G.R. No.

150739 August 18, 2005

SPOUSES BENIGNO QUE and ERLINDA QUE, and ADELA
URIAN, Petitioners,
vs.
COURT OF APPEALS, HON. FLORENCIO A. RUIZ, JR.,
Presiding Judge, RTC Br. 24, Cabugao, Ilocos Sur, and
ISABEL COSTALES, Respondents.
DECISION
CARPIO, J.:

court declaring petitioners in default. In its Order of 15

June 2000, the trial court granted respondents motion to
present her evidence ex parte and scheduled the
presentation of evidence on 20 June 2000. Respondent
presented her evidence accordingly, and the case was
submitted for judgment.
The Trial Courts Ruling
On 6 September 2000, the trial court rendered judgment in
respondents favor, the dispositive portion of which
provides:

The Case

WHEREFORE, decision is hereby rendered in favor of the

plaintiff and against the defendants, as follows:

This is a petition for review1 of the Court of Appeals

Decision2 dated 26 June 2001 and its Resolution dated 8
November 2001. The 26 June 2001 Decision dismissed
petitioners petition while the 8 November 2001
Resolution denied their motion for reconsideration.

1. Adjudging the plaintiff as the true and absolute owner of

Lot 6023, located at Brgy. Sta. Monica, Magsingal, Ilocos
Sur and entitled to the exclusive possession thereof;

The Facts
Since
1960,
respondent
Isabel
Arrieta-Costales
("respondent") has been occupying as owner a parcel of
land in Sta. Monica, Magsingal, Ilocos Sur measuring 7,033
square meters. Designated as Lot No. 6023, the property
was originally owned by one Lorenzo Cario ("Lorenzo")
who died in 1960. In 1997, respondent declared the
property in her name for taxation purposes.

2. Declaring the Deed of Quitclaim and the

Acknowledgment Letter/Receipt of no legal force and
effect whatsoever and ordering the de[f]endant [s]pouses
Benigno and Erlinda Que to vacate the land and restore the
peaceful possession thereof to the plaintiff;
3. Ordering the Municipal Assessor of Magsingal, Ilocos Sur
to recall/[cancel] the Tax Declaration in the name of
[s]pouses Benigno and Erlinda Que and to restore the tax
declaration in the name of plaintiff Isabel Costales; and

Petitioner Adela Urian ("Urian") is Lorenzos grandniece,

being the adopted daughter of Lorenzos nephew Gonzalo
Cario ("Gonzalo"), son of Lorenzos brother Mariano
Cario.

4. Ordering the defendants, jointly and severally to pay

plaintiff, P10,000.00
as
and
for
[a]ttorneys
fees, P50,000.00 as moral damages, P5,000.00 as
exemplary damages and the costs of this suit.6

In February 2000, respondent filed a complaint against

Urian and petitioners Benigno Que and Erlinda Que
("spouses Que")3 in the Regional Trial Court, Cabugao,
Ilocos Sur, Branch 24 ("trial court") for "Annulment of
Quitclaim[,] Ownership, Possession and Damages" ("Civil
Case No. 503-KC"). Respondent claimed that she is
Lorenzos granddaughter and as such, she inherited Lot
No. 6023 from him. Respondent sought the annulment of a
Deed of Quitclaim4 dated 17 June 1999 and a handwritten
Acknowledgment5 dated 2 July 1999, both signed by one
Isabel Arrieta ("Arrieta"). Under the Deed of Quitclaim,
Arrieta "renounce[d] all [her] rights, interests,
participation, title and possession" over Lot No. 6023 to
the spouses Que while in the Acknowledgment, Arrieta
confirmed receiving P30,000 from Urian. Respondent
alleged that she did not sign these documents. Respondent
also prayed that the trial court declare her owner of Lot
No. 6023 and order petitioners to pay damages.

Urian received a copy of the trial courts Decision on 15

September 2000. The records do not show when the
spouses Que received theirs. On 10 October 2000,
petitioners, through a new counsel, Atty. Benjamin Bateria
("Atty. Bateria"), sought reconsideration or new trial.
Petitioners blamed their previous counsel for the nonfiling of their Answer. Petitioners attached to their motion
a Deed of Adjudication With Sale in which Urian, as alleged
sole heir of Gonzalo, adjudicated to herself Lot No. 6023
and sold it to the spouses Que. Petitioners claimed that in
his last will and testament, Lorenzo devised Lot No. 6023
to Gonzalo.

When respondent filed her Complaint, the spouses Que

had taken possession of Lot No. 6023. The spouses Que
also declared the land in their name for tax purposes.
After petitioners received the complaint with the
summonses on 21 March 2000, they hired the services of
one Atty. Ronnie Ranot ("Atty. Ranot"). However, Atty.
Ranot failed to file petitioners Answer. On 4 May 2000,
respondent moved to declare petitioners in default. During
the hearing of respondents motion on 18 May 2000, only
Urian appeared and manifested that Atty. Ranot was still
preparing the Answer. The trial court found Urians
manifestation unmeritorious and issued an Order in open

Rule 75: Production of Will; Allowance of Will Necessary

The trial court denied petitioners motion in its Order of 17

November 2000. The trial court held that as to Urian, its
Decision had become final because although she received a
copy of its Decision on 15 September 2000, the motion for
reconsideration or new trial was filed only on 10 October
2000. As to the spouses Que, the trial court held that the
motion was pro forma since no affidavit of merit
accompanied the motion. Nor did the trial court find merit
in the Deed of Adjudication With Sale. The trial court noted
that during the conciliation proceedings at the Office of the
Municipal Mayor of Magsingal, Ilocos Sur, the spouses Que
relied solely on the Acknowledgment and Deed of
Quitclaim as basis for their claim of ownership of Lot No.
6023.7
On 18 December 2000, petitioners, represented this time
by one Atty. Oliver Cachapero ("Atty. Cachapero"), filed
with the trial court a petition for relief from judgment
under Rule 38 of the 1997 Rules of Civil Procedure
("Rules"). Petitioners claimed that their failure to file an

Page 1

Answer and to seek reconsideration or new trial on time

was due to the excusable negligence of their previous
counsels. Petitioners also invoked "mistake and fraud" as
they were allegedly under the impression that Atty. Ranot
had prepared and filed "the necessary pleading or that the
necessary pleading to vacate the judgment and secure new
trial was prepared xxx and filed xxx." This time, petitioners
submitted a joint affidavit of merit where they again
invoked the Deed of Adjudication With Sale.
In its Order of 27 December 2000, the trial court denied
the petition for relief from judgment. The trial court held
that the negligence of their counsels bound petitioners. On
the Deed of Adjudication With Sale, the trial court
reiterated its finding in the Order of 17 November 2000
(denying petitioners motion for reconsideration or new
trial) that it has no merit.8
Petitioners filed a petition for certiorari in the Court of
Appeals to set aside the trial courts 27 December 2000
Order. Petitioners contended that: (1) the trial court
should have required respondent to file an Answer to their
petition instead of dismissing it outright; (2) their previous
counsels negligence denied them due process hence they
should not be bound by it; and (3) the Deed of Quitclaim is
not incompatible with the Deed of Adjudication With Sale
as the former merely "strengthens" the spouses Ques
ownership of Lot No. 6023.9
The Court of Appeals Ruling
In its Decision of 26 June 2001, the Court of Appeals
denied due course to and dismissed petitioners petition.
The Court of Appeals held that the trial court did not err in
outrightly dismissing the petition for relief from judgment
for insufficiency in form and substance under Section 4,
Rule 38. The appellate court further held that petitioners
filed their petition for relief from judgment beyond the 60day period under Section 3, Rule 38. The Court of Appeals
also noted that the Rules allow a petition for relief from
judgment only when there is no other available remedy
and not when litigants, like petitioners, lose a remedy by
negligence.
On petitioners claim that their counsels negligence should
not bind them, the Court of Appeals held:
The Petitioners heaped vituperation on their counsel for
the latters ineptitude and betrayal of Petitioners[] trust
and confidence for not filing the appropriate pleading to
relieve the Petitioners of their having been declared in
default. But then, the Petitioners were not themselves
blameless. They were duty-bound to make periodic
inquiries from their counsel o[n] the status of their case
and as to whether the appropriate pleading had already
been filed and the resolution of the Respondent Court, if
any, on their pleadings xxx. If the Petitioners failed to do so
and, as it turned out, their counsel failed to prepare and
file the appropriate pleading, then the Petitioners cannot
complain. They are bound by their ineptitude as well as
their counsels. xxx
It bears stressing that the Respondent Court came out with
its Decision only on September 6, 2000 or after the lapse of
more than three (3) months after it issued its Order [of 18
May 2000] declaring the Petitioners in default. In fine, the
Petitioners had more than ample time to file the
appropriate pleadings before the appropriate Court.10

Rule 75: Production of Will; Allowance of Will Necessary

Hence, this petition.11 Petitioners contend that

(I) Respondent Court of Appeals committed grave abuse of
discretion in the appreciation of facts and failed to
appreciate that [the] Petition for Relief from judgment
arose from a default order taken against petitioners due to
[the] negligence of petitioners[] counsel; [and]
(II) Respondent Court of Appeals fail[ed] to notice certain
relevant facts that will justify a different conclusion that
petitioners should not lose their case and [their] property
through technicality.12
In reversal of their earlier stance in the Court of Appeals,
petitioners no longer question the procedure the trial
court followed in denying their petition for relief from
judgment. Instead, they now claim that since that petition
was an "offshoot" of the trial courts Order declaring them
in default for their counsels negligence, petitioners seek
excuse from such negligence to avoid being deprived of
property without due process of law. Petitioners also raise
new matters regarding the merits of the trial courts
Decision of 6 September 2000.13
The Issue
The issue is whether the Court of Appeals erred in
dismissing petitioners petition.
The Courts Ruling
The petition has no merit.
Petitioners are not Entitled to Relief from Judgment
The Court of Appeals did not err in ruling that petitioners
are not entitled to relief from judgment because their
petition was insufficient in form and substance, filed late,
and improperly availed of.
Petitioners Failed to Prove Fraud,
Mistake, or Excusable Negligence
Under Section 1, Rule 3814 ("Section 1"), the court may
grant relief from judgment only "[w]hen a judgment or
final order is entered, or any other proceeding is taken
against a party in any court through fraud, accident,
mistake, or excusable negligence xxx." In their petition
for relief from judgment in the trial court, petitioners
contended that judgment was entered against them
through "mistake or fraud" because they were allegedly
under the impression that Atty. Ranot had prepared and
filed "the necessary pleading." This is not the fraud or
mistake contemplated under Section 1. As used in that
provision, "mistake" refers to mistake of fact, not of law,
which relates to the case.15 "Fraud," on the other hand,
must be extrinsic or collateral, that is, the kind which
prevented the aggrieved party from having a trial or
presenting his case to the court.16 Clearly, petitioners
mistaken assumption that Atty. Ranot had attended to his
professional duties is neither mistake nor fraud.
On the other hand, what petitioners appear to be claiming
in this petition is that this Court should reverse the Court
of Appeals and remand the case to the trial court for new
trial on the ground that their previous counsels negligence
constitutes "excusable negligence" under Section 1.

Page 2

This claim is similarly without merit.

Under Section 1, the "negligence" must be excusable and
generally imputable to the party because if it is imputable
to the counsel, it is binding on the client.17 To follow a
contrary rule and allow a party to disown his counsels
conduct would render proceedings indefinite, tentative,
and subject to reopening by the mere subterfuge of
replacing counsel.18 What the aggrieved litigant should do
is seek administrative sanctions against the erring counsel
and not ask for the reversal of the courts ruling.19
Petitioners nevertheless seek exemption from the above
rule because their counsels negligence allegedly deprived
them of their day in court and, if the ruling of the Court of
Appeals stands, they will suffer deprivation of property
without due process of law.
Admittedly, this Court has relaxed the rule on the binding
effect of counsels negligence and allowed a litigant
another chance to present his case "(1) where [the]
reckless or gross negligence of counsel deprives the client
of due process of law; (2) when [the rules] application will
result in outright deprivation of the clients liberty or
property; or (3) where the interests of justice so
require."20
None of these exceptions obtains here.
For a claim of counsels gross negligence to prosper,
nothing short of clear abandonment of the clients cause
must be shown.21 Here, what petitioners first, second, and
third counsels did was fail to file the Answer, file a belated
and defective motion for reconsideration or new trial, and
belatedly and erroneously file a petition for relief from
judgment, respectively. While these acts and omissions can
plausibly qualify as simple negligence, they do not amount
to gross negligence to justify the annulment of the
proceedings below.
In Legarda v. Court of Appeals,22 where the Court initially
held that the counsels failure to file pleadings at the trial
court and later on appeal amounted to gross negligence,
the
Court,
on
respondents
motion,
granted
reconsideration and applied the general rule binding the
litigant to her counsels negligence. The Court noted that
the proceedings which led to the filing of the petition in
that case "were not attended by any irregularity." The
same observation squarely applies here. Neither can
petitioners
rely
on Boyer-Roxas
v.
Court
of
Appeals23because there, as here, the Court held that the
petitioners counsel was not grossly negligent.
Nor were petitioners denied procedural due process. In
essence, procedural due process is simply the opportunity
to be heard.24 Petitioners were afforded such opportunity.
Thus, petitioners were served a copy of the complaint and
the summonses and given 15 days to file their Answer.
While there is no showing from the records when
petitioners received their copy of the 18 May 2000 Order
declaring them in default, there is no dispute that Urian
was present at the hearing when the trial court issued that
Order in open court. Petitioners were also served a copy of
the trial courts Decision of 6 September 2000 from which
they had 15 days to appeal, seek reconsideration, or new
trial. Indeed, petitioners filed a motion for reconsideration
or new trial albeit belatedly and without complying with
proper formalities. Plainly, there was no denial of due
process to petitioners.

