Wills Cases 2

G.R. No.
4275, March 23, 1909

PAULA CONDE, PLAINTIFF AND APPELLEE, VS. ROMAN ABAYA,
DEFENDANT AND APPELLANT.
DECISION
ARELLANO, C.J.:
From the hearing of the appeal interposed by Roman Abaya in the
special proceedings brought in the Court of First Instance of La
Laguna for the settlement of the intestate estate and the distribution
of the property of Casiano Abaya it appears:
I. As antecedents: that Casiano Abaya, unmarried, the son of
Romualdo Abaya and Sabina Labadia, died on the 6th of April, 1899;
that Paula Conde, as the mother of the natural children Jose and
Teopista Conde, whom she states she had by Casiano Abaya, on the
6th of November, 1905, moved the settlement of the said intestate
succession; that an administrator having been appointed for the said
estate on the 25th of November, 1905, Roman Abaya, a son of the
said Romualdo Abaya and Sabina Labadia, the parents of the late
Casiano Abaya, came forward and opposed said appointment and
claimed it for himself as being the nearest relative of the deceased;
that this was granted by the court below on the 9th of January, 1906;
that on the 17th of November, 1906, Roman Abaya moved that, after
due process of law, the court declare him to be the sole heir of
Casiano Abaya, to the exclusion of all other persons, especially of
Paula Conde, and to be therefore entitled to take possession of all
the property of said estate, and that it be adjudicated to him; and
that on November 22, 1906, the court ordered the publication of
notices for the declaration of heirs and distribution of the property
of the estate.
II. That on the 28th of November, 1906, Paula Conde, in reply to the
foregoing motion of Roman Abaya, filed a petition wherein she stated
that she acknowledged the relationship alleged by Roman Abaya,
but that she considered that her right,was superior to his and moved
for a hearing of the matter, and, in consequence of the evidence that
she intended to present she prayed that she be declared to have
preferential rights to the property left by Casiano Abaya, and that
the same be adjudicated to her together with the corresponding
products thereof.
III. That the trial was held, both parties presenting documentary and
oral evidence and the court below entered the following judgment:
"That the administrator of the estate of Casiano Abaya should
recognize Teopista and Jose Conde as being natural children of
Casiano Abaya; that the petitioner Paula Conde should succeed to
Wills Set 2 | Atty Taleon
the hereditary rights of her children with respect to the inheritance

of their deceased natural father Casiano Abaya; and therefore, it is
hereby declared that she is the only heir to the property of the said
intestate estate, to the exclusion of the administrator, Roman
Abaya."
IV. That Roman Abaya excepted to the foregoing judgment,
appealed to this court, and presented the following statement of
errors:
The fact that the court below found that an ordinary action for the
acknowledgment of natural children under articles 135 and 137 of
the Civil Code, might be brought in special probate proceedings.
The finding that after the death of a person claimed to be an
unacknowledged natural child, the mother of such presumed natural
child, as heir to the latter, may bring an action to enforce the
acknowledgment of her deceased child in accordance with articles
135 and 137 of the Civil Code.
The finding in the judgment that the alleged continuous possession
of the deceased children of Paula Conde of the status of natural
children of the late Casiano Abaya, has been fully proven in these
proceedings; and
On the hypothesis that it was proper to adjudicate the property of
this intestate estate to Paula Conde, as improperly found by the
court below, the court erred in not having declared that said property
should be reserved in favor of relatives of Casiano Abaya to the third
degree, and in not having previously demanded securities from Paula
Ponde to guarantee the transmission of the property to those who
might fall within the reservation.
As to the first error assigned, the question is set up as to whether in
special proceedings for the administration and distribution of an
intestate estate, an action might be brought to enforce the
acknowledgment of the natural child of the person from whom the
inheritance is derived, that is to say, whether one might appear as
heir on the ground that he is a recognized natural child of the
deceased, not having been so recognized by the deceased either
voluntarily or compulsorily by reason of a preexisting judicial
decision, but asking at the same time that, in the special proceeding
itself, he be recognized by the presumed legitimate heirs of the
deceased who claim to be entitled to the succession opened in the
special proceeding.
According to section 782 of the Code of Civil Procedure"If there shall be a controversy before the Court of First Instance as
to who the lawful heirs of the deceased person are, or as to the
distributive share to which each person is entitled under the law, the
testimony as to such controversy shall be taken in writing,by the
judge, under oath, and signed by the witness. Any party in interest
1
whose distributive share is affected by the determination of such

controversy, may appeal from the judgment of the Court of First
Instance determining such controversy to the Supreme Court, within
the time and in the manner provided in the last preceding section."
This court has decided the present question in the manner shown in
the case of Juana Pimentel vs. Engracio Palanca (5 Phil. Rep., 436.)
The main question with regard to the second error assigned, is
whether or not the mother of a natural child now deceased, but who
survived the person who, it is claimed, was his natural father, also
deceased, may bring an action for the acknowledgment of the
natural filiation in favor of such child in order to appear in his behalf
to receive the inheritance from the person who is supposed to be his
natural father.
In order to decide in the affirmative the court below has assigned the
following as the only foundation:
"In resolving a similar question Manresa says: 'An acknowledgment
can only be demanded by the natural child and his descendants
whom it shall benefit, and should they be minors or otherwise
incapacitated, such person as legally represents them; the mother
may ask it in behalf of her child so long as he is under her authority.'
On this point no positive declaration has been made, undoubtedly
because it was not considered necessary. A private action is in
question and the general rule must be followed. Elsewhere the same
author adds: 'It may so happen that the child dies before four years
have expired after attaining majority, or that the document
supporting his petition for acknowledgment is discovered after his
death, such death perhaps occurring after his parents had died, as is
supposed by article 137, or during their lifetime. In any case such
right of action shall pertain to the descendants of the child whom the
acknowledgment may interest.' (See Commentaries to arts. 135 and
137, Civil Code, Vol. I.)"
The above doctrine, advanced by one of the most eminent
commentators of the Civil Code, lacks legal and doctrinal
foundation. The power to transmit the right of such action by the
natural child to his descendants can not be sustained under the law,
and still less to his mother.
It is without any support in law because the rule laid down in the
code is most positive, limiting in form, when establishing the
exception for the exercise of such right of action after the death of
the presumed parents, as is shown hereafter. It is not supported by
any doctrine, because up to the present time no argument has been
presented, upon which even an approximate conclusion could be
based.
Although the Civil Code considerably improved the condition of

