G.R. No.

L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First
Instance of Cebu, and MANUEL B. LUGAY, respondents.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the
probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita
N. Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit
"E"), alleging the will was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was execute without the testator having been fully
informed of the content thereof, particularly as to what properties he was disposing and that
the supposed last will and testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of the said last will and
testament Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case hinges, is
whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed
in accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and subscribe to the will, and the second
requiring the testator and the witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
Paares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the
Notary Public before whom the will was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed by at least three credible witnesses
in the presence of the testator and of each other, considering that the three attesting
witnesses must appear before the notary public to acknowledge the same. As the third
witness is the notary public himself, petitioner argues that the result is that only two
witnesses appeared before the notary public to acknowledge the will. On the other hand,
private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will,
following the reasoning of the trial court, maintains that there is substantial compliance with
the legal requirement of having at least three attesting witnesses even if the notary public
acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:
It is said that there are, practical reasons for upholding a will as against the
purely technical reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature under oath rather
than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain
that of the appellant that the last will and testament in question was not executed in
accordance with law. The notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil.
258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and
"before" means in front or preceding in space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard Dictionary of the
English Language, p. 252; Webster's New International Dictionary 2d. p. 245.) Consequently,
if the third witness were the notary public himself, he would have to avow assent, or admit

his having signed the will in front of himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or
immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the
notary public were one of the attesting instrumental witnesses. For them he would be
interested sustaining the validity of the will as it directly involves him and the validity of his
own act. It would place him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107), would
be thwarted.
Admittedly, there are American precedents holding that notary public may, in addition, act
as a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals,
64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his
signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v.
Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.
911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132
A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the
purpose of the law in this jurisdiction or are not decisive of the issue herein because the
notaries public and witnesses referred to aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public
acted not only as attesting witness but also acknowledging witness, a situation not
envisaged by Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain a
copy of the will or file another with the office of the Clerk of Court. [Emphasis
supplied]
To allow the notary public to act as third witness, or one the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 80 be requiring at least three credible
witnesses to act as such and of Article 806 which requires that the testator and the required
number of witnesses must appear before the notary public to acknowledge the will. The
result would be, as has been said, that only two witnesses appeared before the notary public
for or that purpose. In the circumstances, the law would not be duly in observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the probate
of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and hereby
set aside.
Cost against the appellee.
G.R. No. L-5826

April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee,

vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.
Clouduallo Lucero and Vicente C. Santos for appellants.
Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:
This is an appeal interposed by the oppositors from a decision of the Court of First Instance
of Samar, admitting to probate the will allegedly executed by Vicente Cagro who died in
Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective,
because its attestation clause is not signed by the attesting witnesses. There is no question
that the signatures of the three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed by the witnesses on the
left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation
clause is 'a memorandum of the facts attending the execution of the will' required by law to
be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the
omission of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures are in compliance with the
legal mandate that the will be signed on the left-hand margin of all its pages. If an
attestation clause not signed by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied.
So ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.
Separate Opinions
BAUTISTA ANGELO, J., dissenting:
I dissent. In my opinion the will in question has substantially complied with the formalities of
the law and, therefore, should be admitted to probate . It appears that the will was signed by
the testator and was attested by three instrumental witnesses, not only at the bottom, but
also on the left-hand margin. The witnesses testified not only that the will was signed by the
testator in their presence and in the presence of each other but also that when they did so,
the attestation clause was already written thereon. Their testimony has not been
contradicted. The only objection set up by the oppositors to the validity of the will is the fact
that the signatures of the instrumental witnesses do not appear immediately after the
attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40
Phil., 476), this court said that when the testamentary dispositions "are wholly written on
only one sheet signed at the bottom by the testator and three witnesses (as the instant
case),their signatures on the left margin of said sheet would be completely purposeless." In
such a case, the court said, the requirement of the signatures on the left hand margin was
not necessary because the purpose of the law which is to avoid the substitution of any of
the sheets of the will, thereby changing the testator's dispositions has already been
accomplished. We may say the same thing in connection with the will under consideration

because while the three instrumental witnesses did not sign immediately by the majority
that it may have been only added on a subsequent occasion and not at the uncontradicted
testimony of said witnesses to the effect that such attestation clause was already written in
the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it i not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary useless and frustrative of the testator's last will, must be
disregarded. (supra)
We should not also overlook the liberal trend of the New Civil Code in the matter of
interpretation of wills, the purpose of which, in case of doubt, is to give such interpretation
that would have the effect of preventing intestacy (article 788 and 791, New Civil Code)
I am therefore of the opinion that the will in question should be admitted to probate.
TUASON, J., dissenting:
I cuncur in Mr. Justice Bautista's dissenting opinion and may add that the majority decision
erroneously sets down as a fact that the attestation clause was no signed when the
witnesses signatures appear on the left margin and the real and only question is whether
such signatures are legally sufficient.
The only answers, in our humble opinion, is yes. The law on wills does not provide that the
attesting witness should sign the clause at the bottom. In the absence of such provision,
there is no reason why signatures on the margin are not good. A letter is not any the less the
writter's simply because it was signed, not at the conventional place but on the side or on
top.
G.R. No. L-13431

November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this decision the opponent's appealed.

Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of
which contains all of the disposition of the testatrix, duly signed at the bottom by Martin
Montalban (in the name and under the direction of the testatrix) and by three witnesses. The
following sheet contains only the attestation clause duly signed at the bottom by the three
instrumental witnesses. Neither of these sheets is signed on the left margin by the testatrix
and the three witnesses, nor numbered by letters; and these omissions, according to
appellants' contention, are defects whereby the probate of the will should have been denied.
We are of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left margin by
the testator and three witnesses in the presence of each other, Act No. 2645 (which is the
one applicable in the case) evidently has for its object (referring to the body of the will itself)
to avoid the substitution of any of said sheets, thereby changing the testator's dispositions.
But when these dispositions are wholly written on only one sheet signed at the bottom by
the testator and three witnesses (as the instant case), their signatures on the left margin of
said sheet would be completely purposeless. In requiring this signature on the margin, the
statute took into consideration, undoubtedly, the case of a will written on several sheets and
must have referred to the sheets which the testator and the witnesses do not have to sign at
the bottom. A different interpretation would assume that the statute requires that this sheet,
already signed at the bottom, be signed twice. We cannot attribute to the statute such an
intention. As these signatures must be written by the testator and the witnesses in the
presence of each other, it appears that, if the signatures at the bottom of the sheet
guaranties its authenticity, another signature on its left margin would be unneccessary; and
if they do not guaranty, same signatures, affixed on another part of same sheet, would add
nothing. We cannot assume that the statute regards of such importance the place where the
testator and the witnesses must sign on the sheet that it would consider that their
signatures written on the bottom do not guaranty the authenticity of the sheet but, if
repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters
placed on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to
know whether any sheet of the will has been removed. But, when all the dispositive parts of
a will are written on one sheet only, the object of the statute disappears because the
removal of this single sheet, although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without
considering whether or not this clause is an essential part of the will, we hold that in the one
accompanying the will in question, the signatures of the testatrix and of the three witnesses
on the margin and the numbering of the pages of the sheet are formalities not required by
the statute. Moreover, referring specially to the signature of the testatrix, we can add that
same is not necessary in the attestation clause because this, as its name implies, appertains
only to the witnesses and not to the testator since the latter does not attest, but executes,
the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which
contains all the testamentary dispositions and is signed at the bottom by the testator and
three witnesses and the second contains only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that both sheets be further signed on
their margins by the testator and the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on this subject should be interpreted in such a way as to
attain these primordal ends. But, on the other hand, also one must not lose sight of the fact

that it is not the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless
and frustative of the testator's last will, must be disregarded. lawphil.net
As another ground for this appeal, it is alleged the records do not show that the testarix
knew the dialect in which the will is written. But the circumstance appearing in the will itself
that same was executed in the city of Cebu and in the dialect of this locality where the
testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume
that she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with costs
against the appellants. So ordered.
G.R. No. L-12190

August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.

GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of
Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na

ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking
mga kamag-anakang sumusunod:

Vicente Esguerra,
Sr. .............................................

5 Bahagi

Fausto E.
2 Bahagi
Gan ............................................
.............

Rosario E.
2 Bahagi
Gan ............................................
.............

Filomena
1 Bahagi
Alto ............................................
..............

Beatriz
1 Bahagi
Alto ............................................
..................

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking

ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y
magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa
halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang
Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking
asawa ang magpuno upang matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had
not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed.
Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution
by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and
Rosario Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if
her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of
Felicidad, who was then preparing for the bar examinations. The latter replied it could be
done without any witness, provided the document was entirely in her handwriting, signed
and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the
strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street,
Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was
invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative,
Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who
again read it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a
niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for
the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last
illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a
few hours later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of
him by reason of his well-known violent temper, she delivered it to him. Thereafter, in the
same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly
before the death of Felicidad. Again, Felina handed it to him but not before she had taken
the purse to the toilet, opened it and read the will for the last time. 2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent
physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and
wife journeyed to the United States wherein for several weeks she was treated for the
disease; that thereafter she felt well and after visiting interesting places, the couple returned
to this country in August 1950. However, her ailment recurred, she suffered several attacks,
the most serious of which happened in the early morning of the first Monday of November
1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the
Harvardian Colleges occupying the lower floors and of by the Yap spouses. Physician's help
was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly
breathing, lying in bed, her head held high by her husband. Injections and oxygen were
administered. Following the doctor's advice the patient stayed in bed, and did nothing the
whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side.
These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have
made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the decedent wanted to keep
her will a secret, so that her husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the
absence of a showing that Felina was a confidant of the decedent it is hard to believe that
the latter would have allowed the former to see and read the will several times; (c) it is
improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez
and Socorro Olarte to read her will, when she precisely wanted its contents to remain a
secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will
from her husband she would carry it around, even to the hospital, in her purse which could
for one reason or another be opened by her husband; (e) if it is true that the husband
demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard
to believe that he returned it without destroying the will, the theory of the petitioner being
precisely that the will was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence
that Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor
and of his witnesses in a vigorous effort to discredit them. It appears that the same
arguments, or most of them, were presented in the motion to reconsider; but they failed to
induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly
answers the criticisms. We deem it unnecessary to go over the same matters, because in
our opinion the case should be decided not on the weakness of the opposition but on the
strength of the evidence of the petitioner, who has the burden of proof.

The Spanish Civil Code permitted the execution of holographic wills along with other forms.
The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form,
thereby repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "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."
This is indeed a radical departure from the form and solemnities provided for wills under Act
190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator
and three credible witnesses in each andevery page; such witnesses to attest to the number
of sheets used and to the fact that the testator signed in their presence and that they signed
in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and
fraud, to prevent substitution of wills, to guarantee their truth and authencity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed the
testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil,
40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity
of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there
is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other
additional witnesses) the court may form its opinion as to the genuineness and authenticity
of the testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are
demanded, since as stated, they need no witnesses; provided however, that they are
"entirely written, dated, and signed by the hand of the testator himself." The law, it is
reasonable to suppose, regards the document itself as material proof of authenticity, and as
its own safeguard, since it could at any time, be demonstrated to be or not to be in the
hands of the testator himself. "In the probate of a holographic will" says the New Civil Code,
"it shall be necessary that at least one witness who knows the handwriting and signature of
the testator explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem
it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will.
They may be mistaken in their opinion of the handwriting, or they may deliberately lie in
affirming it is in the testator's hand. However, the oppositor may present other witnesses
who also know the testator's handwriting, or some expert witnesses, who after comparing
the will with other writings or letters of the deceased, have come to the conclusion that such
will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in
view of such contradictory testimony may use its own visual sense, and decide in the face of
the document, whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing
the evidence are not available. And then the only guaranty of authenticity 3 the testator's
handwriting has disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and who declare that it was in the
handwriting of the testator? How can the oppositor prove that such document was not in the
testator's handwriting? His witnesses who know testator's handwriting have not examined it.
His experts can not testify, because there is no way to compare the alleged testament with
other documents admittedly, or proven to be, in the testator's hand. The oppositor will,
therefore, be caught between the upper millstone of his lack of knowledge of the will or the
form thereof, and the nether millstone of his inability to prove its falsity. Again the
proponent's witnesses may be honest and truthful; but they may have been shown a faked
document, and having no interest to check the authenticity thereof have taken no pains to
examine and compare. Or they may be perjurers boldly testifying, in the knowledge that
none could convict them of perjury, because no one could prove that they have not "been
shown" a document which they believed was in the handwriting of the deceased. Of course,
the competency of such perjured witnesses to testify as to the handwriting could be tested
by exhibiting to them other writings sufficiently similar to those written by the deceased; but
what witness or lawyer would not foresee such a move and prepare for it? His knowledge of
the handwriting established, the witness (or witnesses) could simply stick to his statement:
he has seen and read a document which he believed was in the deceased's handwriting. And
the court and the oppositor would practically be at the mercy of such witness (or witnesses)
not only as to the execution, but also as to the contents of the will. Does the law permit such
a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or
destroyed will by secondary evidence the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated holographic wills which could not
then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is
that it may be lost or stolen4 an implied admission that such loss or theft renders it
useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the
judge, (Art. 689) who shall subscribe it and require its identity to be established by the three
witnesses who depose that they have no reasonable doubt that the will was written by the
testator (Art. 691). And if the judge considers that the identity of the will has been proven he
shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692
bears the same implication, to a greater degree. It requires that the surviving spouse and
the legitimate ascendants and descendants be summoned so that they may make "any
statement they may desire to submit with respect to the authenticity of the will." As it is
universally admitted that the holographic will is usually done by the testator and by himself
alone, to prevent others from knowing either its execution or its contents, the above article
692 could not have the idea of simply permitting such relatives to state whether they know
of the will, but whether in the face of the document itself they think the testator wrote it.
Obviously, this they can't do unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either
complying with the will if they think it authentic, or to oppose it, if they think it
spurious.5 Such purpose is frustrated when the document is not presented for their
examination. If it be argued that such choice is not essential, because anyway the relatives
may oppose, the answer is that their opposition will be at a distinct disadvantage, and they
have the right and privilege to comply with the will, if genuine, a right which they should not
be denied by withholding inspection thereof from them.

We find confirmation of these ideas--about exhibition of the document itself--in the decision
of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a
document containing testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn from it. Even in the
face of allegations and testimonial evidence (which was controverted), ascribing the
mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance
with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be
presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del
articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera
estar escrito todo el y firmado por testador, con expression del ao, mes y dia en que
se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no
basta la demostracion mas o menos cumplida de que cuando se otorgaron se
Ilenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal,
y por el tiempo en que el verbo se emplea, se desprende la necesidad de que el
documento se encuentre en dichas condiciones en el momento de ser presentado
a la Autoridad competente, para au adveracion y protocolizacion; y como
consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez
y aficacia, por no estarfirmado por el testador, cualquiera que sea la causa de la falta
de firma, y sin perjuicio de las acciones que puedan ejercitar los perjudicados, bien
para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un defecto
insubsanable. . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the
basis of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que
los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de
la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos,
que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si
semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere
connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda
otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the
testators handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz,
1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and
the contents of a lost or destroyed holographic will may not be proved by the bare testimony
of witnesses who have seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this
opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however,
to make this Rule decisive of this controversy, simultaneously with its promulgation.

Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the
evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of
authenticity is the handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the holographic will entails the
loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are
available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the
notary) deliberately to lie. And then their lies could be checked and exposed, their
whereabouts and acts on the particular day, the likelihood that they would be called by the
testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of
the testator they are not likely to end themselves to any fraudulent scheme to distort his
wishes. Last but not least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man
could engineer the fraud this way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive to let three honest and credible
witnesses see and read the forgery; and the latter, having no interest, could easily fall for it,
and in court they would in all good faith affirm its genuineness and authenticity. The will
having been lost the forger may have purposely destroyed it in an "accident" the
oppositors have no way to expose the trick and the error, because the document itself is not
at hand. And considering that the holographic will may consist of two or three pages,
and only one of them need be signed, the substitution of the unsigned pages, which may be
the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature
feasibility of forgery would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses
would be testifying to a fact which they saw, namely the act of the testator of subscribing
the will; whereas in the case of a lost holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting itself is not at
hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial
judge's disbelief. In addition to the dubious circumstances described in the appealed
decision, we find it hard to believe that the deceased should show her will precisely to
relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could
pester her into amending her will to give them a share, or threaten to reveal its execution to
her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal
the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do
so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged
execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic
will, we think the evidence submitted by herein petitioner is so tainted with improbabilities

and inconsistencies that it fails to measure up to that "clear and distinct" proof required by
Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
G.R. No. L-15025

March 15, 1920

In the matter of the estate of REMIGIA SAGUINSIN, deceased.

ARCADIO DEL ROSARIO, applicant-appellant,
JOSE A. DEL PRADO, ET. AL., legatees-appellants,
vs.
RUFINA SAGUINSIN, opponent-appellee.
Fernando Manikis and Gibbs, McDonough & Johnson for applicant and appellant.
No appearance for legatees and appellants.
Claro M. Recto for appellee.
ARELLANO, C.J.:
There was presented in the Court of First Instance of the city of Manila for allowance an
instrument which the petitioner calls the will of Remigia Saguinsin. It is a manuscript signed
by the alleged testatrix and three witnesses on October 3, 1918, the conclusion of which
says: "I, the testatrix, sign in the presence of the witnesses this will written by D. Lino
Mendoza at my request and under my direction." (Yo, la testadora, firmo en presencia de los
testigos este testamento que ha escrito D. Lino Mendoza a mi ruego y bajo mi direccion.)-Then follows a signature and then these expressions: "The testatrix signed in our presence
and each of us signed in the presence of the others." (La testadora ha firmado en nuestra
presencia y cada uno de nosotros en presencia de los demas.) "Witness who wrote this
will at the request and under the free and voluntary personal direction of the testatrix
herself." (Testigo que escribio este testamento a ruego y bajo la libre y voluntaria direccion
personal de la misma testadora.) (Sgd.) Lino
Mendoza "Attesting witnesses." (Testigos del testamento.) Then come three signatures.
These three signature together with that of the alleged testatrix are written also on the left
margin of the firs page or folio and on the third page or second folio, but not on the second
page or reverse side of the first page where, as is seen, the manuscript is continued, the
second folio not containing anything but the date and the and of the manuscript.
Under these, conditions the instrument was impugned by a sister of the alleged testatrix and
after the taking of the declaration of the authors of the signatures which appear three times
and in different parts of the manuscript, the court declared that the document attached to
the record could not be allowed as a will.
Certain person who allege themselves to be legatees appealed jointly with the lawyer for the
petitioner.
And upon considering the case on appeal, this court decides:
That, in conformity with Act No. 2645, amendatory to section 618 of the Code of Civil
Procedure, the concluding part of the will does not express what that law, under pain of
nullity, requires. Section 618, as amended, says: "The attestation shall state the number of

sheets or pages used upon which the will is written . . . ." None of these requirements
appear in the attesting clause at the end of the document presented. The second
page, i.e., what is written on the reverse side of the first, engenders the doubt whether what
is written thereon was ordered written by the alleged testatrix or was subsequently added
by the same hand that drew the first page and the date that appears on the third. With this
non-fulfillment alone of Act No. 2645 it is impossible to allow the so-called will which violates
said law.
That besides this violation there is another as evident as the preceding. Said Act No. 2645
provides: "The testator or the person requested by him to write his name and the
instrumental witnesses of the will shall also sign, as aforesaid, each and every page thereof,
on the left margin, and said pages shall be numbered correlatively in letters placed on the
upper part of each sheet." The English text differs from the Spanish text: the former say only
pages (paginas) while the latter puts (hojas). "Hoja," according to the Diccionario de la
Academia, "is with respect to books or notebooks folio." According to the same
dictionary "pagina (page) is each of one of the two faces or planes of the leaf of a book or
notebook; that which is written or printed on each page, for example I have read only two
pages of this book." Two pages constitute one leaf. One page represents only one-half of one
leaf. The English text requires that the signature which guarantees the genuineness of the
testament shall be placed on the left hand margin of each page and that each page should
be numbered by letter in the upper part This requirement is entirely lacking on the second
page that is, on the reverse side of the first. According to the old method of paging "folio 1.
y su vto." that is, first folio and the reverse side, should have been stated, and the second
page would then have been included in the citation. By the failure to comply with this
requisite the law has been obviously violated. In the English text the word "pages" does not
leave any room for doubt and it is invariably used in the text of the law, whereas in the
Spanish text, "hoja" and "pagina" are used indifferently as may be seen in the following part
which says: "el atestiguamiento hara constar el numero de hojas o paginas utiles en que
esta extendido el testamento." This failure to comply with the law also vitiates the will and
invalidates it, as the second page is lacking in authenticity.
This is a defect so radical that there is no way by which what is written on the reverse side
of the first folio may be held valid. It is possible that this document consists of only the two
folios numbered 1 and 2, and that on the reverse side of number 2 nothing may have been
written upon the order of the testatrix, the testament ending at the foot of the first folio with
the legacy "To my nephew Catalino Ignacio, pesos 200" (A mi sobrino Catalino Ignacio
doscientos pesos) and from that part then immediately follows folio No. 2 "Manila a tres
de Octubre de mil novecientos diez y ocho.--Yo la testadora firmo en presencia etc." (Manila,
October 3, 1918, I, the testatrix, sign in the presence of etc.) There is nothing which
guarantees all the contents of page 2. The margin of this page is absolutely blank. there is
nothing which gives the assurance that the testatrix ordered the insertion of all the contents
of page 2. It may very well be that it was subsequently added thereby substituting the will of
the testatrix, a result for the prevention of which this manner of authenticity by affixing the
signature on each page and not merely on each folio was provided for by law. This defect is
radical and totally vitiates the testament. It is not enough that the signatures guaranteeing
authenticity should appear upon two folios or leaves; three pages having been written, the
authenticity of all three of them should be guaranteed with the signature of the alleged
testatrix and her witnesses. The English text which requires the signing of pages and not
merely leaves or folios should prevail. it is so provided in section 15 of the Administrative
Code (Act No. 2711).
The judgment appealed from is affirmed, with costs of this instance against the appellant.

G.R. No. L-36033 November 5, 1982

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA
PEREZ, (deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte,
(Branch III, Maasin),respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern
Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for
Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which denied
the probate of the will, the motion for reconsideration and the motion for appointment of a
special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the
alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan
dialect, the will consists of two pages. The first page contains the entire testamentary
dispositions and is signed at the end or bottom of the page by the testatrix alone and at the
left hand margin by the three (3) instrumental witnesses. The second page which contains
the attestation clause and the acknowledgment is signed at the end of the attestation clause
by the three (3) attesting witnesses and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of
publication, the trial court commissioned the branch clerk of court to receive the petitioner's
evidence. Accordingly, the petitioner submitted his evidence and presented Vicente
Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and
due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order
denying the probate of the will of Dorotea Perez for want of a formality in its execution. In
the same order, the petitioner was also required to submit the names of the intestate heirs
with their corresponding addresses so that they could be properly notified and could
intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation
and/or motion, ex partepraying for a thirty-day period within which to deliberate on any step
to be taken as a result of the disallowance of the will. He also asked that the ten-day period
required by the court to submit the names of intestate heirs with their addresses be held in
abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be
acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at
Pasig, Rizal. The said motions or incidents were still pending resolution when respondent
Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the
manifestation and/or motion filed ex parte. In the same order of denial, the motion for the
appointment of special administrator was likewise denied because of the petitioner's failure
to comply with the order requiring him to submit the names of' the intestate heirs and their
addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the
testatrix and all the three instrumental and attesting witnesses sign at the end of the will
and in the presence of the testatrix and of one another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction, in
the presence of the instrumental witnesses, and that the lacier witnesses and
signed the will and the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the witnesses, it shall
be interpreted to the witnesses, it shall be interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require that, for a
notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an the
three subscribing witnesses must also sign at the same place or at the end, in the presence
of the testatrix and of one another because the attesting witnesses to a will attest not
merely the will itself but also the signature of the testator. It is not sufficient compliance to
sign the page, where the end of the will is found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make
it a condition precedent or a matter of absolute necessity for the extrinsic validity of the wig
that the signatures of the subscribing witnesses should be specifically located at the end of
the wig after the signature of the testatrix. He contends that it would be absurd that the
legislature intended to place so heavy an import on the space or particular location where
the signatures are to be found as long as this space or particular location wherein the
signatures are found is consistent with good faith and the honest frailties of human nature.
We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its
end by the testator himself or by the testator's name written by another person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that
those things are, done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the signing of
the witnesses' names upon the same paper for the purpose of Identification of such paper as
the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will
in this case was subscribed in a manner which fully satisfies the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will
attested not only to the genuineness of the signature of the testatrix but also the due
execution of the will as embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the
usual forms should be ignored, especially where the authenticity of the will is not assailed.
(Gonzales v. Gonzales, 90 Phil. 444, 449).
The law is to be liberally construed, "the underlying and fundamental objective permeating
the provisions on the law on wills in this project consists in the liberalization of the manner of
their execution with the end in view of giving the testator more freedom in expressing his
last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure and influence upon the testator. This
objective is in accord with the modern tendency in respect to the formalities in the execution
of a will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for
the defect in the place of signatures of the witnesses, he would have found the testimony
sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in the present
case when the instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when the will was properly Identified
by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There
was no question of fraud or substitution behind the questioned order.
We have examined the will in question and noticed that the attestation clause failed to state
the number of pages used in writing the will. This would have been a fatal defect were it not
for the fact that, in this case, it is discernible from the entire wig that it is really and actually
composed of only two pages duly signed by the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the testamentary dispositions is
signed by the testatrix at the end or at the bottom while the instrumental witnesses signed
at the left margin. The other page which is marked as "Pagina dos" comprises the attestation
clause and the acknowledgment. The acknowledgment itself states that "This Last Will and
Testament consists of two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations
with respect to the purpose of the requirement that the attestation clause must state the
number of pages used:
The law referred to is article 618 of the Code of Civil Procedure, as amended
by Act No. 2645, which requires that the attestation clause shall state the
number of pages or sheets upon which the win is written, which requirement
has been held to be mandatory as an effective safeguard against the
possibility of interpolation or omission of some of the pages of the will to the
prejudice of the heirs to whom the property is intended to be bequeathed (In
re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405;
Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481;
Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases
seems to be that the attestation clause must contain a statement of the
number of sheets or pages composing the will and that if this is missing or is
omitted, it will have the effect of invalidating the will if the deficiency cannot
be supplied, not by evidence aliunde, but by a consideration or examination of
the will itself. But here the situation is different. While the attestation clause
does not state the number of sheets or pages upon which the will is written,
however, the last part of the body of the will contains a statement that it is
composed of eight pages, which circumstance in our opinion takes this case
out of the rigid rule of construction and places it within the realm of similar
cases where a broad and more liberal view has been adopted to prevent the
will of the testator from being defeated by purely technical considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar
liberal approach:
... Impossibility of substitution of this page is assured not only (sic) the fact
that the testatrix and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of the notary public
before whom the testament was ratified by testatrix and all three witnesses.
The law should not be so strictly and literally interpreted as to penalize the
testatrix on account of the inadvertence of a single witness over whose
conduct she had no control where the purpose of the law to guarantee the
Identity of the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on record attests
to the fun observance of the statutory requisites. Otherwise, as stated in Vda.
de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or bungling it or the attestation
clause.
WHEREFORE, the present petition is hereby granted. The orders of the respondent court
which denied the probate of tile will, the motion for reconsideration of the denial of probate,
and the motion for appointment of a special administrator are set aside. The respondent
court is ordered to allow the probate of the wig and to conduct further proceedings in
accordance with this decision. No pronouncement on costs.
SO ORDERED.
G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA
CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO

CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,

represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and
CONSESO CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD
CANEDA and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the
Estate of Mateo Caballero, respondents.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari is the
issue of whether or not the attestation clause contained in the last will and testament of the
late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809,
of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without any
children and already in the twilight years of his life, executed a last will and testament at his
residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca,
Gregorio Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer,
Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that
last will. 1 It was declared therein, among other things, that the testator was leaving by way
of legacies and devises his real and personal properties to Presentacion Gaviola, Angel
Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all
of whom do not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as
Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu
seeking the probate of his last will and testament. The probate court set the petition for
hearing on August 20, 1979 but the same and subsequent scheduled hearings were
postponed for one reason to another. On May 29, 1980, the testator passed away before his
petition could finally be heard by the probate court. 3 On February 25, 1981, Benoni Cabrera,
on of the legatees named in the will, sough his appointment as special administrator of the
testator's estate, the estimated value of which was P24,000.00, and he was so appointed by
the probate court in its order of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted
a second petition, entitled "In the Matter of the Intestate Estate of Mateo Caballero" and
docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First
Instance of Cebu. On October 18, 1982, herein petitioners had their said petition intestate
proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First
Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment
of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV
of the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on
June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of
Special Proceeding No. 3965-R to the archives since the testate proceeding for the probate

of the will had to be heard and resolved first. On March 26, 1984 the case was reraffled and
eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until
the conclusion of the probate proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared
as oppositors and objected to the allowance of the testator's will on the ground that on the
alleged date of its execution, the testator was already in the poor state of health such that
he could not have possibly executed the same. Petitioners likewise reiterated the issue as to
the genuineness of the signature of the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public
Atty. Filoteo Manigos, testified that the testator executed the will in question in their
presence while he was of sound and disposing mind and that, contrary to the assertions of
the oppositors, Mateo Caballero was in good health and was not unduly influenced in any
way in the execution of his will. Labuca also testified that he and the other witnesses
attested and signed the will in the presence of the testator and of each other. The other two
attesting witnesses were not presented in the probate hearing as the had died by then. 8
On April 5, 1988, the probate court rendered a decision declaring the will in question as the
last will and testament of the late Mateo Caballero, on the ratiocination that:
. . . The self-serving testimony of the two witnesses of the oppositors cannot
overcome the positive testimonies of Atty. Filoteo Manigos and Cipriano
Labuca who clearly told the Court that indeed Mateo Caballero executed the
Last Will and Testament now marked Exhibit "C" on December 5, 1978.
Moreover, the fact that it was Mateo Caballero who initiated the probate of his
Will during his lifetime when he caused the filing of the original petition now
marked Exhibit "D" clearly underscores the fact that this was indeed his Last
Will. At the start, counsel for the oppositors manifested that he would want
the signature of Mateo Caballero in Exhibit "C" examined by a handwriting
expert of the NBI but it would seem that despite their avowal and intention for
the examination of this signature of Mateo Caballero in Exhibit "C", nothing
came out of it because they abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit "C" is the Last Will and
Testament of Mateo Caballero and that it was executed in accordance with all
the requisites of the law. 9
Undaunted by the said judgment of the probate court, petitioners elevated the case in the
Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is
null and void for the reason that its attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will witnessed the testator signing
the will in their presence and that they also signed the will and all the pages thereof in the
presence of the testator and of one another.
On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial
court, and ruling that the attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation clause in question may be
considered as having substantialy complied with the requirements of Art. 805
of the Civil Code. What appears in the attestation clause which the oppositors
claim to be defective is "we do certify that the testament was read by him and

the attestator, Mateo Caballero, has published unto us the foregoing will
consisting of THREE PAGES, including the acknowledgment, each page
numbered correlatively in letters of the upper part of each page, as his Last
Will and Testament, and he has signed the same and every page thereof, on
the spaces provided for his signature and on the left hand margin in the
presence of the said testator and in the presence of each and all of
us (emphasis supplied).
To our thinking, this is sufficient compliance and no evidence need be
presented to indicate the meaning that the said will was signed by the
testator and by them (the witnesses) in the presence of all of them and of one
another. Or as the language of the law would have it that the testator signed
the will "in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another." If not completely or ideally perfect in accordance
with the wordings of Art. 805 but (sic) the phrase as formulated is in
substantial compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of respondent court, but the
same was denied in the latter's resolution of January 14, 1992, 12 hence this appeal now
before us. Petitioners assert that respondent court has ruled upon said issue in a manner not
in accord with the law and settled jurisprudence on the matter and are now questioning
once more, on the same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter, after some
prefatory observations which we feel should be made in aid of the rationale for our
resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a person is permitted, with
the formalities prescribed by law, to control to a certain degree the disposition of his estate
after his death. 13 Under the Civil Code, there are two kinds of wills which a testator may
execute. 14 the first kind is the ordinary or attested will, the execution of which is governed
by Articles 804 to 809 of the Code. Article 805 requires that:
Art. 805. Every will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation should state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express direction, in
the presence of the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the testator and of
one another.