Rule 75: Production of Will; Allowance of Will Necessary

But even assuming that the lapses of petitioners counsels

amount to gross negligence denying petitioners their day
in court, petitioners contention that if we sustain the
Court of Appeals they will be deprived of property is
baseless.
The spouses Que anchor their claim of ownership to Lot
No. 6023 on the Deed of Adjudication With Sale Urian
executed in their favor and on the Deed of
Quitclaim.25 Urians claim of ownership over Lot No. 6023
is in turn based on Lorenzos alleged testamentary
disposition devising Lot No. 6023 to her adoptive parent,
Gonzalo. As proof of such testamentary disposition,
petitioners submitted an affidavit,26 dated 20 October
1940, of Lorenzos sister Eusebia Cario ("Eusebia").
The Court finds Eusebias affidavit insufficient to support
petitioners claims.
Under the Spanish Civil Code, the law governing Lorenzos
alleged will, all wills must be executed in writing 27except
when the testator takes part in any military operation or
when any warlike operation is imminent28 or when the
testator29 is in danger of shipwreck.30 In such cases, the
testator can execute the will orally in the presence of at
least two witnesses.31 Failure to comply with these
formalities renders the will void.32 Furthermore, the Code
of Civil Procedure requires that wills must be submitted to
the proper court for probate otherwise the same shall not
pass either real or personal property.33
Here, petitioners neither presented a copy of Lorenzos
will nor proved its oral execution under the circumstances
provided in the Spanish Civil Code. Petitioners similarly
make no claim that Lorenzos will was allowed in probate.
Thus, not only is there no proof that Lorenzo executed a
will, there is also no basis to hold that such will, if indeed
executed, passed Lot No. 6023 to Gonzalo. Significantly,
Eusebia did not state in her affidavit that Lorenzo executed
a will. What Eusebia stated was that Lorenzo "instructed"
(inbilin) that Lot No. 6023 should be inherited by Gonzalo.
This, if any, merely indicates Lorenzos intent to devise
that piece of realty to Gonzalo but does not prove his
execution of a will instituting Gonzalo as heir to Lot No.
6023.
On the Deed of Quitclaim, the Court finds no reason to
disturb the trial courts finding that respondents signature
in that document was forged.
In contrast, respondent has been in continuous possession
of Lot No. 6023 in the concept of an owner after Lorenzo
died in 1960 until the spouses Que removed her from that
property shortly before respondent filed her complaint in
February 2000. While it does not appear that respondent
had registered the land in her name, her uninterrupted
possession of Lot No. 6023 for nearly 40 years (beyond the
30-year extraordinary acquisitive prescription34), coupled
with the performance of acts of ownership, such as
payment of real estate taxes, suffices to prove her
ownership by prescription.35
The Petition for Relief from Judgment
was Filed Out of Time
Aside from petitioners failure to prove any of the grounds
for granting relief from judgment, they also sought relief

Page 3

belatedly. We quote with approval the Court of Appeals

ruling:
[T]he "Petition for Relief" filed by the Petitioners with the
Respondent Court was filed beyond the reglementary
period provided for in Section 3, Rule 38 of the Rules of
Court, quoted, infra:
"SEC. 3. Time for filing petition; contents and verification.
A petition provided for in either of the preceding sections
of this Rule must be verified, filed within sixty (60) days
after the petitioner learns of the judgment, final order,
or other proceeding to be set aside, and not more than
six (6) months after such judgment or final order was
entered, or such proceeding was taken; and must be
accompanied with affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon, and the facts
constituting the petitioners good and substantial cause of
action or defense, as the case may be. xxx
As stated in the Order of the Respondent Court, xxx the
Petitioner Adela Urian received a copy of the Decision of
the Respondent [Court], on September 15, 2000. Indeed,
on the face of the Petition, the Petitioners admitted that
the Petitioner Adela Urian received a copy of the Decision
of the Respondent Court on said date. However, the said
Petitioner filed her "Petition for Relief" with the
Respondent Court only on December 18, 2000. By then, the
sixty (60)-day period provided for under the said Rule had
already elapsed. Case law has it that the periods provided
for by the Rules are fixed, inextendible and never
interrupted and if the Petition is filed beyond the period
provided for by the Rules, the Petition cannot be
entertained and must be dismissed[.]
xxx
While it may be true that the Petitioner Adela Urian filed,
on October 12, 2000 a "Motion for Reconsideration and
New Trial", however, the same did not suspend the
running of the period under Rule 38 of the Rules of Court
because it was filed beyond the period therefor[.] xxx
Insofar as the Petitioners Benigno Que, et al., are
concerned, they merely alleged, in their Petition, that they
received a copy of the Decision of the Respondent at a
much later date than September 15, 2000 without,
however, specifying the date when they, in fact, received
the Decision of the Respondent Court[.]
xxx

[A] "Petition for Relief from Judgment" is not a general

utility tool in the procedural workshop. The relief granted
under Rule 38 of the Rules of Court is of equitable
character and is allowed only when there is no other
available or adequate remedy. It is not regarded with
favor. The judgment rendered will not be disturbed where
the complainant has or by exercising proper diligence
would have had an adequate remedy at law. If the
complainant lost a remedy at law from an adverse
judgment by his xxx negligence, such inequitable conduct
precludes him from relief under Rule 38 of the Rules of
Court.38 xxx
On the New Matters Petitioners Raise
On petitioners allegations concerning the merits of the
trial courts Decision of 6 September 2000, petitioners are
barred from doing in this appeal what they failed to do in
the trial court, that is, present their case. In any event,
none of petitioners contentions has merit.39
WHEREFORE, we DENY the petition. We AFFIRM the
Decision dated 26 June 2001 and the Resolution dated 8
November 2001 of the Court of Appeals.
SO ORDERED.
G.R. No. L-27421 September 12, 1986
ANITA MANG-OY, assisted by her husband, William
Mang-oy; LEONORA MIGUEL, assisted by her husband,
Miguel
Olila;
HELENA
TAYNAN,
and
JOSE
TUMPAO, petitioners,
vs.
THE COURT OF APPEALS, BANDO TUMPAO, LAMBIA
TUMPAO, married to Salming Pirazo, and ABITO
TUMPAO, respondents.

CRUZ, J.:
We are back to the early 1900's in the cool regions of the
Mountain Province, setting of many legends of adventure
and romance among the highlanders of the North. Our
story is not as fanciful, involving as it does not a rivalry for
the hand of a beautiful Igorot maiden but a prosaic dispute
over a piece of land. Even so, as in those tales of old, the
issue shall be decided in favor of the just and deserving
albeit according to the dictates not of the heart but of the
law.

We are not impervious [to] the claim of the Petitioners

Benigno Que, in their "Joint Affidavit of Merit" that they
filed their "Petition for Relief from Judgment" seasonably.
But such an allegation is merely a conclusion and not a
sufficient showing that their Petition was filed within the
period provided for in Rule 38 of the Rules.36 (Emphasis in
the original)

The hero of this story we shall call Old Man Tumpao

although at the time it all began he was still a young and
vigorous man. He had a first wife by whom he begot three
children, who are the private respondents in this
case. 1 Upon her death, he took to himself a second wife, by
whom he had no issue but who had two children she had
"adopted" according to the practice of the Igorots then. 2 It
is their children who, with some others, are the petitioners
in this case.

Relief from Judgment not Proper

The facts are as simple as the ancient hills.

Lastly, as an equitable remedy, a petition for relief from

judgment is available only as a last recourse, when the
petitioner has no other remedy.37 This is not true here
because petitioners had at their disposal other remedies
which they in fact availed of, albeit belatedly or defectively,
such as when they filed their motion for reconsideration or
new trial in the trial court. As the Court of Appeals held:

On September 4, 1937, Old Man Tumpao executed what he

called a "last will and testament" the dispositive portion of
which declared:

Rule 75: Production of Will; Allowance of Will Necessary

Lastly, I appoint my son BANDO TUMPAO, whom I named,

that after departing from this life, he shall be the one to
carry or fulfill my Testament, and that he shall have the

Page 4

power to see and dispose all what I have stated, he shall

not change what I have already stated in my Testament so
that there is truth in my will. I will affix my right
thumbmark at the end of my written name because I do
not know how to read and write, after it has been read to
me and affirm all what is my Win this 2:00 o'clock in the
afternoon this 4th day of September 1937, before those
who are present and have heard what I have stated, Pico
La Trinidad, Benguet, 4th September, 1937. 3

quoted documents. 5 By virtue of this partition, Old Man

Tumpao's title was cancelled and another one was issued
in favor of the three respondents. 6

The contents of this document were read to the

beneficiaries named therein who at the time were already
occupying the portions respectively allotted to them. In
implementation of this document, they then, on September
7, 1937, executed an agreement providing as follows:

In deciding against them, the Court of Appeals held that

the "will" executed by Old Man Tumpao was null and void
because it had not been probated The agreement of
partition among the supposed beneficiaries of the will was
nullified because it was a partition inter vivos and had not
been approved by the Director of the Bureau of NonChristian Tribes. It was likewise held that the land in
dispute was acquired during Old Man Tumpao's first
marriage although it was registered during his second
marriage and so the petitioners were liable in rentals for
the lots occupied by them, as well as attorney's fees. 8

We who are named children and who will inherit from our
father TUMPAO: BANDO TUMPAO, LAMBIA ABITO, JOSE
and LABET, and we also whose lands are included,
SUCDAD BUTIOG, TULINGAN PUL-OT and ANTHONY
MENECIO all of legal age and residing in the town of La
Trinidad, Sub-Province of Benguet we say in truth after
swearing under oath in accordance to law that the
testament of our father TUMPAO who is presently ill by
virtue of our right to inherit and also acknowledge or
recognize the lands as included in the area of said land as
appearing in Title No. 416 in the name of our father
TUMPAO here in La Trinidad, Barrio Pico, have heard and
understood the Will as told by him concerning our right to
the land which we will inherit and also to those whose
lands which were included in the said Title No. 416
because we were all called be present and hear his wilt We
heard and agreed to his will as appearing in his testament
regarding the land which we will inherit. We also
recognized and agree to the appointment of our brother
BANDO to whom the parcels of land is to be delivered and
he will also be the one, to deliver to us our shares as soon
as we will demand the partition in accordance with the
will of our father TUMPAO as soon in the Testament which
we saw and have heard by all.
It is also agreed upon among us in this confirmation that
when our brother BANDO who is appointed to distribute
to us our shares we affirm in this instrument that will
answer for all the expenses when it shag be surveyed so
the share of each will be segregated so also with the
approval of the title, which shall appear the name of each
of us and that we do not dispute the land which we are
actually working shall pertain to us as embodied in the
said win of our father TUMPAO.
We execute this deed of confirmation in the presence of
the Notary Public here in Baguio so that this Will, be used
as our agreement so also with the wig of our father so that
they be one to be followed as regard upon by all and we
affix our right thumbmark at the end of our written name
because we do not know how to read and write this 7th
day of September, 1937 in the City of Baguio. 4
Two days later, Old Man Tumpao died.
The parties remained in possession of the lots assigned to
them, apparently in obedience to the wish of Old Man
Tumpao as expressed in his last "will" and affirmed by the
other abovequoted instrument. But things changed
unexpectedly in 1960, twenty three years later, that
brought this matter to the courts.
On November 4, 1960, the respondents executed an
extrajudicial partition in which they divided the property
of Old Man Tumpao among the three of them only, to the
exclusion of the other persons mentioned in the above-

Rule 75: Production of Will; Allowance of Will Necessary

It is this title that is now being questioned by

petitioners, who are suing for reconveyance. They
been sustained by the trial court, 7 which, however,
reversed by the Court of Appeals. They are before
Court to challenge that reversal.

the
had
was
this

After examining the musty records, we sustain the rulingmade both by the trial court and the Court of Appeals-that
the will, not having been probated as required by law, was
inoperative as such. The settled principle, as announced in
a long line of decisions in accordance with the Rules of
Court, is that no will shall pass either real or personal
property unless it is proved or allowed in court. 9
We find, however, that the document may be sustained on
the basis of Article 1056 of the Civil Code of 1899, which
was in force at the time the said document was executed
by Old Man Tumpao in 1937. The said article reads as
follows:
Art. 1056. If the testator should make a partition of his
properties by an act inter vivos, or by win, such partition
shall stand in so far as it does not prejudice the legitime of
the forced heirs.
On this score, we agree with the trial court. The applicable
decision is Albela vs. Albela, 10 also decided by the Court of
Appeals, with Justice J.B.L. Reyes as the ponente.
In this case, Agustin Albela executed on January 19, 1935, a
deed of partition dividing two parcels of land between
hisdaughters, Eduarda and Restituta, who indicated their
conformity by signing the instrument. The took possession
of their respective shares upon his death, but fourteen
years later, Restituta ejected Eduarda from her lot, alleging
title by purchase from a third party and denying the
existence of the partition. Eduarda sued for recovery and
was upheld by the trial court on the basis of the deed of
partition.
Let Justice J.B.L. Reyes, who later became a distinguished
member of this Court, take over at this point:
In their argument, appellants do not question the
authenticity of the above document, but argue against its
validity, on the grounds summarized in their brief (p. 7), as
follows:
Therefore the allegations of the plaintiff-appellee, Eduarda
Albela, rest on a document which defies classification. If it
is a deed of partition, it is null and void because it is not
embodied in a public document; if it is a simple donation of
realty, it is also null and void, because it is not in a public
document and there is no acceptance; if it is a donation
Mortis Causa, certainly it is null and void because it does
not follow the rules governing testamentary succession;