recognized natural children, granting them rights and actions that
they did not possess under the former laws, they were not, however,
placed upon the same plane as legitimate ones. The difference that
separates these two classes of children is still great, as proven by so
many articles dealing with the rights of the family and with
succession in relation to the members thereof. It may be laid down
as a legal maxim, that whatever the code does not grant to the
legitimate children, or in connection with their rights must still less
be understood as granted to recognized natural children or in
connection with their rights. There is not a single exception in its
provisions.
If legitimacy is the attribute that constitutes the basis of the absolute
family rights of the child, the acknowledgment of the natural child is,
among illegitimate ones, that which unites him to the family of the
father or the mother who recognizes him, and affords him a
participation in the rights of the family, relatively advantageous
according to whether they are alone or whether they concur with
other individuals of the family of his purely natural father or mother.
Thus, in order to consider the spirit of the Civil Code, nothing is
more logical than to establish a comparison between an action to
claim the legitimacy, and one to enforce acknowledgment.
"ART. 118. The action to claim its legitimacy may be brought by the
child at any time of its lifetime and shall be transmitted to its heirs,
should it die during minority or in a state of insanity. In such cases
the heirs shall be allowed a period of five years in which to institute
the action.
"The action already instituted by the child is transmitted by its death
to the heirs, if it has not lapsed before then.
"ART. 137. The actions for the acknowledgment of natural children
can be instituted only during the life of the presumed parents,
except in the following cases :
"1. If the father or mother died during the minority of the child, in
which, case the latter may institute the action before the expiration
of the first four years of its majority.
"2. If, after the death of the father or mother, some instrument,
before unknown, should be discovered in which the child is expressly
acknowledged.
2
"In this case the action must be instituted within the six months
following the discovery of such instrument"
On this supposition the first difference that results between one
action and the other consists in that the right of action for legitimacy
lasts during the whole lifetime of the child, that is, it can always be
brought against the presumed parents or their heirs by the child
itself, while the right of action for the acknowledgment of a natural
child does not last his whole lifetime, and, as a general rule, it can
not be instituted against the heirs of the presumed parents,
inasmuch as it can be exercised only during the life of the presumed
parents.
With regard to the question at issue, that is, the transmission to the
heirs of the presumed parents of the obligation to admit the
legitimate filiation, or to recognize the natural filiation, there exists
the most radical difference in that the former continues during the
life of the child who claims to be legitimate, and he may demand it
either directly and primarily from the said presumed parents, or
indirectly and secondarily from the heirs of the latter; while the
second does not endure for life; as a general rule, it only lasts during
the life of the presumed parents. Hence the other difference,
derived as a consequence, that an action for legitimacy is always
brought against the heirs of the presumed parents in case of the
death of the latter, while the action for acknowledgment is not
brought against the heirs of such parents, with the exception of the
two cases prescribed by article 137 transcribed above.
So much for the passive transmission of the obligation to admit the
legitimate filiation, or to acknowledge the natural filiation.
As to the transmission to the heirs of the child of the latter's action
to claim his legitimacy, or to obtain the acknowledgment of his
natural filiation, it is seen that the code grants it in the first case, but
not in the second. It contains provisions for the transmission of the
right of action which, for the purpose of claiming his legitimacy
inheres in the Child, but it does not say a word with regard to the
transmission of the right to obtain the acknowledgment of the
natural filiation.
Therefore, the respective corollary of each of the two above-cited
articles is: (1) That the right of action which devolves upon the child
to claim his legitimacy under article 118, may be transmitted to his
heirs in certain cases designated in the said article; (2) That the right
of action for the acknowledgment of natural children to which article
137 refers, can never be transmitted, for the reason that the code
makes no mention of it in any case, not even as an exception.
It is most illogical arid contrary to every rule of correct interpretation,

that the right of action to secure acknowledgment by the natural
child should be presumed to be transmitted, independently, as a
rule, to his heirs, while the right of action to claim legitimacy from
his predecessor is not expressly, independently, or, as a general rule,
conceded to the heirs of the legitimate child, but only relatively and
as an exception. Consequently, the pretension that the right of
action on the part of the child to obtain the acknowledgment of his
natural filiation is transmitted to his descendants is altogether
unfounded. No legal provision exists to sustain such pretension, nor
can an argument of presumption be based on the lesser claim when
there is no basis for the greater one, and when it is only given as an
exception in well-defined cases. It is placing the heirs of the natural
child on a better footing than the heirs of the legitimate one, when,
as a matter of fact, the position of a natural child is no better than,
nor even equal to, that of a legitimate child.
From the express and precise precepts of the code the following
conclusions are derived:
The right of action that devolves upon the child to claim his
legitimacy lasts during his whole life, while the right to claim the
acknowledgment of a natural child lasts only during the life of his
presumed parents.
Inasmuch as the right of action accruing to the child to claim his
legitimacy lasts during his whole life, he may exercise it either
against the presumed parents, or their heirs; while the right of action
to secure the acknowledgment of a natural child, since it does not
last during his whole life, but depends on that of the presumed
parents, as a general rule can only be exercised against the latter.
Usually the right of action for legitimacy devolving upon the child is
of a personal character and pertains exclusively to him, only the
child may exercise it at any time during his lifetime. As an
exception, and in three cases only, it may be transmitted to the heirs
of the child, to wit, if he died during his minority, or while insane, or
after action had been already instituted.
An action for the acknowledgment of a natural child may, as an
exception, be exercised against the heirs of the presumed parents in
two cases: first, in the event of the death of the latter during the
minority of the child, and second, upon the discovery of some
instrument, of express acknowledgment of the child, executed by the
father or mother, the existence of which was unknown during the life
3
of the latter.
(Ibid., Vol. II, 171.)
But such action for the acknowledgment of a natural child can only
be exercised by him. It can not be transmitted to his descendants,
or to his ascendants.
Navarro Amandi (Cuestionario del Codigo Civil) raises the question:

"Can the heirs of a natural child claim the acknowledgment in those
cases wherein the father or mother are under obligation to
acknowledge"? And says:
"Opinions are widely divergent. The court of Rennes held (on April
13, 1844) that the right of investigation forms a part of the estate of
the child, and along with his patrimony is transmitted to his heirs.
The affirmation is altogether too categorical to be admissible. If it
were correct the same thing would happen as when the legitimacy of
a child is claimed, and as already seen, the right of action to demand
the legitimacy is not transmitted to the heirs in every case and as an
absolute right, but under certain limitations and circumstances.
Now, were we to admit the doctrine of the court of Rennes, the result
would be that the claim for natural filiation would be more favored
than one for legitimate filiation. This would be absurd, because it
can not be conceived that the legislator should have granted a right
of action to the heirs of the natural child, which is only granted under
great limitations and in very few cases to those of a legitimate one.
Some persons insist that the same rules that govern legitimate
filiation apply by analogy to natural filiation, and that in this
conception the heirs of the natural child are entitled to claim it in the
cases prescribed by article 118. The majority, however, are inclined
to consider the right to claim acknowledgment as a personal right,
and consequently, not transmissive to the heirs. Really there are no
legal grounds to warrant the transmission." (Vol. 2, 229.)
In a decision like the present one it is impossible to bring forward the
argument of analogy for the purpose of considering that the heirs of
the natural child are entitled to the right of action which article 118
concedes to the heirs of the legitimate child. The existence of a
provision for the one case and the absence thereof for the other is a
conclusive argument that inclusio unius est exclusio alterius, and it
can not be understood that the provision of law should be the same
when the same reason does not hold in the one case as in the other.
In support of the foregoing the following authorities may be cited:

Sanchez Roman, in his Treatise on Civil Law, propounds the question
as to whether said action should be considered transmissive to the
heirs or descendants of the natural child, whether he had or had not
exercised it up to the time of his death, and decides it as follows:
"There is an entire absence of legal provisions, and at most, it might
be deemed admissible as a solution, that the right of action to claim
the acknowledgment of a natural child is transmitted by analogy to
his heirs on the same conditions and terms that it is transmitted to
the descendants of a legitimate child, to claim his legitimacy, under
article 118, but nothing more; because on this point nothing
warrants placing the heirs of a natural child on a better footing than
those of the legitimate child, and even to compare them would not
fail to be a strained and questionable matter, and one of great
difficulty for decision by the courts, for the simple reason that for the
heirs of the legitimate child, the said article 118 exists, while for
those of the natural child, as we have said, there is no provision in
the code authorizing the same, although on the other hand there is
none that prohibits it." (Vol. V.)
Diaz Guijarro and Martinez Ruiz in their work on "The Civil Code as
construed by the supreme court of Spain," commenting upon article
137, say:
"Article 118, taking into account the privileges due to the legitimacy
of children, grants them the right to claim said legitimacy during
their lifetime, and even authorizes the transmission of said right for
the space of five years to the heirs thereof, if the child die during his
minority or in a state of insanity. But as article 137 is based on the
consideration that in the case of a natural child, ties are less strong
and sacred in the eyes of the law, it does not fix such a long and
indefinite period for the exercise of the action; it limits it to the life of
the parents, excepting in the two cases mentioned in said article;
and it does not allow, as does article 118, the action to pass on to
the heirs, inasmuch as, although it does not prohibit it, and for that
reason it might be deemed on general principles of law to consent to
it, such a supposition is inadmissible for the reason that a
comparison of both articles shows that the silence of the law in the
latter case is not, nor can it be, an omission, but a deliberate intent
to establish a wide difference between the advantages granted to a
legitimate child and to a natural one."
The theory of the law of transmission is also entirely inapplicable in

this case. This theory, which in the Roman Law expressed the
general rule that an heir who did not accept an inheritance during
his lifetime was incapacitated from transmitting it to his own heirs,
included at the same time the idea that if the inheritance was not
transmitted because the heir did not possess it, there were,
however, certain things which the heir held arid could transmit.
Such was the law and the right to accept the inheritance, tot the
existing reason that all rights, both real and personal, shall pass to
the heir; quia haeres representat defunctum in omnibus et per
4
omnia. According to article 659 of the Civil Code, "the inheritance

includes all the property, rights, and obligations of a person, which
are not extinguished by his death." If the mother is the heir of her
natural child, and the latter, among other rights during his lifetime
was entitled to exercise an action for his acknowledgment against
his father, during the life of the latter, or after his death in some of
the excepting cases of article 137, such right, which is a portion of
his inheritance, is transmitted to his mother as being his heir, and it
was so understood by the court of Rennes when it considered the
right in question, not as a personal and exclusive right of the child
which is extinguished by his death, but as any other right which
might be transmitted after his death. This right of supposed
transmission is even less tenable than that Sought to be sustained
by the argument of analogy.
The right of action pertaining to the child to claim his legitimacy is in
all respects superior to that of the child who claims acknowledgment
as a natural child. And it is evident that the right of action to claim
his legitimacy is not one of those rights which the legitimate child
may transmit by inheritance to his heirs; it forms no part of the
component rights of his inheritance. If it were so, there would have
been no necessity to establish its transmissibility to heirs as an
exception in the terms and conditions of article 118 of the code. So
that, in order that it may constitute a portion of the child's
inheritance, it is necessary that the conditions and the terms
contained in article 118 shall be present, since without them, the
right that the child held during his lifetime, being personal and
exclusive in principle, and therefore, as a general rule not
susceptible of transmission, would and should have been
extinguished by his death. Therefore, where no express provision
like that of article 118 exists, the right of action for the
acknowledgment of a natural child is, in principle and without
exception, extinguished by his death, and can not be transmitted, as
a portion of the inheritance of the deceased child.
On the other hand, if said right of action formed a part of the child's
inheritance, it would be necessary to establish the doctrine that the
right to claim such an acknowledgment from the presumed natural
father and from his heirs is an absolute right of the heirs of the
child, not limited by certain circumstances as in the case of the heirs
of a legitimate child; and if it is unreasonable to compare a natural
child with a legitimate one to place the heirs of a natural child and
his inheritance on a better footing than those of a legitimate child
would not only be unreasonable, but, as stated in one of the above
citations, most absurd and illegal in the present state of the law and
in accordance with the general principles thereof.
For all of the foregoing reasons we hereby reverse the judgment

appealed from in all its parts, without any special ruling as to the
costs of this instance.
Mapa, Johnson, Carson, and Willard, JJ., concur.
DISSENTING
TORRES, J.,
The questions arising from the facts and points of law discussed in
this litigation between the parties thereto, decided in the judgment
appealed from, and set up and discussed in this instance by the said
parties in their respective briefs, are subordinate in the first place to
the main point, submitted among others to the decision of this court,
that is, whether the right of action brought to demand from the
natural father, or from his heirs, the acknowledgment of the natural
child which the former left at his death was, by operation of the law,
transmitted to the natural mother by reason of the death of the said
child acknowledged by her.
The second error assigned by the appellant in his brief refers
exclusively to this important point of law.
Article 846 of the Civil Code prescribes:
"The right of succession which the law grants natural children
extends reciprocally in similar cases to the natural father or mother."
Article 944 reads:
"If the acknowledged natural or legitimized child should die without
issue, either legitimate or acknowledged by it, the father or mother
who acknowledged it shall succeed to its entire estate, and if both
acknowledged it and are alive, they shall inherit from it share and
share alike."
It can not be inferred from the above legal provisions that from the
right of succession which the law grants the natural father or mother
upon the,death of their natural child, the right of the heirs of any of
the said parents to claim the acknowledgment of the natural child is
excluded. No article is to be found in the Civil Code that expressly
provides for such exclusion or elimination of the right of the heirs of
the deceased child to claim his acknowledgment.
If under article 659 of said code, the inheritance includes all the
property, rights, and obligations of a person, which are not
extinguished by his death, it is unquestionable that among such
rights stands that which the natural child had, while alive, to claim
his acknowledgment as such from his natural father, or from the
5
heirs of the latter. There is no reason or legal provision whatever to