If the attestation clause is in a language not known to the witness, it shall be

interpreted to them.
In addition, the ordinary will must be acknowledged before a notary public by a testator and
the attesting witness.15 hence it is likewise known as notarial will. Where the attestator is
deaf or deaf-mute, Article 807 requires that he must personally read the will, if able to do so.
Otherwise, he should designate two persons who would read the will and communicate its
contents to him in a practicable manner. On the other hand, if the testator is blind, the will
should be read to him twice; once, by anyone of the witnesses thereto, and then again, by
the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810 defines as one that is entirely
written, dated, and signed by the testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in both kinds of will is that they
should be in writing and must have been executed in a language or dialect known to the
testator. 17
However, in the case of an ordinary or attested will, its attestation clause need not be
written in a language or dialect known to the testator since it does not form part of the
testamentary disposition. Furthermore, the language used in the attestation clause likewise
need not even be known to the attesting witnesses. 18 The last paragraph of Article 805
merely requires that, in such a case, the attestation clause shall be interpreted to said
witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses
certify that the instrument has been executed before them and to the manner of the
execution the same. 19 It is a separate memorandum or record of the facts surrounding the
conduct of execution and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been observed. 20 It is made
for the purpose of preserving in a permanent form a record of the facts that attended the
execution of a particular will, so that in case of failure of the memory of the attesting
witnesses, or other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would
result in the invalidity of the will, 22 should state (1) the number of the pages used upon
which the will is written; (2) that the testator signed, or expressly caused another to sign,
the will and every page thereof in the presence of the attesting witnesses; and (3) that
theattesting witnesses witnessed the signing by the testator of the will and all its
pages, and that said witnesses also signed the will and every page thereof in the presence
of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on which the will
is written is to safeguard against possible interpolation or omission of one or some of its
pages and to prevent any increase or decrease in the pages; 23 whereas the subscription of
the signature of the testator and the attesting witnesses is made for the purpose of
authentication and identification, and thus indicates that the will is the very same
instrument executed by the testator and attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause. 25 The attestation clause,
therefore, provide strong legal guaranties for the due execution of a will and to insure the
authenticity thereof. 26 As it appertains only to the witnesses and not to the testator, it need
be signed only by them. 27 Where it is left unsigned, it would result in the invalidation of the

will as it would be possible and easy to add the clause on a subsequent occasion in the
absence of the testator and its witnesses. 28
In its report, the Code Commission commented on the reasons of the law for requiring the
formalities to be followed in the execution of wills, in the following manner:
The underlying and fundamental objectives permeating the provisions on the
law on wills in this Project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper
pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the
formalities in the execution of wills. . . . 29
2. An examination of the last will and testament of Mateo Caballero shows that it is
comprised of three sheets all of which have been numbered correlatively, with the left
margin of each page thereof bearing the respective signatures of the testator and the three
attesting witnesses. The part of the will containing the testamentary dispositions is
expressed in the Cebuano-Visayan dialect and is signed at the foot thereof by the testator.
The attestation clause in question, on the other hand, is recited in the English language and
is likewise signed at the end thereof by the three attesting witnesses hereto. 30 Since it is the
proverbial bone of contention, we reproduce it again for facility of reference:
We, the undersigned attesting Witnesses, whose Residences and postal
addresses appear on the Opposite of our respective names, we do hereby
certify that the Testament was read by him and the testator, MATEO
CABALLERO; has published unto us the foregoing Will consisting of THREE
PAGES, including the Acknowledgment, each page numbered correlatively in
the letters on the upper part of each page, as his Last Will and Testament and
he has the same and every page thereof, on the spaces provided for his
signature and on the left hand margin, in the presence of the said testator and
in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both attest and subscribe to
the will in the presence of the testator and of one another. "Attestation" and "subscription"
differ in meaning. Attestation is the act of senses, while subscription is the act of the hand.
The former is mental, the latter mechanical, and to attest a will is to know that it was
published as such, and to certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to write on the same paper
the names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that attestation consists in witnessing the testator's
execution of the will in order to see and take note mentally that those things are done which
the statute requires for the execution of a will and that the signature of the testator exists as
a fact. On the other hand, subscription is the signing of the witnesses' names upon the same
paper for the purpose of identification of such paper as the will which was executed by the
testator. As it involves a mental act, there would be no means, therefore, of ascertaining by
a physical examination of the will whether the witnesses had indeed signed in the presence
of the testator and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the
express requirements of the third paragraph of Article 805 of the Civil Code for attestation

clauses, fails to specifically state the fact that the attesting witnesses the testator sign the
will and all its pages in their presence and that they, the witnesses, likewise signed the will
and every page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the
fact that while it recites that the testator indeed signed the will and all its pages in the
presence of the three attesting witnesses and states as well the number of pages that were
used, the same does not expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the presence of the testator and of each
other.
The phrase "and he has signed the same and every page thereof, on the spaces provided for
his signature and on the left hand margin," obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence of the testator and in
the presence of each and all of us" may, at first blush, appear to likewise signify and refer to
the witnesses, it must, however, be interpreted as referring only to the testator signing in
the presence of the witnesses since said phrase immediately follows the words "he has
signed the same and every page thereof, on the spaces provided for his signature and on
the left hand margin." What is then clearly lacking, in the final logical analysis , is the
statement that the witnesses signed the will and every page thereof in the presence of the
testator and of one another.
It is our considered view that the absence of that statement required by law is a fatal defect
or imperfection which must necessarily result in the disallowance of the will that is here
sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated
defect in the attestation clause obviously cannot be characterized as merely involving the
form of the will or the language used therein which would warrant the application of the
substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil
Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or
in the language used therein shall not render the will invalid if it is not proved
that the will was in fact executed and attested in substantial compliance with
all the requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and
at the left margin of each page by the three attesting witnesses, it certainly cannot be
conclusively inferred therefrom that the said witness affixed their respective signatures in
the presence of the testator and of each other since, as petitioners correctly observed, the
presence of said signatures only establishes the fact that it was indeed signed, but it does
not prove that the attesting witnesses did subscribe to the will in the presence of the
testator and of each other. The execution of a will is supposed to be one act so that where
the testator and the witnesses sign on various days or occasions and in various
combinations, the will cannot be stamped with the imprimatur of effectivity. 33
We believe that the further comment of former Justice J.B.L. Reyes 34 regarding Article 809,
wherein he urged caution in the application of the substantial compliance rule therein, is
correct and should be applied in the case under consideration, as well as to future cases
with similar questions:
. . . The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: whether all the pages are

consecutively numbered; whether the signatures appear in each and every

page; whether the subscribing witnesses are three or the will was notarized.
All theses are facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be safely
disregarded. But the total number of pages, and whether all persons required
to sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate
proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and imperfections must only be
with respect to the form of the attestation or the language employed therein. Such defects
or imperfections would not render a will invalid should it be proved that the will was really
executed and attested in compliance with Article 805. In this regard, however, the manner of
proving the due execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to evidence aliunde, whether oral or written.
The foregoing considerations do not apply where the attestation clause totally omits the fact
that the attesting witnesses signed each and every page of the will in the presence of the
testator and of each other. 35 In such a situation, the defect is not only in the form or
language of the attestation clause but the total absence of a specific element required by
Article 805 to be specifically stated in the attestation clause of a will. That is precisely the
defect complained of in the present case since there is no plausible way by which we can
read into the questioned attestation clause statement, or an implication thereof, that the
attesting witness did actually bear witness to the signing by the testator of the will and all of
its pages and that said instrumental witnesses also signed the will and every page thereof in
the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied
on by respondents since it presupposes that the defects in the attestation clause can be
cured or supplied by the text of the will or a consideration of matters apparent therefrom
which would provide the data not expressed in the attestation clause or from which it may
necessarily be gleaned or clearly inferred that the acts not stated in the omitted textual
requirements were actually complied within the execution of the will. In other words, defects
must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied by only extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from with such facts may
be plausibly deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the
same and would accordingly be doing by the indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views
as to which manner of interpretation should be followed in resolving issues centering on
compliance with the legal formalities required in the execution of wills. The formal
requirements were at that time embodied primarily in Section 618 of Act No. 190, the Code
of Civil Procedure. Said section was later amended by Act No. 2645, but the provisions
respecting said formalities found in Act. No. 190 and the amendment thereto were
practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was first laid down in the
case of Abangan vs. Abangan, 36 where it was held that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid

substitution of wills and testaments and to guarantee their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to attain these primordial
ends. Nonetheless, it was also emphasized that one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the right to make a will, hence
when an interpretation already given assures such ends, any other interpretation
whatsoever that adds nothing but demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be disregarded. The subsequent cases
of Avera vs. Garcia, 37 Aldaba vs. Roque, 38 Unson vs. Abella, 39 Pecson vs.
Coronel, 40 Fernandez vs. Vergel de Dios, et al., 41 and Nayve vs. Mojal, et al. 42 all adhered to
this position.
The other view which advocated the rule that statutes which prescribe the formalities that
should be observed in the execution of wills are mandatory in nature and are to be strictly
construed was followed in the subsequent cases of In the Matter of the Estate of
Saguinsin, 43 In re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of
Neumark, 46 and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion to clarify the seemingly
conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation
clause had failed to state that the witnesses signed the will and each and every page thereof
on the left margin in the presence of the testator. The will in question was disallowed, with
these reasons therefor:
In support of their argument on the assignment of error above-mentioned,
appellants rely on a series of cases of this court beginning with (I)n the Matter
of the (E)state of Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of
Andrada [1921], 42 Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil.,
405), and In re Estate of Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana([1925], 48 Phil., 506). Appellee counters with the
citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40
Phil., 476), continuing through Aldaba vs. Roque ([1922], 43 Phil., 378),
andFernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating
in Nayve vs. Mojal and Aguilar([1924], 47 Phil., 152). In its last analysis, our
task is to contrast and, if possible, conciliate the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs.
Mojal and Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation
clause which does not recite that the witnesses signed the will and each and
every page thereof on the left margin in the presence of the testator is
defective, and such a defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra,
was not mentioned. In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the attestation clause must estate the
fact that the testator and the witnesses reciprocally saw the signing of the
will, for such an act cannot be proved by the mere exhibition of the will, if it is
not stated therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also by the
mere examination of the signatures appearing on the document itself, and the
omission to state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they
admit inconsistency in doctrine. Yet here, unless aided impossible to reconcile

the Mojal and Quintana decisions. They are fundamentally at variance. If we

rely on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may
be mentioned. In the first place, the Mojal, decision was concurred in by only
four members of the court, less than a majority, with two strong dissenting
opinions; the Quintana decision was concurred in by seven members of the
court, a clear majority, with one formal dissent. In the second place, the Mojal
decision was promulgated in December, 1924, while the Quintana decision
was promulgated in December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the Quintana decision is
believed more nearly to conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law
of the case is here found in section 61 of the Code of Civil Procedure as
amended by Act No. 2645, and in section 634 of the same Code, as
unamended. It is in part provided in section 61, as amended that
"No will . . . shall be valid . . . unless . . .." It is further provided in the same
section that "The attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator signed the will
and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the
testator and of each other." Codal section 634 provides that "The will shall be
disallowed in either of the following case: 1. If not executed and attested as in
this Act provided." The law not alone carefully makes use of the imperative,
but cautiously goes further and makes use of the negative, to enforce
legislative intention. It is not within the province of the courts to disregard the
legislative purpose so emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra,
and, to the extent necessary, modify the decision in the case of Nayve vs.
Mojal and Aguilar, supra. (Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were decisions of the Court that
once more appeared to revive the seeming diversity of views that was earlier threshed out
therein. The cases of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs.
Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling as restated
in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs. Cartagena, 54 De Ticson vs. De
Gorostiza, 55 Sebastian vs. Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs.
Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered away from the strict
interpretation rule and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
inclination towards a liberal construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern tendency to give a
liberal approach to the interpretation of wills. Said rule thus became what is now Article 809
of the Civil Code, with this explanation of the Code Commission:
The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines
had previously upheld the strict compliance with the legal formalities and had

even said that the provisions of Section 618 of the Code of Civil Procedure, as
amended regarding the contents of the attestation clause were mandatory,
and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43
Phil. 405). These decisions necessarily restrained the freedom of the testator
in disposing of his property.
However, in recent years the Supreme Court changed its attitude and has
become more liberal in the interpretation of the formalities in the execution of
wills. This liberal view is enunciated in the cases ofRodriguez vs. Yap, G.R. No.
45924, May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala vs. Villa,
G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically
gone back to the original provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645 in the year 1916. To turn this
attitude into a legislative declaration and to attain the main objective of the
proposed Code in the liberalization of the manner of executing wills, article
829 of the Project is recommended, which reads:
"Art. 829. In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence, defects and
imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial compliance
with all the requirements of article 829." 65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does not offer any puzzle or
difficulty, nor does it open the door to serious consequences. The later decisions do tell us
when and where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing details that
should appear in the will itself. They only permit a probe into the will, an exploration into its
confines, to ascertain its meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any
fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions which can be supplied
by an examination of the will itself, without the need of resorting to extrinsic evidence, will
not be fatal and, correspondingly, would not obstruct the allowance to probate of the will
being assailed. However, those omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of the attestation clause and ultimately, of
the will itself.67
WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent
court is hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to
forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will
and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the
matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly
proceed with the settlement of the estate of the said decedent.
G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the subscribing
witnesses was present in the small room where it was executed at the time when the
testator and the other subscribing witnesses attached their signatures; or whether at that
time he was outside, some eight or ten feet away, in a large room connecting with the
smaller room by a doorway, across which was hung a curtain which made it impossible for
one in the outside room to see the testator and the other subscribing witnesses in the act of
attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the
small room with the testator and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding, of course, disposes of the
appeal and necessitates the affirmance of the decree admitting the document to probate as
the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact
of vital importance in the determination of this case, as he was of opinion that under the
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that
one of the subscribing witnesses was in the outer room when the testator and the other
describing witnesses signed the instrument in the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution of the will. But we are unanimously of
opinion that had this subscribing witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses attached their signatures to the
instrument in the inner room, it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence" of the witness in the outer
room. This because the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a will
is not whether they actually saw each other sign, but whether they might have been
seen each other sign, had they chosen to do so, considering their mental and
physical condition and position with relation to each other at the moment of
inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at
the moment of the subscription of each signature, must be such that they may see each
other sign if they choose to do so. This, of course, does not mean that the testator and the
subscribing witnesses may be held to have executed the instrument in the presence of each
other if it appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions. The evidence in the
case relied upon by the trial judge discloses that "at the moment when the witness Javellana
signed the document he was actually and physically present and in such position with

relation to Jaboneta that he could see everything that took place by merely casting his eyes
in the proper direction and without any physical obstruction to prevent his doing so." And
the decision merely laid down the doctrine that the question whether the testator and the
subscribing witnesses to an alleged will sign the instrument in the presence of each other
does not depend upon proof of the fact that their eyes were actually cast upon the paper at
the moment of its subscription by each of them, but that at that moment existing conditions
and their position with relation to each other were such that by merely casting the eyes in
the proper direction they could have seen each other sign. To extend the doctrine further
would open the door to the possibility of all manner of fraud, substitution, and the like, and
would defeat the purpose for which this particular condition is prescribed in the code as one
of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to
probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of
this instance against the appellant.
G.R. No. L-48840 December 29, 1943
ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.

OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively,
of the deceased Victorino L. Guevara, are litigating here over their inheritance from the
latter. The action was commenced on November 12, 1937, by Rosario Guevara to recover
from Ernesto Guevara what she claims to be her strict ligitime as an acknowledged natural
daughter of the deceased to wit, a portion of 423,492 square meters of a large parcel of
land described in original certificate of title No. 51691 of the province of Pangasinan, issued
in the name of Ernesto M. Guervara and to order the latter to pay her P6,000 plus P2,000
a year as damages for withholding such legitime from her. The defendant answered the
complaint contending that whatever right or rights the plaintiff might have had, had been
barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A),
apparently with all the formalities of the law, wherein he made the following bequests: To his
stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold chain worth P40; to
his son Ernesto M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues,
and other religious objects found in the residence of the testator in Poblacion Sur,
Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings worth P120; to his
stepson Piuo Guevara, a ring worth P120; and to his wife by second marriage, Angustia
Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a
mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential
lot with its improvements situate in the town of Bayambang, Pangasinan, having an area of
960 square meters and assessed at P540; to his wife Angustia Posadas he confirmed the

donation propter nuptias theretofore made by him to her of a portion of 25 hectares of the
large parcel of land of 259-odd hectares described in plan Psu-66618. He also devised to her
a portion of 5 hectares of the same parcel of land by way of complete settlement of her
usufructurary right.1awphil.net
He set aside 100 hectares of the same parcel of land to be disposed of either by him during
his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending
debts and to degray his expenses and those of his family us to the time of his death.
The remainder of said parcel of land his disposed of in the following manner:
(d). Toda la porcion restante de mi terreno arriba descrito, de la extension
superficial aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y
veiticinco (25) centiares, con todas sus mejoras existentes en la misma, dejo y
distribuyo, pro-indiviso, a mis siguientes herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y
cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien
(100) hectareas referidas en el inciso (a) de este parrafo del testamento, como su
propiedad absoluta y exclusiva, en la cual extension superficial estan incluidas
cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas
que le doy en concepto de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un
(61) areas y setenta y un (71) centiareas, que es la parte restante.
Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo Ernesto
M. Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en
cuanto sea posible, es mi deseo, que los herederos y legatarios aqui nombrados se
repartan extrajudicialmente mis bienes de conformidad con mis disposiciones arriba
consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to
him the southern half of the large parcel of land of which he had theretofore disposed by the
will above mentioned, inconsideration of the sum of P1 and other valuable considerations,
among which were the payment of all his debts and obligations amounting to not less than
P16,500, his maintenance up to his death, and the expenses of his last illness and funeral
expenses. As to the northern half of the same parcel of land, he declared: "Hago constar
tambien que reconozco a mi referido hijo Ernesto M. guevara como dueo de la mitad norte
de la totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio
peculio del Sr. Rafael T. Puzon a quien habia vendido con anterioridad."
On September 27, 1933, final decree of registration was issued in land registration case No.
15174 of the Court of First Instance of Pangasinan, and pursuant thereto original certificate
of title No. 51691 of the same province was issued on October 12 of the same year in favor
of Ernesto M. Guevara over the whole parcel of land described in the deed of sale above
referred to. The registration proceeding had been commenced on November 1, 1932, by
Victorino L. Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as
oppositor; but before the trial of the case Victorino L. Guevara withdrew as applicant and
Rosario Guevara and her co-oppositors also withdrew their opposition, thereby facilitating
the issuance of the title in the name of Ernesto M. Guevara alone.

On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however,
was never presented to the court for probate, nor has any administration proceeding ever
been instituted for the settlement of his estate. Whether the various legatees mentioned in
the will have received their respective legacies or have even been given due notice of the
execution of said will and of the dispositions therein made in their favor, does not
affirmatively appear from the record of this case. Ever since the death of Victorino L.
Guevara, his only legitimate son Ernesto M. Guevara appears to have possessed the land
adjudicated to him in the registration proceeding and to have disposed of various portions
thereof for the purpose of paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will and
testament in her custody, did nothing judicially to invoke the testamentary dispositions
made therein in her favor, whereby the testator acknowledged her as his natural daughter
and, aside from certain legacies and bequests, devised to her a portion of 21.6171 hectares
of the large parcel of land described in the will. But a little over four years after the testor's
demise, she (assisted by her husband) commenced the present action against Ernesto M.
Guevara alone for the purpose hereinbefore indicated; and it was only during the trial of this
case that she presented the will to the court, not for the purpose of having it probated but
only to prove that the deceased Victirino L. Guevara had acknowledged her as his natural
daughter. Upon that proof of acknowledgment she claimed her share of the inheritance from
him, but on the theory or assumption that he died intestate, because the will had not been
probated, for which reason, she asserted, the betterment therein made by the testator in
favor of his legitimate son Ernesto M. Guevara should be disregarded. Both the trial court
and the Court of appeals sustained that theory.
Two principal questions are before us for determination: (1) the legality of the procedure
adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the
deed of sale exhibit 2 and the effect of the certificate of title issued to the defendant
(petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in
our opinion in violation of procedural law and an attempt to circumvent and disregard the
last will and testament of the decedent. The Code of Civil Procedure, which was in force up
to the time this case was decided by the trial court, contains the following pertinent
provisions:
Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass
either the real or personal estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the allowance by the court of a will
of real and personal estate shall be conclusive as to its due execution.
Sec. 626. Custodian of Will to Deliver. The person who has the custody of a will
shall, within thirty days after he knows of the death of the testator, deliver the will
into the court which has jurisdiction, or to the executor named in the will.
Sec. 627. Executor to Present Will and Accept or Refuse Trust. A person named as
executor in a will, shall within thirty days after he knows of the death of the testor, or
within thirty days after he knows that he is named executor, if he obtained such
knowledge after knowing of the death of the testor, present such will to the court
which has jurisdiction, unless the will has been otherwise returned to said court, and
shall, within such period, signify to the court his acceptance of the trust, or make
known in writing his refusal to accept it.

Sec. 628. Penalty. A person who neglects any of the duties required in the two
proceeding sections, unless he gives a satisfactory excuse to the court, shall be
subject to a fine not exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed. If a person having custody of a
will after the death of the testator neglects without reasonable cause to deliver the
same to the court having jurisdiction, after notice by the court so to do, he may be
committed to the prison of the province by a warrant issued by the court, and there
kept in close confinement until he delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took
effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to the whole
world and with personal notice to each of the known heirs, legatees, and devisees of the
testator (section 630, C. c. P., and sections 3 and 4, Rule 77). Altho not contested (section 5,
Rule 77), the due execution of the will and the fact that the testator at the time of its
execution was of sound and disposing mind and not acting under duress, menace, and
undue influence or fraud, must be proved to the satisfaction of the court, and only then may
the will be legalized and given effect by means of a certificate of its allowance, signed by the
judge and attested by the seal of the court; and when the will devises real property, attested
copies thereof and of the certificate of allowance must be recorded in the register of deeds
of the province in which the land lies. (Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a will to
the court for probate is mandatory and its allowance by the court is essential and
indispensable to its efficacy. To assure and compel the probate of will, the law punishes a
person who neglects his duty to present it to the court with a fine not exceeding P2,000, and
if he should persist in not presenting it, he may be committed to prision and kept there until
he delivers the will.
The Court of Appeals took express notice of these requirements of the law and held that a
will, unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the
respondent for the following reasons:
The majority of the Court is of the opinion that if this case is dismissed ordering the
filing of testate proceedings, it would cause injustice, incovenience, delay, and much
expense to the parties, and that therefore, it is preferable to leave them in the very
status which they themselves have chosen, and to decide their controversy once and
for all, since, in a similar case, the Supreme Court applied that same criterion
(Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74 of the
Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which
the court ought to follow in the exercise of its jurisdiction is not specifically pointed
out by the Rules of Court, any suitable process or mode of procedure may be adopted
which appears most consistent to the spirit of the said Rules. Hence, we declare the
action instituted by the plaintiff to be in accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:
Section 1. Extrajudicial settlement by agreement between heirs. If the decedent
left no debts and the heirs and legatees are all of age, or the minors are represented
by their judicial guardians, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means of a
public instrument filed in the office of the register of deeds, and should they

disagree, they may do so in an ordinary action of partition. If there is only one heir or
one legatee, he may adjudicate to himself the entire estate by means of an affidavit
filed in the office of the register of deeds. It shall be presumed that the decedent left
no debts if no creditor files a petition for letters of administration within two years
after the death of the decedent.
That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:
Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. Whenever
all the heirs of a person who died intestate are of lawful age and legal capacity and
there are no debts due from the estate, or all the debts have been paid the heirs
may, by agreement duly executed in writing by all of them, and not otherwise,
apportion and divide the estate among themselves, as they may see fit, without
proceedings in court.
The implication is that by the omission of the word "intestate" and the use of the word
"legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a deceased
person's estate, whether he died testate or intestate, may be made under the conditions
specified. Even if we give retroactive effect to section 1 of Rule 74 and apply it here, as the
Court of Appeals did, we do not believe it sanctions the nonpresentation of a will for probate
and much less the nullification of such will thru the failure of its custodian to present it to the
court for probate; for such a result is precisely what Rule 76 sedulously provides against.
Section 1 of Rule 74 merely authorizes the extrajudicial or judicial partition of the estate of a
decedent "without securing letter of administration." It does not say that in case the
decedent left a will the heirs and legatees may divide the estate among themselves without
the necessity of presenting the will to the court for probate. The petition to probate a will
and the petition to issue letters of administration are two different things, altho both may be
made in the same case. the allowance of a will precedes the issuance of letters
testamentary or of administration (section 4, Rule 78). One can have a will probated without
necessarily securing letters testamentary or of administration. We hold that under section 1
of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and
legatees desire to make an extrajudicial partition of the estate, they must first present that
will to the court for probate and divide the estate in accordance with the will. They may not
disregard the provisions of the will unless those provisions are contrary to law. Neither may
they so away with the presentation of the will to the court for probate, because such
suppression of the will is contrary to law and public policy. The law enjoins the probate of the
will and public policy requires it, because unless the will is probated and notice thereof given
to the whole world, the right of a person to dispose of his property by will may be rendered
nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or
such of them as may have no knowledge of the will, could be cheated of their inheritance
thru the collusion of some of the heirs who might agree to the partition of the estate among
themselves to the exclusion of others.
In the instant case there is no showing that the various legatees other than the present
litigants had received their respective legacies or that they had knowledge of the existence
and of the provisions of the will. Their right under the will cannot be disregarded, nor may
those rights be obliterated on account of the failure or refusal of the custodian of the will to
present it to the court for probate.
Even if the decedent left no debts and nobdy raises any question as to the authenticity and
due execution of the will, none of the heirs may sue for the partition of the estate in
accordance with that will without first securing its allowance or probate by the court, first,
because the law expressly provides that "no will shall pass either real or personal estate
unless it is proved and allowed in the proper court"; and, second, because the probate of a