Page 5

and if ever it is to be classified as a will, more so, it is still

null and void because it does not conform to the
requirements of Section 618, Act 190 as amended by Act
2645.
None of these objections is valid in law. The appellants
evidently fail to realize that Article 1056 of the Civil Code
of 1889 authorizes a testator to partition inter vivos his
property, and distribute them among his heirs, and that
this partition is not necessarily either a donation nor a
testament, but an instrument of a special character, sui
generis, which is revocable at any time by
the causante during his lifetime, and does not operate as a
conveyance of title until his death. It derives its binding
force on the heirs from the respect due to the will of the
owner of the property, limited only by his creditors and
the intangibility of the legitime of the forced heirs. 'El
testador es libre y sus herederos han de pasar por lo que
haga en cuanto no perjudique la legitime de los forsozos.
Inutil es sonar en otras limitaciones que no existen.' (7
Manresa Commentaries, 6th Ed., p. 639.
That such partition is not governed by the rules of wills or
donations inter vivos is a consequence of its special nature.
Says the learned Manresa on this point:
Con estas palabras (en acto entre vivos) la ley en el
Articulo 1056, como en el 1057, que despues
examinaremos, alude a las formalidades con que puede
practicarse la particion, no a los efectos de esta,
significando que para ella no es preciso que intervengan las
formas solemnes que todo testamento o acto de ultima
voluntad en general requiere. Ni aun sera preciso guardar
las formalidades especiales de las donaciones, porque no se
trata de disponer a titulo gratuito, sino de divider aquellos
bienes de que ya anteriormente sedispuso en forma legal
(Emphasis supplied. Op. Cit., p. 635)
It was sufficient, therefore, that the partition Exhibit A,
should be in writing. It does not have to be in a public
document except to affect third persons (Art. 1280), being
valid between the parties who signed it in its present form.
If any invalidity could be alleged against the partition, it
would lie in the absence of a previous testament preceding
it (Legasto v. Verzosa, 54 Phil. 766). And even this may not
be indispensable in the present case, for the testator's
partition did not depart from the shares allotted to his
heirs by the law of intestacy. Nor is a prior win necessary
under Article 1080 of the new Civil Code, which replaced
the word 'testator' in Article 1056 of the Code of 1889 with
the broader term 'person.'
Be that as it may, the nullity of the partition Exhibit A
would not alter the result. There being only two daughters
surviving the deceased Agustin, each one of them would
necessarily be entitled to one-half of each of the two
parcels he owned at his death, and Agustin's former
ownership is no longer disputed by the appellants in this
instance. In addition, since both daughters signed the
partition Exhibit A, its terms would bind both, and estop
them from asserting a different interest. Appellants' act; in
appropriating the whole inheritance and its fruits can find
no support in law or justice.
There is no difference in legal effect between Agustin
Albela's deed of partition and Old Man Tumpao's "last will
and testament." Both are sustainable under Article 1056 of
the Civil Code, which was in force at the time they were
executed Even as Agustin Albela's partition was signed by
the two daughters themselves, so was Old Man Tumpao's
"will" affirmed by the beneficiaries in their agreement of

Rule 75: Production of Will; Allowance of Will Necessary

September 7, 1937, which reiterated and recognized the

terms of such "will." While not valid as a partition inter
vivos under Articles 816 and 1271 of the old Civil Code, it
was nevertheless binding on the parties as proof of their
conformity to the dispositions made by Old Man Tumpao
in his "last will and testament."
As the trial court put it:
The will alone, 'Exh. B', would be inoperative for the simple
reason that it was not probated, However, when the
persons who were named therein as heirs and
beneficiaries voluntarily agreed in writing to abide by its
terms probably to save the expenses of probate. and
furthermore, carried out its terms after the death of the
testator until now, then it must be held to be binding
between them.
Said agreement was not a disposal of inheritance by a
prospective heir before the death of the testator, but an
agreement to carry out the will. It was not contested by the
defendants and after the lapse of 25 years their right, if
any, to assail it has prescribed under Art. 1144 of the Civil
Code.
Art. 1144-The following actions must be brought ten years
from the time the right of action accrues:
1) upon a written contract;
2) Upon an obligation created by law;
3) Upon a judgment.
Any formal defect of the deed, 'Exh. 'C', was cured by the
lapse of time.
What the plaintiffs received had an aggregate area of less
than 1/3 of the land of Old Tumpao. It covers about 11,000
square meters while the total area was more than 35,000
square meters, Under the old Civil Code, it was within the
free disposable portion of ones' estate despite the
existence of any forced heirs. (See old Civil Code, Art. 808)
In view of the foregoing considerations, the defendants are
ordered to execute a deed of conveyance in favor of the
plaintiffs of the areas respectively owned and occupied by
them and to pay the costs.
Sucdad Butiog is ordered to pay the defendants P160.00
more as a reasonable amount of his additional share in the
expenses of segregating his lot but the (defendants) are
ordered to execute a deed of conveyance in his favor of the
said lot owned by him.
The expenses of Survey and segregation must be borne by
the plaintiffs.
We may add that the agreement entered into by the parties
in implementation of Old Man Tumpao's "will" did not
have to be approved by the Director of the Bureau of NonChristian Tribes because the Administrative Code of
Mindanao and Sulu was not extended to the Mountain
Province. 11 Moreover, the document was not a conveyance
of properties or property right. 12
It remains to state that the property in dispute having been
registered in 1917, the presumption is that it was acquired
during the second marriage and so cannot be claimed by
the respondents as the conjugal property of their mother
and Old Man Tumpao. Hence, they are not entitled to
retain the entire land as their exclusive inheritance or to
collect rentals for the lots occupied by the petitioners.

Page 6

The trial judge, the Hon. Feliciano Belmonte, was correct in

ordering the reconveyance to the petitioners of their
respective shares. We affirm his decision in toto.
How much simpler was life among the natives in the North
during the early days, when right and wrong were weighed
according to the primal code of the ancient hills. Even so,
though that past is gone forever, justice now, as it was
then, is still for the deserving.
WHEREFORE, the decision of the Court of Appeals is
REVERSED and that of the trial court reinstated, with costs
against the respondents.
SO ORDERED.
[G.R. No. 78778 : December 3, 1990.]
191 SCRA 814
LEONIDA CORONADO, FELIX BUENO, MELANIA
RETIZOS, BERNARDINO BUENASEDA and JOVITA
MONTEFALCON, Petitioners, vs. THE COURT OF
APPEALS and JUANA BUENO ALBOVIAS, Respondents.

DECISION

PARAS, J.:

This is a petition for review on certiorari seeking to

reverse the decision* of the respondent appellate court
dated March 3, 1987 CA-G.R. CV No. 06911 entitled "Juana
(Bueno) Albovias et al., v. Leonida Coronado, et al.,"
affirming the decision of the lower court, the decretal
portion of which reads:: nad
"WHEREFORE, premises considered, judgment is hereby
rendered:
1. Declaring Leonida Coronado to have no title or interest
over the property in question, hence, has no authority to
dispose of the same in favor of her co-defendants;
2. Declaring the sales executed by Coronado and
subsequent transactions involving the same property null
and void ab initio;
3. Declaring the plaintiff to be the true and legal owner of
the subject parcel of land;
4. Ordering the defendants to vacate the subject premises
and to surrender possession thereof unto the plaintiff;
5. Ordering the defendants to jointly and severally pay
unto the plaintiff the sum of P2,000.00 as attorney's fees
and P10,000.00 as moral and exemplary damages.
Costs against the defendants." (Rollo, p. 17)
As found by the respondent appellate court, the property
subject of this case is a parcel of land situated in Nagcarlan,
Laguna, containing 277 square meters, more particularly
described as follows:: nad
"A parcel of land situated in the Poblacion, Municipality of
Nagcarlan, province of Laguna. Bounded on the North, by

Rule 75: Production of Will; Allowance of Will Necessary

property of Epifania Irlandez (formerly Bonifacio

Formentera); on the East, by that of Julio Lopez; on the
South, by that of Dalmacio Monterola (formerly Domingo
Bueno); and on the West, by C. Lirio Street. Containing an
area of two hundred seventy seven (277) square meters,
more or less. Assessed at P3,320.00 under tax declaration
No. 241." (Ibid., p. 15)
Said parcel of land is being contested by Juana Albovias,
herein private respondent, on the one hand, and LeonidaCoronado, Felix Bueno, Melania Retizos, Bernardino
Buenseda and Jovita Montefalcon, herein petitioners, on
the other hand.
Juana Albovias (JUANA, for brevity) claims that the
property in question is a portion of a bigger lot referred to
as Parcel G in the last will and testament executed in 1918
by Melecio Artiaga, grandfather of JUANA. This bigger lot
was inherited under that will by JUANA, her brother
Domingo Bueno, and two other grandchildren, namely
Bonifacio and Herminigildo, both surnamed Formentera.
Parcel G is described as follows:
"Isang lagay na lupa na ang bahagi ay walang tanim na
halaman at ang bahagi naman ay may tanim na saguing,
tumatayo sa gawin Canloran ng Calle Avenida Rizal nitong
Nagcarlan, at humahangan sa Ibaba; sa ari cong Testador;
sa Silangan, sa cay Enrique Jovellano; sa Ilaya, sa namatay
na Perfecto Nanagas, at sa Canloran, tubig na
pinamamagatang San Cido." (Ibid., p. 16)
JUANA further claims that sometime in 1925 or 1926, C.
Lirio Street was created by the Municipality of Nagcarla
traversing said Parcel G and thus dividing it into two
portions, one on the west of C. Lirio St. and the other to the
east of said street. Parcel G was divided by the heirs in the
following manner; the land was divided into two portions,
the northern portion of which was adjudicated in favor of
the Formenteras and the southern portion was given to
JUANA and Doming Bueno. The southern portion in turn
was partitioned between JUANA and Domingo Bueno, the
former getting the northern part adjoining the lot of the
Formenteras, and the latter the southern part which
adjoins the lot of Perfecto Nanagas (not owned by
Dalmacio Monterola). The part allocated to Domingo was
later sold by him to Dalmacio Monterola, owner of the
adjoining property (Ibid.).: nad
Moreover, JUANA claims that her property was included
together with the two parcels of land owned by Dalmacio
Monterola, which were sold by Monterola's successor-ininterest Leonida Coronado (now married to Felix Bueno)
to Melania Retizos on April 18, 1970. Melania Retizos in
turn sold the lots, including that one being claimed by
JUANA, to the spouse Bernardino Buenaseda and Jovita
Montefalcon, now the present possessors thereof,
sometime in 1974 (Ibid., pp. 16-17).
On the other hand, Leonida Coronado and her copetitioners (CORONADO, for brevity) claim that the
property in question was bequeathed to Leonida Coronado
under a Will executed by Dr. Dalmacio Monterola, who was
allegedly in possession thereof even before the outbreak of
World War II (Ibid., p. 107).
Parenthetically, said will was probated under Sp. Proc. No.
SC-283, entitled "Testate Estate of the Deceased Monterola
Leonida F. Coronado, petitioner (Ibid., p. 105). JUANA,
together with her husband, opposed the said probate.
Despite their opposition, however, the Will was allowed by
the then Court of First Instance of Laguna, Sta. Cruz Branch
(Ibid., p. 106). On appeal, said decision was affirmed by the

Page 7

Court of Appeals in CA-G.R. No. 40353, entitled "Leonida F.

Coronado, petitioner-appellee v. Heirs of Dr. Dalmacio
Monterola, oppositors-appellants" (Ibid.). It is not
apparent, however, from the record whether or not said
decision has already become final and executory.
As a result of the conflicting claims over the property in
question, JUANA filed an action for quieting of title,
declaratory relief and damages against CORONADO in the
Regional Trial Court of the Fourth Judicial Region, Branch
XXVI, Sta. Cruz, Laguna, docketed as Civil Case No. 7345
(Ibid., p. 4).
As adverted to above (first par.), the lower court rendered
judgment in favor of JUANA.
Not satisfied with the decision of the lower court,
CORONADO elevated the case to the Court of Appeals,
which affirmed the decision appealed from (Ibid., p. 20).
Hence, this petition.:-cralaw
CORONADO raised the following assigned errors:
I
THE RESPONDENT COURT OF APPEALS SERIOUSLY
ERRED IN ARRIVING AT A CONCLUSION WHICH IS
CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE
CASE AND IN NOT APPLYING THE APPLICABLE
PROVISION OF LAW AND JURISPRUDENCE LAID DOWN
BY THIS HONORABLE COURT. (Ibid., p. 108)
II
THERE IS NO EVIDENCE PRESENTED TO SHOW THAT
THE LAND IN QUESTION CLAIMED BY PRIVATE
RESPONDENT IS THE SAME PROPERTY ADJUDICATED TO
JUANA BUENO UNDER THE WILL OF THE DECEASED
MELECIO ARTIAGA; NEITHER IS THERE EVIDENCE TO
SHOW THAT SAID WILL HAD BEEN PROBATED. (Ibid., p.
114)
III
PRIVATE RESPONDENT IS IN ESTOPPEL FROM
QUESTIONING THE OWNERSHIP OF THE PETITIONER
OVER THE LAND IN QUESTION HAVING FAILED TO RAISE
THE SAME IN THE ESTATE PROCEEDING IN THE TRIAL
COURT AND EVEN ON APPEAL. (Ibid., p. 119)
IV
THE
RESPONDENT
COURT
OF
APPEALS
MISAPPRECIATED THE EVIDENCE SUBMITTED AND
FACTS ADMITTED ON RECORD. IT THEREFORE
COMMITTED GRAVE AND SERIOUS ERROR. (Ibid., p. 121)
As required by this Court, CORONADO filed their
memorandum on May 8, 1989 (Ibid., p. 105); while that of
JUANA was filed on October 13, 1989 (Ibid., p. 139).
The petition is devoid of merit.
Under the first assigned error, CORONADO assails the
respondent appellate court's finding that Dr. Dalmacio
Monterola could not have acquired the subject land by
acquisitive prescription. Citing Art. 1116 of the New Civil
Code in relation to Section 41 of the Code of Civil
Procedure, CORONADO claims that JUANA had already
foreclosed whatever right or legal title she had over the
property in question, the reason being that Monterola's
continued possession of the said property for over ten