prevent the consideration that the right to claim acknowledgment of
the filiation of a deceased child from his natural father, or from the
heirs of the latter, is included in the hereditary succession of the
deceased child in favor of his natural mother.
It is to be regretted that such an eminent writer as Manresa is silent
on this special point, or that he is not very explicit in his comments
on article 137 of the Civil Code. Among the various noted writers on
law, Professor Sanchez Roman is the only one who has given his
opinion in a categorical manner as to whether or not the right of
action for the acknowledgment of a deceased natural child shall be
considered transmissive to his heirs, as may be seen from the
following:
"In order to complete the explanation of this article 137 of the Civil
Code, three points must be decided: (1) Against whom shall an
action for acknowledgment be brought under the cases and terms to
which the two exceptions indicated in paragraphs 1 and 2 of article
137 refer? (2) Who is to represent the minor in bringing this action
when neither the father nor the mother has acknowledged him? (3)
Should this right of action be considered as transmitted to the heirs
or descendants of the natural child whether or not it was exercised
at the time of his death?
"With respect to the third, there is an entire absence of legal
provisions, and at most, it might be deemed admissible as a solution,
that the right of action to claim the acknowledgment of a natural
child is transmitted by analogy to his heirs on the same conditions
and terms that it is transmitted to the descendants of the legitimate
child, to claim his legitimacy, under article 118, but no more;
because on this point nothing warrants placing the heirs of a natural
child oh a better footing than those of the legitimate child, and even
to compare them would not fail to be a strained and questionable
matter, and one of great difficulty for decision by the courts, for the
simple reason that for the heirs of the legitimate child the said article
118 exists, while for those of the natural child, as we have said,
there is no provision in the code authorizing the same, although on
the other hand there is none that prohibits it."
Certainly there is no article in the Civil Code, or any special law that
bars the transmission to the heirs of a natural child, particularly to
his natural mother, of the right of action to claim the
acknowledgment of said natural child from the heirs of his deceased
natural father.
According to the above-cited article 944 of the Civil Code, the only
persons designated to succeed to the intestate estate of a natural

child who died during minority or without issue are is natural father
or mother who acknowledged it; consequently if by operation of the
law his parents are his legal successors or heirs, it is unquestionable
that by reason of the child's death the property, rights, and
obligations of the deceased minor were, as a matter of fact,
transmitted to them, among which was the right to demand the
acknowledgment of the said deceased natural child from the heirs of
the deceased natural father or mother, respectively, on account of
having enjoyed uninterruptedly the status of natural child of the said
deceased parents. (Arts. 135 and 136, Civil Code.)
At the death of the children, Teopista in 1902, and Jose in 1908,
during their minority, and after the death of their natural father
which took place in 1899, the natural mother of the said minors,
Paula Conde, succeeded them in all of their property and rights,
among which must necessarily appear and be included the right of
action to claim the acknowledgment of said two children from the
heirs of Icasiano Abaya, their deceased natural father. There is no
legal provision or precept whatever excluding such right from those
which, by operation of the law, were transmitted to the mother,
Paula Conde, or expressly declaring that the said right to claim such
acknowledgment is extinguished by the death of the natural
children.
It is true that, as a general rule, an action for acknowledgment can
not be brought by a surviving natural child after the death of his
parents, except in the event that he was a minor at the time of the
death of either of his parents, as was the case with the minors
Teopista and Jose Conde, who, if living, would unquestionably be
entitled to institute an action for acknowledgment against the
presumed heirs of their natural father; and as there is no law that
provides that said right is, extinguished by the death of the same,
and that the mother did not inherit; it from the said minors, it is also
unquestionable that Paula Conde, the natural mother and successor
to the rights of said minors, is entitled to exercise the corresponding
action for acknowledgment.
If the natural mother had no right of action against the heirs of the
natural father, for the acknowledgment of her natural child, the
unlimited and unconditional reciprocity established by article 846 of
the code would neither be true nor correct. It should be noticed that
the relation of paternity and that of filiation between the abovementioned father and children are both natural in character;
therefore, the intestate succession of the said children of Paula
Conde is governed exclusively by articles 944 and 945 of the said
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code.
It is true that nothing is provided by article 137 with reference to the
transmission to the natural mother of the right to claim the
acknowledgment of her natural children, but, as Sanchez Roman
says, it does not expressly prohibit it; and as opposed to the silence
of the said article, we find the provisions of articles 846 and 944 of
the Civil Code, which expressly recognize the right of the natural
mother to succeed her natural child, a right which is transmitted to
her by operation of law from the moment that the child ceases to
exist.
The question herein does not bear upon the right of a child to claim
his legitimacy, as provided in article 118 of the code, nor is it
claimed that the rights of natural children and of their mother are
equal to those of legitimate ones, even by analogy.
The foundations of this opinion are based solely on the provisions of
the above-mentioned articles of the code, and I consider that they
are sustainable so long as it is not positively proven that the so
often-mentioned right of action for acknowledgment is extinguished
by the death of the minor natural child, and is not transmitted to the
natural mother by express declaration or prohibition of the law,
together with the property and other rights in the intestate
succession.
In view of the considerations above set forth it is my opinion that it
should be held: That Paula Conde, as the natural mother and sole
heir of her children Teopista and Jose, was and is entitled to the right
to institute proceedings to obtain the acknowledgment of the latter
as natural children of the late Icasiano Abaya, from Roman Abaya, as
heir and administrator of the estate of the said Icasiano Abaya; and
that the said Teopista and Jose who died during their minority, three
years after the death of their father, should be considered and
acknowledged as such natural children of the latter, for the reason
that while living they uninterruptedly enjoyed the status of his
natural children.
The judgment appealed from should be affirmed without any special
ruling as to costs.
With regard to the declaration that the property of the late Icasiano,
which Paula Conde might take, are of a reservable character,
together with the other matter contained in the third error assigned
by the appellant to the said judgment, the writer withholds his
opinion until such time as the question may be raised between the
parties in proper form
G.R. NO. 174144, April 17, 2007
BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION A.
BIHIS, RESPONDENT.
DECISION
CORONA, J.:
The Scriptures tell the story of the brothers Jacob and Esau[1],
siblings who fought bitterly over the inheritance of their father
Isaac's estate. Jurisprudence is also replete with cases involving
acrimonious conflicts between brothers and sisters over successional
rights. This case is no exception.
On February 19, 1994, Felisa Tamio de Buenaventura, mother of
petitioner Bella A. Guerrero and respondent Resurreccion A. Bihis,
died at the Metropolitan Hospital in Tondo, Manila.
On May 24, 1994, petitioner filed a petition for the probate of the last
will and testament of the decedent in Branch 95[2] of the Regional
Trial Court of Quezon City where the case was docketed as Sp. Proc.
No. Q-94-20661.
The petition alleged the following: petitioner was named as executrix
in the decedent's will and she was legally qualified to act as such;
the decedent was a citizen of the Philippines at the time of her
death; at the time of the execution of the will, the testatrix was 79
years old, of sound and disposing mind, not acting under duress,
fraud or undue influence and was capacitated to dispose of her
estate by will.
Respondent opposed her elder sister's petition on the following
grounds: the will was not executed and attested as required by law;
its attestation clause and acknowledgment did not comply with the
requirements of the law; the signature of the testatrix was procured
by fraud and petitioner and her children procured the will through
undue and improper pressure and influence.
In an order dated November 9, 1994, the trial court appointed
petitioner as special administratrix of the decedent's estate.
Respondent opposed petitioner's appointment but subsequently
withdrew her opposition. Petitioner took her oath as temporary
special administratrix and letters of special administration were
issued to her.
7
On January 17, 2000, after petitioner presented her evidence,