will, which is a proceeding in rem, cannot be dispensed with the substituted by any other
proceeding, judicial or extrajudicial, without offending against public policy designed to
effectuate the testator's right to dispose of his property by will in accordance with law and to
protect the rights of the heirs and legatees under the will thru the means provided by law,
among which are the publication and the personal notices to each and all of said heirs and
legatees. Nor may the court approve and allow the will presented in evidence in such an
action for partition, which is one in personam, any more than it could decree the registration
under the Torrens system of the land involved in an ordinary action for reinvindicacion or
partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of
Appeals, does not sanction the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section 1 of
Rule 74, sanctions the extrajudicial partition by the heirs of the properties left by a
decedent, but not the nonpresentation of a will for probate. In that case one Paulina Ver
executed a will on October 11, 1902, and died on November 1, 1902. Her will was presented
for probate on November 10, 1902, and was approved and allowed by the Court on August
16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead and divided
the properties among themselves and some of them subsequently sold and disposed of their
shares to third persons. It does not affirmatively appear in the decision in that case that the
partition made by the heirs was not in accordance with the will or that they in any way
disregarded the will. In closing the case by its order dated September 1, 1911, the trial court
validated the partition, and one of the heirs, Cunegunda Leao, appealed. In deciding the
appeal this Court said:
The principal assignment of error is that the lower court committed an error in
deciding that the heirs and legatees of the estate of Da. Paulina Ver had voluntarily
divided the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower court that there had been a
voluntary partition of the estate among the heirs and legatees, and in the absence of
positive proof to the contrary, we must conclude that the lower court had some
evidence to support its conclusion.
Thus it will be seen that as a matter of fact no question of law was raised and decided in that
case. That decision cannot be relied upon as an authority for the unprecedented and
unheard of procedure adopted by the respondent whereby she seeks to prove her status as
an acknowledged natural child of the decedent by his will and attempts to nullify and
circumvent the testamentary dispositions made by him by not presenting the will to the
court for probate and by claiming her legitime as an acknowledged natural child on the basis
of intestacy; and that in the face of express mandatory provisions of the law requiring her to
present the will to the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the
procedure sanctioned by the trial court and impliedly approved by this Court in the Leao
case, by holding that an extrajudicial partition is not proper in testate succession. In the
Riosa case the Court, speaking thru Chief Justice Avancea, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. Section 596
of the Code of Civil Procedure, authorizing the heirs of a person who dies intestate to
make extrajudicial partition of the property of the deceased, without going into any

court of justice, makes express reference to intestate succession, and therefore

excludes testate succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a testate
succession, the heirs made an extrajudicial partition of the estate and at the same
time instituted proceeding for the probate of the will and the administration of the
estate. When the time came for making the partition, they submitted to the court the
extrajudicial partition previously made by them, which the court approved. Held: That
for the purposes of the reservation and the rights and obligations created thereby, in
connection with the relatives benefited, the property must not be deemed
transmitted to the heirs from the time the extrajudicial partition was made, but from
the time said partition was approved by the court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure
which the court ought to follow in the exercise of its jurisdiction is not specifically pointed
out by the Rules of Court, any suitable process for mode of proceeding may be adopted
which appears most conformable to the spirit of the said Rules. That provision is not
applicable here for the simple reason that the procedure which the court ought to follow in
the exercise of its jurisdiction is specifically pointed out and prescribed in detail by Rules 74,
76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate
proceedings, it would cause injustice, inconvenience, delay, and much expense to the
parties." We see no injustice in requiring the plaintiff not to violate but to comply with the
law. On the contrary, an injustice might be committed against the other heirs and legatees
mentioned in the will if the attempt of the plaintiff to nullify said will by not presenting it to
the court for probate should be sanctioned. As to the inconvenience, delay, and expense,
the plaintiff herself is to blame because she was the custodian of the will and she violated
the duty imposed upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver
said will to the court on pain of a fine not exceeding P2,000 and of imprisonment for
contempt of court. As for the defendant, he is not complaining of inconvenience, delay, and
expense, but on the contrary he is insisting that the procedure prescribed by law be followed
by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action instituted by the
plaintiff to be in accordance with law. It also erred in awarding relief to the plaintiff in this
action on the basis of intestacy of the decedent notwithstanding the proven existence of a
will left by him and solely because said will has not been probated due to the failure of the
plaintiff as custodian thereof to comply with the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will,
did not take any step to have it presented to the court for probate and did not signify his
acceptance of the trust or refusal to accept it as required by section 3 of Rule 76 (formerly
section 627 of the Code of Civil Procedure), because his contention is that said will, insofar
as the large parcel of land in litigation is concerned, has been superseded by the deed of
sale exhibit 2 and by the subsequent issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy of the
deed of sale exhibit 2 and the effect of the certificate of titled issued to the defendant
Ernesto M. Guevara. So that the parties may not have litigated here in vain insofar as that
question is concerned, we deem it proper to decide it now and obviate the necessity of a
new action.

The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M.
Guevara before a notary public on July 12, 1933, may be divided into two parts: (a) insofar
as it disposes of and conveys to Ernesto M. Guevara the southern half of Victorino L.
Guevara's hacienda of 259-odd hectares in consideration of P1 and other valuable
considerations therein mentioned; and (b) insofar as it declares that Ernesto M. Guevara
became the owner of the northern half of the same hacienda by repurchasing it with his own
money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in
consideration of the latter's assumption of the obligation to pay all the debts of the
deceased, the Court of Appeals found it to be valid and efficacious because: "(a) it has not
been proven that the charges imposed as a condition is [are] less than the value of the
property; and (b) neither has it been proven that the defendant did not comply with the
conditions imposed upon him in the deed of transfer." As a matter of fact the Court of
Appeals found" "It appears that the defendant has been paying the debts left by his father.
To accomplish this, he had to alienate considerable portions of the above-mentioned land.
And we cannot brand such alienation as anomalous unless it is proven that they have
exceeded the value of what he has acquired by virtue of the deed of July 12, 1933, and that
of his corresponding share in the inheritance." The finding of the Court of Appeals on this
aspect of the case is final and conclusive upon the respondent, who did not appeal
therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of law made by
the Court of Appeals are as follows:
The defendant has tried to prove that with his own money, he bought from Rafael
Puzon one-half of the land in question, but the Court a quo, after considering the
evidence, found it not proven; we hold that such conclusion is well founded. The
acknowledgment by the deceased, Victorino L. Guevara, of the said transactions,
which was inserted incidentally in the document of July 12, 1933, is clearly belied by
the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to whom
Victorino L. Guevara had sold a parcel of land with the right of repurchase. The
defendant, acting for his father, received the money and delivered it to Rafael Puzon
to redeem the land in question, and instead of executing a deed of redemption in
favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the
defendant.
The plaintiff avers that she withdrew her opposition to the registration of the land in
the name of the defendant, because of the latter's promise that after paying all the
debt of their father, he would deliver to her and to the widow their corresponding
shares. As their father then was still alive, there was no reason to require the delivery
of her share and that was why she did not insist on her opposition, trusting on the
reliability and sincerity of her brother's promise. The evidence shows that such
promise was really made. The registration of land under the Torrens system does not
have the effect of altering the laws of succession, or the rights of partition between
coparceners, joint tenants, and other cotenants nor does it change or affect in any
other way any other rights and liabilities created by law and applicable to
unregistered land (sec. 70, Land Registration Law). The plaintiff is not, then, in
estoppel, nor can the doctrine of res judicata be invoked against her claim. Under
these circumstances, she has the right to compel the defendant to deliver her
corresponding share in the estate left by the deceased, Victorino L. Guevara.
In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of
the Court of Appeals. But the findings of fact made by said court are final and not reviewable

by us on certiorari. The Court of Appeals found that the money with which the petitioner
repurchased the northern half of the land in question from Rafael Puzon was not his own but
his father's, it being the proceeds of the sale of a parcel of land made by the latter to
Silvestre P. Coquia. Said court also found that the respondent withdrew her opposition to the
registration of the land in the name of the petitioner upon the latter's promise that after
paying all the debts of their father he would deliver to her and to the widow their
corresponding shares. From these facts, it results that the interested parties consented to
the registration of the land in question in the name of Ernesto M. Guevara alone subject to
the implied trust on account of which he is under obligation to deliver and convey to them
their corresponding shares after all the debts of the original owner of said land had been
paid. Such finding does not constitute a reversal of the decision and decree of registration,
which merely confirmed the petitioner's title; and in the absence of any intervening innocent
third party, the petitioner may be compelled to fulfill the promise by virtue of which he
acquired his title. That is authorized by section 70 of the Land Registration Act, cited by the
Court of Appeals, and by the decision of this Court in Severino vs. Severino, 44 Phil., 343,
and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the
northern half of the land described in the will exhibit A and in original certificate of title No.
51691 still belongs to the estate of the deceased Victorino L. Guevara. In the event the
petitioner Ernesto M. Guevara has alienated any portion thereof, he is under obligation to
compensate the estate with an equivalent portion from the southern half of said land that
has not yet been sold. In other words, to the estate of Victorino L. Guevara still belongs one
half of the total area of the land described in said original certificate of title, to be taken from
such portions as have not yet been sold by the petitioner, the other half having been
lawfully acquired by the latter in consideration of his assuming the obligation to pay all the
debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect that
notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the
name of Ernesto M. Guevara, one half of the land described in said certificate of title belongs
to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in
consideration of the latter's assumption of the obligation to pay all the debts of the
deceased, is hereby affirmed; but the judgment of said court insofar as it awards any relief
to the respondent Rosario Guevara in this action is hereby reversed and set aside, and the
parties herein are hereby ordered to present the document exhibit A to the proper court for
probate in accordance with law, without prejudice to such action as the provincial fiscal of
Pangasinan may take against the responsible party or parties under section 4 of Rule 76.
After the said document is approved and allowed by the court as the last will and testament
of the deceased Victorino L. Guevara, the heirs and legatees therein named may take such
action, judicial or extrajudicial, as may be necessary to partition the estate of the testator,
taking into consideration the pronouncements made in part II of this opinion. No finding as
to costs in any of the three instances.
G.R. No. 4359

September 24, 1908

EMILIO ESCUIN Y BATAC, plaintiff-appellee,

vs.
FRANCISCO ESCUIN, ET AL., defendants.
JULIA BATAC, appellant.
Rosado, Sanz & Opisso for appellant.
Kincaid & Hurd for appellee.

TORRES, J.:
On the 19th of January, 1899, Emilio Antonio Escuin de los Santos executed a will before a
notary public of Sevilla, Spain, stating therein that he was a native of Cavite, the son
Francisco Escuin and Eugenia de los Santos, the latter being deceased; that he was married
about six months previously to Maria Teresa Ponce de Leon, and that he had no lawful
descendants; the testator, however, stated in clause three of his will, that in case he has a
duly registered successor, his child would be his sole and universal heir; but that if, as would
probably be the case, there should be no such heir, then in clause four he named his said
father Francisco Escuin, and his wife Maria Teresa Ponce de Leon and his universal heirs,
they to divide the estate in equal shares between them.
The testator died on the 20th of January, 1899, as certified to by the Municipal court of
Magdalena, Sevilla, on the 20th of March, 1990.
Upon the will having been admitted to probate, commissioners were appointed to consider
claims against the estate, and, according to a report presented to the Court of First Instance
on the 20th of June, 1907, one claim was allowed amounting to 3,696.50 pesetas.
On the 10th and 12th of July 1907, the attorney for the widow, Ponce de Leon, and the
attorneys who represented the guardian to the minor, Emilio Escuin y Batac, appealed to the
Court of First Instance from the findings of the aforesaid commissioners.
Matters stood thus, and without there appearing any decision of the court as to appeals, the
attorney for the administrator, by a writing dated the 3d of September, following, moved for
the approval of the proposed partition of the estate provided for by the court; by the first
additional request (otrosi) he asked that the remuneration for the services of the
administrator of the estate be fixed, and that he be authorized to draw such amount from
the funds of the estate; and by a second additional request he asked that the accounts
made up on the 31st of August, previous, be approved.
It appears in the proposed partition of the 3d of September, 1906, that, according to the
opinion of the administrator by whom it was signed in the result of the proceedings, the
property left by the estator, in accordance with the accounts passed upon by the court,
amounted to .......................................................... P8,268.02
From said sum the following must be deducted:

The credit above alluded to admitted

by the commissioners

P1,321.
40

10 per cent renumeration due to the

administrator

826.80

All legal expenses paid and approved

1,105.0
1

3,253.2
1

Deducting this amount from the funds

of the estate, there remains a balance
of

5,014.8
1

That the said credit of P1,321.40, equivalent to 3,696.50 pesetas, allowed by the
commissioners, is the claim presented within the legal term against the estate; that
Francisco Escuin, the father of the testator, his wife or widow, Teresa Ponce de Leon, and his
natural child, the minor Emilio Escuin y Batac, represented by his mother and guardian Julia
Batac, are entitled to the succession; that, by setting aside one-third of the estate in favor of
the natural son, recognized in accordance with article 842 of the Civil Code, there only
remains the question as to how the remaining two-thirds of the inheritance shall be
bestowed, taking into account the directions of the testator in his will; that the same does
not disclose that he had left any child by his wife; that the latter, as the widow of the
testator, besides being a designated heir entitled to one-half of the hereditary funds, is
entitled to the usufruct of the portion fixed by the law, and that the funds to be apportioned
are composed wholly of cash or ready money.
On these grounds the partition and adjudication was proceeded with of the sum of P5,014.81
into three shares of P1,671.60 to each one of the parties in interest, that is, the natural son,
Emilio Escuin y Batac, in full control as general heir; the widow, Teresa Ponce de Leon, as
legatee of one-half of the two-thirds of the funds of free disposition; and the said widow the
usufruct of the other half of the aforesaid two-thirds of free disposition, the bare ownership
of the last third held in usufruct by the widow being adjudicated to Francisco Escuin, as
legatee taking into account the provisions of article 817 of the Civil Code upon making the
division.
On the 12th of September, 1906, the representative of the minor natural child of the testator
objected in writing to the partition proposed by the administrator, and for the reasons he set
forth asked that the same be disapproved, and that in lieu thereof the entire estate be
adjudicated to Emilio Escuin y Batac, the said minor.
Upon a hearing for the approval of the said proposed partition, the representative of the
minor presented as evidence a certified copy of the complaint, the answer, and the final
judgment rendered in civil case No. 3240 of the Court of First Instance.
It appears from the said certified proceedings that the representative of the minor, as
plaintiff therein, asked on the 12th of January, 1905, that an allowance be granted to him for
subsistence for account of the estate of the late testator, Emilio Escuin de los Santos, and
that the same be paid him monthly in advance; that judgment be entered declaring that the
minor, Emilio Escuin y Batac, is a natural child of the testator; that the said minor, as the
only natural son of the same is his general heir; that it be held that the said testator had
died without either lawful ascendants or descendants; that the designation of heirs made
under his above-mentioned will be declared null and void; and that the defendants be
sentenced to pay the costs in case they did not conform to the complaint, with any further
remedy that the court might consider just and equitable.

The administrator, Ricardo Summers, in answer to the complaint denied all and every one of
the facts alleged in all and every one of its paragraphs.
On the 30th of September, 1905, the court below found that Escuin y Batac was the
recognized natural child of the late Emilio Escuin de los Santos, had by Julia Batac; that the
testator was also the natural son of the defendant Francisco Escuin and Eugenia de los
Santos, and was recognized by his father; and that the plaintiff minor, Emilio Escuin y Batac,
is one of the heirs of the late testator.
By an order of the lower court dated the 30th of October, 1906, and view of the accounts
and proposal of partition presented by the administrator of the estate, the judge below
expressed an opinion that a natural child is only entitled to one-fourth of the hereditary
property, the clause in the will being annulled only in so far as the amount to be divided
should be reduced, taking into account the share due to the natural son and the right of the
father and the widow of the testator, each to one-half of the remainder of the property of the
estate. The court approved the account presented, but disapproved the project of partition
of the hereditary property that was objected to by one of the parties and interest. Counsel
for the minor Emilio Escuin y Batac excepted to the above resolution; a copy of the
proceedings was submitted to this court together with the appeal that was interposed.
On the 10th of July, 1907, the representatives of the administrator, and of the minor, Emilio
Escuin y Batac, respectively, stated in writing to the lower court that, in view of the fact that
the order of October 30, 1906, did not constitute a final judgment of partition (since the said
proposal having been rejected, another partition should be effected by commissioners) the
court was requested to appoint commissioners to present a new project of partition in
substitution for the one presented by the administrator, the new proposal to be submitted to
the court for approval.
On the 22nd of August, the attorney for the administrator filed a written request for the
appointment of said commissioners as stated above, and further requested that the
renumeration of the petitioner for his services as administrator be fixed by the court, and
that he be authorized to draw from the funds of the estate such as sum as might thus be
assigned to him.
On the 24th day of said month of August, the court below issued an order with respect to the
forgoing requests and held that, for the reasons stated in the order, the appointment of
commissioners for the mere purpose of determining what each one of the heirs should
receive in accordance with the order of the 30th of October, 1906, was not necessary,
inasmuch as the property of the estate consisted of ready money, and the administrator was
thereby authorized to distribute the funds among the heirs in the amount stated in the said
order. From this decision the representative of the minor Emilio Escuin y Batac took
exception, and to this effect presented a bill of errors together with the copy of the
proceedings for review of appeal.
While the appeals interposed against the report and resolution of the commissioners were
still pending in the lower court, the partition of the hereditary funds could not be ordered,
notwithstanding the fact that the same consisted of ready money, because the amount of
the estate subject to division had not yet been determined in order to comply with the law in
the will of the testator.
Until all the known creditors in the legatees have been paid, it shall be understood that the
estate is under administration, says article 1026 of the Civil Code, and in conformity with
this legal provision the supreme tribunal has established the doctrine that "only after

payment of all obligations of the estate can the net amount divisible among the heirs be
known." (Decision of March 2, 1896.)
Section 753 of the Code of Civil Procedure confirms of the provision of the Civil Code and the
legal doctrine mentioned above, inasmuch as it provides that, after payment of the debts,
funeral charges, and expenses of the administration, and the allowances for the expense of
maintenance of the family of the deceased the court shall assign the residue of the estate to
the persons entitled to the same, naming the persons and proportions or parts to which each
is entitled, etc.
As to the aforesaid appeals from the resolution of the commissioners, section 776 of the
Code of the Civil Procedure provides that:
Upon the lodging of such appeal with the clerk, the disputed claim shall stand for trial
in the same manner as any other action in the Court of First Instance, the creditor
being deemed to be the plaintiff, and the estate the defendant, and pleadings as in
other actions shall be filed.
So that by reason of the claims made by the creditor of the estate of Emilio Escuin de los
Santos and by her natural son, duly recognize by his father, an ordinary action should have
been brought before the Court of First Instance, from whose judgement appeal maybe taken
to this court by means of the corresponding bill of exception under the provisions of section
777 of the Code of Civil Procedure; and while the ultimate decision in the matter of the said
claims against the resolution of the commissioners has not become final, and until all the
obligations of the estate have been paid, there can really be no inheritance, nor it can be
distributed among the persons interested therein according to the will of the testator, or
under the provisions of the law.
The foregoing refers to the first assigned in the certified copy of the proceedings and in the
brief of the representative of the minor Escuin y Batac, and also to the questions of the form
of procedure.
With respect to the questions which form the basis of this litigation and refer to the second
assignment of errors, it should be noted that the late testator did not leave a recognized
natural child, the appellant minor, and a widow; that the said minor, Emilio Escuin y Batac, is
the general heir of his natural father, the said testator who recognized him while living (art.
807, Civil Code), and in the present case is entitled to one-third of his estate, which amount
constitutes the legal portion of a natural child (art. 842 of the said code); and for the reason
that the minor was ignored by his natural father in his will, the designation of heirs made
therein was, as matter of fact annulled by force of law, in so far as legal portion of the said
minor was thereby impaired. Legacies and betterments shall be valid, in so far as they are
not illegal, for the reason that a testator can not deprive the heirs of their legal portions,
except in the cases expressly indicated by law (Arts. 763, 813, 814, Civil Code).
As has been seen, the testator wish to disposed his property in his will, designating has heirs
his natural father, Francisco Escuin, and his wife, Maria Teresa Ponce de Leon, all together
ignoring his recognized natural child who is general heir. In view thereof, and for the reason
that he exceeded his rights, the said designation of heirs became void and so far as it
impaired the right of his general heir and deprived him of his legal portions; the will,
however, is valid with respect to the two-thirds of the property which the testator freely
disposed of. (Arts. 763, 764, 806, 813, 842, Civil Code.)
Notwithstanding the fact that the said designation of heirs annulled and that the law
recognizes the title of the minor, Escuin y Batac, to one-third of the property of his natural

father, as his lawful and general heir, it is not proper to assert that the late Emilio Escuin de
los Santos died intestate in order to establish the conclusion that his said natural recognized
child is entitled to succeed to the entire estate under the provisions of article 939 of the Civil
Code, inasmuch in accordance with the law a citizen may die partly testate and partly
intestate (art. 764, Civil Code). It is clear and unquestionable that it was the wish of the
testator to favor his natural father and his wife with certain portions of his property which,
under the law, he had the right to dispose of by will, as he has done, provided the legal
portion of his general heir was not thereby impaired, the two former persons being
considered as legatees under the will.
The above-mentioned will neither null, void, nor illegal in so far as the testator leaves twothirds of his property to his father and wife; testamentary provisions impairing the legal
portion of a general heir shall be reduced in so far as they are illegal or excessive. (Art. 817,
Civil Code.) The partition of the property of the said testator shall be proceeded within
accordance with the foregoing legal bases.
The record does not show the decision of the commissioners became final or was consented
to by the parties interest, or that this point was alleged and discussed in the first instance;
therefore, such circumstance as alleged by the appellee can not now be considered.
By virtue of the foregoing considerations it is our opinion that the orders of the court below,
of October 30, 1906, and August 24, 1907, should be reversed, and upon receipt of a certify
copy of this decision the court below shall take action in accordance with the law and the
terms herein contained with respect to the claims and appeals from the resolution of the
commissioners pending judicial decision. So ordered.
G.R. No. L-45978

April 24, 1939

In re Will of FRANCISCO ELEAZAR, deceased.

MIGUELA ELEAZAR, petitioner-appellee,
vs.
EUSEBIO ELEAZAR, oppositor-appellant.
Azada and Veluz for appellant.
D. C. Mayor for appellee.
MORAN, J.:
The deceased, Francisco Eleazar, omitted in his last will and testament his legitimate father,
the appellant Eusebio Eleazar, expressly disinherited his lawful wife, Eulalia Nagar, and
instituted the appellee herein, Miguela Eleazar, as his universal heir. The lower court
admitted the will to probate and adjudged appellant and appellee each entitled to one-half
of the estate.
Appellant maintains in his appeal that the institution of the appellee as universal heir should
be annulled and that he be declared entitled to all the estate of the deceased.
The will, in so far as it deprives the appellant, as legitimate father of the deceased, of his
legal portion, is null and void, but is valid with respect to the other half which the testator
could freely dispose of and which should be considered as a legacy. (Escuin vs. Escuin, 11
Phil., 332; Arts. 814, 817, and 809, Civil Code.)
Judgment is affirmed, with costs against appellant.

G.R. No. L-47799

June 13, 1941

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET

AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
Ozamiz & Capistrano for petitioners.
Gullas, Leuterio, Tanner & Laput for respondents.
MORAN, J.:
Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six
children named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second
marriage with Ignacia Akutin, five children named Gracia, Godofredo, Violeta, Estela Maria,
and Emma. Getulia, daughter in the first marriage, died on October 2, 1923, that is, a little
less than eight years before the death of said Agripino Neri y Chavez, and was survived by
seven children named Remedios, Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In
Agripino Neri's testament, which was admitted to probate on March 21, 1932, he willed that
his children by the first marriage shall have no longer any participation in his estate, as they
had already received their corresponding shares during his lifetime. At the hearing for the
declaration of heirs, the trial court found, contrary to what the testator had declared in his
will, that all his children by the first and second marriages intestate heirs of the deceased
without prejudice to one-half of the improvements introduced in the properties during the
existence of the last conjugal partnership, which should belong to Ignacia Akutin. The Court
of Appeals affirmed the trial court's decision with the modification that the will was "valid
with respect to the two-thirds part which the testator could freely dispose of. "This judgment
of the Court of Appeals is now sought to be reviewed in this petition for certiorari.
The decisive question here raised is whether, upon the foregoing facts, the omission of the
children of the first marriage annuls the institution of the children of the first marriage as
sole heirs of the testator, or whether the will may be held valid, at least with respect to onethird of the estate which the testator may dispose of as legacy and to the other one-third
which he may bequeath as betterment, to said children of the second marriage.
The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read in
part as follows:
Disinheritance made without a statement of the cause, or for a cause the truth of
which, if contradicted, is not proven, ... shall annul the institution of the heir in so far
as it prejudices the person disinherited; but the legacies, betterments, and other
testamentary dispositions, in so far as they do no encroach upon the legitime, shall
be valid.
The appellate court thus seemed to have rested its judgment upon the impression that the
testator had intended to disinherit, though ineffectively, the children of the first marriage.
There is nothing in the will that supports this conclusion. True, the testator expressly denied
them any share in his estate; but the denial was predicated, not upon the desire to
disinherit, but upon the belief, mistaken though it was, that the children by the first marriage
had already received more than their corresponding shares in his lifetime in the form of
advancement. Such belief conclusively negatives all inference as to any intention to
disinherit, unless his statement to that effect is prove to be deliberately fictitious, a fact not
found by the Court of Appeals. The situation contemplated in the above provision is one in

which the purpose to disinherit is clear, but upon a cause not stated or not proved, a
situation which does not obtain in the instant case.
The Court of Appeals quotes Manresa thus:
En el terreno de los principios, la solucion mas justa del problema que hemos hecho
notar al comentar el articulo, seria distinguir el caso en que el heredero omitido
viviese al otorgarse el testamento, siendo conocida su existencia por el testador, de
aquel en que, o naciese despues, o se ignorase su existencia, aplicando en el primer
caso la doctrina del articulo 851, y en el segundo la del 814. (6 Manresa, 354-355.)
But it must be observed that this opinion is founded on mere principles (en el terreno de los
principios) and not on the express provisions of the law. Manresa himself admits that
according to law, "no existe hoy cuestion alguna en esta materia: la pretericion produce
siempre los mismos efectos, ya se refiera a personas vivas al hacer el testamento o nacidas
despues. Este ultimo grupo solo puede hacer relacion a los descendientes legitimos, siempre
que ademas tengan derecho a legitima." (6 Manresa, 381.)
Appellants, on the other hand, maintain that the case is one of voluntary preterition of four
of the children by the first marriage, and of involuntary preterition of the children by the
deceased Getulia, also of the first marriage, and is thus governed by the provisions of article
814 of the Civil Code, which read in part as follows:
The preterition of one or all of the forced heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the testator, shall void the
institution of heir; but the legacies and betterments shall be valid, in so far as they
are not inofficious.
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.(Cf. 6 Manresa, 346.) In the instant
case, while the children of the first marriage were mentioned in the will, they were not
accorded any share in the heriditary property, without expressly being disinherited. It is,
therefore, a clear case of preterition as contended by appellants. The omission of the forced
heirs or anyone of them, whether voluntary or involuntary, is a preterition if the purpose to
disinherit is not expressly made or is not at least manifest.
Except as to "legacies and betterments" which "shall be valid in so far as they are not
inofficious" (art. 814 of the Civil Code), preterition avoids the institution of heirs and gives
rise to intestate succession. (Art. 814, Civil Code; Decisions of the Supreme Court of Spain of
June 17, 1908 and February 27, 1909.) In the instant case, no such legacies or betterments
have been made by the testator. "Mejoras" or betterments must be expressly provided,
according to articles 825 and 828 of the Civil Code, and where no express provision therefor
is made in the will, the law would presume that the testator had no intention to that effect.
(Cf. 6 Manresa, 479.) In the will here in question, no express betterment is made in favor of
the children by the second marriage; neither is there any legacy expressly made in their
behalf consisting of the third available for free disposal. The whole inheritance is accorded
the heirs by the second marriage upon the mistaken belief that the heirs by the first
marriage have already received their shares. Were it not for this mistake, the testator's
intention, as may be clearly inferred from his will, would have been to divide his property
equally among all his children.
Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without
prejudice to the widow's legal usufruct, with costs against respondents.