Rule 75: Production of Will; Allowance of Will Necessary

years since 1934 ripened into full and absolute ownership

(Ibid., p. 112).
The argument has no factual basis.
Time and again, it has been ruled that the jurisdiction of
the Supreme Court in cases brought to it from the Court of
Appeals is limited to reviewing and revising the errors of
law imputed to it, its findings of fact being conclusive. It is
not the function of the Supreme Court to analyze or weigh
such evidence all over again, its jurisdiction being limited
to reviewing errors of law that might have been
committed. Absent, therefore, a showing that the findings
complained of are totally devoid of support in the record,
so that they are so glaringly erroneous as to constitute
serious abuse of discretion, such findings must stand, for
the Supreme Court is not expected or required to examine
or contrast the oral and documentary evidence submitted
by the parties (Andres v. Manufacturers Hanover & Trust
Corporation, G.R. 82670, September 15, 1989). There are
no convincing reasons in the instant case to depart from
this rule.
As found by the respondent appellate court, Monterola
never claimed ownership over the property in question. As
a matter of fact, one of the deeds of donation executed by
Monterola in favor of Leonida Coronado acknowledged
that the boundary owner on the property conveyed to her
is JUANA. This is precisely the reason why during the
lifetime of the late Dalmacio Monterola, JUANA had always
been allowed to enter and reap the benefits or produce of
the said property. It was only after the death of said
Monterola in 1970 that Leonida Coronado prohibited
JUANA from entering it (Ibid., p. 18).:- nad
Even assuming arguendo that Monterola was indeed in
continued possession of the said property for over ten
years since 1934, said possession is insufficient to
constitute the fundamental basis of the prescription.
Possession, under the Civil Code, to constitute the
foundation of a prescriptive right, must be possession
under claim of title (en concepto de dueno), or to use the
common law equivalent of the term, it must be adverse.
Acts of possessory character performed by one who holds
by mere tolerance of the owner are clearly not en concepto
de dueno, and such possessory acts, no matter how long so
continued, do not start the running of the period of
prescription (Manila Electric Company v. Intermediate
Appellate Court, G.R. 71393, June 28, 1989).
In this case, Monterola, as found by the respondent
appellate court and the lower court, never categorically
claimed ownership over the property in question, much
less his possession thereof en concepto de dueno.
Accordingly, he could not have acquired said property by
acquisitive prescription.
Anent the contention of CORONADO that Leonida
Coronado could tack her possession to that of Monterola,
so that claim of legal title or ownership over the subject
property, even against the petitioners, the Buenasesas,
who are purchasers for value and in good faith, is a
foregone or settled issue, the respondent appellate court
aptly answered the same in this wise:
"It follows that Leonida Coronado could not have derived
ownership of the land in question from her predecessorin-interest Dalmacio Monterola, whether by prescription
or by some other title. Neither can she claim acquisitive
prescription in her own name. It was only in 1970 after the
death of Dalmacio Monterola that she asserted her claim of
ownership adverse to that of plaintiff-appellee. Having

Page 8

knowledge that she had no title over the land in question,

she must be deemed to have claimed it in bad faith. Under
Article 1137 of the Civil Code, ownership and other real
rights over immovables prescribe through uninterrupted
adverse possession thereof for thirty years, without need
of title or good faith. And even granting that she had no
notice or defect in her title and was, therefore, in good
faith, a period of ten years of possession is necessary for
her to acquire the land by ordinary prescription. (Article
1134, Civil Code). But she can claim to have possessed the
land only in 1968, the year the Monterola lots were
donated to her. The period, however, was interrupted in
1975, or 7 years after, when the complaint below was
filed." (Rollo, pp. 18-19)
Under the second assigned error, CORONADO claims that
the will under which JUANA inherited the property in
question from her grandfather, Melecio Artiaga, was never
probated; hence, said transfer for ownership was
ineffectual considering that under Rule 75, Sec. 1 of the
Rules of Court (formerly Sec. 125 of Act No. 190, no will
shall pass either real or personal property unless it is
proved and allowed in the proper court (Ibid., p. 115).
The contention is without merit.chanrobles virtual law
library
While it is true that no will shall pass either real or
personal property unless it is proved and allowed in the
proper court (Art. 838, Civil Code), the questioned will,
however, may be sustained on the basis of Article 1056 of
the Civil Code of 1899, which was in force at the time said
document was executed by Melecio Artiaga in 1918. The
said article read as follows:
"Article 1056. If the testator should make a partition of his
properties by an act inter vivos, or by will, such partition
shall stand in so far as it does not prejudice the legitime of
the forced heir." (Mang-Oy v. Court of Appeals, 144 SCRA
33 [1986])
In this case, nowhere was it alleged nor shown that
Leonida Coronado is entitled to legitime from Melecio
Artiaga. The truth of the matter is that the record is bereft
of any showing that Leonida Coronado and the late Melecio
Artiaga were related to each other.
Under the third assigned error, CORONADO claims that
JUANA is estopped from questioning the ownership of
Leonida Coronado over the land in question having failed
to raise the same in the estate proceedings in the trial
court and even on appeal (Rollo, p. 119).
The contention is likewise without merit.
Normally, the probate of a will does not look into its
intrinsic validity. The authentication of a will decides no
other questions than such as touch upon the capacity of
the testator and the compliance with those requisites or
solemnities which the law prescribes for the validity of the
wills. It does not determine nor even by implication
prejudge the validity or efficiency of the provisions of the
will, thus may be impugned as being vicious or null,
notwithstanding its authentication. The question relating
to these points remain entirely unaffected, and may be
raised even after the will has been authenticated
(Maninang, et al., v. Court of Appeals, 114 SCRA 473
[1982]). Consequently, JUANA is not estopped from
questioning the ownership of the property in question,
notwithstanding her having objected to the probate of the
will executed by Monterola under which Leonida
Coronado is claiming title to the said property.:-cralaw

Rule 75: Production of Will; Allowance of Will Necessary

Under the fourth assigned error, it is alleged by

CORONADO that JUANA's petition is weak for want of
factual and legal support; the weakness of JUANA's
position lies in the fact that she did not only fail to identify
the subject land, but also failed to explain the discrepancy
in the boundary of the property she is claiming to be hers
(Rollo, p. 125).
The contention is unavailing.
The fact that JUANA failed to identify the property in
question and to explain the discrepancy in the boundary of
said property, assuming they are true, is immaterial, in
view of the findings of the lower court as to the identity of
the property in question. Moreover, the lower court found
sufficient evidence to support the conclusion that the
property in question is the same property adjudicated to
JUANA under the will of Melecio Artiaga, and that
CORONADO has no right whatsoever to said property
(Ibid., p. 20). Such findings are conclusive upon this Court
(Reynolds Philippine Corporation v. Court of Appeals, 169
SCRA 220 [1989]).
PREMISES CONSIDERED, the decision appealed from is
hereby AFFIRMED.
SO ORDERED.
G.R. No. 160530

November 20, 2007

CYNTHIA
V.
NITTSCHER, petitioner,
vs.
DR. WERNER KARL JOHANN NITTSCHER (Deceased),
ATTY. ROGELIO P. NOGALES and THE REGIONAL TRIAL
COURT OF MAKATI (Branch 59), respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated July 31,
2003 and Resolution2 dated October 21, 2003 of the Court
of Appeals in CA-G.R. CV No. 55330, which affirmed the
Order3 dated September 29, 1995 of the Regional Trial
Court (RTC), Branch 59, Makati City, in SP Proc. No. M2330 for the probate of a will.
The facts are as follows.
On January 31, 1990, Dr. Werner Karl Johann Nittscher
filed with the RTC of Makati City a petition for the probate
of his holographic will and for the issuance of letters
testamentary to herein respondent Atty. Rogelio P.
Nogales.
On September 19, 1991, after hearing and with due notice
to the compulsory heirs, the probate court issued an order
allowing the said holographic will, thus:
WHEREFORE, premises considered, the Holographic Will
of the petitioner-testator Dr. Werner J. Nittscher executed
pursuant to the provision of the second paragraph of
Article 838 of the Civil Code of the Philippines on January
25, 1990 in Manila, Philippines, and proved in accordance
with the provision of Rule 76 of the Revised Rules of Court
is hereby allowed.
SO ORDERED.4
On September 26, 1994, Dr. Nittscher died. Hence, Atty.
Nogales filed a petition for letters testamentary for the
administration of the estate of the deceased. Dr. Nittschers
surviving spouse, herein petitioner Cynthia V. Nittscher,

Page 9

moved for the dismissal of the said petition. However, the

court in its September 29, 1995 Order denied petitioners
motion to dismiss, and granted respondents petition for
the issuance of letters testamentary, to wit:
In view of all the foregoing, the motion to dismiss is
DENIED. The petition for the issuance of Letters
Testamentary, being in order, is GRANTED.
Section 4, Rule 78 of the Revised Rules of Court, provides
"when a will has been proved and allowed, the court shall
issue letters testamentary thereon to the person named as
executor therein, if he is competent, accepts the trust and
gives a bond as required by these rules." In the case at bar,
petitioner Atty. Rogelio P. Nogales of the R.P. Nogales Law
Offices has been named executor under the Holographic
Will of Dr. Werner J. Nittscher. As prayed for, let Letters
Testamentary be issued to Atty. Rogelio P. Nogales, the
executor named in the Will, without a bond.
SO ORDERED.5
Petitioner moved for reconsideration, but her motion was
denied for lack of merit. On May 9, 1996, Atty. Nogales was
issued letters testamentary and was sworn in as executor.
Petitioner appealed to the Court of Appeals alleging that
respondents petition for the issuance of letters
testamentary should have been dismissed outright as the
RTC had no jurisdiction over the subject matter and that
she was denied due process.
The appellate court dismissed the appeal, thus:
WHEREFORE, the foregoing considered, the appeal is
hereby DISMISSED and the assailed Order is AFFIRMED
in toto. The court a quo is ordered to proceed with
dispatch in the proceedings below.
SO ORDERED.6
Petitioners motion for reconsideration of the aforequoted
decision was denied for lack of merit. Hence, the present
petition anchored on the following grounds:
I.
BOTH THE CA AND THE LOWER COURT ERRED IN NOT
DISMISSING OUTRIGHT THE PETITION FOR LETTERS
TESTAMENTARY FILED BY ATTY. NOGALES WHEN,
OBVIOUSLY, IT WAS FILED IN VIOLATION OF REVISED
CIRCULAR NO. 28-91 AND ADMINISTRATIVE CIRCULAR
NO. 04-94 OF THIS HONORABLE COURT.
II.
THE CA ERRED IN NOT DECLARING THAT THE LOWER
COURT [HAS] NO JURISDICTION OVER THE SUBJECT
MATTER OF THE PRESENT SUIT.
III.
THE CA ERRED IN CONCLUDING THAT SUMMONS WERE
PROPERLY ISSUED TO THE PARTIES AND ALL PERSONS
INTERESTED IN THE PROBATE OF THE HOLOGRAPHIC
WILL OF DR. NITTSCHER.
IV.
THE CA ERRED IN CONCLUDING THAT THE PETITIONER
WAS NOT DEPRIVED OF DUE PROCESS OF LAW BY THE
LOWER COURT.7

Rule 75: Production of Will; Allowance of Will Necessary

Petitioner contends that respondents petition for the

issuance of letters testamentary lacked a certification
against forum-shopping. She adds that the RTC has no
jurisdiction over the subject matter of this case because Dr.
Nittscher was allegedly not a resident of the Philippines;
neither did he leave real properties in the country.
Petitioner claims that the properties listed for disposition
in her husbands will actually belong to her. She insists she
was denied due process of law because she did not receive
by personal service the notices of the proceedings.
Respondent Atty. Nogales, however, counters that Dr.
Nittscher did reside and own real properties in Las Pias,
Metro Manila. He stresses that petitioner was duly notified
of the probate proceedings. Respondent points out that
petitioner even appeared in court to oppose the petition
for the issuance of letters testamentary and that she also
filed a motion to dismiss the said petition. Respondent
maintains that the petition for the issuance of letters
testamentary need not contain a certification against
forum-shopping as it is merely a continuation of the
original proceeding for the probate of the will.
We resolve to deny the petition.
As to the first issue, Revised Circular No. 28-918 and
Administrative Circular No. 04-949 of the Court require a
certification against forum-shopping for all initiatory
pleadings filed in court. However, in this case, the petition
for the issuance of letters testamentary is not an initiatory
pleading, but a mere continuation of the original petition
for the probate of Dr. Nittschers will. Hence, respondents
failure to include a certification against forum-shopping in
his petition for the issuance of letters testamentary is not a
ground for outright dismissal of the said petition.
Anent the second issue, Section 1, Rule 73 of the Rules of
Court provides:
SECTION 1. Where estate of deceased persons settled. If
the decedent is an inhabitant of the Philippines at the
time of his death, whether a citizen or an alien, his will
shall be proved, or letters of administration granted,
and his estate settled, in the Court of First Instance
(now Regional Trial Court) in the province in which he
resides at the time of his death, and if he is an inhabitant
of a foreign country, the Court of First Instance (now
Regional Trial Court) of any province in which he had
estate. (Emphasis supplied.)
In this case, the RTC and the Court of Appeals are one in
their finding that Dr. Nittscher was a resident of Las Pias,
Metro Manila at the time of his death. Such factual finding,
which we find supported by evidence on record, should no
longer be disturbed. Time and again we have said that
reviews on certiorari are limited to errors of law. Unless
there is a showing that the findings of the lower court are
totally devoid of support or are glaringly erroneous, this
Court will not analyze or weigh evidence all over again.10
Hence, applying the aforequoted rule, Dr. Nittscher
correctly filed in the RTC of Makati City, which then
covered Las Pias, Metro Manila, the petition for the
probate of his will and for the issuance of letters
testamentary to respondent.
Regarding the third and fourth issues, we note that Dr.
Nittscher asked for the allowance of his own will. In this
connection, Section 4, Rule 76 of the Rules of Court states:
SEC. 4. Heirs, devisees, legatees, and executors to be notified
by mail or personally.