respondent filed a demurrer thereto alleging that petitioner's
evidence failed to establish that the decedent's will complied with
Articles 804 and 805 of the Civil Code.
In a resolution dated July 6, 2001, the trial court denied the probate
of the will ruling that Article 806 of the Civil Code was not complied
with because the will was "acknowledged" by the testatrix and the
witnesses at the testatrix's, residence at No. 40 Kanlaon Street,
Quezon City before Atty. Macario O. Directo who was a commissioned
notary public for and in Caloocan City. The dispositive portion of the
resolution read:
WHEREFORE, in view of the foregoing, the Court finds, and so
declares that it cannot admit the last will and testament of the late
Felisa Tamio de Buenaventura to probate for the reasons
hereinabove discussed and also in accordance with Article 839 [of
the Civil Code] which provides that if the formalities required by law
have not been complied with, the will shall be disallowed. In view
thereof, the Court shall henceforth proceed with intestate succession
in regard to the estate of the deceased Felisa Tamio de
Buenaventura in accordance with Article 960 of the [Civil Code], to
wit: "Art. 960. Legal or intestate succession takes place: (1) If a
person dies without a will, or with a void will, or one which has
subsequently lost its validity, xxx."
SO ORDERED.[3]
Petitioner elevated the case to the Court of Appeals but the
appellate court dismissed the appeal and affirmed the resolution of
the trial court.[4]
Thus, this petition.[5]
Petitioner admits that the will was acknowledged by the testatrix and
the witnesses at the testatrix's residence in Quezon City before Atty.
Directo and that, at that time, Atty. Directo was a commissioned
notary public for and in Caloocan City. She, however, asserts that the
fact that the notary public was acting outside his territorial
jurisdiction did not affect the validity of the notarial will.
Did the will "acknowledged" by the testatrix and the instrumental
witnesses before a notary public acting outside the place of his
commission satisfy the requirement under Article 806 of the Civil
Code? It did not.
Article 806 of the Civil Code provides:
ART. 806. Every will must be acknowledged before a notary public by

the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the office of
the Clerk of Court.
One of the formalities required by law in connection with the
execution of a notarial will is that it must be acknowledged before a
notary public by the testator and the witnesses.[6] This formal
requirement is one of the indispensable requisites for the validity of
a will.[7] In other words, a notarial will that is not acknowledged
before a notary public by the testator and the instrumental
witnesses is void and cannot be accepted for probate.
An acknowledgment is the act of one who has executed a deed in
going before some competent officer and declaring it to be his act or
deed.[8] In the case of a notarial will, that competent officer is the
notary public.
The acknowledgment of a notarial will coerces the testator and the
instrumental witnesses to declare before an officer of the law, the
notary public, that they executed and subscribed to the will as their
own free act or deed.[9] Such declaration is under oath and under
pain of perjury, thus paving the way for the criminal prosecution of
persons who participate in the execution of spurious wills, or those
executed without the free consent of the testator.[10] It also
provides a further degree of assurance that the testator is of a
certain mindset in making the testamentary dispositions to the
persons instituted as heirs or designated as devisees or legatees in
the will.[11]
Acknowledgment can only be made before a competent officer, that
is, a lawyer duly commissioned as a notary public.
In this connection, the relevant provisions of the Notarial Law
provide:
SECTION 237. Form of commission for notary public. -The
appointment of a notary public shall be in writing, signed by the
judge, and substantially in the following form:
GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ___________
This is to certify that ____________, of the municipality of ________ in
said province, was on the ___ day of __________, anno Domini
nineteen hundred and _______, appointed by me a notary public,
within and for the said province, for the term ending on the first day
of January, anno Domini nineteen hundred and _____.
8
_________________
Judge of the Court of
irst Instance[12] of said
Province
xxx xxx xxx
SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary
public in a province shall be co-extensive with the province. The
jurisdiction of a notary public in the City of Manila shall be coextensive with said city. No notary shall possess authority to do any
notarial act beyond the limits of his jurisdiction. (emphases supplied)
A notary public's commission is the grant of authority in his favor to
perform notarial acts.[13] It is issued "within and for" a particular
territorial jurisdiction and the notary public's authority is coextensive with it. In other words, a notary public is authorized to
perform notarial acts, including the taking of acknowledgments,
within that territorial jurisdiction only. Outside the place of his
commission, he is bereft of power to perform any notarial act; he is
not a notary public. Any notarial act outside the limits of his
jurisdiction has no force and effect. As this Court categorically
pronounced in Tecson v. Tecson:[14]
An acknowledgment taken outside the territorial limits of the officer's
jurisdiction is void as if the person taking it ware wholly without
official character. (emphasis supplied)
Since Atty. Directo was not a commissioned notary public for and in
Quezon City, he lacked the authority to take the acknowledgment of
the testatrix and the instrumental witnesses. In the same vein, the
testatrix and her witnesses could not have validly acknowledged the
will before him. Thus, Felisa Tamio de Buenaventura's last will and
testament was, in effect, not acknowledged as required by law.
Moreover, Article 5 of the Civil Code provides:
ART. 5. Acts executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law itself authorizes
their validity.
The violation of a mandatory or a prohibitory statute renders the act
illegal and void unless the law itself declares its continuing validity.
Here, mandatory and prohibitory statutes were transgressed in the
execution of the alleged "acknowledgment." The compulsory
language of Article 806 of the Civil Code was not complied with and
the interdiction of Article 240 of the Notarial Law was breached.
Ineluctably, the acts of the testatrix, her witnesses and Atty. Directo
were all completely void.
The Court cannot turn a blind eye to Atty. Directo's participation in