G.R. No. L-23445

June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico,
Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11
years before her demise. Petitioner prayed that said will be admitted to probate and that
letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father
and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her
will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as
universal heir of the deceased, oppositors who are compulsory heirs of the deceased in
the direct ascending line were illegally preterited and that in consequence the institution
is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection
thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to
dismiss.1wph1.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.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the
probate of a will. The court's area of inquiry is limited to an examination of, and resolution
on, the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary
capacity, and the compliance with the requisites or solemnities by law prescribed, are the
questions solely to be presented, and to be acted upon, by the court. Said court at this stage
of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the
provisions of the will, the legality of any devise or legacy therein. 1
A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after the court has declared that the
will has been duly authenticated.2 But petitioner and oppositors, in the court below and here
on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, probability exists that the case
will come up once again before us on the same issue of the intrinsic validity or nullity of the
will. Result: waste of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question.3 After all, there exists a justiciable
controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below
that the will is a complete nullity. This exacts from us a study of the disputed will and the
applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a
certain amount of property, do hereby give, devise, and bequeath all of the property which I
may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November,
nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814
of the Civil Code of Spain of 1889, which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator,
shall void the institution of heir; but the legacies and betterments 4 shall be valid, in
so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a
necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra
siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se
le deshereda expresamente ni se le asigna parte alguna de los bienes, resultando
privado de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento
omita el testador a uno cualquiera de aquellos a quienes por su muerte corresponda
la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la
omision sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343,
204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50
38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132. 7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to
nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771,
774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents,
now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of
them: They thus received nothing by the testament; tacitly, they were deprived of their
legitime; neither were they expressly disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anulara siempre la institucion de heredero, dando
caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of
the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir
nothing more. No specific legacies or bequests are therein provided for. It is in this posture
that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says
Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en
todo o en parte? No se aade limitacion alguna, como en el articulo 851, en el que se
expresa que se anulara la institucion de heredero en cuanto prejudique a la legitima
del deseheredado Debe, pues, entenderse que la anulacion es completa o total, y
que este articulo como especial en el caso que le motiva rige con preferencia al
817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la
sucesion intestada total o parcial. Sera total, cuando el testador que comete la
pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia en
favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige la
generalidad del precepto legal del art. 814, al determinar, como efecto de la
pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results

in totally abrogating the will. Because, the nullification of such institution of universal heir
without any other testamentary disposition in the will amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway
for inferential interpretation. Giving it an expansive meaning will tear up by the roots the
fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal
Supreme, correspondiente a 1908", which in our opinion expresses the rule of
interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion
de heredero, no consiente interpretacion alguna favorable a la persona instituida en
el sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o
menos equitativa, porque una nulidad no significa en Derecho sino la suposicion de
que el hecho o el acto no se ha realizado, debiendo por lo tanto procederse sobre tal
base o supuesto, y consiguientemente, en un testamento donde falte la institucion,
es obligado llamar a los herederos forzosos en todo caso, como habria que llamar a
los de otra clase, cuando el testador no hubiese distribudo todos sus bienes en
legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia
de testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion,
que no basta que sea conocida la voluntad de quien testa si esta voluntad no
aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y
eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho
positivo, reputar como legatario a un heredero cuya institucion fuese anulada con
pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una
interpretacion contraria a sus terminos y a los principios que informan la
testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho
constituyente, hay razon para convereste juicio en regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que el legislador quiere
establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious".
Legacies and devises merit consideration only when they are so expressly given as such in a
will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will
void because of preterition would give the heir so instituted a share in the inheritance. As
to him, the will is inexistent. There must be, in addition to such institution, a testamentary
disposition granting him bequests or legacies apart and separate from the nullified
institution of heir. Sanchez Roman, speaking of the two component parts of Article 814, now
854, states that preterition annuls the institution of the heir "totalmente por la pretericion";
but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras
disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire inheritance including "la porcion
libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than
one of preterition". 15From this, petitioner draws the conclusion that Article 854 "does not
apply to the case at bar". This argument fails to appreciate the distinction between
pretention and disinheritance.

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. " 17 In Manresa's own words: "La privacion expresa de la legitima
constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be
"involuntaria". 19 Express as disinheritance should be, the same must be supported by a
legal cause specified in the will itself. 20
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.
On top of this is the fact that the effects flowing from preterition are totally different from
those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall
annul the institution of heir". This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the
institution of heirs", put only "insofar as it may prejudice the person disinherited", which last
phrase was omitted in the case of preterition. 21 Better stated yet, in disinheritance the
nullity is limited to that portion of the estate of which the disinherited heirs have been
illegally deprived. Manresa's expressive language, in commenting on the rights of the
preterited heirs in the case of preterition on the one hand and legal disinheritance on the
other, runs thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les
corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although the
inheritance of the heir so instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited,viz:
But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made to fall into the concept of
legacies and betterments reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of the institution, would. be
absolutely meaningless and will never have any application at all. And the remaining
provisions contained in said article concerning the reduction of inofficious legacies or
betterments would be a surplusage because they would be absorbed by Article 817.
Thus, instead of construing, we would be destroying integral provisions of the Civil
Code.
The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general from a
special provision. With reference to article 814, which is the only provision material to
the disposition of this case, it must be observed that the institution of heirs is therein
dealt with as a thing separate and distinct from legacies or betterments. And they are
separate and distinct not only because they are distinctly and separately treated in

said article but because they are in themselves different. Institution of heirs is a
bequest by universal title of property that is undetermined. Legacy refers to specific
property bequeathed by a particular or special title. ... But again an institution of
heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article
854 of the Civil Code in turn merely nullifies "the institution of heir". Considering, however,
that the will before us solely provides for the institution of petitioner as universal heir, and
nothing more, the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.
G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX
BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao,
Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.

AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao
dated February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian,
converting the testate proceeding into an intestate proceeding and ordering the issuance of
the corresponding notice to creditors (Special Case No. 1808). The antecedents of the
appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City
at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their
six legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo,
Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate
of his mother's notarial will dated September 5, 1970 which is written in English. In that will
Leodegaria Julian declared (a) that she was the owner of the "southern half of nine conjugal
lots (par. II); (b) that she was the absolute owner of two parcels of land which she inherited
from her father (par. III), and (c) that it was her desire that her properties should not be
divided among her heirs during her husband's lifetime and that their legitimes should be
satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he was eightytwo years old in 1973) her paraphernal lands and all the conjugal lands (which she described
as "my properties") should be divided and distributed in the manner set forth in that part of
her will. She devised and partitioned the conjugal lands as if they were all owned by her. She
disposed of in the will her husband's one half share of the conjugal assets. *

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of
lack of testamentary capacity, undue influence, preterition of the husband and alleged
improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr.
should collate certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay,
Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and
affirmed that he was interested in its probate. On the same date Felix Balanay, Sr. signed an
instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights"
wherein he manifested that out of respect for his wife's will he "waived and renounced' his
hereditary rights in her estate in favor of their six children. In that same instrument he
confirmed the agreement, which he and his wife had perfected before her death, that their
conjugal properties would be partitioned in the manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973
"denied" the opposition and reset for hearing the probate of the will. It gave effect to the
affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it appointed
its branch clerk of court as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on
the grounds (a) that the testatrix illegally claimed that she was the owner of the southern
half of the conjugal lots and (b) that she could not partition the conjugal estate by allocating
portions of the nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo
Cabreros, opposed that motion. The lower court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to
be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a
motion dated September 25, 1973 for "leave of court to withdraw probate of alleged will of
Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In
that motion Montaa claimed to be the lawyer not only of the petitioner but also of Felix
Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned the conjugal assets
or allegedly effected a compromise of future legitimes. He prayed that the probate of the will
be withdrawn and that the proceeding be converted into an intestate proceeding. In another
motion of the same date he asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments
dated October 15, 1973 manifested their conformity with the motion for the issuance of a
notice to creditors. They prayed that the will be declared void for being contrary to law and
that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a
notice to creditors was in order since the parties had agreed on that point. It adopted the
view of Attys. Montaa and Guyo that the will was void. So, in its order of February 28, 1974
it dismissed the petition for the probate, converted the testate proceeding into an intestate
proceeding, ordered the issuance of a notice to creditors and set the intestate proceeding for
hearing on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June 18
and October 15, 1973. The notice to creditors was issued on April 1, 1974 and published on
May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its
publication be held in abeyance.

Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated
April 15, 1974, asked for the reconsideration of the lower court's order of February 28, 1974
on the ground that Atty. Montaa had no authority to withdraw the petition for the allowance
of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to
Atty. Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and
Emilia B. Pabaonon, wherein they terminated Montaa's services and informed him that his
withdrawal of the petition for the probate of the will was without their consent and was
contrary to their repeated reminder to him that their mother's will was "very sacred" to
them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower
court denied the motion in its order of June 29, 1974. It clarified that it declared the will void
on the basis of its own independent assessment of its provisions and not because of Atty.
Montaa's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of
the will, before ruling on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of
dubious legality, and because of the motion to withdraw the petition for probate (which the
lower court assumed to have been filed with the petitioner's authorization), the trial court
acted correctly in passing upon the will's intrinsic validity even before its formal validity had
been established. The probate of a will might become an idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the
issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs.
Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30,
1965, 13 SCRA 693).1wph1.t
But the probate court erred in declaring, in its order of February 28, 1974 that the will was
void and in converting the testate proceeding into an intestate proceeding notwithstanding
the fact that in its order of June 18, 1973 , it gave effect to the surviving husband's
conformity to the will and to his renunciation of his hereditary rights which presumably
included his one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a will does not
result in the invalidity of the other dispositions, unless it is to be presumed that the testator
would not have made such other dispositions if the first invalid disposition had not been
made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid and others
invalid, the valid parts will be upheld if they can be separated from the invalid without
defeating the intention of the testator or interfering with the general testamentary scheme,
or doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal lands is
contrary to law because, although she was a coowner thereof, her share was inchoate
and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38
Phil. 414). But That illegal declaration does not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be divided among her
heirs during her husband's lifetime but should be kept intact and that the legitimes should
be paid in cash is contrary to article 1080 of the Civil Code which reads:

ART. 1080. Should a person make a partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, to keep any agricultural,
industrial, or manufacturing enterprise intact, may avail himself of the right
granted him in this article, by ordering that the legitime of the other children
to whom the property is not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her six children
(her husband had renounced his hereditary rights and his one-half conjugal share). She did
not assign the whole estate to one or more children as envisaged in article 1080. Hence, she
had no right to require that the legitimes be paid in cash. On the other hand, her estate may
remain undivided only for a period of twenty years. So, the provision that the estate should
not be divided during her husband's lifetime would at most be effective only for twenty
years from the date of her death unless there are compelling reasons for terminating the
coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the
conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation
partakes of a donation of his hereditary rights and his one-half share in the conjugal estate
(Art. 1060[1] Civil Code), it should be subject to the limitations prescribed in articles 750 and
752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his
support and maintenance. Or at least his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is intrinsically valid
and the partition therein may be given effect if it does not prejudice the creditors and impair
the legitimes. The distribution and partition would become effective upon the death of Felix
Balanay, Sr. In the meantime, the net income should be equitably divided among the
children and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his wife's will
and his renunciation of his hereditary rights, his one-half conjugal share became a part of his
deceased wife's estate. His conformity had the effect of validating the partition made in
paragraph V of the will without prejudice, of course, to the rights of the creditors and the
legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a will shall
only pass thereby, as if the testator had it at the time of making the will, should it expressly
appear by the will that such was his intention". Under article 930 of the Civil Code "the
legacy or devise of a thing belonging to another person is void, if the testator erroneously
believed that the thing pertained to him. But if the thing bequeathed, though not belonging
to the testator when he made the will, afterwards becomes his, by whatever title, the
disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to partition
the conjugal estate in the manner set forth in paragraph V of her will. It is true that she
could dispose of by will only her half of the conjugal estate (Art. 170, Civil Code) but since
the husband, after the dissolution of the conjugal partnership, had assented to her
testamentary partition of the conjugal estate, such partition has become valid, assuming
that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix instituted as
heir her sister and preterited her parents. Her will was intrinsically void because it preterited

her compulsory heirs in the direct line. Article 854 of the Civil Code provides that "the
preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devises and legacies, shall be valid insofar as they are
not inofficious." Since the preterition of the parents annulled the institution of the sister of
the testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2],
Civil Code).1wph1.t
In the instant case, the preterited heir was the surviving spouse. His preterition did not
produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his
hereditary rights. .
It results that the lower court erred in not proceeding with the probate of the will as
contemplated in its uncancelled order of June 18, 1973. Save in an extreme case where the
will on its face is intrinsically void, it is the probate court's duty to pass first upon the formal
validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code;
Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638,
October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in
itself prima facie proof that the supposed testator has willed that his estate should be
distributed in the manner therein provided, and it is incumbent upon the state that, if legally
tenable, such desire be given effect independent of the attitude of the parties affected
thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538,
565).
To give effect to the intention and wishes of the testatrix is the first and principal law in the
matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561).
Testacy is preferable to intestacy. An interpretation that will render a testamentary
disposition operative takes precedence over a construction that will nullify a provision of the
will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces
an intention on the part of the testator to dispose of practically his whole estate. So
compelling is the principle that intestacy should be avoided and that the wishes of the
testator should prevail that sometimes the language of the will can be varied for the purpose
of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator must be followed and the
dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573,
June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will because
any disposition therein is better than that which the law can make (Castro vs. Bustos, L25913, February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors
although no executor or regular administrator has been appointed. The record reveals that it
appointed a special administrator. A notice to creditors is not in order if only a special
administrator has been appointed. Section 1, Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of testamentary or of administration, the court shall issue
a notice requiring all persons having money claims against the decedent to file them in the
office of the clerk of said court" clearly contemplates the appointment of an executor or
regular administrator and not that of a special administrator.

It is the executor or regular administrator who is supposed to oppose the claims against the
estate and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules
of Court).
We also take this occasion to point out that the probate court's appointment of its branch
clerk of court as special administrator (p. 30, Rollo) is not a salutary practice because it
might engender the suspicion that the probate Judge and his clerk of court are in cahoots in
milking the decedent's estate. Should the branch clerk of court commit any abuse or
devastavit in the course of his administration, the probate Judge might find it difficult to hold
him to a strict accountability. A court employee should devote his official time to his official
duties and should not have as a sideline the administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its
order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower
court is directed to conduct further proceedings in Special Case No. 1808 in consonance with
this opinion. Costs, against the private respondents.
G.R. No. L-41971 November 29, 1983
ZONIA ANA T. SOLANO, petitioner,
vs.
THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S.
GARCIA, respondents.
Benjamin H. Aquino for petitioner.
Alfredo Kallos for respondents.

MELENCIO HERRERA, J.:+.wph!1

A Petition for Review on certiorari of the Decision of the then Court of Appeals affirming the
judgment rendered by the former Court of First Instance of Albay, Branch II, in Civil Case No.
3956, an action for Recognition.
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be
illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him. In his
Answer, SOLANO denied paternity. On February 3, 1970, during the pendency of the suit,
SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the DECEDENT as
the only surviving heir mentioned in his Last Will and Testament probated on March 10,
1969, or prior to his death, in Special Proceedings No. 842 of the same Court. ZONIA entered
her formal appearance as a "substitute defendant" on March 4, 1970 claiming additionally
that she was the sole heir of her father, SOLANO, and asking that she be allowed to assume
her duties as executrix of the probated Will with the least interference from the GARCIAS
who were "mere pretenders to be illegitimate children of SOLANO".
On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and Supplemental
Cause of Action" impugning the recognition of ZONIA as an acknowledged natural child with
the prayer that she be declared instead, like them, as an adulterous child of the DECEDENT.
ZONIA did not file any responsive pleading and the case proceeded to trial. The GARCIAS
further moved for the impleading of the SOLANO estate in addition to ZONIA, which was
opposed by the latter, but which the Trial Court granted in its Order dated April 15, 1970. 1

In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in the
parties' respective Memoranda as: 1) the question of recognition of the GARCIAS; 2) the
correct status of ZONIA, and 3) the hereditary share of each of them in view of the probated
Will. 2
On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered judgment
the dispositive portion of which decrees: t.hqw
WHEREFORE, judgment is hereby rendered declaring the plaintiffs Bienvenido
S. Garcia and Emeteria S. Garcia and the defendant Sonia Ana Tuagnon as the
illegitimate children of the late Dr. Meliton Solano under the class of
ADULTEROUS CHILDREN, with all the rights granted them by law. The
institution of Sonia Ana Solano as sole and universal heir of the said deceased
in the will is hereby declared null and void and the three (3) children shall
share equally the estate or one- third (1/3) each, without prejudice to the
legacy given to Trinidad Tuagnon and the right of any creditors of the estate.
No pronouncement as to costs.
Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in toto (CAG.R. No. 49018).
ZONIA seeks a reversal of that affirmance in this petition, which was given due course.
At the outset, we should state that we are bound by the findings of fact of both the Trial
Court and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in
fact, illegitimate children of the DECEDENT. The oral testimony and the documentary
evidence of record inevitably point to that conclusion, as may be gleaned from the following
background facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter died.
On a world tour he met a French woman, Lilly Gorand, who became his second wife in 1928.
The union was short-lived as she left him in 1929. In the early part of 1930, SOLANO started
having amorous relations with Juana Garcia, out of which affair was born Bienvenido Garcia
on March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935, Emeteria Garcia was born
(Exhibits "B " & "2"). Their birth certificates and baptismal certificates mention only the
mother's name without the father's name. The facts establish, however, that SOLANO during
his lifetime recognized the GARCIAS as his children by acts of support and provisions for
their education.
In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of this
relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In her Birth
Certificate, her status was listed as "illegitimate"; her mother as Trinidad Tuagnon; her father
as "P.N.C. " (Exhibit "V"), or "padre no conocido".
During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on November
29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO and Trinidad Tuagnon
executed an "Escritura de Reconocimiento de Unit Hija Natural" (Exhibit "Q"; "7"),
acknowledging ZONIA as a "natural child" and giving her the right to use the name ZONIA
Ana Solano y Tuagnon. The document was registered with the Local Civil Registrar on the
same date.
On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit "11"),
instituting ZONIA as his universal heir to all his personal and real properties in Camalig,
Tabaco and Malinao, all in the province of Albay, except for five parcels of land in Bantayan,
Tabaco, Albay, which were given to Trinidad Tuagnon in usufruct Upon SOLANO's petition
(Exhibit "10"), the Will was duly probated on March 10, 1969 in Special Proceedings No. 842

of the Court of First Instance of Albay, Branch II, in a Decision also rendered by Judge
Ezequiel S. Grageda (Exhibit "12").
As above stated, these facts are not in question.
Petitioner maintains, however, that: t.hqw
I
The Court of Appeals, as well as the trial Court, acted without jurisdiction or in
excess of jurisdiction in declaring substitute defendant Zonia Ana Solano, now
petitioner, an illegitimate child of the late Dr. Meliton Solano in an action
where private respondents, as plaintiffs in the Court below, sought recognition
as natural children of Dr. Meliton Solano.
II
The Court of Appeals, as well as the trial Court, acted without jurisdiction or in
excess of jurisdiction in ordering the division of the estate of Dr. Meliton
Solano between the petitioner and private respondents, when said estate is
under the jurisdiction and control of the probate Court in Special Proceedings
No. 842.
III
The Court of Appeals, as well as the trial Court, acted without jurisdiction or in
excess of jurisdiction in declaring nun and void the institution of heir in the
last will and testament of Dr. Meliton Solano, which was duly probated in
special proceedings No. 842 of the Court of First Instance of Albay, and in
concluding that total intestacy resulted there from. 3
Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1) to
declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the estate in the
same action despite the pendency of Special Proceedings No. 842; and 3) to declare null and
void the institution of heir in the Last Win and Testament of SOLANO, which was duly
probated in the same Special Proceedings No. 842, and concluding that total intestacy
resulted.
It is true that the action below was basically one for recognition. However, upon notice of
SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only surviving heir ...
as of as of now" 4 In her "Appearance of Substitute Defendant Zonia Ana T. Solano ... Sole
and Universal Heir", ZONIA specifically prayed that she be 6 allowed to assume her duties as
executrix and administratrix of the probated will and testament of the late Dr. Meliton
Solano, under Special Proceedings No. 842, which is already final and executory, with least
interference from the plaintiffs (GARCIAS) who may be classified for the moment as only
pretenders to be illegitimate children". In other words, ZONIA did not only rely upon
SOLANO's Answer already of record but asserted new rights in her capacity as sole and
universal heir, "executrix and administratrix, "and challenged the right of the GARCIAS to
recognition. Thus, she was not defending the case as a mere representative of the deceased
but asserted rights and defenses in her own personal capacity. So it was that the GARCIAS
filed a "Reply to Appearance of ZONIA ... and Supplemental Cause of Action ... "vigorously
denying that ZONIA was SOLANO's sole and universal heir; that ZONIA could not legally be
considered as SOLANO's acknowledged natural child because of a legal impediment; that

the admission to probate of SOLANO's Will was merely conclusive as to its due execution;
that the supposed recognition under a notarial instrument of ZONIA as an acknowledged
natural child was fraudulent and a product of misrepresentation; that ZONIA's recognition in
the Will as an acknowledged natural child is subject to nullification and that at most ZONIA
is, like them, an adulterous child of SOLANO with Trinidad Tuagnon.
During the trial, the GARCIAS presented evidence to prove their allegations not only in their
main complaint but also in their "Reply to Appearance and Supplemental Cause of Action".
ZONIA presented no objection to the presentation by the GARCIAS of their oral and
documentary evidence and even cross-examined their witnesses. ZONIA, for her part,
presented her own testimonial and documentary evidence, denied the relationship of the
GARCIAS' to SOLANO and presented the notarial recognition in her favor as an
acknowledged natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised
by the parties in their own pleadings and pursuant to their respective evidence during the
trial, the litigation was converted into a contest between the GARCIAS and ZONIA precisely
as to their correct status as heirs and their respective rights as such. No error was
committed by either the Trial Court or the Appellate Court, therefore, in resolving the issue
of ZONIA's status.
ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the
institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom; and
distributing the shares of the parties in SOLANO's estate when said estate was under the
jurisdiction and control of the Probate Court in Special Proceedings No. 842.
Normally, this would be the general rule. However, a peculiar situation is thrust upon us
here. It should be recalled that SOLANO himself instituted the petition for probate of the Will
during his lifetime. That proceeding was not one to settle the estate of a deceased person
that would be deemed terminated only upon the final distribution of the residue of the
hereditary estate. With the Will allowed to probate, the case would have terminated except
that it appears that the parties, after SOLANO's death, continued to file pleadings therein.
Secondly, upon motion of the GARCIAS, and over the objection of ZONIA, the Trial Court
ordered the impleading of the estate of SOLANO and proceeded on that basis. In effect,
therefore, the two cases were consolidated. The records further disclose that the action for
recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the same
Branch of the Court and before the same presiding Judge. Thirdly, it is settled that the
allowance of a Will is conclusive only as to its due execution. 5 A probate decree is not
concerned with the intrinsic validity or legality of the provisions of the Will. 6
Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the
facts, the GARCIAS and ZONIA were in the same category as illegitimate children; that
ZONIA's acknowledgment as a "natural child" in a notarial document executed by SOLANO
and Trinidad Tuagnon on December 22, 1943 was erroneous because at the time of her birth
in 1941, SOLANO was still married to Lilly Gorand, his divorce having been obtained only in
1943, and, therefore, did not have the legal capacity to contract marriage at the time of
ZONIA's conception, 7 that being compulsory heirs, the GARCIAS were, in fact, pretended
from SOLANO's Last' Will and Testament; and that as a result of said preterition, the
institution of ZONIA as sole heir by SOLANO is null and void pursuant to Article 854 of the
Civil Code. t.hqw
The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious. ... 8

As provided in the foregoing provision, the disposition in the Will giving the usufruct in favor
of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy,
recognized in Article 563 of the Civil Code, 9and should be respected in so far as it is not
inofficious. 10
So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares of
the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts below, holding
that the entire Will is void and intestacy ensues, the pretention of the GARCIAS should annul
the institution of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired.
The Will, therefore, is valid subject to that limitation. 11 It is a plain that the intention of the
testator was to favor ZONIA with certain portions of his property, which, under the law, he
had a right to dispose of by Will, so that the disposition in her favor should be upheld as to
the one-half (1/2) portion of the property that the testator could freely dispose of. 12 Since
the legitime of illegitimate children consists of one half (1/2) of the hereditary estate, 13 the
GARCIAS and ZONIA each have a right to participation therein in the proportion of one-third
(1/3) each. ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate,
while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate.
As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated
in the Will is valid and should be respected.
The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin, et
al., 15 which held that where the institution of a universal heir is null and void due to
pretention, the Will is a complete nullity and intestate succession ensues, is not applicable
herein because in the Nuguid case, only a one-sentence Will was involved with no other
provision except the institution of the sole and universal heir; there was no specification of
individual property; there were no specific legacies or bequests. It was upon that factual
setting that this Court declared: t.hqw
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." (at p. 459)
In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of the
Civil Code, supra, applies merely annulling the "institution of heir".
Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate Court
was never questioned before either Court. ZONIA herself had gone, without objection, to trial
on the issues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of
jurisdiction of the Trial Court as an error before the Appellate Court. She should now be held
estopped to repudiate that jurisdiction to which she had voluntarily submitted, after she had
received an unfavorable judgment, The leading case of Tijam vs. Sibonghanoy, 16 on this
point, declared: t.hqw
A party cannot invoke the jurisdiction of a court to secure affirmative relief
against his opponent and after failing to obtain such relief, repudiate or
question the same jurisdiction. The question whether the court has jurisdiction
either of the subject matter of the action or of the parties is not because the
judgment or order of the court is valid and conclusive as an adjudication but
for the reason that such practice cannot be tolerated obviously for reasons of
public policy. After voluntarily submitting a cause and encountering an

adverse decision on the merits, it is too late for the loser to question the
jurisdiction or power of the court.
WHEREFORE, the judgment under review is hereby modified in that the hereditary share in
the estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be (1/2 +
(1/3 of 1/2) or 4/6 of said estate, while that of private respondents, Bienvenido S. Garcia and
Emeteria S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate. The usufruct in favor of
Trinidad Tuagnon shall be respected. The judgment is affirmed in all other respects. No costs.
SO ORDERED.1wph1.t
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.
PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in
AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal
of the petition in Special Proceedings No, 591 ACEB and its Resolution issued on October 23,
1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial
Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered
to dismiss the petition in Special Proceedings No. 591 ACEB No special
pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court,
now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City
Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the
issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No.
591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which
petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion,
Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on
February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p.
31) submitted by petitioner without objection raised by private respondents. The will
contained provisions on burial rites, payment of debts, and the appointment of a certain
Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the
testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and
money which I earned jointly with my wife Rosa Diongson shall all be given by
me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and
presently residing at 357-C Sanciangko Street, Cebu City. In case my brother
Segundo Acain pre-deceased me, all the money properties, lands, houses
there in Bantayan and here in Cebu City which constitute my share shall be

given to me to his children, namely: Anita, Constantino, Concepcion, Quirina,

laura, Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are
claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and
the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following
grounds for the petitioner has no legal capacity to institute these proceedings; (2) he is
merely a universal heir and (3) the widow and the adopted daughter have been preterited.
(Rollo, p. 158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court,
respondents filed with the Supreme Court a petition for certiorari and prohibition with
preliminary injunction which was subsequently referred to the Intermediate Appellate Court
by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p.
159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered
the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special
Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for
the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents'
Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the
Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the
extrinsic validity of the will sought to be probated and it cannot pass upon the
intrinsic validity thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to
probate. The preterition mentioned in Article 854 of the New Civil Code refers
to preterition of "compulsory heirs in the direct line," and does not apply to
private respondents who are not compulsory heirs in the direct line; their
omission shall not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests
that mere institution of a universal heir in the will would give the heir so
instituted a share in the inheritance but there is a definite distinct intention of
the testator in the case at bar, explicitly expressed in his will. This is what
matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file
the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain
and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been preterited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall annul the institution of heir; but the
devisees and legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall he effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them
either because they are not mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966];
Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned,
Article 854 of the Civil Code may not apply as she does not ascend or descend from the
testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is
a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she
is not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the
other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been
questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D.
No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person
the same rights and duties as if he were a legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted
and preterited in the will of the testator and that both adopted child and the widow were
deprived of at least their legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en
virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang
v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy
are the legacies and devises made in the will for they should stand valid and respected,
except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification of
such institution of universal heirs-without any other testamentary disposition in the willamounts to a declaration that nothing at all was written. Carefully worded and in clear
terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v.
Nuguid), supra. No legacies nor devises having been provided in the will the whole property
of the deceased has been left by universal title to petitioner and his brothers and sisters.
The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total
intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must,
as already stated above, be respected.

We now deal with another matter. In order that a person may be allowed to intervene in a
probate proceeding he must have an interest iii the estate, or in the will, or in the property
to be affected by it either as executor or as a claimant of the estate and an interested party
is one who would be benefited by the estate such as an heir or one who has a claim against
the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
appointed executor, neither a devisee or a legatee there being no mention in the
testamentary disposition of any gift of an individual item of personal or real property he is
called upon to receive (Article 782, Civil Code). At the outset, he appears to have an interest
in the will as an heir, defined under Article 782 of the Civil Code as a person called to the
succession either by the provision of a will or by operation of law. However, intestacy having
resulted from the preterition of respondent adopted child and the universal institution of
heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition
for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must
be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned
order is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465
[1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of
Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is
axiomatic that the remedies of certiorari and prohibition are not available where the
petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in
the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]).
They are, however, proper remedies to correct a grave abuse of discretion of the trial court
in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v.
Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court,
the general rule is that the probate court's authority is limited only to the extrinsic validity of
the will, the due execution thereof, the testator's testamentary capacity and the compliance
with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally
comes only after the Court has declared that the will has been duly authenticated. Said
court at this stage of the proceedings is not called upon to rule on the intrinsic validity or
efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v.
Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v.
Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206
[1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid
the oppositors to the probate moved to dismiss on the ground of absolute preteriton The
probate court acting on the motion held that the will in question was a complete nullity and
dismissed the petition without costs. On appeal the Supreme Court upheld the decision of
the probate court, induced by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again before
us on the same issue of the intrinsic validity or nullity of the will. Result: waste
of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well meet head-on
the issue of the validity of the provisions of the will in question. After all there
exists a justiciable controversy crying for solution.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the
surviving spouse was grounded on petitioner's lack of legal capacity to institute the
proceedings which was fully substantiated by the evidence during the hearing held in
connection with said motion. The Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition
deals with the validity of the provisions of the will. Respondent Judge allowed the probate of
the will. The Court held that as on its face the will appeared to have preterited the petitioner
the respondent judge should have denied its probate outright. Where circumstances demand
that intrinsic validity of testamentary provisions be passed upon even before the extrinsic
validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v.
Court of Appeals,supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp.
Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1)
petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal
heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It
was denied by the trial court in an order dated January 21, 1985 for the reason that "the
grounds for the motion to dismiss are matters properly to be resolved after a hearing on the
issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion
for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case to
progress when on its face the will appears to be intrinsically void as petitioner and his
brothers and sisters were instituted as universal heirs coupled with the obvious fact that one
of the private respondents had been preterited would have been an exercise in futility. It
would have meant a waste of time, effort, expense, plus added futility. The trial court could
have denied its probate outright or could have passed upon the intrinsic validity of the
testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v.
Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were
properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants
had the right to resort to the more speedy, and adequate remedies of certiorari and
prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction,
committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of
Appeals, supra) and even assuming the existence of the remedy of appeal, the Court
harkens to the rule that in the broader interests of justice, a petition for certiorari may be
entertained, particularly where appeal would not afford speedy and adequate relief.
(Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned
decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution
dated October 23, 1985 are hereby AFFIRMED.
G.R. No. L-31703

February 13, 1930

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.