Page 10

If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs.
In this case, records show that petitioner, with whom Dr.
Nittscher had no child, and Dr. Nittschers children from
his previous marriage were all duly notified, by registered
mail, of the probate proceedings. Petitioner even appeared
in court to oppose respondents petition for the issuance of
letters testamentary and she also filed a motion to dismiss
the said petition. She likewise filed a motion for
reconsideration of the issuance of the letters testamentary
and of the denial of her motion to dismiss. We are
convinced petitioner was accorded every opportunity to
defend her cause. Therefore, petitioners allegation that
she was denied due process in the probate proceedings is
without basis.
As a final word, petitioner should realize that the
allowance of her husbands will is conclusive only as to its
due execution.11 The authority of the probate court is
limited to ascertaining whether the testator, being of
sound mind, freely executed the will in accordance with
the formalities prescribed by law.12 Thus, petitioners
claim of title to the properties forming part of her
husbands estate should be settled in an ordinary action
before the regular courts.
WHEREFORE, the petition is DENIED for lack of merit.
The assailed Decision dated July 31, 2003 and Resolution
dated October 21, 2003 of the Court of Appeals in CA-G.R.
CV No. 55330, which affirmed the Order dated September
29, 1995 of the Regional Trial Court, Branch 59, Makati
City, in SP Proc. No. M-2330 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. L-57848 June 19, 1982
RAFAEL
E.
MANINANG
and
SOLEDAD
L.
MANINANG, petitioners,
vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR.,
as Judge of the Court of First Instance of Rizal and
BERNARDO S. ASENETA, respondents.

MELENCIO-HERRERA, J.:
A Petition to Review the Decision of April 28, 1981 of
respondent Appellate Court in CA-G.R. No. 12032-R
entitled "Rafael E. Maninang and Soledad L. Maninang vs.
Hon. Ricardo Pronove, Judge of the Court of First Instance of
Rizal, Pasig, Branch XI, and Bernardo S. Aseneta".
Pertinent to the
antecedental facts:

controversy

are

the

following

On May 21, 1977, Clemencia Aseneta, single, died at the

Manila Sanitarium Hospital at age 81. She left a
holographic will, the pertinent portions of which are
quoted hereunder:
xxx xxx xxx
It is my will that all my real properties located in Manila,
Makati, Quezon City, Albay and Legaspi City and all my
personal properties shagllbe inherited upon my death by
Dra. Soledad L. Maninang with whose family I have lived
continuously for around the last 30 years now. Dra.
Maninang and her husband Pamping have been kind to me.

Rule 75: Production of Will; Allowance of Will Necessary

... I have found peace and happiness with them even during
the time when my sisters were still alive and especially
now when I am now being troubled by my nephew
Bernardo and niece Salvacion. I am not incompetent as
Nonoy would like me to appear. I know what is right and
wrong. I can decide for myself. I do not consider Nonoy as
my adopted son. He has made me do things against my
will.
xxx xxx xxx
On June 9, 1977, petitioner Soledad Maninang filed a
Petition for probate of the Will of the decedent with the
Court of First Instance-Branch IV, Quezon City (Sp. Proc.
No. Q-23304, hereinafter referred to as the Testate Case).
On July 25, 1977, herein respondent Bernardo Aseneta,
who, as the adopted son, claims to be the sole heir of
decedent Clemencia Aseneta, instituted intestate
proceedings with the Court of First Instance-Branch XI,
Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter the
Intestate Case" for brevity).
On December 23, 1977, the Testate and Intestate Cases
were ordered consolidated before Branch XI, presided by
respondent Judge.
Respondent Bernardo then filed a Motion to Dismiss the
Testate Case on the ground that the holographic will was
null and void because he, as the only compulsory heir, was
preterited and, therefore, intestacy should ensue. In
support of said Motion to Dismiss, respondent Bernardo
cited the cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs.
Nuguid (17 SCRA 449), and Ramos vs. Baldovino (2 CA Rep.
2nd, 878). 1
In her Opposition to said Motion to Dismiss, petitioner
Soledad averred that it is still the rule that in a case for
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; and that respondent Bernardo was effectively
disinherited by the decedent. 2
On September 8, 1980, the lower Court ordered the
dismissal of the Testate Case in this wise:
For reasons stated in the motion to dismiss filed by
petitioner Bernardo S. Aseneta which the Court finds
meritorious, the petition for probate of will filed by
Soledad L. Maninang and which was docketed as Sp. Proc.
No. Q-23304 is DISMISSED, without pronouncement as to
costs.
On December 19, 1980, the lower Court denied
reconsideration for lack of merit and in the same Order
appointed Bernardo as the administrator of the intestate
estate of the deceased Clemencia Aseneta "considering
that he is a forced heir of said deceased while oppositor
Soledad Maninang is not, and considering further that
Bernardo Aseneta has not been shown to be unfit to
perform the duties of the trust. "
Petitioners Maninang resorted to a certiorari Petition
before respondent Court of Appeals alleging that the lower
Court exceeded its jurisdiction in issuing the Orders of
dismissal of the Testate Case (September 8, 1980) and
denial of reconsideration (December 19, 1980).
On April 28, 1981, respondent Court 3 denied certiorari
and ruled that the trial Judge's Order of dismissal was final
in nature as it finally disposed of the Testate Case and,
therefore, appeal was the proper remedy, which

Page 11

petitioners failed to avail of. Continuing, it said that even

granting that the lower Court committed errors in issuing
the questioned Orders, those are errors of judgment
reviewable only by appeal and not by Certiorari. 'Thus, this
Petition before us.

that case "shunted aside the question of whether or not the

Will should be allowed probate." Not so in the case before
us now where the probate of the Will is insisted on by
petitioners and a resolution on the extrinsic validity of the
Will demanded.

We find that the Court a quo a quo acted in excess of its

jurisdiction when it dismissed the Testate Case. Generally,
the probate of a Will is mandatory.

Moreover, in the Nuguid case, this Court ruled that the Will
was intrinsically invalid as it completely preterited the
parents of the testator. In the instant case, a crucial issue
that calls for resolution is whether under the terms of the
decedent's Will, private respondent had been preterited or
disinherited, and if the latter, whether it was a valid
disinheritance. Preterition and disinheritance are two
diverse concepts.

No will shall pass either real or personal property unless it

is proved and allowed in accordance with the Rules of
Court. 4
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. 5
Normally, the probate of a Will does not look into its
intrinsic validity.
... The authentication of a will decides no other question
than such as touch upon the capacity of the testator and
the compliance with those requisites or solemnities which
the law prescribes for the validity of wills. It does not
determine nor even by implication prejudge the validity or
efficiency (sic) of the provisions, these may be impugned
as being vicious or null, notwithstanding its authentication.
The que0stions relating to these points remain entirely
unaffected, and may be raised even after the will has been
authenticated .... 6
Opposition to the intrinsic validity or legality of the
provisions of the will cannot be entertained in Probate
proceeding because its only purpose is merely to
determine if the will has been executed in accordance with
the requirements of the law. 7
Respondent Bernardo, however, relies
pronouncement in Nuguid vs. Nuguid 8, reading:

on

the

In a proceeding 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 prescribed by law. The
intrinsic validity of the will normally comes only after the
court has declared that the will has been duly
authenticated. However, where practical considerations
demand that the intrinsic validity of the will be passed upon,
even before it is probated, the Court should meet that
issue. (Emphasis supplied)
Our ruling in Balanay vs. Hon. Martinez 9 had a similar
thrust:
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.
The Nuguid and the Balanay cases provide the exception
rather than the rule. The intrinsic validity of the Wills in
those cases was passed upon even before probate because
"practical considerations" so demanded. Moreover, for the
parties in the Nuguid case, the "meat of the controversy"
was the intrinsic validity of the Will; in fact, the parties in

Rule 75: Production of Will; Allowance of Will Necessary

... 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."
(Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a
testamentary disposition depriving any compulsory heirs
of his share in the legitimate for a cause authorized by
law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of
Philippine Civil Law", 1956 ed., Vol. III, p. 8, citing cases)
Disinheritance is always "voluntary", preterition upon the
other hand, is presumed to be "involuntary" (Sanchez
Roman, Estudios de Derecho Civil 2nd edition, Volume 2.o
p. 1131). 10
The effects of preterition and disinheritance are also
totally different.
... The effects flowing from preterition are totally different
from those of disinheritance. Pretention under Article 854
of the New Civil Code shall annul the institution of heir.
This annulment is in toto, unless in the wail there are, in
addition, testamentary dispositions in the form of devises
or legacies. In ineffective disinheritance under Article 918
of the same Code, such disinheritance shall also "annul the
institution of heirs", but only "insofar as it may prejudice
the person disinherited", which last phrase was omitted in
the case of preterition (III Tolentino, Civil Code of the
Philippines, 1961 Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that portion of the
estate of which the disinherited heirs have been illegally
deprived. 11
By virtue of the dismissal of the Testate Case, the
determination of that controversial issue has not been
thoroughly considered. We gather from the assailed Order
of the trial Court that its conclusion was that respondent
Bernardo has been preterited We are of opinion, however,
that from the face of the Will, that conclusion is not
indubitable.
As held in the case of Vda. de Precilla vs. Narciso 12
... it is as important a matter of public interest that a
purported will is not denied legalization on dubious
grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, ...
Coming now to the procedural aspect, suffice it to state
that in view of our finding that respondent Judge had acted
in excess of his jurisdiction in dismissing the Testate Case,
certiorari is a proper remedy. An act done by a Probate
Court in excess of its jurisdiction may be corrected
by Certiorari. 13 And even assuming the existence of the
remedy of appeal, we harken 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.

Page 12

WHEREFORE, the Decision in question is set aside and the

Orders of the Court of First Instance-Branch XI, Rizal,
dated September 8, 1980 and December 19, 1980, are
nullified. Special Proceeding No. Q-23304 is hereby
remanded to said Court of First Instance-Branch XI. Rizal,
therein to be reinstated and consolidated with Special
Proceeding No. 8569 for further proceedings.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 176943

October 17, 2008

DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD,

PROSPERO ALUAD, and CONNIE ALUAD, petitioners,
vs.
ZENAIDO ALUAD, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners mother, Maria Aluad (Maria), and respondent
Zenaido Aluad were raised by the childless spouses
Matilde Aluad (Matilde) and Crispin Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674,
675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz.
After Crispin died, his wife Matilde adjudicated the lots to
herself.1
On November 14, 1981, Matilde executed a document
entitled "Deed of Donation of Real Property Inter
Vivos"2(Deed of Donation) in favor of petitioners mother
Maria3 covering all the six lots which Matilde inherited
from her husband Crispin. The Deed of Donation provided:
That, for and in consideration of the love and affection of
the DONOR [Matilde] for the DONEE [Maria], the latter
being adopted and hav[ing] been brought up by the former
the DONOR, by these presents, transfer and convey, BY
WAY OF DONATION, unto the DONEE the property abovedescribed, to become effective upon the death of the
DONOR, but in the event that the DONEE should die
before the DONOR, the present donation shall be
deemed rescinded and [of] no further force and effect;
Provided, however, that anytime during the lifetime of the
DONOR or anyone of them who should survive, they could
use[,] encumber or even dispose of any or even all of the
parcels
of
land herein
donated.4 (Emphasis
and
underscoring supplied)
On September 30, 1986, Original Certificates of Title over
Lot Nos. 674 and 676 were issued in Matildes name.
On August 26, 1991, Matilde sold Lot No. 676 to
respondent by a Deed of Absolute Sale of Real Property.5
Subsequently or on January 14, 1992, Matilde executed a
last will and testament,6 devising Lot Nos. 675, 677, 682,
and 680 to Maria, and her "remaining properties"
including Lot No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on
September 24 of the same year.7
On August 21, 1995, Marias heirs-herein petitioners filed
before the Regional Trial Court (RTC) of Roxas City a
Complaint,8 for declaration and recovery of ownership and
possession of Lot Nos. 674 and 676, and damages against
respondent, alleging:

Rule 75: Production of Will; Allowance of Will Necessary

That in 1978, plaintiff[s] possessed the two (2) parcels of

land above-described until January 1991 when defendant
entered and possessed the two (2) parcels of land claiming
as the adopted son of Crispin Aluad who refused to give
back possession until Matilde Aluad died in [1994] and
then retained the possession thereof up to and until the
present time, thus, depriving the plaintiffs of the
enjoyment of said parcels of land x x x;
That after the death of Matilde R. Aluad, the plaintiffs
succeeded by inheritance by right of representation from
their deceased mother, Maria Aluad who is the sole and
only daughter of Matilde Aluad[.]9
To the complaint respondent alleged in his Answer.10
That Lot 674 is owned by the defendant as this lot was
adjudicated to him in the Last Will and Testament of
Matilde Aluad x x x while Lot 676 was purchased by him
from Matilde Aluad. These two lots are in his possession as
true owners thereof.11 (Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend
Complaint Already Filed to Conform to Evidence12 to which
it annexed an Amended Complaint13 which cited the
donation of the six lots via Deed of Donation in favor of
their mother Maria. Branch 15 of the RTC granted the
motion and admitted the Amended Complaint.14
Respondent filed an Amended Answer15 contending, inter
alia, that the Deed of Donation is forged and falsified and
petitioners change of theory showed that "said document
was not existing at the time they filed their complaint and
was concocted by them after realizing that their false claim
that their mother was the only daughter of Matild[e] Aluad
cannot in anyway be established by them";16 and
that if ever said document does exist, the same was already
revoked by Matilde "when [she] exercised all acts of
dominion over said properties until she sold Lot 676 to
defendant and until her death with respect to the other
lots without any opposition from Maria Aluad."17
The trial court, by Decision18 of September 20, 1996, held
that Matilde could not have transmitted any right over Lot
Nos. 674 and 676 to respondent, she having previously
alienated them to Maria via the Deed of Donation. Thus it
disposed:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered:
1. Declaring the plaintiffs as the rightful owners of the
subject Lots Nos. 674 and 676, Pilar Cadastre;
2. Ordering the defendant to deliver the possession of the
subject lots to the plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorneys fees;
b. Twenty thousand pesos (P20,000.00), representing the
income from subject Lot 676, a year from 1991 up to the
time said lot is delivered to the plaintiffs, together with the
interest thereof at the legal rate until fully paid;
c. Ten thousand pesos (P10,000.00), representing the
income from the subject Lot No. 674, a year from 1991 up
to the time said lot is delivered to the plaintiffs, plus legal
interest thereof at the legal rate until fully paid; and
d. The costs of the suit.

