second marriage, without expressly disinheriting the children by his first marriage but
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. Disinheritance made without a
statement of the cause, if contested, shall annul the institution of heirs in so far as it is
prejudicial to the disinherited person. This is but a case of preterition which annuls the
institution of heirs.

Preterition vs. Disinheritance

Viado Non vs. CA

G.R. 137287
February 15, 2000

FACTS:
Sps. Julian and Virginia Viado owned several pieces of property, among them is
a house and lot located in Isarog St., La Loma, Quezon City. Virginia died on October
20, 1982 while Julian died three (3) years later on November 15, 1985. Surviving them
are their children, Nilo Viado, Leah Viado Jacobs and herein petitioners Rebecca Viado
married to Jose Non, and Delia Viado. Nilo Viado and Leah Viado Jacobs both died on
April 22, 1987. Nilo Viado left behind as his own sole heirs herein respondents, his wife
Alicia Viado and their two children Cherri Viado and Fe Fides Viado.
Petitioners and respondents shared since 1977 as common residence the Isarog
property. Thereafter, petitioner Rebecca asked respondent Alicia that the property be
equally divided between the two (2) families. Alicia claimed absolute ownership over the
entire property and demanded that petitioners vacate the portion which they are
occupying. Petitioners asserting co-ownership thereof filed a case for partition before
the RTC, Quezon City.
Respondents anchored their claim of absolute ownership over the subject
property on two (2) documents a Deed of Donation executed by late Julian Viado

covering his one-half conjugal share of the Isarog property in favor of Nilo Viado and a
Deed of Extrajudicial Settlement in which Julian Viado, Leah Viado Jacobs (through a
power of attorney in favor of Nilo Viado) and petitioner Rebecca Viado waived in favor of
Nilo Viado their rights and interests over their share of the property inherited from
Virginia Viado. Both instruments were executed on August 26, 1983 and registered on
January 7, 1988 by virtue of which, Transfer Certificate of Title No. 373646 was issued
to the heirs of Nilo Viado.
Petitioners attacked the validity of the aforementioned instruments contending
that the late Nilo Viado employed forgery and undue influence to coerce Julian Viado to
execute the Deed of Donation. Petitioner Rebecca 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.
Petitioners also asseverated that the assailed instruments were registered only after five
(5) years when Julian, Nilo and Leah had already died.
The RTC found that respondents Alicia, Cherri and Fe are the true owners of the
disputed property.
The CA affirmed the Decision with modification by ordering the remand of the
records of the case to the court a quo 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.

ISSUE:
Whether Delia Viado was preterited?

HELD:
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 fraud and bad faith, does not justify a collateral
attack on Transfer Certificate of Title No. 373646. The relief, as correctly pointed out by
the Court of Appeals, instead rests on Article 104 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.

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 the
ascertainment of the amount due petitioner Delia Viado.

CARMEN G. DE PEREZ , trustee of the estate of Ana Maria Alcantara, plaintiffappellee,

vs.
MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First
Instance of Manila,defendants-appellants.
GR No L-31703

Facts:
Ana Maria Alcantara died without any compulsory heirs. In her will which had been
probated and whose legal force and effect is not in dispute, she instituted her niece-inlaw Carmen Garchitorena who was married to his nephew Joaquin Perez Alcantara.
Ana Maria instituted Carmen as her sole and universal heir.
In her will, she stated that should Carmen die, whole estate shall pass unimpaired to her
surviving children; and should any of these die, his share shall serve to increase the
portions of his surviving brothers (and sisters) by accretion, in such wise that my estate
shall never pass out of the hands of my heiress or her children in so far as it is legally
possible. Stated also in her will is that in case Carmen dies and the said children are still
in minority, she ordered that her estate to be administered by her executrix, Mrs. Josefa
Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son
Ramon Salinas; but the direction herein given must not be considered as an indication
of lack of confidence in my nephew Joaquin Perez Alcantara.
The estate in amount of Php 21, 428.58 is in a deposit under the plaintiffs name with
the association known as La Urbana Manila. Mariano Garchitorena held a judgment for
P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de