L. D. Lockwood and Jose M. Casal for appellants.

Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee.
ROMUALDEZ, J.:
The amount of P21,428.58 is on deposit in the plaintiff's name with the association known
as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara,
deceased, whose heiress is said plaintiff, against Andres Garchitorena, also deceased,
represented by his son, the defendant Mariano Garchitorena.
And as said 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, alleging that said deposit 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 court below held that said La Urbana deposit belongs to the plaintiff's children as
fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction.
The defendants insist in their contentions, and, in their appeal from the decision of the trial
court, assign the following errors:
1. The lower court erred in holding that a trust was created by the will of Doa Ana
Maria Alcantara.
2. The lower court erred in concluding and declaring that the amount of P21,428.58
deposited with La Urbana is the property of the children of the plaintiff as "herederos
fidei-comisarios."
3. The lower court erred in making the injunction permanent and condemning
defendant to pay the costs.
The question here raised is confined to the scope and meaning of the institution of heirs
made in the will of the late Ana Maria Alcantara already admitted to probate, and whose
legal force and effect is not in dispute.
The clauses of said will relevant to the points in dispute, between the parties are the ninth,
tenth, and eleventh, quoted below:
Ninth. Being single and without any forced heir, to show my gratitude to my niece-inlaw, 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 appellants contend that in these clauses the testatrix has ordered a simple substitution,
while the appellee contends that it is a fideicommissary substitution.
This will certainly provides for a substitution of heirs, and of the three cases that might give
rise to a simple substitution (art. 774, Civil Code), only the death of the instituted heiress
before the testatrix would in the instant case give place to such substitution, inasmuch as
nothing is said of the waiver of inheritance, or incapacity to accept it. As a matter of fact,
however, clause XI provides for the administration of the estate in case the heiress instituted
should die after the testatrix and while the substitute heirs are still under age. And it is
evident that, considering the nature of simple substitution by the heir's death before the
testator, and the fact that by clause XI in connection with clause X, the substitution is
ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple
substitution.
The existence of a substitution in the will is not and cannot be denied, and since it cannot be
a simple substitution in the light of the considerations above stated, let us now see whether
the instants case is a fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and
provides that upon her death (the testatrix's) and after probate of the will and approval of
the report of the committee on claims and appraisal, said heiress shall receive and enjoy the
whole hereditary estate. Although this clause provides nothing explicit about substitution, it
does not contain anything in conflict with the idea of fideicommissary substitution. The fact
that the plaintiff was instituted the sole and universal heiress does not prevent her children
from receiving, upon her death and in conformity with the express desire of the testatrix, the
latter's hereditary estate, as provided in the following (above quoted) clauses which cannot
be disregarded if we are to give a correct interpretation of the will. The word sole does not
necessarily exclude the idea of substitute heirs; and taking these three clauses together,
such word means that the plaintiff is the sole heiress instituted in the first instance.
The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is
not incompatible with a fideicommissary substitution (it certainly is incompatible with the
idea of simple substitution, where the heiress instituted does not receive the inheritance). In
fact the enjoyment of the inheritance is in conformity with the idea of fideicommissary
substitution, by virtue of which the heir instituted receives the inheritance and enjoys it,
although at the same time he preserves it in order to pass it on the second heir. On this
point the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:

Or, what amounts to the same thing, the fideicommissary substitution, as held in the
Resolution of June 25, 1895, February 10, 1899, and July 19, 1909, requires three
things:
1. A first heir called primarily 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.
3. A second heir.
To these requisites, the decision of November 18, 1918 adds another, namely that
the fideicommissarius be entitled to the estate from the time the testator dies, since
he is to inherit from the latter and not from the fiduciary. (Emphasis ours.)
It appears from this quotation that the heir instituted or the fiduciary, as referred to in
articles 783 of the Civil Code, is entitled to enjoy the inheritance. And it might here be
observed, as a timely remark, that the fideicommissum arising from a fideicommissary
substitution, which is of Roman origin, is not exactly equivalent to, nor may it be confused
with, the English "trust."
It should also be noted that said clause IX vests in the heiress only the right to enjoy but not
the right to dispose of the estate. It says, she may enjoy it, but does not say she may
dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution.
Clause X expressly provides for the substitution. It is true that it does not say whether the
death of the heiress herein referred to is before or after that of the testatrix; but from the
whole context it appears that in making the provisions contained in this clause X, the
testatrix had in mind a fideicommissary substitution, since she limits the transmission of her
estate to the children of the heiress by this provision, "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."
Here it clearly appears that the testatrix tried to avoid the possibility that the substitution
might later be legally declared null for transcending the limits fixed by article 781 of the Civil
Code which prescribed that fideicommissary substitutions shall be valid "provided they do
not go beyond the second degree."
Another clear and outstanding indication of fideicommissary substitution in clause X is the
provision that the wholeestate shall pass unimpaired to the heiress's children, that is to say
the heiress is required to preserve the whole estate, without diminution, in order to pass it
on in due time to the fideicommissary heirs. This provision complies with another of the
requisites of fideicommissary substitution according to our quotation from Manresa inserted
above.
Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a
provision is therein made in the event the heiress should die after the testatrix. That is, said
clause anticipates the case where the instituted heiress should die after the testatrix and
after receiving and enjoying the inheritance.
The foregoing leads us to the conclusion that all the requisites of a fideicommissary
substitution, according to the quotation from Manresa above inserted, are present in the
case of substitution now under consideration, to wit:

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.
Finally, the requisite added by the decision of November 18, 1918, to wit, that the
fideicommissarius or second heir should be entitled to the estate from the time of the
testator's death, which in the instant case, is, rather than a requisite, a necessary
consequence derived from the nature of the fideicommissary substitution, in which the
second heir does not inherit from the heir first instituted, but from the testator.
By virtue of this consequence, the inheritance in question does not belong to the heiress
instituted, the plaintiff herein, as her absolute property, but to her children, from the
moment of the death of the testatrix, Ana Maria Alcantara.
Therefore, said inheritance, of which the amount referred to at the beginning, which is on
deposit with the association known as La Urbana in the plaintiff's name, is a part, does not
belong to her nor can it be subject to the execution of the judgment against Joaquin Perez,
who is not one of the fideicommissary heirs.
The judgment appealed from is affirmed, with costs against the appellant, Mariano
Garchitorena. So ordered.
G.R. No. L-13876

February 28, 1962

CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees,

vs.
DR. MANUEL SINGSON, defendant-appellant.
Felix V. Vergara for defendant-appellant.
B. Martinez for plaintiffs-appellees.
DIZON, J.:
Action for partition commenced by the spouses Consolacion Florentino and Francisco
Crisologo against Manuel Singson in connection with a residential lot located a Plaridel St.,
Vigan, Ilocos Sur, with an area of approximately 193 square meters, and the improvements
existing thereon, covered by Tax No. 10765-C. Their complaint alleged that Singson owned
one-half pro-indiviso of said property and that Consolacion Florentino owned the other half
by virtue of the provisions of the duly probated last will of Da. Leona Singson, the original
owner, and the project of partition submitted to, and approved by the Court of First Instance
of Ilocos Sur in special Proceeding No. 453; that plaintiffs had made demands for the

partition of said property, but defendant refused to accede thereto, thus compelling them to
bring action.
Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not
owner of one-half pro-indiviso of the property in question, and that, therefore, she was not
entitled to demand partition thereof.
After trial upon the issue thus posed, the lower court rendered judgment as follows:
1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the
house and lot described in the complaint to the extent of each of an undivided 1/2
portion thereof; .
2. Ordering the aforesaid co-owners to execute an agreement of partition of the said
property within 30 days from receipt of this judgment unless it be shown that the
division thereof may render it unserviceable, in which case the provisions of Art. 498
of the New Civil Code may be applied; .1wph1.t
3. That in the event the said parties shall fail to do so, this Court will appoint the
corresponding commissioners to make the partition in accordance with law; and .
4. Without special pronouncement as to costs." .
From the above judgment, defendant Singson appealed.
It is admitted that Da. Leona Singson, who died single on January 13, 1948, was the owner
of the property in question at the time of her death. On July 31, 1951 she executed her last
will which was admitted to probate in Special Proceeding No. 453 of the lower court whose
decision was affirmed by the Court of Appeals in G.R. No. 3605-R. At the time of the
execution of the will, her nearest living relatives were her brothers Evaristo, Manuel and
Dionisio Singson, her nieces Rosario, Emilia and Trinidad, and her grandniece Consolation, all
surnamed Florentino.
Clause IX of her last will reads as follows: .
NOVENO. Ordeno que se de a mi nieta por parte de mi hermana mia y que al
mismo tiempo vive en mi casa, y, por tanto, bajo mi proteccion, y es la
CONSOLACION FLORENTINO:
(A). La mitad de mi casa de materials fuertes con techo de hierro galvanizado,
incluyendo la mitad de su solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle
Plaridel, actualmente arrendada por los hermanos Fortunato, Teofilo y Pedro del
appellido Kairuz. Pero si falleciere antes o despues que yo mi citada nieta, esta
propiedad se dara por partes iguales entre mis tres hermanos Evaristo, Manuel y
Dionisio, o a sus herederos forzosos en el caso de que alguno de ellas murieie
antes ... (Exhibit F.)
The issue to be decided is whether the testamentary disposition above-quoted provided for
what is calledsustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe,
controlled by the pertinent provisions of the Civil Code in force in the Philippines prior to the
effectivity of the New Civil Code, in view of the fact that the testatrix died on January 13,
1948. They are the following: .

Art. 774. The testator may designate one or more persons to substitute the heir or
heirs instituted in case such heir or heirs should die before him, or should not wish or
should be unable to accept the inheritance.
A simple substitution, without a statement of the cases to which it is to apply, shall
include the three mentioned in the next preceeding paragraph, unless the testator
has otherwise provided:
Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to
preserve and transmit to a third person the whole or part of the inheritance shall be
valid and effective, provided they do not go beyond the second degree, or that they
are made in favor of persons living at the time of the death of the testator." .
Art. 785. The following shall be inoperative: .
1. Fiduciary substitutions not made expressly, either by giving them this name or by
imposing upon the fiduciary the absolute obligation of delivering the property to a
second heir." ....
In accordance with the first legal provision quoted above, the testator may not only
designate the heirs who will succeed him upon his death, but also provide for substitutes in
the event that said heirs do not accept or are in no position to accept the inheritance or
legacies, or die ahead of him.
The testator may also bequeath his properties to a particular person with the obligation, on
the part of the latter, to deliver the same to another person, totally or partially, upon the
occurrence of a particular event (6 Manresa, p. 1112).
It is clear that the particular testamentary clause under consideration provides for a
substitution of the heir named therein in this manner: that upon the death of Consolacion
Florentino whether this occurs before or after that of the testatrix the property
bequeathed to her shall be delivered ("se dara") or shall belong in equal parts to the
testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced heirs, should anyone
of them die ahead of Consolacion Florentino. If this clause created what is known
as sustitucion vulgar, the necessary result would be that Consolacion Florentino, upon the
death of the testatrix, became the owner of one undivided half of the property, but if it
provided for a sustitution fideicomisaria, she would have acquired nothing more than
usufructuary rights over the same half. In the former case, she would undoubtedly be
entitled to partition, but not in the latter. As Manresa says, if the fiduciary did not acquire full
ownership of the property bequeathed by will, but mere usufructuary rights thereon until the
time came for him to deliver said property to the fideicomisario, it is obvious that the nude
ownership over the property, upon the death of the testatrix, passed to and was acquired by
another person, and the person cannot be other than the fideicomisario (6 Manresa p. 145).
It seems to be of the essence of a fideicommissary substitution that an obligation be clearly
imposed upon the first heir to preserve and transmit to another the whole or part of the
estate bequeathed to him, upon his death or upon the happening of a particular event. For
this reason, Art. 785 of the old Civil Code provides that a fideicommissary substitution shall
have no effect unless it is made expressly ("de una manera expresa") either by giving it such
name, or by imposing upon the first heir the absolute obligation ("obligacion terminante") to
deliver the inheritance to a substitute or second heir. In this connection Manresa says: .

Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se ordeno
o encargue al primer heredero, cuando sea tal, que conserve y transmita a una
tercera persona o entidad el todo a parte de la herencia. O lo que es lo mismo, la
sustitucion fideicomisaria, como declaran las resoluciones de 25 de Junio de 1895, 10
de Febrero de 1899 y 19 de Julio de 1909, exige tres requisitos: .
1.o Un primer heredero llamado al goce de los bienes preferentemente.
2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero
el todo o parte del caudal.
3.o Un segundo heredero.
A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro mas, el del
que el fideicomisario tenga derecho a los bienes de la herencia desde el momento de
la muerte del testador, puesto que ha de suceder a este y no al fiduciario.
Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento
de ambos o de cualquiera de ellos, asigna la parte del fallecido o fallecidos, a los
herederos legitimos o a otras personas, solo existe una sustitucion vulgar, porque
falta el requisito de haberse impuesto a los primeros herederos la obligacion de
conservar y transmitir los bienes, y el articulo 789, en su parrafo primero, evige que
la sustitucion sea expresa, ya dandole el testador el nombre de sustitucion
fideicomisaria, ya imponiendo al sustituido la obligacion terminante de conservar y
transmitir los bienes a un segundo heredero.
A careful perusal of the testamentary clause under consideration shows that the substitution
of heirs provided for therein is not expressly made of the fideicommissary kind, nor does it
contain a clear statement to the effect that appellee, during her lifetime, shall only enjoy
usufructuary rights over the property bequeathed to her, naked ownership thereof being
vested in the brothers of the testatrix. As already stated, it merely provides that upon
appellee's death whether this happens before or after that of the testatrix her share
shall belong to the brothers of the testatrix.
In the light of the foregoing, we believe, and so hold, that the last will of the deceased Da.
Leona Singson, established a mere sustitucion vulgar, the substitution Consolacion
Florentino by the brothers of the testatrix to be effective or to take place upon the death of
the former, whether it happens before or after that of the testatrix.
IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.
G.R. No. L-27952 February 15, 1982
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,
Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.

ABAD SANTOS, J.:

The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio
Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez;
his two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while
the companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for
substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his
widow as compulsory heir. His will was admitted to probate by the Court of First Instance of
Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the
estate. In due time she submitted an inventory of the estate as follows:
INVENTARIO
Una sexta parte (1/6) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la Escolta, Manila............................................................. P500,000.00
Una sexta parte (1/6) proindiviso de dos
parcelas de terreno situadas en Antipolo, Rizal................... 658.34
Cuatrocientos noventa y uno (491) acciones
de la 'Central Azucarera de la Carlota a P17.00
por accion ................................................................................8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion a P0.15 por accion ..............................................1,620.90
Cuenta de Ahorros en el Philippine Trust
Co.............................................................................................. 2,350.73
TOTAL.............................................................. P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garantizada con prenda de las acciones de La Carlota ......... P 5,000,00
VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de
edad, residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su
sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos
descendientes, y, en su defecto, con sustitucion vulgar reciprocal entre
ambos.
El precedente legado en nuda propiedad de la participacion indivisa de la
finca Santa Cruz Building, lo ordena el testador a favor de los legatarios
nombrados, en atencion a que dicha propiedad fue creacion del querido padre
del otorgante y por ser aquellos continuadores del apellido Ramirez,
B.Y en usufructo a saber:
a. En cuanto a una tercera parte, a favor de la esposa del testador, Da.
Marcelle Ramirez, domiciliada en IE PECO, calle del General Gallieni No. 33,
Seine Francia, con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de
Wrobleski, de Palma de Mallorca, Son Rapina Avenida de los Reyes 13,
b.Y en cuanto a las dos terceras partes restantes, a favor de la nombrada
Da. Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:
En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo
Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad restante, a
favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St. Ermita,
Manila, I.F.
A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las
usufiructuarias nombradas conjuntamente con los nudo propietarios, podran
en cualquier memento vender a tercero los bienes objeto delegado, sin
intervencion alguna de los titulares fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of partition as follows: the property
of the deceased is to be divided into two parts. One part shall go to the widow 'en pleno
dominio" in satisfaction of her legitime; the other part or "free portion" shall go to Jorge and
Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free portion is
charged with the widow's usufruct and the remaining two-thirds (2/3) with a usufruct in favor
of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for
vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and
in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are
invalid because the first heirs Marcelle and Wanda) survived the testator; (b) that the
provisions for fideicommissary substitutions are also invalid because the first heirs are not
related to the second heirs or substitutes within the first degree, as provided in Article 863
of the Civil Code; (c) that the grant of a usufruct over real property in the Philippines in favor
of Wanda Wrobleski, who is an alien, violates Section 5, Article III of the Philippine
Constitution; and that (d) the proposed partition of the testator's interest in the Santa Cruz
(Escolta) Building between the widow Marcelle and the appellants, violates the testator's
express win to give this property to them Nonetheless, the lower court approved the project
of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have
appealed to this Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full
ownership. They admit that the testator's dispositions impaired his widow's legitime. Indeed,
under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she or he shall
be entitled to one-half of the hereditary estate." And since Marcelle alone survived the
deceased, she is entitled to one-half of his estate over which he could impose no burden,
encumbrance, condition or substitution of any kind whatsoever. (Art. 904, par. 2, Civil Code.)
It is the one-third usufruct over the free portion which the appellants question and justifiably
so. It appears that the court a quo approved the usufruct in favor of Marcelle because the
testament provides for a usufruct in her favor of one-third of the estate. The court a
quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio" as her
legitime and which is more than what she is given under the will is not entitled to have any
additional share in the estate. To give Marcelle more than her legitime will run counter to the
testator's intention for as stated above his dispositions even impaired her legitime and
tended to favor Wanda.
2. The substitutions.
It may be useful to recall that "Substitution is the appoint- judgment of another heir so that
he may enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil
Code. And that there are several kinds of substitutions, namely: simple or common, brief or
compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino,
"Although the Code enumerates four classes, there are really only two principal classes of
substitutions: the simple and the fideicommissary. The others are merely variations of these
two." (111 Civil Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
ART. 859. The testator may designate one or more persons to substitute the
heir or heirs instituted in case such heir or heirs should die before him, or
should not wish, or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall
comprise the three mentioned in the preceding paragraph, unless the testator
has otherwise provided.
The fideicommissary substitution is described in the Civil Code as follows:
ART. 863. A fideicommissary substitution by virtue of which the fiduciary or
first heir instituted is entrusted with the obligation to preserve and to transmit
to a second heir the whole or part of inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one degree from the
heir originally instituted, and provided further that the fiduciary or first heir
and the second heir are living at time of the death of the testator.
It will be noted that the testator provided for a vulgar substitution in respect of the legacies
of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus
respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.
The appellants do not question the legality of the substitution so provided. The appellants
question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in

connection with the one-third usufruct over the estate given to the widow Marcelle However,
this question has become moot because as We have ruled above, the widow is not entitled
to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in connection with
Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v.
Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda survived the
testator or stated differently because she did not predecease the testator. But dying before
the testator is not the only case for vulgar substitution for it also includes refusal or
incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence,
the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are correct in their
claim that it is void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda,
the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary
substitution "provided such substitution does not go beyond one degree from the heir
originally instituted."
What is meant by "one degree" from the first heir is explained by Tolentino as follows:
Scaevola Maura, and Traviesas construe "degree" as designation, substitution,
or transmission. The Supreme Court of Spain has decidedly adopted this
construction. From this point of view, there can be only one tranmission or
substitution, and the substitute need not be related to the first heir. Manresa,
Morell and Sanchez Roman, however, construe the word "degree" as
generation, and the present Code has obviously followed this interpretation.
by providing that the substitution shall not go beyond one degree "from the
heir originally instituted." The Code thus clearly indicates that the second heir
must be related to and be one generation from the first heir.
From this, it follows that the fideicommissary can only be either a child or a
parent of the first heir. These are the only relatives who are one generation or
degree from the fiduciary (Op. cit., pp. 193-194.)
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes
as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the
testator contradicts the establishment of a fideicommissary substitution when he permits
the properties subject of the usufruct to be sold upon mutual agreement of the
usufructuaries and the naked owners." (Brief, p. 26.)
3. The usufruct of Wanda.
The appellants claim that the usufruct over real properties of the estate in favor of Wanda is
void because it violates the constitutional prohibition against the acquisition of lands by
aliens.
The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land

shall be transferred or assigned except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in the
Philippines. (Art. XIII.)
The court a quo upheld the validity of the usufruct given to Wanda on the ground that the
Constitution covers not only succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional provision which enables aliens to
acquire private lands does not extend to testamentary succession for otherwise the
prohibition will be for naught and meaningless. Any alien would be able to circumvent the
prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of
land.
This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct,
albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of
title to land in favor of aliens which is proscribed by the Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered
distributed as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked
ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan
Pablo Jankowski and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No special
pronouncement as to costs.
G.R. No. L-24561 June 30, 1970
MARINA DIZON-RIVERA, executrix-appellee,
vs.
ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON, ANGELINA
DIZON and LILIA DIZON, oppositors-appellants.
Punzalan, Yabut & Eusebio for executrix-appellee.
Leonardo Abola for oppositors-appellants.

TEEHANKEE, J.:
Appeal from orders of the Court of First Instance of Pampanga approving the Executrixappellee's project of partition instead of Oppositors-Appellants' proposed counter-project of
partition. 1
On January 28, 1961, the testatrix, Agripina J. Valdez, a widow, died in Angeles, Pampanga,
and was survived by seven compulsory heirs, to wit, six legitimate children named Estela
Dizon, Tomas V. Dizon, Bernardita Dizon, Marina Dizon (herein executrix-appellee), Angelina
Dizon and Josefina Dizon, and a legitimate granddaughter named Lilia Dizon, who is the only

legitimate child and heir of Ramon Dizon, a pre-deceased legitimate son of the said
decedent. Six of these seven compulsory heirs (except Marina Dizon, the executrix-appellee)
are the oppositors-appellants.
The deceased testatrix left a last will executed on February 2, 1960 and written in the
Pampango dialect. Named beneficiaries in her will were the above-named compulsory heirs,
together with seven other legitimate grandchildren, namely Pablo Rivera, Jr., Gilbert D.
Garcia, Cayetano Dizon, Francisco Rivera, Agripina Ayson, Jolly Jimenez and Laureano
Tiambon.
In her will, the testatrix divided, distributed and disposed of all her properties appraised at
P1,801,960.00 (except two small parcels of land appraised at P5,849.60, household furniture
valued at P2,500.00, a bank deposit in the sum of P409.95 and ten shares of Pampanga
Sugar Development Company valued at P350.00) among her above-named heirs.
Testate proceedings were in due course commenced 2 and by order dated March 13, 1961,
the last will and testament of the decedent was duly allowed and admitted to probate, and
the appellee Marina Dizon-Rivera was appointed executrix of the testatrix' estate, and upon
her filing her bond and oath of office, letters testamentary were duly issued to her.
After the executrix filed her inventory of the estate, Dr. Adelaido Bernardo of Angeles,
Pampanga was appointed commissioner to appraise the properties of the estate. He filed in
due course his report of appraisal and the same was approved in toto by the lower court on
December 12, 1963 upon joint petition of the parties.
The real and personal properties of the testatrix at the time of her death thus had a total
appraised value of P1,811,695.60, and the legitime of each of the seven compulsory heirs
amounted to P129,362.11. 3 (/7 of the half of the estate reserved for the legitime of
legitimate children and descendants). 4 In her will, the testatrix "commanded that her
property be divided" in accordance with her testamentary disposition, whereby she devised
and bequeathed specific real properties comprising practically the entire bulk of her estate
among her six children and eight grandchildren. The appraised values of the real properties
thus respectively devised by the testatrix to the beneficiaries named in her will, are as
follows:
1. Estela Dizon ....................................... P 98,474.80
2. Angelina Dizon .................................. 106,307.06
3. Bernardita Dizon .................................. 51,968.17
4. Josefina Dizon ...................................... 52,056.39
5. Tomas Dizon ....................................... 131,987.41
6. Lilia Dizon .............................................. 72,182.47
7. Marina Dizon ..................................... 1,148,063.71
8. Pablo Rivera, Jr. ...................................... 69,280.00
9. Lilia Dizon, Gilbert Garcia,
Cayetano Dizon, Francisco Rivera,
Agripina Ayson, Dioli or Jolly
Jimenez, Laureano Tiamzon ................. 72,540.00
Total Value ...................... P1,801,960.01
The executrix filed her project of partition dated February 5, 1964, in substance adjudicating
the estate as follows:
(1) with the figure of P129,254.96 as legitime for a basis Marina (exacultrixappellee) and Tomas (appellant) are admittedly considered to have received in

the will more than their respective legitime, while the rest of the appellants,
namely, Estela, Bernardita, Angelina, Josefina and Lilia received less than their
respective legitime;
(2) thus, to each of the latter are adjudicated the properties respectively given
them in the will, plus cash and/or properties, to complete their respective
legitimes to P129,254.96; (3) on the other hand, Marina and Tomas are
adjudicated the properties that they received in the will less the cash and/or
properties necessary to complete the prejudiced legitime mentioned in
number 2 above;
(4) the adjudications made in the will in favor of the grandchildren remain
untouched.<re||an1w>
On the other hand oppositors submitted their own counter-project of partition
dated February 14, 1964, wherein they proposed the distribution of the estate
on the following basis:
(a) all the testamentary dispositions were proportionally reduced to the value
of one-half () of the entire estate, the value of the said one-half ()
amounting to P905,534.78; (b) the shares of the Oppositors-Appellants should
consist of their legitime, plus the devises in their favor proportionally reduced;
(c) in payment of the total shares of the appellants in the entire estate, the
properties devised to them plus other properties left by the Testatrix and/or
cash are adjudicated to them; and (d) to the grandchildren who are not
compulsory heirs are adjudicated the properties respectively devised to them
subject to reimbursement by Gilbert D. Garcia, et al., of the sums by which the
devise in their favor should be proportionally reduced.
Under the oppositors' counter-project of partition, the testamentary disposition made by the
testatrix of practically her whole estate of P1,801,960.01, as above stated, were proposed to
be reduced to the amounts set forth after the names of the respective heirs and devisees
totalling one-half thereof as follows:
1.
2.
3.
4.
5.
6.
7.
8.
9.