Page 13

Defendants counterclaim is ordered dismissed for lack of

merit.
SO ORDERED.19
On petitioners motion, the trial court directed the
issuance
of
a
writ
of
execution
pending
appeal.20 Possession of the subject lots appears to have in
fact been taken by petitioners.
By Decision21 of August 10, 2006, the Court of Appeals
reversed the trial courts decision, it holding that the Deed
of Donation was actually a donation mortis causa, not inter
vivos, and as such it had to, but did not, comply with the
formalities of a will. Thus, it found that the Deed of
Donation was witnessed by only two witnesses and had no
attestation clause which is not in accordance with Article
805 of the Civil Code, reading:

Their Motion for Reconsideration23 having been

denied,24 petitioners filed the present Petition for
Review,25contending that the Court of Appeals erred
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT
BELOW (RTC, Branch 15, Roxas City) HOLDING THAT THE
DEED OF DONATION INTER VIVOS IN FAVOR OF
PETITIONERS MOTHER IS IN FACT A DONATION MORTIS
CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE
RIGHTFUL OWNER OF LOT NO. 676 AS LOT BUYER ON
THE BASIS OF A DEED OF SALE EXECUTED BY THE
DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME.

Art. 805. Every will, other than a holographic will, must be

subscribed at the end thereof by the testator himself or by
the testators name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.

III

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.

IV

The attestation shall state the number of pages used upon

which the will is written, and the fact that that testator
signed the will and every page thereof, or caused some
other person to write his name, under his express
direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator, and of one
another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
While the appellate court declared respondent as the
rightful owner of Lot No. 676, it did not so declare with
respect to Lot No. 674, as Matildes last will and testament
had not yet been probated. Thus the Court of Appeals
disposed:
WHEREFORE, finding the instant petition worthy of merit,
the same is hereby GRANTED and the Decision of the
Regional Trial Court of Roxas City, Branch 15, dated 20
September 1996, in Civil Case No. V-6686 for declaration
of ownership, recovery of ownership and possession, and
damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendantappellant as the lawful owner of Lot [No.] 676of the Pilar
Cadastre. Accordingly, plaintiffs-appellees are directed to
return the possession of the said lot to the defendantappellant.
Moreover, plaintiffs-appellees are ordered to pay
P40,000.00 to defendant-appellant as attorneys fees and
litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED.22 (Emphasis in the original; underscoring
supplied)

Rule 75: Production of Will; Allowance of Will Necessary

X X X WHEN IT FAILED TO DECLARE PETITIONERS THE

RIGHTFUL OWNER OF LOT NO. 674 AFTER HAVING
RULED WHEN IT HELD THAT RESPONDENT CANNOT BE
DECLARED OWNER THEREOF.

X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF

EXECUTION PENDING APPEAL IS IN VIOLATION OF
PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF
COURT (AND ORDERING PETITIONERS TO RETURN
POSSESSION OF LOT 676 TO RESPONDENT) AND
ORDERING PETITIONERS TO PAY ATTORNEYS FEES AND
COST[S] OF SUIT.26
As did the appellate court, the Court finds the donation to
petitioners mother one of mortis causa, it having the
following characteristics:
(1) It conveys no title or ownership to the
transferee before the death of the transferor; or what
amounts to the same thing, that the transferor should
retain the ownership (full or naked) and control of the
property while alive;
(2) That before the death of the transferor, the transfer
should be revocable by the transferor at will, ad nutum;
but revocability may be provided for indirectly by means
of a reserved power in the donor to dispose of the
properties conveyed; and
(3) That the transfer should be void if the transferor
should
survive
the
transferee.27 (Emphasis
and
underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to
become effective upon the death of the DONOR" admits of
no other interpretation than to mean that Matilde did not
intend to transfer the ownership of the six lots to
petitioners mother during her (Matildes) lifetime.28
The statement in the Deed of Donation reading "anytime
during the lifetime of the DONOR or anyone of them who
should survive, they could use, encumber or even
dispose of any or even all the parcels of land herein
donated"29 means that Matilde retained ownership of the
lots and reserved in her the right to dispose them. For the
right to dispose of a thing without other limitations than
those established by law is an attribute of
ownership.30 The phrase in the Deed of Donation
"or anyone of them who should survive" is of course out of
sync. For the Deed of Donation clearly stated that it would

Page 14

take effect upon the death of the donor, hence, said phrase
could only have referred to the donor Matilde. Petitioners
themselves concede that such phrase does not refer to the
donee, thus:
x x x [I]t is well to point out that the last provision
(sentence) in the disputed paragraph should only refer to
Matilde Aluad, the donor, because she was the only
surviving spouse at the time the donation was executed on
14 November 1981, as her husband Crispin Aluad [] had
long been dead as early as 1975.31
The trial court, in holding that the donation was inter vivos,
reasoned:
x x x The donation in question is subject to a resolutory
term or period when the donor provides in the
aforequoted provisions, "but in the event that the DONEE
should die before the DONOR, the present donation shall
be deemed rescinded and [of] no further force and effect".
When the donor provides that should the "DONEE" xxx die
before the DONOR, the present donation shall be deemed
rescinded and [of] no further force and effect" the logical
construction thereof is that after the execution of the
subject donation, the same became effective immediately
and shall be "deemed rescinded and [of] no further force
and effect" upon the arrival of a resolutory term or period,
i.e., the death of the donee which shall occur before that of
the donor. Understandably, the arrival of this resolutory
term or period cannot rescind and render of no further
force and effect a donation which has never become
effective, because, certainly what donation is there to be
rescinded and rendered of no further force and effect upon
the arrival of said resolutory term or period if there was no
donation which was already effective at the time when the
donee died?32 (Underscoring supplied)
A similar ratio in a case had been brushed aside by this
Court, however, thus:
x x x [P]etitioners contend that the stipulation on
rescission in case petitioners [donee] die ahead of [donor]
Cabatingan is a resolutory condition that confirms the
nature of the donation as inter vivos.
Petitioners arguments are bereft of merit.33
xxxx
x x x The herein subject deeds expressly provide that the
donation shall be rescinded in case [donees] the
petitioners predecease [the donor] Conchita Cabatingan.
As stated in Reyes v. Mosqueda, one of the decisive
characteristics of a donation mortis causa is that the
transfer should be considered void if the donor should
survive the donee. This is exactly what Cabatingan
provided for in her donations. If she really intended that
the donation should take effect during her lifetime and that
the ownership of the properties donated to the donee or
independently of, and not by reason of her death, she
would not have expressed such proviso in the subject
deeds.34 (Underscoring supplied)
As the Court of Appeals observed, "x x x [t]hat the donation
is mortis causa is fortified by Matildes acts of possession
as she continued to pay the taxes for the said properties
which remained under her name; appropriated the
produce; and applied for free patents for which OCTs were
issued under her name."35
The donation being then mortis causa, the formalities of a
will should have been observed36 but they were not, as it

Rule 75: Production of Will; Allowance of Will Necessary

was witnessed by only two, not three or more witnesses

following Article 805 of the Civil Code.37
Further, the witnesses did not even sign the attestation
clause38 the execution of which clause is a
requirement separate from the subscription of the will and
the affixing of signatures on the left-hand margins of the
pages of the will. So the Court has emphasized:
x x x Article 805 particularly segregates the requirement
that the instrumental witnesses sign each page of the will
from the requisite that the will be "attested and
subscribed by [the instrumental witnesses]. The respective
intents behind these two classes of signature[s] are
distinct from each other. The signatures on the left-hand
corner of every page signify, among others, that
the witnesses are aware that the page they are signing
forms part of the will. On the other hand, the signatures to
the attestation clause establish that the witnesses are
referring to the statements contained in the attestation
clause itself. Indeed, the attestation clause is separate and
apart from the disposition of the will. An unsigned
attestation clause results in an unattested will. Even if
the instrumental witnesses signed the left-hand margin of
the page containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses
undertakings in the clause, since the signatures that do
appear on the page were directed towards a wholly
different avowal.
x x x It is the witnesses, and not the testator, who are
required under Article 805 to state the number of pages
used upon which the will is written; the fact that the
testator had signed the will and every page thereof; and
that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one
another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on
the attestation clause.39 (Emphasis and underscoring
supplied)
Furthermore, the witnesses did not acknowledge the will
before the notary public,40 which is not in accordance with
the requirement of Article 806 of the Civil Code that every
will must be acknowledged before a notary public by the
testator and the witnesses.
More. The requirement that all the pages of the will must
be numbered correlatively in letters placed on the upper
part of each page was not also followed.41
The Deed of Donation which is, as already discussed, one
of mortis causa, not having followed the formalities of a
will, it is void and transmitted no right to petitioners
mother. But even assuming arguendo that the formalities
were observed, since it was not probated, no right to Lot
Nos. 674 and 676 was transmitted to Maria.42 Matilde thus
validly disposed of Lot No. 674 to respondent by her last
will and testament, subject of course to the qualification
that her (Matildes) will must be probated. With respect to
Lot No. 676, the same had, as mentioned earlier, been sold
by Matilde to respondent on August 26, 1991.
Petitioners nevertheless argue that assuming that the
donation of Lot No. 674 in favor of their mother is
indeed mortis causa, hence, Matilde could devise it to
respondent, the lot should nevertheless have been
awarded to them because they had acquired it by
acquisitive prescription, they having been in continuous,
uninterrupted, adverse, open, and public possession of it in
good faith and in the concept of an owner since 1978.43

Page 15

Petitioners failed to raise the issue of acquisitive

prescription before the lower courts, however, they having
laid their claim on the basis of inheritance from their
mother. As a general rule, points of law, theories, and
issues not brought to the attention of the trial court cannot
be raised for the first time on appeal.44 For a contrary rule
would be unfair to the adverse party who would have no
opportunity to present further evidence material to the
new theory, which it could have done had it been aware of
it at the time of the hearing before the trial court.45
WHEREFORE, the petition is DENIED.
SO ORDERED.
G.R. Nos. L-63253-54 April 27, 1989
PABLO
RALLA, petitioner,
vs.
HON. ROMULO P. UNTALAN, HON. DOMINGO CORONEL
REYES, AND LEONIE RALLA, PETER RALLA AND
MARINELLA RALLA, respondents.
Rafael Triunfante for the Heirs of Pablo Ralla.
Ruben R. Basa for respondents.

SARMIENTO, J.:
This petition seeks the nullification of the Order of
respondent Judge Romulo P. Untalan, 1 dated July 16,1981,
excluding from the probate proceedings sixty-three
parcels of land, as well as the Orders issued by respondent
Judge Domingo Coronel Reyes, 2 denying the petitioner's
motions for reconsideration of the same Order of Judge
Untalan dated July 16, 1981.
The petition's beginnings are traced to January 27, 1959,
when Rosendo Ralla, a widower, filed a petition for the
probate of his own will in the then Court of First Instance
(now Regional Trial Court) of Albay, which was docketed
as Special Proceedings No. 564. In his will he left his entire
estate to his son, Pablo (the petitioner herein who, upon
his death during the pendency of this petition, was
substituted by his heirs), leaving nothing to his other son,
Pedro.
In the same year, Pedro Ralla filed an action for the
partition of the estate of their mother, Paz Escarella; this
was docketed as Civil Case No. 2023.
In the course of the hearing of the probate case (Special
Proceedings No. 564), Pablo Ralla filed a motion to dismiss
the petition for probate on the ground that he was no
longer interested in the allowance of the will of his late
father, Rosendo Ralla, for its probate would no longer be
beneficial and advantageous to him. This motion was
denied, and the denial was denied by the Court of Appeals.
(The latter court agreed with the lower court's conclusion
that, indeed, the petitioner stood to gain if the testate
proceedings were to be dismissed because then he would
not be compelled to submit for inclusion in the inventory
of the estate of Rosendo Ralla 149 parcels of land from
which he alone had been collecting rentals and receiving
income, to the exclusion and prejudice of his brother,
Pedro Ralla, who was being deprived of his successional
rights over the said properties.) The denial of this motion
to dismiss was likewise affirmed by this Court (in G.R. No.
L-26253). 3 On the scheduled hearing on November 3,
1966, the petitioner reiterated his lack of interest in the