the preparation, execution and unlawful "acknowledgment" of Felisa
Tamio de Buenaventura's will. Had he exercised his notarial
commission properly, the intent of the law to effectuate the
decedent's final statements[15] as expressed in her will would not
have come to naught.[16] Hence, Atty. Directo should show cause
why he should not be administratively sanctioned as a member of
the bar and as an officer of the court.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
Let a copy of this decision be furnished the Commission on Bar
Discipline of the Integrated Bar of the Philippines for investigation,
report and recommendation on the possible misconduct of Atty.
Macario O. Directo.
SO ORDERED.
G.R. No. 33365, December 20, 1930

ESTATE OF THE DECEASED PAULINO DIANCIN. TEOPISTA
DOLAR, PROPONENT AND APPELLANT, VS. FIDEL DIANCIN ET
AL., OPPOSITORS AND APPELLEES.
DECISION
MALCOLM, J.:
The will of the deceased Paulino Diancin was denied probate in the
Court of First Instance of Iloilo on the sole ground that the
thumbmarks appearing thereon were not the thumbmarks of the
testator. Disregarding the other errors assigned by the proponent of
the will, we would direct attention to the third error which challenges
squarely the correctness of this finding.
The will in question is alleged to have been executed by Paulino
Diancin at Dumangas, Iloilo, on November 13, 1927. A thumbmark
appears at the end of the will and on the left hand margin of each of
its pages in the following manner: "Paulino Diancin, Su Signo, Por
Pedro Diamante.' The witnesses to the will were the same Pedro
Diamajite, Inocentes Deocampo, and Juan Dominado. The will is
detailed in nature, and disposes of an estate amounting
approximately to P50,000.
9
For comparative purposes, Exhibit 8, a document of sale containing

an admittedly genuine thumbmark of Paulino Diancin, was
presented. Photographs of the thumbmarks on the will and of the
thumbmark. on Exhibit 8 were also offered in evidence. One, Carlos J.
Jaena, attempted to qualify as an "expert," and thereafter gave as
his opinion that the thumbmjarks had not been made by the same
person. One, Jose G. Villanueva, likewise attempted to qualify as an
"expert" and gave as his opinion that the thumbmarks were
authentic. The petition of the proponent of the will to permit the will
to be sent to Manila to be examined by an expert was denied. On
one fact only were the opposing witnesses agreed, and this was that
the ink used to make the thumbmarks on the will was of the ordinary
type which blurred the characteristics of the marks, whereas the
thumbmark on Exhibit 8 was formed clearly by the use of the special
ink required for this purpose. The trial judge expressed his personal
view as being that great differences existed between the questioned
marks and the genuine mark.
The requirement of the statute that the will shall be "signed" is
satisfied not only by the customary written signature but also by the
testator's or testatrix' thumbmark. Expert testimony as to the
identity of thumbmarks or fingerprints is of course admissible. The
method of identification of fingerprints is a science requiring close
study. Where thumb impressions are blurred and many of the
characteristic! marks far from clear, thus rendering it difficult to
trace the features enumerated by experts as showing the identity or
lack of identity of the impressions, the court is justified in refusing to
accept the opinions of alleged experts and in substituting its own
opinion that a distinct similarity in some respects between the
admittedly genuine thumbmark and the questioned thumbmarks, is
evident. This we do here. (Emperor vs. Abdul Hamid [1905], 32
Indian L. Rep., 759, cited in 3 Chamberlayne on the Modern Law of
Evidence, sec. 2561, note 3.)
There is another means of approach to the question and an obvious
one. The three instrumental witnesses united in testifying concerning
the circumstances surrounding the execution of the will. It was
stated that in addition to the testator and themselves, one other
person, Diosdado Dominado, was present. This latter individual was
called as a witness by the oppositors to the will to identify Exhibit 8.
He was later placed on the witness stand by the proponent on
rebuttal, and thereupon declared positively that he was the one who
prepared the will for the signature of Paulino Diancin; that the
thumbmarks appearing on the will were those of Paulino Diancin, and
that he saw Paulino Diancin make these impressions. The testimony
of a witness called by both parties is worthy of credit.
We reach the very definite conclusion that the document presented
for probate as the last will of the deceased Paulino Diancin was, in
truth, his will, and that the thumbmarks appearing thereon were the
thumbmarks of the testator. Accordingly, error is found, which means
that the judgment appealed from must be, as it is hereby, reversed,
and the will ordered admitted to probate, without special finding as
to costs in this instance.
Avance a, C. J., Johnson, Street, Villamor, Ostrand, Johns,
Romualdez and Villa-Real, JJ., concur.
G.R. No. L-33187, March 31, 1980
CORNELIO PAMPLONA ALIAS GEMINIANO PAMPLONA AND
APOLONIA ONTE, PETITIONERS, VS. VIVENCIO MORETO,
VICTOR MORETO, ELIGIO MORETO, MARCELO MORETO,
PAULINA MORETO, ROSARIO MORETO, MARTA MORETO,
SEVERINA MENDOZA, PABLO MENDOZA, LAZARO MENDOZA,
VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO MORETO AND
LORENZO MENDOZA, RESPONDENTS.
DECISION
GUERRERO, J.:
This is a petition for certiorari by way of appeal from the decision of
the Court of Appeals[1] in CA-G.R. No. 35962-R, entitled "Vivencio
Moreto, et al., Plaintiffs-Appellees vs. Cornelio Pamplona, et al.,
Defendants-Appellants," affirming the decision of the Court of First
Instance of Laguna, Branch I at Bian.
The facts, as stated in the decision appealed from, show that:
"Flaviano Moreto and Monica Maniega were husband and wife.
During their marriage, they acquired adjacent lots Nos. 1495, 4545,
and 1496 of the Calamba Friar Land Estate, situated in Calamba,
Laguna, containing 781,544 and 1,021 square meters respectively,
and covered by certificates of title issued in the name of "Flaviano
Moreto, married to Monica Maniega."
"The spouses Flaviano Moreto and Monica Maniega begot during
their marriage six (6) children, namely, Ursulo, Marta, La Paz, Alipio,
Pablo, and Leandro, all surnamed Moreto.
"Ursulo Moreto died intestate on May 24, 1959 leaving as his heirs
herein plaintiffs Vivencio, Marcelo, Rosario, Victor, Paulina, Marta and
Eligio, all surnamed Moreto.
"Marta Moreto died also intestate on April 30, 1938 leaving as her
heir plaintiff Victoria Tuiza.
"La Paz Moreto died intestate on July 17, 1954 leaving the following
heirs, namely, herein plaintiffs Pablo, Severina, Lazaro, and Lorenzo,
10
all surnamed Mendoza.