Estela Dizon ........................................... P 49,485.56

Angelina Dizon ......................................... 53,421.42
Bernardita Dizon ....................................... 26,115.04
Josefina Dizon .......................................... 26,159.38
Tomas V. Dizon ......................................... 65,874.04
Lilia Dizon .................................................. 36,273.13
Marina Dizon ........................................... 576,938.82
Pablo Rivera, Jr. ......................................... 34,814.50
Grandchildren Gilbert Garcia et al .......... 36,452.80

T o t a l ................................................... P905,534.78
while the other half of the estate (P905,534.78) would be deemed as constituting the
legitime of the executrix-appellee and oppositors-appellants, to be divided among them in
seven equal parts of P129,362.11 as their respective legitimes.
The lower court, after hearing, sustained and approved the executrix' project of partition,
ruling that "(A)rticles 906 and 907 of the New Civil Code specifically provide that when the
legitime is impaired or prejudiced, the same shall be completed and satisfied. While it is true

that this process has been followed and adhered to in the two projects of partition, it is
observed that the executrix and the oppositors differ in respect to the source from which the
portion or portions shall be taken in order to fully restore the impaired legitime. The
proposition of the oppositors, if upheld, will substantially result in a distribution of intestacy,
which is in controversion of Article 791 of the New Civil Code" adding that "the testatrix has
chosen to favor certain heirs in her will for reasons of her own, cannot be doubted. This is
legally permissible within the limitation of the law, as aforecited." With reference to the
payment in cash of some P230,552.38, principally by the executrix as the largest beneficiary
of the will to be paid to her five co-heirs, the oppositors (excluding Tomas Dizon), to
complete their impaired legitimes, the lower court ruled that "(T)he payment in cash so as to
make the proper adjustment to meet with the requirements of the law in respect to legitimes
which have been impaired is, in our opinion, a practical and valid solution in order to give
effect to the last wishes of the testatrix."
From the lower court's orders of approval, oppositors-appellants have filed this appeal, and
raise anew the following issues: .
1. Whether or not the testamentary dispositions made in the testatrix' will are in the nature
of devises imputable to the free portion of her estate, and therefore subject to reduction;
2. Whether the appellants are entitled to the devise plus their legitime under Article 1063, or
merely to demand completion of their legitime under Article 906 of the Civil Code; and
3. Whether the appellants may be compelled to accept payment in cash on account of their
legitime, instead of some of the real properties left by the Testatrix;
which were adversely decided against them in the proceedings below.
The issues raised present a matter of determining the avowed intention of the testatrix
which is "the life and soul of a will." 5 In consonance therewith, our Civil Code included the
new provisions found in Articles 788 and 791 thereof that "(I)f a testamentary disposition
admits of different interpretations, in case of doubt, that interpretation by which the
disposition is to be operative shall be preferred" and "(T)he words of a will are to receive an
interpretation which will give to every expression some effect, rather than one which will
render any of the expressions inoperative; and of two modes of interpreting a will, that is to
be preferred which will prevent intestacy." In Villanueva vs. Juico 6 for violation of these rules
of interpretation as well as of Rule 123, section 59 of the old Rules of Court, 7 the Court,
speaking through Mr. Justice J.B.L. Reyes, overturned the lower court's decision and stressed
that "the intention and wishes of the testator, when clearly expressed in his will, constitute
the fixed law of interpretation, and all questions raised at the trial, relative to its execution
and fulfillment, must be settled in accordance therewith, following the plain and literal
meaning of the testator's words, unless it clearlyappears that his intention was otherwise." 8
The testator's wishes and intention constitute the first and principal law in the matter of
testaments, and to paraphrase an early decision of the Supreme Court of Spain, 9 when
expressed clearly and precisely in his last will amount to the only law whose mandate must
imperatively be faithfully obeyed and complied with by his executors, heirs and devisees
and legatees, and neither these interested parties nor the courts may substitute their own
criterion for the testator's will. Guided and restricted by these fundamental premises, the
Court finds for the appellee.
1. Decisive of the issues at bar is the fact that the testatrix' testamentary disposition was in
the nature of a partition of her estate by will. Thus, in the third paragraph of her will, after
commanding that upon her death all her obligations as well as the expenses of her last

illness and funeral and the expenses for probate of her last will and for the administration of
her property in accordance with law, be paid, she expressly provided that "it is my wish and I
command that my property be divided" in accordance with the dispositions immediately
thereafter following, whereby she specified each real property in her estate and designated
the particular heir among her seven compulsory heirs and seven other grandchildren to
whom she bequeathed the same. This was a valid partition 10of her estate, as contemplated
and authorized in the first paragraph of Article 1080 of the Civil Code, providing that
"(S)hould a person make a partition of his estate by an act inter vivos or by will, such
partition shall be respected, insofar as it does not prejudice the legitime of the compulsory
heirs." This right of a testator to partition his estate is subject only to the right of compulsory
heirs to their legitime. The Civil Code thus provides the safeguard for the right of such
compulsory heirs:
ART. 906. Any compulsory heir to whom the testator has left by any title less
than the legitime belonging to him may demand that the same be fully
satisfied.
ART. 907. Testamentary dispositions that impair or diminish the legitime of the
compulsory heirs shall be reduced on petition of the same, insofar as they
may be inofficious or excessive.
This was properly complied with in the executrix-appellee's project of
partition, wherein the five oppositors-appellants namely Estela, Bernardita,
Angelina, Josefina and Lilia, were adjudicated the properties respectively
distributed and assigned to them by the testatrix in her will, and the
differential to complete their respective legitimes of P129,362.11 each were
taken from the cash and/or properties of the executrix-appellee, Marina, and
their co-oppositor-appellant, Tomas, who admittedly were favored by the
testatrix and received in the partition by will more than their respective
legitimes.
2. This right of a testator to partition his estate by will was recognized even in Article 1056
of the old Civil Code which has been reproduced now as Article 1080 of the present Civil
Code. The only amendment in the provision was that Article 1080 "now permits
any person (not a testator, as under the old law) to partition his estate by actinter
vivos." 11 This was intended to repeal the then prevailing doctrine 12 that for a testator to
partition his estate by an actinter vivos, he must first make a will with all the formalities
provided by law. Authoritative commentators doubt the efficacy of the amendment 13 but the
question does not here concern us, for this is a clear case of partition by will, duly admitted
to probate, which perforce must be given full validity and effect. Aside from the provisions of
Articles 906 and 907 above quoted, other codal provisions support the executrix-appellee's
project of partition as approved by the lower court rather than the counter-project of
partition proposed by oppositors-appellants whereby they would reduce the testamentary
disposition or partition made by the testatrix to one-half and limit the same, which they
would consider as mere devises or legacies, to one-half of the estate as the disposable free
portion, and apply the other half of the estate to payment of the legitimes of the seven
compulsory heirs. Oppositors' proposal would amount substantially to a distribution by
intestacy and pro tanto nullify the testatrix' will, contrary to Article 791 of the Civil Code. It
would further run counter to the provisions of Article 1091 of the Civil Code that "(A)
partition legally made confers upon each heir the exclusive ownership of the property
adjudicated to him."
3. In Habana vs. Imbo, 14 the Court upheld the distribution made in the will of the deceased
testator Pedro Teves of two large coconut plantations in favor of his daughter, Concepcion,

as against adverse claims of other compulsory heirs, as being a partition by will, which
should be respected insofar as it does not prejudice the legitime of the compulsory heirs, in
accordance with Article 1080 of the Civil Code. In upholding the sale made by Concepcion to
a stranger of the plantations thus partitioned in her favor in the deceased's will which was
being questioned by the other compulsory heirs, the Court ruled that "Concepcion Teves by
operation of law, became the absolute owner of said lots because 'A partition legally made
confers upon each heir the exclusive ownership of the property adjudicated to him' (Article
1091, New Civil Code), from the death of her ancestors, subject to rights and obligations of
the latter, and, she can not be deprived of her rights thereto except by the methods
provided for by law (Arts. 657, 659, and 661, Civil Code). 15 Concepcion Teves could, as she
did, sell the lots in question as part of her share of the proposed partition of the properties,
especially when, as in the present case, the sale has been expressly recognized by herself
and her co-heirs ..."
4. The burden of oppositors' contention is that the testamentary dispositions in their favor
are in the nature of devises of real property, citing the testatrix' repeated use of the words "I
bequeath" in her assignment or distribution of her real properties to the respective heirs.
From this erroneous premise, they proceed to the equally erroneous conclusion that "the
legitime of the compulsory heirs passes to them by operation of law and that the testator
can only dispose of the free portion, that is, the remainder of the estate after deducting the
legitime of the compulsory heirs ... and all testamentary dispositions, either in the nature of
institution of heirs or of devises or legacies, have to be taken from the remainder of the
testator's estate constituting the free portion." 16
Oppositors err in their premises, for the adjudications and assignments in the testatrix' will
of specific properties to specific heirs cannot be considered all devises, for it clearly appear
from the whole context of the will and the disposition by the testatrix of her whole estate
(save for some small properties of little value already noted at the beginning of this opinion)
that her clear intention was to partition her whole estate through her will. The repeated use
of the words "I bequeath" in her testamentary dispositions acquire no legal significance,
such as to convert the same into devises to be taken solely from the free one-half disposable
portion of the estate. Furthermore, the testatrix' intent that her testamentary dispositions
were by way of adjudications to the beneficiaries as heirs and not as mere devisees, and
that said dispositions were therefore on account of the respective legitimes of the
compulsory heirs is expressly borne out in the fourth paragraph of her will, immediately
following her testamentary adjudications in the third paragraph in this wise: "FOURTH: I
likewise command that in case any of those I named as my heirs in this testament any of
them shall die before I do, his forced heirs under the law enforced at the time of my death
shall inherit the properties I bequeath to said deceased." 17
Oppositors' conclusions necessarily are in error. The testamentary dispositions of the
testatrix, being dispositions in favor of compulsory heirs, do not have to be taken only from
the free portion of the estate, as contended, for the second paragraph of Article 842 of the
Civil Code precisely provides that "(O)ne who has compulsory heirs may dispose of his
estate provided he does not contravene the provisions of this Code with regard to the
legitime of said heirs." And even going by oppositors' own theory of bequests, the second
paragraph of Article 912 Civil Code covers precisely the case of the executrix-appellee, who
admittedly was favored by the testatrix with the large bulk of her estate in providing that
"(T)he devisee who is entitled to a legitime may retain the entire property, provided its
value does not exceed that of the disposable portion and of the share pertaining to him as
legitime." For "diversity of apportionment is the usual reason for making a testament;
otherwise, the decedent might as well die intestate." 18 Fundamentally, of course, the
dispositions by the testatrix constituted a partition by will, which by mandate of Article 1080
of the Civil Code and of the other cited codal provisions upholding the primacy of the

testator's last will and testament, have to be respected insofar as they do not prejudice the
legitime of the other compulsory heirs.
Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by will is not
deemed subject to collation, if the testator has not otherwise provided, but the legitime shall
in any case remain unimpaired" and invoking of the construction thereof given by some
authorities that "'not deemed subject to collation' in this article really means not imputable
to or chargeable against the legitime", while it may have some plausibility 19 in an
appropriate case, has no application in the present case. Here, we have a case of a
distribution and partition of the entire estate by the testatrix, without her having made any
previous donations during her lifetime which would require collation to determine the
legitime of each heir nor having left merely some properties by will which would call for the
application of Articles 1061 to 1063 of the Civil Code on collation. The amount of the
legitime of the heirs is here determined and undisputed.
5. With this resolution of the decisive issue raised by oppositors-appellants, the secondary
issues are likewise necessarily resolved. Their right was merely to demand completion of
their legitime under Article 906 of the Civil Code and this has been complied with in the
approved project of partition, and they can no longer demand a further share from the
remaining portion of the estate, as bequeathed and partitioned by the testatrix principally to
the executrix-appellee.
Neither may the appellants legally insist on their legitime being completed with real
properties of the estate instead of being paid in cash, per the approved project of partition.
The properties are not available for the purpose, as the testatrix had specifically partitioned
and distributed them to her heirs, and the heirs are called upon, as far as feasible to comply
with and give effect to the intention of the testatrix as solemnized in her will, by
implementing her manifest wish of transmitting the real properties intact to her named
beneficiaries, principally the executrix-appellee. The appraisal report of the properties of the
estate as filed by the commissioner appointed by the lower court was approved in toto upon
joint petition of the parties, and hence, there cannot be said to be any question and none
is presented as to fairness of the valuation thereof or that the legitime of the heirs in
terms of cash has been understated. The plaint of oppositors that the purchasing value of
the Philippine peso has greatly declined since the testatrix' death in January, 1961 provides
no legal basis or justification for overturning the wishes and intent of the testatrix. The
transmission of rights to the succession are transmitted from the moment of death of the
decedent (Article 777, Civil Code) and accordingly, the value thereof must be reckoned as of
then, as otherwise, estates would never be settled if there were to be a revaluation with
every subsequent fluctuation in the values of the currency and properties of the estate.
There is evidence in the record that prior to November 25, 1964, one of the oppositors,
Bernardita, accepted the sum of P50,000.00 on account of her inheritance, which, per the
parties' manifestation, 20 "does not in any way affect the adjudication made to her in the
projects of partition of either party as the same is a mere advance of the cash that she
should receive in both projects of partition." The payment in cash by way of making the
proper adjustments in order to meet the requirements of the law on non-impairment of
legitimes as well as to give effect to the last will of the testatrix has invariably been availed
of and sanctioned. 21 That her co-oppositors would receive their cash differentials only now
when the value of the currency has declined further, whereas they could have received them
earlier, like Bernardita, at the time of approval of the project of partition and when the
peso's purchasing value was higher, is due to their own decision of pursuing the present
appeal.
ACCORDINGLY, the orders appealed from are hereby affirmed. Without cost.

G.R. No. L-12957

March 24, 1961

CONSTANCIO SIENES, ET AL., plaintiffs-appellants,

vs.
FIDEL ESPARCIA, ET AL., defendants-appellees.
Proceso R. Remollo for plaintiffs-appellants.
Leonardo D. Mancao for defendants-appellees.
DIZON, J.:
Appellants commenced this action below to secure judgment (1) declaring null and void the
sale executed by Paulina and Cipriana Yaeso in favor of appellees, the spouses Fidel Esparcia
and Paulina Sienes; (2) ordering the Esparcia spouses to reconvey to appellants Lot 3368 of
the Cadastral Survey of Ayuquitan (now Amlan), Oriental Negros; and (3) ordering all the
appellees to pay, jointly and severally, to appellants the sum of P500.00 as damages, plus
the costs of suit. In their answer appellees disclaimed any knowledge or information
regarding the sale allegedly made on April 20, 1951 by Andrea Gutang in favor of appellants
and alleged that, if such sale was made, the same was void on the ground that Andrea
Gutang had no right to dispose of the property subject matter thereof. They further alleged
that said property had never been in possession of appellants, the truth being that
appellees, as owners, had been in continuous possession thereof since the death of
Francisco Yaeso. By way of affirmative defense and counterclaim, they further alleged that
on July 30, 1951, Paulina and Cipriana Yaeso, as the only surviving heirs of Francisco Yaeso,
executed a public instrument of sale in favor of the spouses Fidel Esparcia and Paulina
Sienes, the said sale having been registered together with an affidavit of adjudication
executed by Paulina and Cipriana on July 18, 1951, as sole surviving heirs of the aforesaid
deceased; that since then the Esparcias had been in possession of the property as owners.
After trial upon the issues thus joined, the lower court rendered judgment as follows:
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered declaring (1) that the
sale of Lot No. 3368 made by Andrea Gutang to the plaintiff spouses Constancio
Sienes and Genoveva Silay is void, and the reconveyance prayed for by them is
denied; (2) that the sale made by Paulina and Cipriana Yaeso in favor of defendants
Fidel Esparcia and Paulina Sienes involving the same lot is also void, and they have
no valid title thereto; and (3) that the reservable property in question is part of and
must be reverted to the estate of Cipriana Yaeso, the lone surviving relative and heir
of Francisco Yaeso at the death of Andrea Gutang as of December 13, 1951. No
pronouncement as to the costs.
From the above decision the Sienes spouse interposed the present appeal, their principal
contentions being, firstly, that the lower court erred in holding that Lot 3368 of the Cadastral
Survey of Ayuquitan was a reservable property; secondly, in annulling the sale of said lot
executed by Andrea Gutang in their favor; and lastly, in holding that Cipriana Yaeso, as
reservee, was entitled to inherit said land.
There is no dispute as to the following facts:
Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa Ruales, he had
four children named Agaton, Fernando, Paulina and Cipriana, while with his second wife,
Andrea Gutang, he had an only son named Francisco. According to the cadastral records of
Ayuquitan, the properties left by Saturnino upon his death the date of which does not

clearly appear of record were left to his children as follows: Lot 3366 to Cipriana, Lot 3367
to Fernando, Lot 3375 to Agaton, Lot 3377 (southern portion) to Paulina, and Lot 3368
(western portion) to Francisco. As a result of the cadastral proceedings, Original Certificate
of Title No. 10275 covering Lot 3368 was issued in the name of Francisco. Because Francisco
was a minor at the time, his mother administered the property for him, declared it in her
name for taxation purposes (Exhs A & A-1), and paid the taxes due thereon (Exhs. B, C, C-1
& C-2). When Francisco died on May 29, 1932 at the age of 20, single and without any
descendant, his mother, as his sole heir, executed the public instrument Exhibit F entitled
EXTRAJUDICIAL SETTLEMENT AND SALE whereby, among other things, for and in
consideration of the sum of P800.00 she sold the property in question to appellants. When
thereafter said vendees demanded from Paulina Yaeso and her husband Jose Esparcia, the
surrender of Original Certificate of Title No. 10275 which was in their possession the
latter refused, thus giving rise to the filing of the corresponding motion in the cadastral
record No. 507. The same, however, was denied (Exhs. 8 & 9).
Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the surviving
half-sisters of Francisco, and who as such had declared the property in their name, on
January 1, 1951 executed a deed of sale in favor of the spouses Fidel Esparcia and Paulina
Sienes (Exh. 2) who, in turn, declared it in their name for tax purposes and thereafter
secured the issuance in their name of Transfer Certificate of Title No. T-2141 (Exhs. 5 & 5-A).
As held by the trial court, it is clear upon the facts already stated, that the land in question
was reservable property. Francisco Yaeso inherited it by operation of law from his father
Saturnino, and upon Francisco's death, unmarried and without descendants, it was inherited,
in turn, by his mother, Andrea Gutang. The latter was, therefore, under obligation to reserve
it for the benefit of relatives within the third degree belonging to the line from which said
property came, if any survived her. The record discloses in this connection that Andrea
Gutang died on December 13, 1951, the lone reservee surviving her being Cipriana Yaeso
who died only on January 13, 1952 (Exh. 10).
In connection with reservable property, the weight of opinion is that the reserve creates two
resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the
survival, at the time of his death, of relatives within the third degree belonging to the line
from which the property came (6 Manresa 268-269; 6 Sanchez Roman 1934). This Court has
held in connection with this matter that the reservista has the legal title and dominion to the
reservable property but subject to a resolutory condition; that he is like a life usufructuary of
the reservable property; that he may alienate the same but subject to reservation, said
alienation transmitting only the revocable and conditional ownership of the reservists, the
rights acquired by the transferee being revoked or resolved by the survival of reservatarios
at the time of the death of the reservista (Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega,
46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; and Director of Lands vs. Aguas, 65 Phil.
279).
The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the
condition that the vendees would definitely acquire ownership, by virtue of the alienation,
only if the vendor died without being survived by any person entitled to the reservable
property. Inasmuch much as when Andrea Gutang died, Cipriana Yaeso was still alive, the
conclusion becomes inescapable that the previous sale made by the former in favor of
appellants became of no legal effect and the reservable property subject matter thereof
passed in exclusive ownership to Cipriana.
On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana
Yaeso in favor of the spouses Fidel Esparcia and Paulina Sienes was subject to a similar
resolutory condition. The reserve instituted by law in favor of the heirs within the third

degree belonging to the line from which the reservable property came, constitutes a real
right which the reservee may alienate and dispose of, albeit conditionally, the condition
being that the alienation shall transfer ownership to the vendee only if and when the
reservee survives the person obliged to reserve. In the present case, Cipriana Yaeso, one of
the reservees, was still alive when Andrea Gutang, the person obliged to reserve, died. Thus
the former became the absolute owner of the reservable property upon Andrea's death.
While it may be true that the sale made by her and her sister prior to this event, became
effective because of the occurrence of the resolutory condition, we are not now in a position
to reverse the appealed decision, in so far as it orders the reversion of the property in
question to the Estate of Cipriana Yaeso, because the vendees the Esparcia spouses did
not appeal therefrom.
WHEREFORE, the appealed decision as above modified is affirmed, with costs, and
without prejudice to whatever action in equity the Esparcia spouses may have against the
Estate of Cipriana Yaeso for the reconveyance of the property in question.
G.R. No. L-29901 August 31, 1977
IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA, petitioners,
vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH V and SUSANA
DE LA TORRE, in her capacity as Administratrix of the Intestate Estate of
Consolacion de la Torre, respondents.
Dominador G. Abaria and Primitivo Blanca for private respondent.
Rodrigo O. Delfinado for petitioners.

MARTIN, J.:
Petition for review of the decision of the respondent Court which dismissed the complaint of
petitioners in Civil Case No. 7839-A, entitled "Ignacio Frias Chua, et al. vs. Susana de la
Torre, Administratrix of the Intestate Estate of Consolacion de la Torre"
It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar alias Sy Quio he
sired three children, namely: Ignacio, Lorenzo and Manuel, all surnamed Frias Chua. When
Patricia S. Militar died, Jose Frias Chua contracted a second marriage with Consolacion de la
Torre with whom he had a child by the name of Juanita Frias Chua. Manuel Frias Chua died
without leaving any issue. Then in 1929, Jose Frias Chua died intestate leaving his widow
Consolacion de la Torre and his son Juanito Frias Chua of the second marriage and sons
Ignacio Frias Chua and Lorenzo Frias Chua of his first marriage. In Intestate Proceeding No.
4816, the lower court issued an order dated January 15, 1931 1 adjudicating, among others,
the one-half (1/2,) portion of Lot No. 399 and the sum of P8,000.00 in favor of Jose Frias
Chua's widow, Consolacion de la Torre, the other half of Lot No. 399 in favor of Juanito Frias
Chua, his son in the second marriage; P3,000.00 in favor of Lorenze Frias chua; and
P1,550.00 in favor of Ignacio Frias, Chua, his sons of the first marriage. By virtue of said
adjudication, Transfer Certificate of Title No. TR-980 (14483) 2dated April 28, 1932 was
issued by the Register of Deeds in the names of Consolacion de la Torre and Juanito Frias
Chua as owners pro-indiviso of Lot No. 399.

On February 27, 1952, Juanito Frias Chua of the second marriage died intestate without any
issue. After his death, his mother Consolacion de la Torre succeeded to his pro-indivisio share
of Lot No. 399. In a week's time or on March 6, 1952, Consolacion de la Torre executed a
declaration of heirship adjudicating in her favor the pro-indiviso share of her son Juanito as a
result of which Transfer Certificate of Title No. 31796 covering the whole Lot No. 399 was
issued in her name. Then on March 5, 1966, Consolacion de la Torre died intestate leaving no
direct heir either in the descending or ascending line except her brother and sisters.
In the "Intestate Estate of Consolacion de la Torre", docketed as Sp. Proc. No. 7839-A, the
petitioners herein, Ignacio Frias Chua, of the first marriage and dominador and Remedios
Chua, the supposed legitimate children of the deceased Lorenzo Frias Chua, also of the first
marriage filed the complaint a quo 3 (subseqently segregated as a distinct suit and docketed
as Civil Case No. 7839-A) on May 11, 1966 before the respondent Court of First Instance of
Negros Occidental, Branch V, praying that the one-half (1/2) portion of Lot No. 399 which
formerly belonged to Juanito Frias but which passed to Consolacion de la Torre upon the
latter's death, be declaredas a reservable property for the reason that the lot in questionn
was subject to reserval troncal pursuant to Article 981 of the New Civil Code, Private
respondent as administratrix of the estate of individually the complaint of petitioners 4
On July 29, 1986, the respondent Court rendered a decision dismissing the complaint of
petitioner. Hence this instant.
The pertinent provision of reserva troncal under the New Civil Code provides:
ART. 891. The ascendant who inheritts from his descendant any property
which the latter may have acquired by gratuitous title from another ascendat,
or a brother or sister, is obliged to reserve such property as he may have
acquired by operation of law for the benefit of relatives who are within the
third degree and belong to the line from which said property came.
Persuant to the foregoing provision, in order that a property may be impressed with a
reservable character the following requisites must exist, to wit: (1) that the property was
acquired by a descendant from an asscendant or from a brother or sister by gratuitous title;
(2) that said descendant died without an issue; (3) that the property is inherited by another
ascendant by operation of law; and (4) that there are relatives within the third degree
belonging to the line from which said property came. 5 In the case before Us, all of the
foregoing requisites are present. Thus, as borne out by the records, Juanoito Frias Chua of
the second marriage died intestate in 1952; he died withour leaving any issue; his proindiviso of 1/2 share of Lot No. 399 was acquired by his mother, Consolacion de la Torre died,
Juannnito Frias Chua who died intestate had relatives within the third degree. These relatives
are Ignacio Frias Chua and Dominador Chua and Remidios Chua, the suppose legitimate
children of the deceased Lorenzo Frias Chua, who are the petitioners herein.
The crux of the problem in instant petition is focused on the first requisit of reserva troncal
whether the property in question was acquired by Juanito Frias Chua from his father Jose
Frias Chua, gratuitously or not. In resolving this point, the respondent Court said:
It appears from Exh. "3", which is part of Exh. "D", that the property in
question was not acquired by Consolacion de la Torre and Juanito Frias
Chua gratuitously but for a consideration, namely, that the legatees were to
pay the interest and cost and other fees resulting from Civil Case No. 5300 of
this Court. As such it is undeniable that the lot in question is not subject tot
a reserva troncal, under Art. 891 of the New Civil Code, and as such the
plaintiff's complaint must fail.

We are not prepared to sustain the respondent Court's conclusion that the lot in question is
not subject to areserva troncal under Art. 891 of the New Civil Code. It is, As explained by
Manresa which this Court quoted with approval in Cabardo v. Villanueva, 44 Phil. 186, "The
transmission is gratuitous or by gratuitous title when the recipient does not give anything in
return." It matters not whether the property transmitted be or be not subject to any prior
charges; what is essential is that the transmission be made gratuitously, or by an act of
mere liberality of the person making it, without imposing any obligation on the part of the
recipient; and that the person receiving the property gives or does nothing in return; or, as
ably put by an eminent Filipino commentator, 6 "the essential thing is that the person who
transmits it does so gratuitously, from pure generosity, without requiring from the transferee
any prestation." It is evident from the record that the transmission of the property in
question to Juanito Frias Chua of the second marriage upon the death of his father Jose Frias
Chua was by means of a hereditary succession and therefore gratuitous. It is true that there
is the order (Exh. "D") of the probate Court in Intestate Proceeding No. 4816 which estates in
express terms;
2. Se adjudicada pro el presente a favor de Consolacion de la Torre, viuda,
mayor de edad, y de su hiju, Juanito Frias Chua, menor de edad, todos
residente de San Enrique, Negros Occidental, I.F.,como herederos del finado
Jose Frias Chua Choo, estas propiadades:
14483
La parcela de terrenno concida por Lote No. 399 del Catsatro de la Carlota,
Negros Occidental, de 191.954 metros cuadddrados y cubierto por el
Certificado de Titulo No. 11759, en partes equales pro-indiviso; por con la
obligscion de pagar a las Standard Oil Co. of New York la deuda de P3971.20,
sus intereses, costas y demas gastos resultantes del asunto civil No. 5300de
este jusgado
But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20 is
imposed upon Consolacion de la Torre and Juanito Frias Chua not personally by the deceased
Jose Frias Chua in his last will and testament but by an order of the court in the Testate
Proceeding No.4816 dated January 15, 1931. As long as the transmission of the property to
the heirs is free from any condition imposed by the deceased himself and the property is
given out of pure generosity, itg is gratuitous. it does not matter if later the court orders one
of the heirs, in this case Juanito Frias Chua, to pay the Standare oil co. of New York the
amount of P3,971.20. This does not change the gratuitous nature of the transmission of the
property to him. This being the case the lot in question is subject to reserva troncal under
Art, 891 of the New Civil Code.
It is contented that the distribution of the shares of the estate of Jose Frias Chua to the
respondent heirs or legatees was agreed upon by the heirs in their project of partition based
on the last will and testament of Jose Frias Chua. But petitioners claim that the supposed
Last Will and Testament of Jose Frias Chua was never probated. The fact that the will was not
probated was admitted in paragraph 6 of the respondents' answer. 7 There is nothing
mentioned in the decision of the trial court in Civil Case No. 7839 A which is the subject of
the present appeal nor in the order of January 15, 1931 of the trial court in the Testate Estate
Proceeding No. 4816 nor in the private respondent's brief, that the Last Will and Testament
of Jose Frias Chua has ever been probated. With the foregoing, it is easy to deduce that if the
Last Will and Testament has in fact been probated there would have been no need for the
testamentary heirs to prepare a project of partition among themselves. The very will itself
could be made the basis for the adjudication of the estate as in fact they did in their project

of partition with Juanito Frias Chua getting one-half of Lot 399 by inheritance as a sone of the
deceased Jose Frias Chua by the latter's second marriage.
According to the record, Juanito Frias Chua died on February 27, 1952 without any issue.
After his death his mother Consolation de la Torre succeeded to his one-half pro-indiviso
share of Lot 399. This was, however, subject to the condition that the property was
reservable in character under Art. 891 of the Civil Code in favor of relatives within the third
degree of Jose Frias Chua from whom the property came. These relatives are the petitioner
herein.
It is claimed that the complaint of petitioners to recover the one-half portion of Lot 399
which originally belonged to Juanito Frias Chua has already prescribed when it was filed on
May 11, 1966. We do not believe so. It must be remembered that the petitioners herein are
claiming as reservees did not arise until the time the reservor, Consolacion de la Torre, died
in March 1966. When the petitioners therefore filed their complaint to recover the one-half
(1/2) portion of Lot 399, they were very much in time to do so.
IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The petitioners
Ignacio Frias Chua, Dominador Chua and Remedios Chua are declared owners of 1/2
undivided portion of Lot 399; and the Register of Deeds of Negros Occidental is hereby
ordered to cancel. Transfer Certificate of Title No. 31796 covering Lot No. 399 issued in the
name of Consolacion de la Torre and to issue a new Certificate of Title in the names of
Consolacion de la Torre, 1/2 undivided portion; Ignacio Frias Chua, 1/4 undivided portion; and
Dominador Chua and Remedios Chua, 1/4 undivided portion, of said lot. Without
pronouncement as to costs.
SO ORDERED.
G.R. No. L-34395 May 19, 1981
BEATRIZ L. GONZALES, petitioner,
vs.
COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO
L. VALDEZ, ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO
LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y
HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO LEGARDA Y
HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA LEGARDA Y LOBREGAT,
JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT, ALEJANDRO LEGARDA
Y LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA. ANTONIA LEGARDA Y
LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO
LEGARDA Y LOBREGAT, EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA,
and the ESTATE OF DONA FILOMENA ROCES DE LEGARDA,respondents.