Rule 75: Production of Will; Allowance of Will Necessary

probate of the subject will. Consequently, the court,

through Judge Perfecto Quicho, declared Pedro and Pablo
Ralla the only heirs of Rosendo Ralla who should share
equally upon the division of the latter's estate, and
thereupon converted the testate proceedings into one of
intestacy.
Meanwhile, the brothers agreed to compromise in the
partition case (Civil Case No. 2023). On December 18,
1967, they entered into a project of partition whereby
sixty-three parcels of land, apparently forming the estate
of their deceased mother, Paz Escarella, were amicably
divided between the two of them. This project of partition
was approved on December 19,1967 by Judge Ezekiel
Grageda.
Eleven years later, or on February 28, 1978, Joaquin
Chancoco, brother-in- law of the petitioner (Pablo) filed a
petition, docketed as Special Proceedings No. 1106, for the
probate of the same will of Rosendo Ralla on the ground
that the decedent owed him P5,000.00. Pablo Ralla then
filed a manifestation stating that he had no objections to
the probate; thereafter, he filed a "Motion to Intervene as
Petitioner for the Probate of the Will." This motion was
heard ex parte and granted despite the written opposition
of the heirs of Pedro Ralla. Likewise, the petition for
probate was granted; Teodorico Almine, son-in-law of the
petitioner, was appointed special administrator, over and
above the objection of the heirs of Pedro Ralla. However, in
taking possession of the properties belonging to the estate
of Rosendo Ralla, Teodorico Almine also took possession
of the sixty-three parcels of land covered by the project of
partition mentioned earlier. Consequently, the heirs of
Pedro Ralla (the private respondents herein) moved to
exclude from the estate of Rosendo Ralla the aforesaid
parcels of land.
In an Omnibus order dated August 3, 1979, 4 respondent
Judge Romulo P. Untalan ruled, inter alia, that the sixtythree parcels of land should be included in the proceedings
for the settlement of the estate of Rosendo Ralla and that
said proceedings (both Special Proceedings No. 564 and
Special Proceedings No. 1106, which were ordered
consolidated by this Court) should proceed as probate
proceedings.
About two years later, or on June 11, 1981, the private
respondents filed a "Petition To Submit Anew For
Consideration Of The Court The Exclusion Of 67 (sic)
Parcels of Land Subject Of The Project Of Partition In Civil
Case No. 2023." 5 In his Order of July 16,1981, Judge
Untalan reconsidered his earlier Order, to wit:
Premises considered, Order is hereby issued reconsidering
the Omnibus Order of this Court dated August 3,1979,
more particularly paragraph 3 of the dispositive portion
thereof. The Project of Partition should, therefore, be
respected and upheld. Hence, the sixty-three (63) parcels
referred to therein should be excluded from the probate
proceedings and, likewise from the administration of
Special Administrator Teodorico Almine, Jr.
SO ORDERED. 6
Thereafter, the petitioner filed a motion for
reconsideration of the foregoing order but the same was
denied 7 by respondent Judge Domingo Coronel Reyes, to
whose sala Special Proceedings No. 564 and No. 1 1 06
were apparently transferred. Still, a second motion for
reconsideration was filed; the same, however, was also
denied. 8

Page 16

In assailing the aforesaid Order of July 16, 1981, the

following arguments are raised in the present special civil
action for certiorari.
The first argument is stated as follows:
... The extrajudicial partition of the 63 parcels made after
the filing of the petition for the probate of the Will, and
before said Will was probated, is a NULLITY, considering
that as already decided by this Court in the case of Ernesto
M. Guevara, vs. Rosario Guevara et al., Vol. 74 Phil. Reports,
there can be no valid partition among the heirs till after the
Will had been probated. ... 9
The above argument is obviously flawed and misleading
for the simple reason that the aforementioned partition
was made in the civil case for partition of the estate of Paz
Escarella, which is distinct from, and independent of, the
special proceedings for the probate of the will of Rosendo
Ralla.
Verily, the rule is that there can be no valid partition
among the heirs till after the will has been probated. This,
of course, presupposes that the properties to be
partitioned are the same properties embraced in the win.
Thus the rule invoked is inapplicable in this instance
where there are two separate cases (Civil Case No. 2023
for partition, and Special Proceedings No. 564 originally
for the probate of a will), each involving the estate of a
different person (Paz Escarella and Rosendo Ralla,
respectively) comprising dissimilar properties.
In his second and third arguments, 10 the petitioner
claims that the Order of August 3, 1979 mentioned earlier
could no longer be validly reversed by the court two years
after it was issued. Thus, it is alleged that by flip-flopping,
Judge Untalan committed a grave abuse of discretion.
An examination of the August 3, 1979 Order would reveal
that the same resolved a number of divergent issues (ten
as enumerated) 11 springing from four separate special
proceedings,12 all of which were pending in Branch I of
the then Court of First Instance of Albay; accordingly, there
are at least nine 13 specific directives contained therein.
However, a distinction must be made between those
directives that partake of final orders and the other
directives that are in the nature of inter-locutory orders.
Two closely related orders are the following quoted
portions of the said August 3, 1979 Order of respondent
Judge Untalan:
xxx xxx xxx
2. The 149 parcels referred to in our elucidation on issue
No. 2 as well as the 63 lots also mentioned therein all of
which may be summed up to 212 parcels, except those
already validly disposed, conveyed, or transferred to third
persons, should be submitted, at least provisionally, to the
probate or testate proceedings. Hence, the Motion to
exclusion the 149 parcels filed on June 2, 1979, by
petitioner intervenor Pablo Ralla thru counsel in Special
Proceeding 1106 and the motion for exclusion filed by the
heirs of Pedro Ralla thru counsel in Special Proceedings
564 and 1106 are hereby Denied; (Emphasis supplied.)
3. The Project of partition, for purposes of these
proceedings, is hereby stripped of its judicial
recognition; 14

Rule 75: Production of Will; Allowance of Will Necessary

xxx xxx xxx

As regards the abovequoted paragraph 2, this Court finds
that the same is interlocutory in character because it did
not decide the action with finality and left substantial
proceedings still to be had.15 The foregoing order of
inclusion of the subject parcels of land was a mere incident
that arose in the settlement of the estate of Rosendo Ralla.
It is elementary that interlocutory orders, prior to the
rendition of the final judgment, are, at any time, subject to
such corrections or amendments as the court may deem
proper. Thus, in issuing the questioned Order dated July
16,1981, which reversed the aforementioned interlocutory
order and upheld the project of partition, respondent
Judge Untalan acted well within his jurisdiction and
without grave abuse of discretion.
There is, however, a more important reason why we do
not find any grave abuse of discretion in the issuance of
the questioned Order dated July 16,1981. Consider the
following undisputed facts: the properties involved in the
present petition were the subject of the project of partition
signed by both the petitioner, Pablo Ralla, and Pedro Ralla
in Civil Case No. 2023; the lower court approved the said
project of partition on December 19, 1967; subsequently,
Pablo and Pedro Ralla jointly manifested that they had
already received "the ownership and possession of the
respective parcels of land adjudicated to them in the said
project of partition," 16 and upon their motion Judge
Ezekiel Grageda declared the partition case closed and
terminated in its Order of December 29, 1967; there was
no appeal made from this decision within the
reglementary period to do so, consequently, it attained
finality.
Furthermore, the Court had occasion to rule that
Where a partition had not only been approved and thus
become a judgment of the court, but distribution of the
estate in pursuance of such partition had fully been carried
out, and the heirs had received the property assigned to
them, they are precluded from subsequently attacking its
validity or any part of it. 17
Likewise:
Where a piece of land has been included in a partition, and
there is no allegation that the inclusion was effected
through improper means or without the petitioners'
knowledge, the partition barred any further litigation on
said title and operated to bring the property under the
control and jurisdiction of the court for proper disposition
according to the tenor of the partition . . . They can not
attack the partition collaterally, as they are trying to do in
this case. 18 (Emphasis supplied.)
Based on the foregoing pronouncements, the Order of
August 3, 1979 setting aside the project of Partition was
clearly erroneous. Realizing this and the fact that it was
not yet too late for him to correct his mistake, respondent
Judge Untalan issued the questioned Order of July 16,
1981.
In fine, the partition in Civil Case No. 2023 is valid and
binding upon the petitioner and Pedro Ralla, as well as
upon their heirs, especially as this was accompanied by
delivery of possession to them of their respective shares in
the inheritance from their mother, the late Paz Escarella.
They are duty bound to respect the division agreed upon
by them and embodied in the document of partition.

Page 17

Thus, the petitioner could no longer question the exclusion

of the lands subject of the partition from the proceedings
for the settlement of the estate of Rosendo Ralla. Could it
be that the petitioner's keen interest in including these
lands in the estate proceedings is directly related to the
fact that his son-in-law is the administrator of the said
estate of Rosendo Ralla?
WHEREFORE, the petition is hereby DISMISSED.
Costs against the petitioner.
SO ORDERED.
G.R. No. L-23638

October 12, 1967

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA

REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
---------------------------------------G.R. No. L-23662

October 12, 1967

MARIANO REYES, CESAR REYES, LEONOR REYES and

PACIENCIA
REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
Jose
D.
Villena
for
petitioners.
Antonio Barredo and Exequiel M. Zaballero for respondent.
REYES, J.B.L., Actg. C.J.:
The heirs intestate of the late Benedicta de los Reyes have
petitioned for a review of the decision of the Court of
Appeals (in CA-G. R. No. 31221-R) affirming that of the
Court of First Instance of Bulacan, in Special Proceeding
No. 831 of said Court, admitting to probate the alleged last
will and testament of the deceased, and overruling the
opposition to the probate.
It appears from the record that on January 19, 1955,
Ismaela Dimagiba, now respondent, submitted to the Court
of First Instance a petition for the probate of the purported
will of the late Benedicta de los Reyes, executed on October
22, 1930, and annexed to the petition. The will instituted
the petitioner as the sole heir of the estate of the deceased.
The petition was set for hearing, and in due time, Dionisio
Fernandez, Eusebio Reyes and Luisa Reyes and one month
later, Mariano, Cesar, Leonor and Paciencia, all surnamed
Reyes, all claiming to be heirs intestate of the decedent,
filed oppositions to the probate asked. Grounds advanced
for the opposition were forgery, vices of consent of the
testatrix, estoppel by laches of the proponent and
revocation of the will by two deeds of conveyance of the
major portion of the estate made by the testatrix in favor
of the proponent in 1943 and 1944, but which
conveyances were finally set aside by this Supreme Court
in a decision promulgated on August 3, 1954, in cases G.R.
Nos. L-5618 and L-5620 (unpublished).
After trial on the formulated issues, the Court of First
Instance, by decision of June 20, 1958, found that the will
was genuine and properly executed; but deferred
resolution on the questions of estoppel and revocation
"until such time when we shall pass upon the intrinsic
validity of the provisions of the will or when the question
of adjudication of the properties is opportunely
presented."

Rule 75: Production of Will; Allowance of Will Necessary

Oppositors Fernandez and Reyes petitioned for

reconsideration, and/or new trial, insisting that the issues
of estoppel and revocation be considered and resolved;
whereupon, on July 27, 1959, the Court overruled the
claim that proponent was in estoppel to ask for the
probate of the will, but "reserving unto the parties the
right to raise the issue of implied revocation at the
opportune time."
On January 11, 1960, the Court of First Instance appointed
Ricardo Cruz as administrator for the sole purpose of
submitting an inventory of the estate, and this was done on
February 9, 1960.
On February 27, 1962, after receiving further evidence on
the issue whether the execution by the testatrix of deeds of
sale of the larger portion of her estate in favor of the
testamentary heir, made in 1943 and 1944, subsequent to
the execution of her 1930 testament, had revoked the
latter under Article 957(2) of the 1950 Civil Code (Art. 869
of the Civil Code of 1889), the trial Court resolved against
the oppositors and held the will of the late Benedicta de los
Reyes "unaffected and unrevoked by the deeds of sale."
Whereupon, the oppositors elevated the case to the Court
of Appeals.
The appellate Court held that the decree of June 20, 1958,
admitting the will to probate, had become final for lack of
opportune appeal; that the same was appealable
independently of the issue of implied revocation; that
contrary to the claim of oppositors-appellants, there had
been no legal revocation by the execution of the 1943 and
1944 deeds of sale, because the latter had been made in
favor of the legatee herself, and affirmed the decision of
the Court of First Instance.
Oppositors then appealed to this Court.
In this instance, both sets of oppositors-appellants pose
three main issues: (a) whether or not the decree of the
Court of First Instance allowing the will to probate had
become final for lack of appeal; (b) whether or not the
order of the Court of origin dated July 27, 1959, overruling
the estoppel invoked by oppositors-appellants had
likewise become final; and (c) whether or not the 1930 will
of Benedicta de los Reyes had been impliedly revoked by
her execution of deeds of conveyance in favor of the
proponent on March 26, 1943 and April 3, 1944.
As to the first point, oppositors-appellants contend that
the order allowing the will to probate should be
considered interlocutory, because it fails to resolve the
issues of estoppel and revocation propounded in their
opposition. We agree with the Court of Appeals that the
appellant's stand is untenable. It is elementary that a
probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper
execution and witnessing of his last will and testament,
irrespective of whether its provisions are valid and
enforceable or otherwise. (Montaano vs. Suesa, 14 Phil.
676; Mercado vs. Santos, 66 Phil. 215; Trillana vs.
Crisostomo, 89 Phil. 710). As such, the probate order is
final and appealable; and it is so recognized by express
provisions of Section 1 of Rule 109, that specifically
prescribes that "any interested person may appeal in
special proceedings from an order or judgment . . . where
such order or judgment: (a) allows or disallows a will."
Appellants argue that they were entitled to await the trial
Court's resolution on the other grounds of their opposition
before taking an appeal, as otherwise there would be a
multiplicity of recourses to the higher Courts. This