Perez, the sheriff pursuant to the writ of execution issued in said judgment, levied an
attachment on said amount deposited with La Urbana.
The plaintiff is alleging that the said money belongs to the fideicommissary heirs of the
decedent Ana Maria Alcantara, secured a preliminary injunction restraining the
execution of said judgment on the sum so attached. The defendants contend that the
plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction.
The lower court held that it belongs to the plaintiffs children as fideicommisary heirs
hence cannot be levied upon.
Hence this appeal.
ISSUE:
Whether the institution of the heirs within the scope and meaning of
fideicommisary substitution?

Held:
Yes. It was a fideicommisary substitution and not a simple one.
The dispositions made in the will clearly illustrate and satisfy the elements of a
fideicommisary substitution. In the will of the testator, the following dispositions have
been made:
Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law,
Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and
living in this same house with me, I institute her as my sole and universal heiress to the
remainder of my estate after the payment of my debts and legacies, so that upon my
death and after probate of this will, and after the report of the committee on claims and
appraisal has been rendered and approved, she will receive from my executrix and
properties composing my hereditary estate, that she may enjoy them with God's
blessing and my own.
Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall
pass unimpaired to her surviving children; and should any of these die, his share shall
serve to increase the portions of his surviving brothers (and sisters) by accretion, in
such wise that my estate shall never pass out of the hands of my heiress or her children
in so far as it is legally possible.
Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her
children are still in their minority, I order that my estate be administered by my executrix,

Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default,
by his son Ramon Salinas; but the direction herein given must not be considered as an
indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve
from the duties of administering my estate, because I recognize that his character is not
adapted to management and administration.
The elements of the fideicommisary substitution are: (1) a first heir primarily called to
the enjoyment of the estate; (2) an obligation clearly imposed upon him to preserve and
transmit to a third person the whole or a part of the estate; and (3) a second heir. It must
be emphasized the 2nd heir inherits not from the first heir but from the testator herself. In
the case at bar, the elements have been fully complied with as shown in the dispositions
made in the will:
(1)At first heir primarily called to the enjoyment of the estate. In this case the plaintiff
was instituted an heiress, called to the enjoyment of the estate, according to clause IX
of the will.
(2) An obligation clearly imposed upon the heir to preserve and transmit to a third
person the whole or a part of the estate. Such an obligation is imposed in clause X
which provides that the "whole estate shall pass unimpaired to her (heiress's) surviving
children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will, or
of leaving the law to take its course in case she dies intestate, said clause not only
disposes of the estate in favor of the heiress instituted, but also provides for the
disposition thereof in case she should die after the testatrix.
(3) A second heir. Such are the children of the heiress instituted, who are referred to as
such second heirs both in clause X and in clause XI.
Hence, the decision of the lower court is affirmed.

G.r.No. L-27952

February 15, 1982

Ramirez VS Ramirez
Abad-Santos, J:

Jose Enriquez Ramirez died and left will indicating that his wife Marcelle Ramirez, as
the only compulsory heir, be given one half estate and the free portion be divided
among two grandnephews and companion, Wanda de Wrobleski who resides in
Austria. There also a provision that 1/3 of the usufruct be awarded to Marcelle as
widow and for substitution for Wanda by Juan Jankowski and Horacio Ramirez as she
was residing in Austria.

Issue: Whether or not the awarding of substitution for Jankowski and Horacio Ramirez
is valid as Wanda is an alien.

Ruling: Yes, the substitution is a simple substitution as the substitutes are not related to
the heir Wanda by one degree. Also, the constitutional provision allowing aliens to
acquire land does not involve testamentary succession. As the succession was only a
usufruct, then it is allowed as it does not vest a title to the alien.