AQUINO, J.:1wph1.t
Beatriz Legarda Gonzales appealed from the decision of the Court of First Instance of Manila,
dismissing her complaint for partition, accounting, reconveyance and damages and holding,
as not subject to reserve troncal, the properties which her mother Filomena Races inherited
in 1943 from Filomena Legarda (Civil Case No. 73335). The facts are as follows:

Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died [Manila] on June 17,
1933. He was survived by his widow, Filomena Races, and their seven children: four
daughters named Beatriz, Rosario, Teresa and Filomena and three sons named Benito,
Alejandro and Jose.
On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in
three equal portions by his daughters, Consuelo and Rita, and the heirs of his deceased son
Benito Legarda y De la Paz who were represented by Benito F. Legarda.
Filomena Legarda y Races died intestate and without issue on March 19, 1943. Her sole
heiress was her mother, Filomena Races Vda. de Legarda.
Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to herself
the properties which she inherited from her deceased daughter, Filomena Legarda. The said
properties consist of the following: 1wph1.t
(a) Savings deposit in the National City Bank of New York with a credit balance
of P3,699.63.
(b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7
interest in certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd.,
Philippine Guaranty Company, Insular Life Assurance Company and the Manila
Times.
(c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7
titles), 80260, 80261 and 57512 of the Manila registry of deeds.
1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202,
48205, 48203, 48206, 48160 and 48192 of the Manila registry of deeds;
1/21st of the property described in TCT No. 4475 of the registry of deeds of
Rizal, now Quezon City; 1/14th of the property described in TCT No. 966 of the
registry of deeds of Baguio;
1/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of
the Manila registry of deeds; 1/7th of the lots and improvements at 181 San
Rafael describe in TCT Nos. 50495 and 48161 of the Manila registry of deeds;
1/7th of the property described in TCT No. 48163 of the Manila registry of
deeds (Streets);
l/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila
registry of deeds (Streets and Estero):
2/21st of the property described in TCT No. 13458 of tile registry of deeds of
T0ayabas.
These are the properties in litigation in this case. As a result of the affidavit of adjudication,
Filomena Races succeeded her deceased daughter Filomena Legarda as co-owner of the
properties held proindiviso by her other six children.

Mrs. Legarda on March 6, 1953 executed two handwritten Identical documents wherein she
disposed of the properties, which she inherited from her daughter, in favor of the children of
her sons, Benito, Alejandro and Jose (sixteen grandchildren in all). The document
reads: 1wph1.t
A mis hijos :
Dispongo que se reparta a todos mis nietos hijos de Ben, Mandu y Pepito, los
bienes que he heredado de mi difunta hija Filomena y tambien los acciones de
la Destileria La Rosario' recientemente comprada a los hermanos Values
Legarda.
De los bienes de mi hija Filomena se deducira un tote de terreno que yo he
0donada a las Hijas de Jesus, en Guipit
La case No. 181 San Rafael, la cede a mi hijo Mandu solo la casa; proque ella
esta construida sobre terreno de los hermanos Legarda Races. 1wph1.t
(Sgd.) FILOMENA ROCES LEGARDA
6 Marzo 1953
During the period from July, 1958 to February, 1959 Mrs. Legarda and her six surviving
children partitioned the properties consisting of the one-third share in the estate of Benito
Legarda y Tuason which the children inherited in representation of their father, Benito
Legarda y De la Paz.
Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a holographic
will in the order dated July 16, 1968 of the Court of First Instance of Manila in Special
Proceeding No. 70878, Testate Estate of Filomena Races Vda. de Legarda. The decree of
probate was affirmed by the Court of Appeals in Legarda vs. Gonzales, CA-G.R. No. 43480-R,
July 30,1976.
In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix, filed on May
20, 1968 a motion to exclude from the inventory of her mother's estate the properties which
she inherited from her deceased daughter, Filomena, on the ground that said properties
are reservable properties which should be inherited by Filomena Legarda's three sisters and
three brothers and not by the children of Benito, Alejandro and Jose, all surnamed Legarda.
That motion was opposed by the administrator, Benito F. Legarda.
Without awaiting the resolution on that motion, Mrs. Gonzales filed on June 20, 1968 an
ordinary civil action against her brothers, sisters, nephews and nieces and her mother's
estate for the purpose of securing a declaration that the said properties are reservable
properties which Mrs. Legarda could not bequeath in her holographic will to her
grandchildren to the exclusion of her three daughters and her three sons (See Paz vs.
Madrigal, 100 Phil. 1085).
As already stated, the lower court dismissed the action of Mrs. Gonzales. ln this appeal
under Republic Act No. 5440 she contends in her six assignments of error that the lower
court erred in not regarding the properties in question as reservable properties under article
891 of the Civil Code.

On the other hand, defendants-appellees in their six counter-assignments of error contend

that the lower court erred in not holding that Mrs. Legarda acquired the estate of her
daughter Filomena] Legarda in exchange for her conjugal and hereditary shares in the estate
of her husband Benito Legarda y De la Paz and in not holding that Mrs. Gonzales waived her
right to the reservable properties and that her claim is barred by estoppel, laches and
prescription.
The preliminary issue raised by the private respondents as to the timeliness of Mrs.
Gonzales' petition for review is a closed matter. This Court in its resolution of December 16,
1971 denied respondents' motion to dismiss and gave due course to the petition for review.
In an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed
facts. Since on the basis of the stipulated facts the lower court resolved only the issue of
whether the properties in question are subject to reserva troncal that is the only legal issue
to be resolved in this appeal.
The other issues raised by the defendants-appellees, particularly those involving factual
matters, cannot be resolved in this appeal. As the trial court did not pass upon those issues,
there is no ruling which can be reviewed by this Court.
The question is whether the disputed properties are reservable properties under article 891
of the Civil Code, formerly article 811, and whether Filomena Races Vda. de Legarda could
dispose of them in his will in favor of her grandchildren to the exclusion of her six children.
Did Mrs. Legarda have the right to convey mortis causa what she inherited from her
daughter Filomena to the reservees within the third degree and to bypass the reservees in
the second degree or should that inheritance automatically go to the reservees in the
second degree, the six children of Mrs. Legarda?
As will hereinafter be shown that is not a novel issue or a question of first impression. lt was
resolved in Florentino vs. Florentino, 40 Phil. 480. Before discussing the applicability to this
case of the doctrine in the Florentino case and other pertinent rulings, it may be useful to
make a brief discourse on the nature of reserve troncal, also calledlineal, familiar,
extraordinaria o semi-troncal.
Much time, effort and energy were spent by the parties in their five briefs in descanting on
the nature of reserve troncal which together with the reserva viudal and reversion legal, was
abolished by the Code Commission to prevent the decedent's estate from being entailed, to
eliminate the uncertainty in ownership caused by the reservation (which uncertainty
impedes the improvement of the reservable property) and to discourage the confinement of
property within a certain family for generations which situation allegedly leads to economic
oligarchy, and is incompatible with the socialization of ownership.
The Code Commission regarded the reservas as remnants of feudalism which fomented
agrarian unrest. Moreover, the reserves, insofar as they penalize legitimate relationship, is
considered unjust and inequitable.
However, the lawmaking body, not agreeing entirely with the Code Commission, restored
the reserve troncal, a legal institution which, according to Manresa and Castan Tobenas has
provoked questions and doubts that are difficult to resolve.
Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article 891,
which reads: 1wph1.t

ART. 811. El ascendiente que heredare de su descendiente bienes que este

hubiese adquirido por titulo lucrative de otro ascendiente, o de un hermano,
se halla obligado a reservas los que hubiere adquirido por ministerio de la ley
en favor de los parientes que eaten dentro del tercer grade y pertenezcan a la
linea de donde los bienes proceden
ART. 891. The ascendant who inherits from his descendant any property which
the latter may have acquired by gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such property as he may have acquired
by operation of law for the benefit of relatives who are within the third degree
and who belong to the line from which said property came.
In reserve troncal (1) a descendant inherited or acquired by gratuitous title property from an
ascendant or from a brother or sister; (2) the same property is inherited by another
ascendant or is acquired by him by operation of law from the said descendant, and (3) the
said ascendant should reserve the said property for the benefit of relatives who are within
the third degree from the deceased descendant (prepositus) and who belong to the line from
which the said property came.
So, three transmissions are involved: (I) a first transmission by lucrative title (inheritance or
donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior
transmission, by operation of law (intestate succession or legitime) from the deceased
descendant (causante de la reserve) in favor of another ascendant, the reservor
or reservista, which two transmissions precede the reservation, and (3) a third transmissions
of the same property (in consequence of the reservation) from the reservor to the reservees
(reservatarios) or the relatives within the third degree from the deceased descendant
belonging to the line of the first ascendant, brother or sister of the deceased descendant (6
Castan Tobenas Derecho Civil, Part l, 1960, 6th Ed., pp. 198-9).
If there are only two transmissions there is no reserve. Thus, where one Bonifacia Lacerna
died and her properties were inherited by her son, Juan Marbebe, upon the death of Juan,
those lands should be inherited by his half-sister, to the exclusion of his maternal first
cousins. The said lands are not reservable property within the meaning of article 811
(Lacerna vs. Vda. de Corcino, l l l Phil. 872).
The persons involved in reserve troncal are (1) the ascendant or brother or sister from whom
the property was received by the descendant by lucrative or gratuitous title, (2) the
descendant or prepositus (prepositus) who received the property, (3) the reservor
(reservista) the other ascendant who obtained the property from the (prepositus) by
operation of law and (4) the reserves (reservatario) who is within the third degree from
theprepositus and who belongs to the (line o tronco) from which the property came and for
whom the property should be reserved by the reservor.
The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil. 1098;
Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA
412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil. 392).
The rationale of reserve troncal is to avoid "el peligro de que bienes poseidos secularmente
por una familia pasen bruscamente a titulo gratuito a manos extraas por el azar de los
enlaces y muertes prematuras or impeder que, por un azar de la vide personas extranas a
una familia puedan adquirir bienes que sin aquel hubieran quedado en ella (6 Castan
Tobenas Derecho Civil, Part l, 6th Ed., 1980, p. 203; Padura vs. Baldovino, 104 Phil. 1065).

An illustration of reserve troncal is found in Edroso vs. Sablan, 25 Phil. 295. ln that case,
Pedro Sablan inherited two parcels of land from his father Victorians. Pedro died in 1902,
single and without issue. His mother, Marcelina Edroso, inherited from him the two parcels of
land.
It was held that the land was reservable property in the hands of Marcelina. The reservees
were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan, the prepositus.
Marcelina could register the land under the Torrens system in her name but the fact that the
land was reservable property in favor of her two brothers-in-law, should they survive her,
should be noted in the title.
In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share of a
parcel of conjugal land was inherited by her daughter, Juliana Maalac. When Juliana died
intestate in 1920, said one-half share was inherited by her father, Anacleto Maalac who
owned the other one-half portion.
Anacleto died intestate in 1942, survived by his second wife and their six children. lt was
held that the said one-half portion was reservable property in the hands of Anacleto Maalac
and, upon his death, should be inherited by Leona Aglibot and Evarista Aglibot, sisters of
Maria and materna aunts of Juliana Maalac, who belonged to the line from which said onehalf portion came (Aglibot vs. Maalac 114 Phil. 964).
Other illustrations of reserva troncal are found in Florentino vs Florentino, 40 Phil. 480; Nieva
and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs. Balcita 46
Phil. 551; Lunsod vs. Ortega, 46 Phil. 664;Dizon vs. Galang, 48 Phil. 601; Riosa vs. Rocha, 48
Phil. 737; Centeno vs. Centeno 52 Phil. 322; Velayo Bernardo vs. Siojo, 58 Phil. 89; Director
of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39 O.G. 1784.
The person from whom the degree should be reckoned is the descendant, or the one at the
end of the line from which the property came and upon whom the property last revolved by
descent. He is called the prepositus(Cabardo vs. Villanueva. 44 Phil. 186, 190).
In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia
Cabardo. When Cornelia died, her estate passed to her father, Lorenzo Abordo. ln his hands,
the property was reservable property. Upon the death of Lorenzo, the person entitled to the
property was Rosa Cabardo, a maternal aunt of Cornelia, who was her nearest relative within
the third degree.
First cousins of the prepositus are in the fourth degree and are not reservees. They cannot
even represent their parents because representation is confined to relatives within the third
degree (Florentino vs. Florentino, 40 Phil. 480).
Within the third degree, the nearest relatives exclude the more remote subject to the rule of
representation. But the representative should be within the third degree from
the prepositus (Padura vs. Baldovino, 104 Phil. 1065).
Reserva troncal contemplates legitimate relationship. illegitimate relationship and
relationship by affinity are excluded.
Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing
in return such as donacion and succession (Cabardo vs. Villanueva, 44 Phil. 186, 189-190,
citing 6 Manresa, Codigo Civil, 7th Ed., 195 l, p. 360).

The reserva creates two resolutory conditions, namely, (1) the death of the ascendant
obliged to reserve and (2) the survival, at the time of his death, of relatives within the third
degree belonging to the line from which the property came
(Sienes vs. E Esparcia l l l Phil. 349, 353).
The reservor has the legal title and dominion to the reservable property but subject to the
resolutory condition that such title is extinguished if the reservor predeceased the reservee.
The reservor is a usufructuary of the reservable property. He may alienate it subject to the
reservation. The transferee gets the revocable and conditional ownership of the reservor.
The transferee's rights are revoked upon the survival of the reservees at the time of the
death of the reservor but become indefeasible when the reservees predecease the reservor.
(Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega,
46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480: Director of Lands vs. Aguas, 63 Phil.
279.)
The reservor's title has been compared with that of the vendee a retro in a pacta de
retro sale or to a fideicomiso conditional.
The reservor's alienation of the reservable property is subject to a resolutory condition,
meaning that if at the time of the reservor's death, there are reservees, the transferee of the
property should deliver it to the reservees. lf there are no reservees at the time of the
reservor's death, the transferee's title would become absolute. (Lunsod vs. Ortega, 46 Phil.
664; Gueco vs. Lacson, 118 Phil. 944; Mono vs. Nequia 93 Phil. 120).
On the other hand, the reserves has only an inchoate, expectant or contingent right. His
expectant right would disappear if he predeceased the reservor. lt would become absolute
should the reservor predecease the reserves.
The reserves cannot impugn any conveyance made by the reservor but he can require that
the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha 48
Phil. 737; Edroso vs. Sablan, 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944).
There is a holding that the renunciation of the reservee's right to the reservable property is
illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil.
89, 96).
And there is a dictum that the reservee's right is a real right which he may alienate and
dispose of conditionally. The condition is that the alienation shall transfer ownership to the
vendee only if and when the reserves survives the reservor (Sienes vs. Esparcia, 111 Phil.
349, 353). 1wph1.t
The reservatario receives the property as a conditional heir of the descendant
(prepositus) said property merely reverting to the line of origin from which it
had temporarily and accidentally stayed during the reservista's lifetime. The
authorities are all agreed that there being reservatarios that survive the
reservists, the latter must be deemed to have enjoyed no more than a than
interest in the reservable property. (J. J. B. L. Reyes in Cane vs. Director of
Lands, 105 Phil. l5.)
Even during the reservista's lifetime, the reservatarios, who are the ultimate
acquirers of the property, can already assert the right to prevent
the reservista from doing anything that might frustrate their reversionary
right, and, for this purpose, they can compel the annotation of their right in

the registry of property even while the (reservista) is alive (Ley Hipotecaria de
Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295).
This right is incompatible with the mere expectancy that corresponds to the
natural heirs of the reservista lt is likewise clear that the reservable property
is no part of the estate of the reservista who may not dispose of them (it) by
will, so long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil.
226, 237).
The latter, therefore, do not inherit from the reservista but from the
descendant (prepositus) of whom the reservatarios are the heirs mortis causa,
subject to the condition that they must survive thereservista. (Sanchez
Roman, Vol. VI Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp.
274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960, December
27, 1958, 104 Phil. 1065).
Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes,
"automatically and by operation of law, the owner of the reservable property." (Cane vs.
Director of Lands, 105 Phil. l5.)
In the instant case, the properties in question were indubitably reservable properties in the
hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a certainty
when at the time of her death the reservees or relatives within the third degree of
the prepositus Filomena Legarda were living or they survived Mrs. Legarda.
So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey the
reservable properties by will or mortis causa to the reservees within the third degree (her
sixteen grandchildren) to the exclusion of the reservees in the second degree, her three
daughters and three sons. As indicated at the outset, that issue is already res
judicata or cosa juzgada.
We hold that Mrs. Legarda could not convey in her holographic will to her sixteen
grandchildren the reservable properties which she had inherited from her daughter Filomena
because the reservable properties did not form part of her estate (Cabardo vs. Villanueva, 44
Phil. 186, 191). The reservor cannot make a disposition mortis causa of the reservable
properties as long as the reservees survived the reservor.
As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable
properties from theprepositus, not from the reservor.
Article 891 clearly indicates that the reservable properties should be inherited by all the
nearest relatives within the third degree from the prepositus who in this case are the six
children of Mrs. Legarda. She could not select the reservees to whom the reservable
property should be given and deprive the other reservees of their share therein.
To allow the reservor in this case to make a testamentary disposition of the reservable
properties in favor of the reservees in the third degree and, consequently, to ignore the
reservees in the second degree would be a glaring violation of article 891. That
testamentary disposition cannot be allowed.
We have stated earlier that this case is governed by the doctrine of Florentino vs. Florentino,
40 Phil. 480, a similar case, where it was ruled: 1wph1.t

Reservable property left, through a will or otherwise, by the death of

ascendant (reservista) together with his own property in favor of another of
his descendants as forced heir, forms no part of the latter's lawful inheritance
nor of the legitime, for the reason that, as said property continued to be
reservable, the heir receiving the same as an inheritance from his ascendant
has the strict obligation of its delivery to the relatives, within the third degree,
of the predecessor in interest (prepositus), without prejudicing the right of the
heir to an aliquot part of the property, if he has at the same time the right of
a reservatario (reserves).
ln the Florentino case, it appears that Apolonio Florentino II and his second wife Severina Faz
de Leon begot two children, Mercedes and Apolonio III. These two inherited properties from
their father. Upon Apolonio III death in 1891, his properties were inherited by his mother,
Severina, who died in 1908. ln her will, she instituted her daughter Mercedes as heiress to all
her properties, including those coming from her deceased husband through their son,
Apolonio III.
The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon and the
descendants of the deceased children of his first marriage, sued Mercedes Florentino for the
recovery of their share in the reservable properties, which Severina de Leon had inherited
from Apolonio III which the latter had inherited from his father Apolonio II and which
Severina willed to her daughter Mercedes.
Plaintiff's theory was that the said properties, as reservable properties, could not be
disposed of in Severina's will in favor of Mercedes only. That theory was sustained by this
Court.
It was held that the said properties, being reservable properties, did not form part of
Severina's estate and could not be inherited from her by her daughter Mercedes alone.
As there were seven reservees, Mercedes was entitled, as a reserves, to one-seventh of the
properties. The other six sevenths portions were adjudicated to the other six reservees.
Under the rule of stare decisis et non quieta movere, we are bound to follow in this case the
doctrine of theFlorentino case. That doctrine means that as long as during the reservor's
lifetime and upon his death there are relatives within the third degree of
the prepositus regardless of whether those reservees are common descendants of the
reservor and the ascendant from whom the property came, the property retains its
reservable character. The property should go to the nearest reservees. The reservor cannot,
by means of his will, choose the reserves to whom the reservable property should be
awarded.
The alleged opinion of Sanchez Roman that there is no reserva troncal when the only
relatives within the third degree are the common descendants of the predeceased
ascendant and the ascendant who would be obliged to reserve is irrelevant and sans binding
force in the light of the ruling in the Florentino case.
It is contended by the appellees herein that the properties in question are not reservable
properties because only relatives within the third degree from the paternal line have
survived and that when Mrs. Legarda willed the said properties to her sixteen grandchildren,
who are third-degree relatives of Filomena Legarda and who belong to the paternal line, the
reason for the reserva troncal has been satisfied: "to prevent persons outside a family from
securing, by some special accident of life, property that would otherwise have remained
therein".

That same contention was advanced in the Florentino case where the reservor willed the
reservable properties to her daughter, a full-blood sister of the prepositus and ignored the
other six reservors, the relatives of the half-blood of the prepositus.
In rejecting that contention, this Court held that the reservable property bequeathed by the
reservor to her daughter does not form part of the reservor's estate nor of the daughter's
estate but should be given to all the seven reservees or nearest relatives of the prepositus
within the third degree.
This Court noted that, while it is true that by giving the reservable property to only one
reserves it did not pass into the hands of strangers, nevertheless, it is likewise true that the
heiress of the reservor was only one of the reservees and there is no reason founded upon
law and justice why the other reservees should be deprived of their shares in the reservable
property (pp. 894-5).
Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in her
will the properties in question even if the disposition is in favor of the relatives within the
third degree from Filomena Legarda. The said properties, by operation of Article 891, should
go to Mrs. Legarda's six children as reservees within the second degree from Filomena
Legarda.
It should be repeated that the reservees do not inherit from the reservor but from the
reservor but from the prepositus, of whom the reservees are the heirs mortis causa subject
to the condition that they must survive the reservor (Padura vs. Baldovino, L-11960,
December 27, 1958, 104 Phil. 1065).
The trial court said that the disputed properties lost their reservable character due to the
non-existence of third-degree relatives of Filomena Legarda at the time of the death of the
reservor, Mrs. Legarda, belonging to the Legarda family, "except third-degree relatives who
pertain to both" the Legarda and Races lines.
That holding is erroneous. The reservation could have been extinguished only by the
absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death,
there were (and still are) reservees belonging to the second and third degrees, the disputed
properties did not lose their reservable character. The disposition of the said properties
should be made in accordance with article 891 or the rule on reserva troncal and not in
accordance with the reservor's holographic will. The said properties did not form part of Mrs.
Legarda's estate. (Cane vs. Director of Lands, 105 Phil. l, 4).
WHEREFORE, the lower court's decision is reversed and set aside. lt is hereby adjudged that
the properties inherited by Filomena Roces Vda. de Legarda from her daughter Filomena
Legarda, with all the fruits and accessions thereof, are reservable properties which belong to
Beatriz, Rosario, Teresa, Benito, Alejandro and Jose, all surnamed Legarda y Roces, as
reservees. The shares of Rosario L. Valdes and Benito F. Legarda, who died in 1969 and
1973, respectively, should pertain to their respective heirs. Costs against the private
respondents.
Padura v. Baldovino unreported
G.R. No. L-28032 September 24, 1986
FRANCISCA TIOCO DE PAPA, MANUEL TIOCO, NICOLAS TIOCO and JANUARIO
PAPA, plaintiffs-appellees,
vs.

DALISAY TONGKO CAMACHO, PRIMO TONGKO and GODOFREDO

CAMACHO, defendants-appellants.

NARVASA, J.:
This case, which involves the application of Article 891 of the Civil Code on reserva
troncal, was submitted for judgment in the lower court by all the parties on the following
"Stipulation of Facts and Partial Compromise":
1. They stipulate that the defendant Dalisay D. Tongko-Camacho and the
plaintiffs, Francisco Tioco de Papa, Manuel Tioco and Nicolas Tioco, are
legitimate relatives, plaintiffs being said defendant's grandaunt and
granduncles.
2. They stipulate that plaintiffs and defendant Dalisay D. Tongo-Camacho have
as a common ancestor the late Balbino Tioco (who had a sister by the name of
Romana Tioco), father of plaintiffs and great grandfather of defendant. The
family relationship of the parties is as shown in the chart attached hereto as
Annex 'A' and made an integral part of this stipulation.
3. They stipulate that Romana Tioco during her lifetime gratuitously donated
four (4) parcels of land to her niece Toribia Tioco (legitimate sister of
plaintiffs), which parcels of land are presently covered by Transfer Certificates
of Title Nos. A-64165, 64166 and 64167 of the Registry of Deeds of Manila,
copies of which are attached to this stipulation as Annexes 'B', 'B-l', and 'B-2'.
4. They stipulate that Toribia Tioco died intestate in l9l5, survived by her
husband, Eustacio Dizon, and their two legitimate children, Faustino Dizon and
Trinidad Dizon (mother of defendant Dalisay D, Tongko-Camacho) and leaving
the afore-mentioned four (4) parcels of land as the inheritance of her said two
children in equal pro-indiviso shares.
5. They stipulate that in 1928, Balbino Tioco died intestate, survived by his
legitimate children by his wife Marciana Felix (among them plaintiffs) and
legitimate grandchildren Faustino Dizon and Trinidad Dizon. In the partition of
his estate, three (3) parcels of land now covered by Transfer Certificates of
Title Nos. 16545 and 16554 of the Registry of Deeds of Manila, copies of which
are attached hereto as Annexes 'C' and 'C-l', were adjudicated as the
inheritance of the late Toribia Tioco, but as she had predeceased her father,
Balbino Tioco, the said three (3) parcels of land devolved upon her two
legitimate children Faustino Dizon and Trinidad Dizon in equal pro-indiviso
shares.
6. They stipulate that in 1937, Faustino Dizon died intestate, single and
without issue, leaving his one-half (1/2) pro-indiviso share in the seven (7)
parcels of land above-mentioned to his father, Eustacio Dizon, as his sole
intestate heir, who received the said property subject to a reserva troncal
which was subsequently annotated on the Transfer Certificates of Title
Annexes 'B', 'B-l', 'B-2', 'C' and 'C-l'.

7. They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and her
rights and interests in the parcels of land abovementioned were inherited by
her only legitimate child, defendant Dalisay D. Tongko-Camacho, subject to
the usufructuary right of her surviving husband, defendant Primo Tongko.
8. They stipulate that on June 14, 1965, Eustacio Dizon died intestate,
survived his only legitimate descendant, defendant Dalisay D. TongkoCamacho.
9. The parties agree that defendant Dalisay D. Tongko-Camacho now owns
one-half (1/2) of all the seven (7) parcels of land abovementioned as her
inheritance from her mother, Trinidad Dizon-Tongko.
10. Defendant Dalisay D. Tongko-Camacho also claims, upon legal advice, the
other half of the said seven (7) parcels of land abovementioned by virtue of
the reserva troncal imposed thereon upon the death of Faustino Dizon and
under the laws on intestate succession; but the plaintiffs, also upon legal
advice, oppose her said claim because they claim three-fourths (3/4) of the
one-half pro-indiviso interest in said parcel of land, which interest was
inherited by Eustacio Dizon from Faustino Dizon, or three-eights (3/8) of the
said parcels of land, by virtue of their being also third degree relatives of
Faustino Dizon.
11. The parties hereby agree to submit for judicial determination in this case
the legal issue of whether defendant Dalisay D. Tongko-Camacho is entitled to
the whole of the seven (7) parcels of land in question, or whether the
plaintiffs, as third degree relatives of Faustino Dizon are reservatarios
(together with said defendant) of the one-half pro-indiviso share therein which
was inherited by Eustacio Dizon from his son Faustino Dizon, and entitled to
three-fourths (3/4) of said one-half pro-indiviso share, or three eights (3/8) of
said seven (7) parcels of land, and, therefore, to three-eights (3/8) of the
rentals collected and to be collected by defendant Dalisay P. Tongko Camacho
from the tenants of said parcels of land, minus the expenses and/or real
estate taxes corresponding to plaintiffs' share in the rentals.
12. In view of the fact that the parties are close blood relatives and have
acted upon legal advice in pursuing their respective claims, and in order to
restore and preserve harmony in their family relations, they hereby waive all
their claims against each other for damages (other than legal interest on
plaintiffs' sore in the rentals which this Honorable Court may deem proper to
award), attorney's fees and expenses of litigation which shall be borne by the
respective parties. 1
On the basis thereof, the lower Court declared the plaintiffs Francisco Tioco, Manuel Tioco
and Nicolas Tioco, as well as the defendant Dalisay Tongko-Camacho, entitled,
as reservatarios, to one-half of the seven parcels of land in dispute, in equal proportions,
rendering judgment as follows:
... . Resolving, therefore, the legal question submitted by the parties, the court
holds that plaintiffs Francisca Tioco, Manuel Tioco and Nicolas Tioco are
entitled to three-fourths (3/4) of one-half (1/2) pro-indiviso shares or threeeights (3/8) of the seven (7) parcels of land involved in this action.
Consequently, they are, likewise, entitled to three-eights (3/8) of the rentals
collected and to be collected by the defendant Dalisay D. Tioco-Camacho from

the tenants of the said parcels of land, minus the expenses and/or real estate
taxes corresponding to plaintiffs' share in the rentals.
IN VIEW OF THE FOREGOING, and inasmuch as the parties expressly waived
all their claims against each other for damages including attorney's fees and
expenses of litigation other than the legal interests on plaintiffs' share in the
rentals, the court renders judgment adjudging the plaintiffs entitled to threeeights (3/8) of the seven (7) parcels of land described in Transfer Certificate of
Title Nos. T-64165, T-64166, T-64167, T-16546 and T-16554 of the Registry of
Deeds of Manila. The defendant Dalisay D. Tioco-Camacho is hereby ordered
to make an accounting of all rents received by her on the properties involved
in this action for the purpose of determining the legal interests which should
be paid to the plaintiffs on their shares in the rentals of the property in
question.
SO ORDERED. 2
Not satisfied, the defendant appealed to this Court.
The issue raised is whether, as contended by the plaintiffs-appellees and ruled by the lower
Court, all relatives of the praepositus within the third degree in the appropriate line succeed
without distinction to the reservable property upon the death of the reservista, as seems to
be implicit in Art. 891 of the Civil Code, which reads:
Art. 891. The ascendant who inherits from his descendant any property which
the latter may have acquired by gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such property as he may have acquired
by operation of law for the benefit of relatives who are within the third degree
and who belong to the line from which said property came. (811),
or, as asserted by the defendant-appellant, the rights of said relatives are subject to, and
should be determined by, the rules on intestate succession.
That question has already been answered in Padura vs. Baldovino, 3 where
the reservatario was survived by eleven nephews and nieces of the praepositus in the line of
origin, four of whole blood and seven of half blood, and the claim was also made that all
eleven were entitled to the reversionary property in equal shares. This Court, speaking
through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to be controlling, and
ruled that the nephews and nieces of whole blood were each entitled to a share double that
of each of the nephews and nieces of half blood in accordance with Article 1006 of the Civil
Code. Said the Court:
The issue in this appeal may be formulated as follows: In a case of reserva
troncal, where the onlyreservatarios (reservees) surviving the reservista, and
belonging to the fine of origin, are nephews of the descendant (prepositus),
but some are nephews of the half blood and the others are nephews of the
whole blood, should the reserved properties be apportioned among
them equally, or should the nephews of the whole blood take a share twice as
large as that of the nephews of the half blood?
xxx xxx xxx