Page 18

contention is without weight, since Rule 109, section 1,

expressly enumerates six different instances when appeal
may be taken in special proceedings.
There being no controversy that the probate decree of the
Court below was not appealed on time, the same had
become final and conclusive. Hence, the appellate courts
may no longer revoke said decree nor review the evidence
upon which it is made to rest. Thus, the appeal belatedly
lodged against the decree was correctly dismissed.
The alleged revocation implied from the execution of the
deeds of conveyance in favor of the testamentary heir is
plainly irrelevant to and separate from the question of
whether the testament was duly executed. For one, if the
will is not entitled to probate, or its probate is denied, all
questions of revocation become superfluous in law, there
is no such will and hence there would be nothing to
revoke. Then, again, the revocation invoked by the
oppositors-appellants is not an express one, but merely
implied from subsequent acts of the testatrix allegedly
evidencing an abandonment of the original intention to
bequeath or devise the properties concerned. As such, the
revocation would not affect the will itself, but merely the
particular
devise
or
legacy.
Only
the total and absoluterevocation can preclude probate of
the revoked testament (Trillana vs. Crisostomo, supra.).
As to the issue of estoppel, we have already ruled in
Guevara vs. Guevara, 98 Phil. 249, that the presentation
and probate of a will are requirements of public policy,
being primarily designed to protect the testator's,
expressed wishes, which are entitled to respect as a
consequence of the decedent's ownership and right of
disposition within legal limits. Evidence of it is
the duty imposed on a custodian of a will to deliver the
same to the Court, and the fine and imprisonment
prescribed for its violation (Revised Rule 75). It would be
a non sequitur to allow public policy to be evaded on the
pretext of estoppel. Whether or not the order overruling
the allegation of estoppel is still appealable or not, the
defense is patently unmeritorious and the Court of Appeals
correctly so ruled.
The last issue, that of revocation, is predicated on
paragraph 2 of Article 957 of the Civil Code of 1950 (Art.
869 of the Code of 1889), which recites:
Art. 957. The legacy or devise shall be without effect:
(1) . . . .
(2) If the testator by any title or for any cause alienates the
thing bequeathed or any part thereof, it being understood
that in the latter case the legacy or devise shall be without
effect only with respect to the part thus alienated. If after
the alienation the thing should again belong to the testator,
even if it be by reason of nullity of the contract, the legacy
or devise shall not thereafter be valid, unless the
reacquisition shall have been effected by virtue of the
exercise of the right of repurchase;
xxx

xxx

xxx

It is well to note that, unlike in the French and Italian

Codes, the basis of the quoted provision is a presumed
change of intention on the part of the testator. As pointed
out by Manresa in his Commentaries on Article 869 of the
Civil Code (Vol. 6, 7th Ed., p. 743)
Este caso se funda en la presunta voluntad del testador. Si
este, despues de legar, se desprende de la cosa por titulo

Rule 75: Production of Will; Allowance of Will Necessary

lucrativo u oneroso, hace desaparecer su derecho sobra

ella, dando lugar a la presuncion de que ha cambiado de
voluntad, y no quiere que el legado se cumpla. Mas para
que pueda presumirse esa voluntad, es necesario que
medien actos del testador que la indiquen. Si la perdida del
derecho sobre la cosa ha sido independiente de la voluntad
del testador, el legado podraquedar sin efecto, mas no en
virtud del numero 2 del articulo 869, que exige siempre
actos voluntarios de enajenacion por parte del mismo
testador.
As observed by the Court of Appeals, the existence of any
such change or departure from the original intent of the
testatrix, expressed in her 1930 testament, is rendered
doubtful by the circumstance that the subsequent
alienations in 1943 and 1944 were executed in favor of the
legatee herself, appellee Dimagiba. In fact, as found by the
Court of Appeals in its decision annulling these
conveyances (affirmed in that point by this Supreme Court
in Reyes vs. Court of Appeals and Dimagiba, L-5618 and L5620, promulgated on July 31, 1954), "no consideration
whatever was paid by respondent Dimagiba" on account of
the transfers, thereby rendering it even more doubtful
whether in conveying the property to her legatee, the
testatrix merely intended to comply in advance with what
she had ordained in her testament, rather than an
alteration or departure therefrom.1Revocation being an
exception, we believe, with the Courts below, that in the
circumstances of the particular case, Article 957 of the
Civil Code of the Philippines, does not apply to the case at
bar.
Not only that, but even if it were applicable, the annulment
of the conveyances would not necessarily result in the
revocation of the legacies, if we bear in mind that the
findings made in the decision decreeing the annulment of
the subsequent 1943 and 1944 deeds of sale were also that
it was the moral influence, originating from their
confidential relationship, which was the only cause for the
execution of Exhs. A and B (the 1943 and 1944
conveyances). (Decision, L-5618 and L-5620).
If the annulment was due to undue influence, as the quoted
passage implies, then the transferor was not expressing
her own free will and intent in making the conveyances.
Hence, it can not be concluded, either, that such
conveyances established a decision on her part to abandon
the original legacy.
True it is that the legal provision quoted prescribes that
the recovery of the alienated property "even if it be by
reason of the nullity of the contract" does not revive the
legacy; but as pointed out by Scaevola (Codigo Civil, Vol.
XV, 4th Ed., pp. 324-325) the "nullity of the contract" can
not be taken in an absolute sense.2 Certainly, it could not
be maintained, for example, that if a testator's subsequent
alienation were avoided because the testator was mentally
deranged at the time, the revocatory effect ordained by the
article should still ensue. And the same thing could be said
if the alienation (posterior to the will) were avoided on
account of physical or mental duress. Yet, an alienation
through undue influence in no way differs from one made
through violence or intimidation. In either case, the
transferor is not expressing his real intent,3 and it can not
be held that there was in fact an alienation that could
produce a revocation of the anterior bequest.
In view of the foregoing considerations, the appealed
decision of the Court of Appeals is hereby affirmed. Costs
against appellants Reyes and Fernandez. So ordered.

Page 19

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
opposition to the motion to dismiss.1wph1.t

her

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?

Rule 75: Production of Will; Allowance of Will Necessary

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 38-B 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
betterments4 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.

Page 20

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

Rule 75: Production of Will; Allowance of Will Necessary

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.

Page 21

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

Rule 75: Production of Will; Allowance of Will Necessary

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. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE
COURT
OF
APPEALS
AND
CLEMENTE
SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.

PUNO, J.:
This is an appeal by certiorari from the Decision of the
Court
of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992,
the dispositive portion of which reads;
PREMISES CONSIDERED, the questioned decision of
November 19, 1988 of the trial court is hereby REVERSED
and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon
City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the
instrument submitted for probate is the holographic will of
the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr.,
and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q37171, for allowance of decedent's holographic will. They
alleged that at the time of its execution, she was of sound
and disposing mind, not acting under duress, fraud or
undue influence, and was in every respect capacitated to
dispose of her estate by will.
Private respondent opposed the petition on the grounds
that: neither the testament's body nor the signature
therein was in decedent's handwriting; it contained
alterations and corrections which were not duly signed by
decedent; and, the will was procured by petitioners

Page 22

through improper pressure and undue influence. The

petition was likewise opposed by Dr. Jose Ajero. He
contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that
said property could not be conveyed by decedent in its
entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted
the decedent's holographic will to probate. It found, inter
alia:
Considering then that the probate proceedings herein
must decide only the question of identity of the will, its due
execution and the testamentary capacity of the testatrix,
this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the
formalities prescribed by law nor for lack of testamentary
capacity of the testatrix.
For one, no evidence was presented to show that the will
in question is different from the will actually executed by
the testatrix. The only objections raised by the oppositors .
. . are that the will was not written in the handwriting of
the testatrix which properly refers to the question of its
due execution, and not to the question of identity of will.
No other will was alleged to have been executed by the
testatrix other than the will herein presented. Hence, in the
light of the evidence adduced, the identity of the will
presented for probate must be accepted, i.e., the will
submitted in Court must be deemed to be the will actually
executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and
signed in the handwriting of the testatrix has been
disputed, the petitioners, however, have satisfactorily
shown in Court that the holographic will in question was
indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who have
convincingly shown knowledge of the handwriting of the
testatrix have been presented and have explicitly and
categorically identified the handwriting with which the
holographic will in question was written to be the genuine
handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the
holographic will be entirely written, dated and signed in
the handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the
testratix, (private respondent) Clemente Sand himself has
testified in Court that the testatrix was completely in her
sound mind when he visited her during her birthday
celebration in 1981, at or around which time the
holographic will in question was executed by the testatrix.
To be of sound mind, it is sufficient that the testatrix, at the
time of making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and
the character of the testamentary act . . . The will itself
shows that the testatrix even had detailed knowledge of
the nature of her estate. She even identified the lot number
and square meters of the lots she had conveyed by will.
The objects of her bounty were likewise identified
explicitly. And considering that she had even written a
nursing book which contained the law and jurisprudence
on will and succession, there is more than sufficient
showing that she knows the character of the testamentary
act.

Rule 75: Production of Will; Allowance of Will Necessary

In this wise, the question of identity of the will, its due

execution and the testamentary capacity of the testatrix
has to be resolved in favor of the allowance of probate of
the will submitted herein.
Likewise, no evidence was presented to show sufficient
reason for the disallowance of herein holographic will.
While it was alleged that the said will was procured by
undue and improper pressure and influence on the part of
the beneficiary or of some other person, the evidence
adduced have not shown any instance where improper
pressure or influence was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that the testatrix
was still alert at the time of the execution of the will, i.e., at
or around the time of her birth anniversary celebration in
1981. It was also established that she is a very intelligent
person and has a mind of her own. Her independence of
character and to some extent, her sense of superiority,
which has been testified to in Court, all show the
unlikelihood of her being unduly influenced or improperly
pressured to make the aforesaid will. It must be noted that
the undue influence or improper pressure in question
herein only refer to the making of a will and not as to the
specific testamentary provisions therein which is the
proper subject of another proceeding. Hence, under the
circumstances, this Court cannot find convincing reason
for the disallowance of the will herein.
Considering then that it is a well-established doctrine in
the law on succession that in case of doubt, testate
succession should be preferred over intestate succession,
and the fact that no convincing grounds were presented
and proven for the disallowance of the holographic will of
the late Annie Sand, the aforesaid will submitted herein
must be admitted to probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for
probate of decedent's will was dismissed. The Court of
Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent
did not comply with Articles 813 and 814 of the New Civil
Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and the
last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the
time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or
alteration in a holographic will, the testator must
authenticate the same by his full signature.
It alluded to certain dispositions in the will which were
either unsigned and undated, or signed but not dated. It
also found that the erasures, alterations and cancellations
made thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will
shall be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear,
or threats;

Page 23

(d) If it was procured by undue and improper pressure

and influence, on the part of the beneficiary, or of some
other person for his benefit;
(e) If the signature of the testator was procured by fraud
or trick, and he did not intend that the instrument should
be his will at the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the
following cases;
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary or of some
other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time of
affixing his signature thereto.
These lists are exclusive; no other grounds can serve to
disallow a will. 5 Thus, in a petition to admit a holographic
will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the
decedent's last will and testament; (2) whether said will
was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the
necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its
signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the
holographic will of Anne Sand was not executed in
accordance with the formalities prescribed by law. It held
that Articles 813 and 814 of the New Civil Code, ante, were
not complied with, hence, it disallowed the probate of said
will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40
Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this
subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make
a will. So when an interpretation already given assures
such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last
will, must be disregarded.
For purposes of probating non-holographic wills, these
formal solemnities include the subscription, attestation,
and acknowledgment requirements under Articles 805
and 806 of the New Civil Code.

Rule 75: Production of Will; Allowance of Will Necessary

In the case of holographic wills, on the other hand, what

assures authenticity is the requirement that they be totally
autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be
entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be
witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result
in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that
its requirement affects the validity of the dispositions
contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the
result is that these dispositions cannot be effectuated. Such
failure, however, does not render the whole testament
void.
Likewise, a holographic will can still be admitted to
probate, notwithstanding non-compliance with the
provisions of Article 814. In the case of Kalaw
vs. Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will
have not been noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or
interlined. Manresa gave an identical commentary when
he said "la omission de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia
de 4 de Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations
or insertions were made on the date of the holographic
will or on testator's signature, 9 their presence does not
invalidate the will itself. 10 The lack of authentication will
only result in disallowance of such changes.
It is also proper to note that the requirements of
authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary
conditions for the validity of the holographic will (Article
810). The distinction can be traced to Articles 678 and 688
of the Spanish Civil Code, from which the present
provisions covering holographic wills are taken. They read
as follows:
Art. 678: A will is called holographic when the testator
writes it himself in the form and with the requisites
required in Article 688.
Art. 688: Holographic wills may be executed only by
persons of full age.
In order that the will be valid it must be drawn on stamped
paper corresponding to the year of its execution, written in
its entirety by the testator and signed by him, and must
contain a statement of the year, month and day of its
execution.
If it should contain any erased, corrected, or interlined
words, the testator must identify them over his signature.
Foreigners may execute holographic wills in their own
language.

Page 24

This separation and distinction adds support to the

interpretation that only the requirements of Article 810 of
the New Civil Code and not those found in Articles 813
and 814 of the same Code are essential to the probate of
a holographic will.
The Court of Appeals further held that decedent Annie
Sand could not validly dispose of the house and lot located
in Cabadbaran, Agusan del Norte, in its entirety. This is
correct and must be affirmed.
As a general rule, courts in probate proceedings are
limited to pass only upon the extrinsic validity of the will
sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of
the will. 11 In the case at bench, decedent herself
indubitably stated in her holographic will that the
Cabadbaran property is in the name of her late father, John
H. Sand (which led oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety). Thus, as correctly
held by respondent court, she cannot validly dispose of the
whole property, which she shares with her father's other
heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE,
except with respect to the invalidity of the disposition of
the entire house and lot in Cabadbaran, Agusan del Norte.
The Decision of the Regional Trial Court of Quezon City,
Branch 94 in Sp. Proc. No. Q-37171, dated November 19,
1988, admitting to probate the holographic will of
decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property.
No costs.
SO ORDERED.

Rule 75: Production of Will; Allowance of Will Necessary

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