"Alipio Moreto died intestate on June 30, 1943 leaving as his heir
herein plaintiff Josefina Moreto.
"Pablo Moreto died intestate on April 25, 1942 leaving no issue and
as his heirs his brother plaintiff Leandro Moreto and the other
plaintiffs herein.
"On May 6, 1946, Monica Maniega died intestate in Calamba,
Laguna.
"On July 30, 1952, or more than six (6) years after the death of his
wife Monica Maniega, Flaviano Moreto, without the consent of the
heirs of his said deceased wife Monica, and before any liquidation of
the conjugal partnership of Monica and Flaviano could be effected,
executed in favor of Geminiano Pamplona, married to defendant
Apolonia Onte, the deed of absolute sale (Exh. "1") covering lot No.
1495 for P900.00. The deed of Sale (Exh. "1") contained a
description of lot No. 1495 as having an area of 781 square meters
and covered by transfer certificate of title No. 14570 issued in the
name of Flaviano Moreto, married to Monica Maniega, although the
lot was acquired during their marriage. As a result of the sale, the
said certificate of title was cancelled and a new transfer certificate of
title No. T-5671 was issued in the name of Geminiano Pamplona
married to Apolonia Onte (Exh. "A").
"After the execution of the above-mentioned deed of sale (Exh. "1"),
the spouses Geminiano Pamplona and Apolonia Onte constructed
their house on the eastern part of lot 1496 as Flaviano Moreto, at the
time of the sale, pointed to it as the land which he sold to Geminiano
Pamplona. Shortly thereafter, Rafael Pamplona, son of the spouses
Geminiano Pamplona and Apolonia Onte, also built his house within
lot 1496 about one meter from its boundary with the adjoining lot.
The vendor Flaviano Moreto and the vendee Gemaniano Pamplona
thought all the time that the portion of 781 square meters which was
the subject matter of their sale transaction was No. 1495 and so lot
No. 1495 appears to be the subject matter in the deed of sale (Exh.
"1") although the fact is that the said portion sold thought of by the
parties to be lot No. 1495 is a part of lot No. 1496.
"From 1956 to 1960, the spouses Geminiano Pamplona and Apolonia
Onte enlarged their house and they even constructed a piggery
corral at the back of their said house about one and one-half meters
from the eastern boundary of lot 1496.
"On August 12, 1956, Flaviano Moreto died intestate. In 1961, the
plaintiffs demanded on the defendants to vacate the premises where
they had their house and piggery on the ground that Flaviano Moreto
had no right to sell the lot which he sold to Geminiano Pamplona as
the same belongs to the conjugal partnership of Flaviano and his
deceased wife and the latter was already dead when the sale was
executed without the consent of the plaintiffs who are the heirs of
Monica. The spouses Geminiano Pamplona and Apolonia Onte
refused to vacate the premises occupied by them and hence, this
suit was instituted by the heirs of Monica Maniega seeking for the
declaration of the nullity of the deed of sale of July 30, 1952 abovementioned as regards one-half of the property subject matter of said
deed; to declare the plaintiffs as the rightful owners of the other half
of said lot; to allow the plaintiffs to redeem the one-half portion
thereof sold to the defendants 'After payment of the other half of the
purchase price'; to order the defendants to vacate the portions
occupied by them; to order the defendants to pay actual and moral
damages and attorney's fees to the plaintiffs; to order the
defendants to pay plaintiffs P120.00 a year from August 1958 until
they have vacated the premises occupied by them for the use and
occupancy of the same.
"The defendants claim that the sale made by Flaviano Moreto in their
favor is valid as the lot sold is registered in the name of Flaviano
Moreto and they are purchasers believing in good faith that the
vendor was the sole owner of the lot sold.
"After a relocation of lots 1495, 1496 and 4545 made by agreement
of the parties, it was found out that there was mutual error between
Flaviano Moreto and the defendants in the execution of the deed of
sale because while the said deed recited that the lot sold is lot No.
1495, the real intention of the parties is that it was a portion
consisting of 781 square meters of lot. No. 1496 which was the
subject matter of their sale transaction.
"After trial, the lower court rendered judgment, the dispositive part
thereof being as follows:
'WHEREFORE, judgment is hereby rendered for the plaintiffs
declaring the deed of absolute sale dated July 30, 1952 pertaining to
the eastern portion of Lot 1496 covering an area of 781 square
meters null and void as regards the 390.5 square meters of which
plaintiffs are hereby declared the rightful owners and entitled to its
possession.
'The sale is ordered valid with respect to the eastern one-half (1/2) of
781 square meters of Lot 1496 measuring 390.5 square meters of
11
which defendants are declared lawful owners and entitled to its