The case is one of first impression and has divided the Spanish commentators
on the subject. After mature reflection, we have concluded that the position of
the appellants is correct. The reserva troncalis a special rule designed
primarily to assure the return of the reservable property to the third degree
relatives belonging to the line from which the property originally came, and
avoid its being dissipated into and by the relatives of the inheriting ascendant
(reservista).
xxx xxx xxx
The stated purpose of the reserva is accomplished once the property has
devolved to the specified relatives of the line of origin. But from this time on,
there is no further occasion for its application. In the relations between
one reservatario and another of the same degree there is no call for applying
Art. 891 any longer; wherefore, the respective share of each in the
reversionary property should be governed by the ordinary rules of intestate
succession. In this spirit the jurisprudence of this Court and that of Spain has
resolved that upon the death of the ascendant reservista, the reservable
property should pass, not to all the reservatarios as a class but only to those
nearest in degree to the descendant (prepositus), excluding
those reservatarios of more remote degree (Florentino vs. Florentino, 40 Phil.
489-490; T.S. 8 Nov. 1894; Dir. Gen. de los Registros, Resol. 20 March 1905).
And within the third degree of relationship from the descendant (prepositus),
the right of representation operates in favor of nephews (Florentino vs.
Florentino, supra).
Following the order prescribed by law in legitimate succession when there are
relatives of the descendant within the third degree, the right of the nearest
relative, called reservatarios over the property which the reservista (person
holding it subject to reservation) should return to him, excludes that of the
one more remote. The right of representation cannot be alleged when the one
claiming same as a reservatario of the reservable property is not among the
relatives within the third degree belonging to the line from which such
property came, inasmuch as the right granted by the Civil Code in Article 811
is in the highest degree personal and for the exclusive benefit of designated
persons who are within the third degree of the person from whom the
reservable property came. Therefore, relatives of the fourth and the
succeeding degrees can never be considered as reservatarios, since the law
does not recognize them as such.
In spite of what has been said relative to the right of representation on the
part of one alleging his right as reservatario who is not within the third degree
of relationship, nevertheless there is right of representation on the part of
reservatarios who are within the third degree mentioned by law, as in the case
of nephews of the deceased person from whom the reservable property came.
... . (Florentino vs. Florentino, 40 Phil. 480, 489-490) (Emphasis supplied) See
also Nieva and Alcala vs. Alcala and de Ocampo, 41 Phil. 915)
Proximity of degree and right of representation are basic principles of ordinary
intestate succession; so is the rule that whole blood brothers and nephews are
entitled to a share double that of brothers and nephews of half blood. If in
determining the rights of the reservatarios inter se, proximity of degree and
the right of representation of nephews are made to apply, the rule of double

share for immediate collaterals of the whole blood should be likewise

operative.
In other words, the reserva troncal merely determines the group of
relatives reservatarios to whom the property should be returned; but within
that group, the individual right to the property should be decided by the
applicable rules of ordinary intestate succession, since Art. 891 does not
specify otherwise. This conclusion is strengthened by the circumstance that
the reserva being an exceptional case, its application should be limited to
what is strictly needed to accomplish the purpose of the law. As expressed by
Manresa in his Commentaries (Vol. 6, 6th Ed., p. 250):
... creandose un verdadero estado excepcional del derecho, no debe
ampliarse, sino mas bien restringirse, el alcance del precepto, manteniendo la
excepcion mientras fuere necesaria y estuviese realmente contenida en la
disposicion, y aplicando las reglas generales y fundamentales del Codigo en
materia de sucesi6n, en aquehos extremes no resueltos de un modo expreso,
y que quedan fuera de la propia esfera de accion de la reserva que se crea.
The restrictive interpretation is the more imperative in view of the new Civil
Code's hostility to successional reservas and reversions, as exemplified by the
suppression of the reserva viudal and the reversion legal of the Code of 1889
(Art. 812 and 968-980).
Reversion of the reservable property being governed by the rules on intestate succession,
the plaintiffs-appellees must be held without any right thereto because, as aunt and uncles,
respectively, of Faustino Dizon (thepraepositus), they are excluded from the succession by
his niece, the defendant-appellant, although they are related to him within the same degree
as the latter. To this effect is Abellana vs. Ferraris 4 where Arts. 1001, 1004, 1005 and 1009
of the Civil Code were cited and applied:
Nevertheless, the trial court was correct when it held that, in case of intestacy
nephews and nieces of the de cujus exclude all other collaterals (aunts and
uncles, first cousins, etc.) from the succession. This is readily apparent from
Articles 1001, 1004, 1005 and 1009 of the Civil Code of the Philippines, that
provide as follows:
Art. 1001. Should brothers and sisters or their children survive with the widow
or widower, the latter shall be entitle to one-half of the inheritance and the
brothers and sisters or their children to the other half.
Art. 1004. Should the only survivors be brothers and sisters of the full blood,
they shall inherit in equal shares.
Art. 1005. Should brothers and sisters survive together with nephews and
nieces who are the children of the decedent's brothers and sisters of the full
blood, the former shall inherit per capita, and the latter per stirpes.
Art. 1009. Should there be neither brothers nor sisters, nor children of
brothers and sisters, the other collateral relatives shall succeed to the estate.
Under the last article (1009), the absence of brothers, sisters, nephews and
nieces of the decedent is a precondition to the other collaterals (uncles,

cousins, etc.) being called to the succession. This was also and more clearly
the case under the Spanish Civil Code of 1889, that immediately preceded the
Civil Code now in force (R.A. 386). Thus, Articles 952 and 954 of the Code of
1889 prescribed as follows:
Art. 952. In the absence of brothers or sisters and of nephews or nieces,
children of the former, whether of the whole blood or not, the surviving
spouse, if not separated by a final decree of divorce shall succeed to the
entire estate of the deceased.
Art. 954. Should there be neither brothers nor sisters, nor children of brothers
or sisters, nor a surviving spouse, the other collateral relatives shall succeed
to the estate of deceased.
The latter shall succeed without distinction of lines or preference among them
by reason of the whole blood.
It will be seen that under the preceding articles, brothers and sisters and
nephews and nieces inherited ab intestato ahead of the surviving spouse,
while other collaterals succeeded only after the widower or widow. The
present Civil Code of the Philippines merely placed the spouse on a par with
the nephews and nieces and brothers and sisters of the deceased, but without
altering the preferred position of the latter vis a vis the other collaterals.
xxx xxx xxx
We, therefore, hold, and so rule, that under our laws of succession, a
decedent's uncles and aunts may not succeed ab intestato so long as
nephews and nieces of the decedent survive and are willing and qualified to
succeed. ...
This conclusion is fortified by the observation, also made in Padura, supra, that as to the
reservable property, thereservatarios do not inherit from the reservista, but from the
descendant praepositus:
... . It is likewise clear that the reservable property is no part of the estate of
the reservista, who may not dispose of it by will, as long as there
are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 237). The latter,
therefore, do not inherit from the reservista, but from the
descendant prepositus, of whom the reservatarios are the heirs mortis causa,
subject to the condition that they must survive thereservista. (Sanchez
Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp.
274, 310) ... .
To the same effect is Cano vs, Director of Lands 5, where it was ruled that intestacy
proceedings to determine the right of a reservatario are not necessary where the final
decree of the land court ordering issuance of title in the name of the reservista over
property subject to reserva troncal Identifies thereservatario and there are no other
claimants to the latter's rights as such:
The contention that an intestacy proceeding is still necessary rests upon the
assumption that thereservatario win succeed in, or inherit, the reservable
property from the reservista. This is not true. The reservatario is not

the reservista's successor mortis causa nor is the reservable property part of
the reservista's estate; the reservatario receives the property as a conditional
heir of the descendant (prepositus), said property merely reverting to the line
of origin from which it had temporarily and accidentally strayed during
the reservista's lifetime. The authorities are all agreed that there
beingreservatarios that survive the reservista, the matter must be deemed to
have enjoyed no more than a life interest in the reservable property.
It is a consequence of these principles that upon the death of
the reservista, the reservatario nearest to the prepositus (the appellee in this
case) becomes, automatically and by operation of law, the owner of the
reservable property. As already stated, that property is no part of the estate of
thereservista, and does not even answer for the debts of the latter. ... .
Had the reversionary property passed directly from the praepositus, there is no doubt that
the plaintiffs-appellees would have been excluded by the defendant-appellant under the
rules of intestate succession. There is no reason why a different result should obtain simply
because "the transmission of the property was delayed by the interregnum of
the reserva;" 6 i.e., the property took a "detour" through an ascendant-thereby giving rise to
the reservation before its transmission to the reservatario.
Upon the stipulated facts, and by virtue of the rulings already cited, the defendant-appellant
Dalisay Tongko-Camacho is entitled to the entirety of the reversionary property to the
exclusion of the plaintiffs-appellees.
WHEREFORE, the appealed judgment of the lower Court is reversed and set aside and the
complaint is dismissed, with costs against the plaintiffs-appellants.
Mono v. Nequia no full text online
G.R. No. 68843-44 September 2, 1991
MARIQUITA O. SUMAYA and LAGUNA AGRO-INDUSTRIAL COCONUT COOPERATIVE,
INC., petitioners,
vs.
THE HON. INTERMEDIATE APPELLATE COURT, and AMADEO, SANCHO, DONATO,
LUIS, ERASTO, LUISA, JOSE and DOLORES, all surnamed BALANTAKBO, respondents.
Ceriaco A. Sumaya for petitioners.
Tomas P. Aonuevo for private respondents.

MEDIALDEA, J.:p
This is a petition for review on certiorari of the decision of the Intermediate Appellate Court
(now Court of Appeals) in C.A. G.R. No. CV-01292-93, which affirmed the decision of the
Court of First Instance (now Regional Trial Court) of Laguna in the consolidated cases in Civil
Case No. SC-956 1 and Civil Case No. SC-957. 2
The parties entered into a stipulation of facts in the court a quo, which is summarized as
follows:

Raul Balantakbo inherited from two (2) different ascendants the two (2) sets of properties
subject of this case: 1) A one-third (1/3) interest, pro-indiviso in a parcel of land situated in
Dita, Lilio (Liliw) Laguna and described in paragraph 7 of the complaint in Civil Case No. SC956 from his father Jose, Sr., who died on January 28, 1945; and 2) A one-seventh (1/7)
interest pro-indiviso in ten (10) parcels of registered lands described in paragraph 6 of the
complaint in Civil Case No. SC-957 from his maternal grandmother, Luisa Bautista, who died
on November 3, 1950.
On June 13, 1952, Raul died intestate, single, without any issue, and leaving only his mother,
Consuelo Joaquin Vda. de Balantakbo, as his sole surviving heir to the real properties abovementioned.
On November 3, 1952, Consuelo adjudicated unto herself the above described properties in
an Affidavit entitled "Caudal Herederario del finado Raul Balantakbo" which provided, among
others:
I. Que de mi legitimo matrimonio con mi difunto esposo, Jose Balantakbo, he
tenido varios hijos, entre ellos si difunto hijo, llamado Raul Balantakbo.
II. Que mi referido hijo Raul Balantakbo, fallencio el 13 de Junio de 1952, en la
Ciudad de Pasay, durante su minolia de edad sin dejar testamento alguno.
III. Que el finado Raul Balantakbo al morir no ha dejado descendiente alguno.
IV. Que soy la unica ascendiente superviviento de mi referido hijo Raul
Balantakbo y por lo tanto su unica heredera formosa, legitima y universal.
V. Que el finado Raul Balantakbo murio sin dejar deuda alguna.
VI. Que el finado al morir dejo propiedades consistentes en bienes inmuebles
situados en la Provincia de Laguna.
VII. Que dichas propriedades fueron a su vez adquiridas por el finado Raul
Balantakbo per herencia de su difunto padre, Jose Balantakbo, y de su tia
abuela Luisa Bautista.
xxx xxx xxx
(Rollo, p. 29)
On December 21, 1959, Consuelo Joaquin vda. de Balantakbo sold the property described in
Civil Case No. SC-956 to Mariquita H. Sumaya. The sale was evidenced by a deed attached
as Annex "C" to the complaint. The same property was subsequently sold by Mariquita
Sumaya to Villa Honorio Development Corporation, Inc., on December 30, 1963. On January
23, 1967, Villa Honorio Development Corporation transferred and assigned its rights over the
property in favor of Agro-Industrial Coconut Cooperative, Inc. The documents evidencing
these transfers were registered in the Registry of Deeds of Laguna and the corresponding
certificates of titles were issued. The properties are presently in the name of Agro-Industrial
Coconut Cooperative, Inc., 2/3 share and the remaining 1/3 share is in the name of Sancho
Balantakbo.
Also on December 30, 1963, Consuelo Joaquin vda. de Balantakbo sold the properties
described in the complaint in Civil Case No. SC-957 to Villa Honorio Development

Corporation, Inc. The latter in turn transferred and assigned all its rights to the properties in
favor of Laguna Agro-Industrial Coconut Cooperative, Inc. which properties are presently in
its possession.
The parties admit that the certificates of titles covering the above described properties do
not contain any annotation of its reservable character.
On June 3, 1968, Consuelo Joaquin vda. de Balantakbo died.
On March 4, 1970, Amadeo, Sancho, Donato, Luis, and Erasto, all surnamed Balantakbo,
brothers in full blood of Raul Balantakbo and Luisa, Jose and Dolores, also all surnamed
Balantakbo, surviving children of deceased Jose Balantakbo, Jr., another brother of the first
named Balantakbos, filed the above mentioned civil cases to recover the properties
described in the respective complaints which they claimed were subject to a reserva
troncal in their favor.
The court a quo found that the two (2) cases varied only in the identity of the subject matter
of res involved, the transferees, the dates of the conveyances but involve the same legal
question of reserva troncal. Hence, the consolidation of the two (2) cases.
After trial, the court a quo rendered a joint decision in favor of the Balantakbos, the
dispositive portion of which reads:
WHEREFORE, in both Civil Cases Nos. SC-956 and SC-957, judgment is hereby
rendered in favor of the plaintiffs and against the defendants, as follows:
1. Ordering the defendant Laguna Agro-Industrial Coconut Cooperative, Inc. to
convey to the plaintiffs
a) In Civil Case No. SC-956 the one-third (1/3) interest and
ownership, pro-indiviso, in and over the parcel of land described
in paragraph three (3) sub-paragraph 1, of pages one (1) and
two (2) of this decision;
b) In Civil Case No. SC-957 the one-seventh (1/7) interest and
ownership, pro-indiviso, in and over the ten (10) parcels of land
described in paragraph three (3), sub-paragraph 2, of pages two
(2) and three (3) of this decision;
c) The plaintiffs are to share equally in the real properties herein
ordered to be conveyed to them by the defendants with
plaintiffs Luisa, Jose and Dolores, all surnamed Balantakbo,
receiving one-third (1/3) of the one share pertaining to the other
plaintiffs who are their uncles:
2. Ordering the Laguna Agro-Industrial Coconut Cooperative, Inc. to account
for and pay to the plaintiffs the value of the produce from the properties
herein ordered to be returned to the plaintiffs, said accounting and payment of
income being for the period from January 3, 1968 until date of reconveyance
of the properties herein ordered:
3. In each of Civil Cases Nos. SC-956 and SC-957, defendants are to pay
plaintiffs

a. One Thousand (P1,000.00) Pesos in litigation expenses.

b. Two Thousand (P2,000.00) Pesos in attorney's fees.
4. Defendants are to pay the costs in each of Civil Cases Nos. SC-956 and 957.
xxx xxx xxx
(p. 46, Rollo)
This decision was appealed to the appellate court which affirmed the decision of the court a
quo in toto. The motion for reconsideration was denied (p. 65, Rollo) by the appellate court
which found no cogent reason to reverse the decision.
This petition before Us was filed on November 12, 1984 with the petitioners assigning the
following errors allegedly committed by the appellate court:
I. The trial court erred in not finding defendants an (sic) innocent purchaser for
value and in good faith of the properties covered by certificates of title subject
of litigation.
II. The trial court erred in finding it unnecessary to annotate the reservable
interest of the reservee in the properties covered by certificates of title
subject of litigation.
III. The trial court erred in finding that the cause of action of the plaintiffs
(private respondents) has not yet prescribed.
IV. The trial court erred in awarding moral and actual damages in favor of the
plaintiffs by virtue of the institution of Civil Cases Nos. 956 and 957.
Petitioners would want this Court to reverse the findings of the court a quo, which the
appellate court affirmed, that they were not innocent purchasers for value. According to
petitioners, before they agreed to buy the properties from the reservor (also
called reservista), Consuelo Joaquin vda. de Balantakbo, they first sought the legal advice of
their family consultant who found that there was no encumbrance nor any lien annotated on
the certificate of title coveting the properties.
The court a quo found otherwise. Upon the death of the propositus, Raul Balantakbo,
the reservista, Consuelo vda. de Balantakbo caused the registration of an affidavit of selfadjudication of the estate of Raul, wherein it was clearly stated that the properties were
inherited by Raul from his father Jose, Sr., as regards the subject matter of Civil Case No. SC956 and from his maternal grandmother, Luisa Bautista, as regards the subject matter of
Civil Case No. SC-957. The court a quo further ruled that said affidavit was, in its form,
declaration and substance, a recording with the Registry of Deeds of the reservable
character of the properties. In Spanish language, the affidavit clearly stated that the affiant,
Consuelo, was a lone-ascendant and heir to Raul Balantakbo, her son, who died leaving
properties previously inherited from other ascendants and which properties were inventoried
in the said affidavit.
It was admitted that the certificates of titles covering the properties in question show that
they were free from any liens and encumbrances at the time of the sale. The fact remains
however, that the affidavit of self-adjudication executed by Consuelo stating the source of

the properties thereby showing the reservable nature thereof was registered with the
Register of Deeds of Laguna, and this is sufficient notice to the whole world in accordance
with Section 52 of the Property Registration Decree (formerly Sec. 51 of R.A. 496) which
provides:
Sec. 52. CONSTRUCTIVE NOTICE UPON REGISTRATION. Every conveyance,
mortgage, lease, lien attachment, order, judgment, instrument or entry
affecting registered land shall, if registered, filed or entered in the Office of the
Register of Deeds for the province or city where the land to which it relates
lies, be constructive notice to all persons from the time of such registering,
filing or entering.
Thus, in Gatioan v. Gaffud, G.R. No. L-21953, March 28, 1969, 27 SCRA 706, 712-713, cited
in People v. Reyes, G.R. Nos. 74226-27, July 27, 1989, 175 SCRA 597; Garcia v. CA and PNB
v. CA, et al., G.R. Nos. L-48971 and L-40911, both dated January 22, 1980, 95 SCRA 380
and Legarda and Prieto v. Saleeby, 31 Phil. 590, 600, We held:
When a conveyance has been properly recorded such record is constructive
notice of its contents and all interests, legal and equitable, included
therein . . .
Under the rule of notice, it is presumed that the purchaser has examined
every instrument of record affecting the title. Such presumption is
irrebuttable. He is charged with notice of every fact shown by the record and
is presumed to know every fact which an examination of the record would
have disclosed. This presumption cannot be overcome by proof of innocence
or good faith. Otherwise, the very purpose and object of the law requiring a
record would be destroyed. Such presumption cannot be defeated by proof of
want of knowledge of what the record contains any more than one may be
permitted to show that he was ignorant of the provisions of the law. The rule
that all persons must take notice of the facts which the public record contains
is a rule of law. The rule must be absolute, any variation would lead to endless
confusion and useless litigation. . . .
In the case of Bass v. De la Rama, 73 Phil. 682, 685, the rule was laid down that the mere
entry of a document in the day book without noting it on the certificate of title is not
sufficient registration. However, that ruling was superseded by the holding in the later six
cases of Levin v. Bass, 91 Phil. 420. As explained in Garcia v. CA, et al., G.R. Nos. L-48971
and 49011, January 20, 1980, 95 SCRA 380, 388, which is the prevailing doctrine in this
jurisdiction.
That ruling was superseded by the holding in the later six cases of Levin
v. Bass, 91 Phil. 420, where a distinction was made between voluntary and
involuntary registration, such as the registration of an attachment, levy upon
execution, notice of lis pendens, and the like. In cases of involuntary
registration, an entry thereof in the day book is a sufficient notice to all
persons even if the owner's duplicate certificate of title is not presented to the
register of deeds.
On the other hand, according to the said cases of Levin v. Bass, in case of
voluntary registration of documents an innocent purchaser for value of
registered land becomes the registered owner, and, in contemplation of law
the holder of a certificate of title, the moment he presents and files a duly
notarized and valid deed of sale and the same is entered in the day book and

at the same time he surrenders or presents the owner's duplicate certificate of

title covering the land sold and pays the registration fees, because what
remains to be done lies not within his power to perform. The register of deeds
is duty bound to perform it. (See Potenciano v. Dineros, 97 Phil. 196).
In this case, the affidavit of self adjudication executed by Consuelo vda. de Balantakbo
which contained a statement that the property was inherited from a descendant, Raul, which
has likewise inherited by the latter from another ascendant, was registered with the Registry
of Property. The failure of the Register of Deeds to annotate the reservable character of the
property in the certificate of title cannot be attributed to Consuelo.
Moreover, there is sufficient proof that the petitioners had actual knowledge of the
reservable character of the properties before they bought the same from Consuelo. This
matter appeared in the deed of sale (Exhibit "C") executed by Consuelo in favor of Mariquita
Sumaya, the first vendee of the property litigated in Civil Case No. SC-956, as follows:
xxx xxx xxx
That, I (Consuelo, vendor) am the absolute and exclusive owner of the onethird (1/3) portion of the above described parcel of land by virtue of the Deed
of Extra-judicial Partition executed by the Heirs of the deceased Jose
Balantakbo dated December 10, 1945 and said portion in accordance with the
partition above-mentioned was adjudicated to Raul Balantakbo, single, to (sic)
whom I inherited after his death and this property is entirely free from any
encumbrance of any nature or kind whatsoever, . . . (p. 42, Rollo)
It was admitted though that as regards the properties litigated in Civil Case SC-957, no such
admission was made by Consuelo to put Villa Honorio Development on notice of the
reservable character of the properties. The affidavit of self-adjudication executed by
Consuelo and registered with the Registry would still be sufficient notice to bind them.
Moreover, the Court a quo found that the petitioners and private respondents were long time
acquaintances; that the Villa Honorio Development Corporation and its successors, the
Laguna Agro-Industrial Coconut Cooperative Inc., are family corporations of the Sumayas
and that the petitioners knew all along that the properties litigated in this case were
inherited by Raul Balantakbo from his father and from his maternal grandmother, and that
Consuelo Vda. de Balantakbo inherited these properties from his son Raul.
The obligation to reserve rests upon the reservor, Consuelo Joaquin vda. de Balantakbo.
Article 891 of the New Civil Code on reserva troncal provides:
Art. 891. The ascendant who inherits from his descendant any property which
the latter may have acquired by gratuitous title from another ascendant or a
brother or sister, is obliged to reserve such property as he may have acquired
by operation of law for the benefit of relatives who are within the third degree
and who belong to the line from which said property came. (Emphasis
supplied)
We do not agree, however, with the disposition of the appellate court that there is no need
to register the reservable character of the property, if only for the protection of the
reservees, against innocent third persons. This was suggested as early as the case
of Director of Lands v. Aguas, G.R. No. 42737, August 11, 1936, 63 Phil. 279. The main issue
submitted for resolution therein was whether the reservation established by Article 811 (now

Art. 891 of the New Civil Code) of the Civil Code, for the benefit of the relatives within the
third degree belonging to the line of the descendant from whom the ascendant reservor
received the property, should be understood as made in favor of all the relatives within said
degree and belonging to the line above-mentioned, without distinction legitimate, natural
and illegitimate ones not having the legal status of natural children. However, in an obiter
dictumthis Court stated therein:
The reservable character of a property is but a resolutory condition of the
ascendant reservor's right of ownership. If the condition is fulfilled, that is, if
upon the ascendant reservor's death there are relatives having the status
provided in Article 811 (Art. 891, New Civil Code), the property passes, in
accordance with this special order of succession, to said relatives, or to the
nearest of kin among them, which question not being pertinent to this case,
need not now be determined. But if this condition is not fulfilled, the property
is released and will be adjudicated in accordance with the regular order of
succession. The fulfillment or non-fulfillment of the resolutory condition, the
efficacy or cessation of the reservation, the acquisition of rights or loss of the
vested ones, are phenomena which have nothing to do with whether the
reservation has been noted or not in the certificate of title to the property. The
purpose of the notation is nothing more than to afford to the persons entitled
to the reservation, if any,
due protection against any act of the reservor, which may make it ineffective .
. . (p. 292, Ibid)
Likewise, in Dizon and Dizon v. Galang, G.R. No. 21344, January 14, 1926, 48 Phil. 601, 603,
this Court ruled that the reservable character of a property may be lost to innocent
purchasers for value. Additionally, it was ruled therein that the obligation imposed on a
widowed spouse to annotate the reservable character of a property subject of reserva
viudal is applicable to reserva troncal. (See also Edrozo v. Sablan, G.R. No. 6878, September
13, 1913, 25 Phil. 295).
Since these parcels of land have been legally transferred to third persons,
Vicente Galang has lost ownership thereof and cannot now register nor record
in the Registry of Deeds their reservable character; neither can he effect the
fee simple, which does not belong to him, to the damage of Juan Medina and
Teodoro Jurado, who acquired the said land in good faith, free of all
incumbrances. An attempt was made to prove that when Juan Medina was
advised not to buy the land he remarked, "Why did he (Vicente Galang) not
inherit it from his son?" Aside from the fact that it is not clear whether this
conservation took place in 1913 or 1914, that is, before or after the sale, it
does not arise that he had any knowledge of the reservation. This did not arise
from the fact alone that Vicente Galang had inherited the land from his son,
but also from the fact that, by operation of law, the son had inherited it from
his mother Rufina Dizon, which circumstance, so far as the record shows, Juan
Medina had not been aware of. We do not decide, however, whether or not
Juan Medina and Teodoro Jurado are obliged to acknowledge the reservation
and to note the same in their deeds, for the reason that there was no prayer
to this effect in the complaint and no question raised in regard thereto.
Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed
spouse) had the obligation to annotate in the Registry of Property the reservable character
of the property, in reserva troncal, the reservor (the ascendant who inherited from a
descendant property which the latter inherited from another descendant) has the duty to
reserve and therefore, the duty to annotate also.

The jurisprudential rule requiring annotation in the Registry of Property of the right reserved
in real property subject of reserva viudal insofar as it is applied to reserva troncal stays
despite the abolition of reserva viudal in the New Civil Code. This rule is consistent with the
rule provided in the second paragraph of Section 51 of P.D. 1529, which provides that: "The
act of registration shall be the operative act to convey or affect the land insofar as third
persons are concerned . . ." (emphasis supplied)
The properties involved in this case are already covered by a Torrens title and unless the
registration of the limitation is effected (either actual or constructive), no third persons shall
be prejudiced thereby.
The respondent appellate court did not err in finding that the cause of action of the private
respondents did not prescribe yet. The cause of action of the reservees did not commence
upon the death of the propositus Raul Balantakbo on June 13, 1952 but upon the death of
the reservor Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within the third degree
in whose favor the right (or property) is reserved have no title of ownership or of fee simple
over the reserved property during the lifetime of the reservor. Only when the reservor should
die before the reservees will the latter acquire the reserved property, thus creating a fee
simple, and only then will they take their place in the succession of the descendant of whom
they are relatives within the third degree (See Velayo Bernardo v. Siojo, G.R. No. 36078,
March 11, 1933, 58 Phil. 89). The reserva is extinguished upon the death of the reservor, as
it then becomes a right of full ownership on the part of the reservatarios, who can bring a
reivindicatory suit therefor. Nonetheless, this right if not exercised within the time for
recovery may prescribe in ten (10) years under the old Code of Civil Procedure (see Carillo v.
De Paz, G.R. No. L-22601, October 28, 1966, 18 SCRA 467, 473) or in thirty years under
Article 1141 of the New Civil Code. The actions for recovery of the reserved property was
brought by herein private respondents on March 4, 1970 or less than two (2) years from the
death of the reservor. Therefore, private respondents' cause of action has not prescribed yet.
Finally, the award of one thousand pesos (P1,000.00) for actual litigation expenses and two
thousand pesos (P2,000.00) for attorney's fees is proper under Article 2208(2) of the New
Civil Code. Private respondents were compelled to go to court to recover what rightfully
belongs to them.
ACCORDINGLY, the petition is DENIED. The questioned decision of the Intermediate Appellate
Court is AFFIRMED, except for the modification on the necessity to annotate the reversable
character of a property subject of reserva troncal.