possession.
The fundamental and crucial issue in the case at bar is whether

under the facts and circumstances duly established by the evidence,
petitioners are entitled to the full ownership of the property in
litigation, or only one-half of the same.
action for partition brought for the purpose. Accordingly, the estate
became the property of a community between the surviving
husband, Flaviano Moreto, and his children with the deceased
Monica Maniega in the concept of a co-ownership.
"The community property of the marriage, at the dissolution of this
bond by the death of one of the spouses, ceases to belong to the
legal partnership and becomes the property of a community, by
operation of law, between the surviving spouse and the heirs of the
deceased spouse, or the exclusive property of the widower or the
widow, if he or she be the heir of the deceased spouse. Every coowner shall have full ownership of his part and in the fruits and
benefits derived therefrom, and he therefore may alienate, assign or
mortgage it, and even substitute another person in its enjoyment,
unless personal rights are in question." (Marigsa vs. Macabuntoc, 17
Phil. 107)
In Borja vs. Addison, 44 Phil. 895, 906, the Supreme Court said that
"(t)here is no reason in law why the heirs of the deceased wife may
not form a partnership with the surviving husband for the
management and control of the community property of the marriage
and conceivably such a partnership, or rather community of
property, between the heirs and the surviving husband might be
formed without a written agreement." In Prades vs. Tecson, 49 Phil.
230, the Supreme Court held that "(a)lthough, when the wife dies,
the surviving husband, as administrator of the community property,
has authority to sell the property without the concurrence of the
children of the marriage, nevertheless this power can be waived in
favor of the children, with the result of bringing about a conventional
ownership in common between the father and children as to such
property; and any one purchasing with knowledge of the changed
status of the property will acquire only the undivided interest of
those members of the family who join in the act of conveyance."
There is no question that when the petitioners purchased the

property on July 30, 1952 from Flaviano Moreto for the price of
P900.00, his wife Monica Maniega had already been dead six years
before, Monica having died on May 6, 1946. Hence, the conjugal
partnership of the spouses Flaviano Moreto and Monica Maniega had
already been dissolved. (Article 175, (1) New Civil Code; Article
1417, Old Civil Code). The records show that the conjugal estate had
not been inventoried, liquidated, settled and divided by the heirs
thereto in accordance with law. The necessary proceedings for the
liquidation of the conjugal partnership were not instituted by the
heirs either in the testate or intestate proceedings of the deceased
spouse pursuant to Act 3176 amending Section 685 of Act 190.
Neither was there an extra-judicial partition between the surviving
spouse and the heirs of the deceased spouse nor was an ordinary
It is also not disputed that immediately after the execution of the

sale in 1952, the vendees constructed their house on the eastern
part of Lot 1496 which the vendor pointed out to them as the area
sold, and two weeks thereafter, Rafael who is a son of the vendees,
also built his house within Lot 1496. Subsequently, a cemented
piggery coral was constructed by the vendees at the back of their
house about one and one-half meters from the eastern boundary of
Lot 1496. Both vendor and vendees believed all the time that the
area of 781 sq. meters subject of the sale was Lot No. 1495 which
according to its title (T.C.T. No. 14570) contains an area of 781 sq.
meters so that the deed of sale between the parties identified and
described the land sold as Lot 1495. But actually, as verified later by
a surveyor upon agreement of the parties during the proceedings of
the case below, the area sold was within Lot 1496.
'After proper survey segregating the eastern one-half portion with an

area of 390.5 square meters of Lot 1496, the defendants shall be
entitled to a certificate of title covering said portion and Transfer
Certificate of Title No. 9843 of the office of the Register of Deeds of
Laguna shall be cancelled accordingly and new titles issued to the
plaintiffs and to the defendants covering their respective portions.
'Transfer Certificate of Title No. 5671 of the office of the Register of
Deeds of Laguna covering Lot No. 1495 and registered in the name
of Cornelio Pamplona, married to Apolonia Onte, is by virtue of this
decision ordered cancelled. The defendants are ordered to surrender
to the office of the Register of Deeds of Laguna the owner's duplicate
of Transfer Certificate of Title No. 5671 within thirty (30) days after
this decision shall have become final for cancellation in accordance
with this decision.
'Let copy of this decision be furnished the Register of Deeds for the
province of Laguna for his information and guidance.
'With costs against the defendants.'[2]
The defendants-appellants, not being satisfied with said judgment,
appealed to the Court of Appeals, which affirmed the judgment,
hence they now come to this Court.
12
Again, there is no dispute that the houses of the spouses Cornelio

Pamplona and Apolonia Ante as well as that of their son Rafael
Pamplona, including the concrete piggery coral adjacent thereto,
stood on the land from 1952 up to the filing of the complaint by the
private respondents on July 25, 1961, or a period of over nine (9)
years. And during said period, the private respondents who are the
heirs of Monica Maniega as well as of Flaviano Moreto who also died
intestate on August 12, 1956, lived as neighbors to the petitionersvendees, yet lifted no finger to question the occupation, possession
and ownership of the land purchased by the PampIonas, so that We
are persuaded and convinced to rule that private respondents are in
estoppel by laches to claim half of the property in dispute as null and
void. Estoppel by laches is a rule of equity which bars a claimant
from presenting his claim when, by reason of abandonment and
negligence, he allowed a long time to elapse without presenting the
same. (International Banking Corporation vs. Yared, 59 Phil, 92)
We have ruled that at the time of the sale in 1952, the conjugal
partnership was already dissolved six years before and therefore, the
estate became a co-ownership between Flaviano Moreto, the
surviving husband, and the heirs of his deceased wife, Monica
Maniega. Article 493 of the New Civil Code is applicable and it
provides as follows:
"Art. 493. Each co-owner shall have the full ownership of his part
and of the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and even substitute
another person in its enjoyment, except when personal rights are
involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of the coownership."
We agree with the petitioner that there was a partial partition of the
co-ownership when at the time of the sale Flaviano Moreto pointed
out the area and location of the 781 sq. meters sold by him to the
petitioners-vendees on which the latter built their house and also
that whereon Rafael, the son of petitioners likewise erected his
house and an adjacent coral for piggery.
Petitioners point to the fact that the spouses Flaviano Moreto and
Monica Maniega owned three parcels of land denominated as Lot
1495 having an area of 781 sq. meters, Lot 1496 with an area of
1,021 sq. meters, and Lot 4545 with an area of 544 sq. meters. The
three lots have a total area of 2,346 sq. meters. These three parcels
or lots are contiguous with one another as each is bounded on one
side by the other, thus: Lot 4545 is bounded on the northeast by Lot
1495 and on the southwest by Lot 1496. Lot 1495 is bounded on the
west by Lot 4545. Lot 1496 is bounded on the west by Lot 4545. It
is therefore, clear that the three lots constitute one big land. They
are not separate properties located in different places but they abut
each other. This is not disputed by private respondents. Hence, at
the time of the sale, the co-ownership constituted or covered these
three lots adjacent to each other. And since Flaviano Moreto was
entitled to one-half pro-indiviso of the entire land area or 1,173 sq.
meters as his share, he had a perfect legal and lawful right to
dispose of 781 sq. meters of his share to the Pamplona spouses.
Indeed, there was still a remainder of some 392 sq. meters
belonging to him at the time of the sale.
We reject respondent Court's ruling that the sale was valid as to onehalf and invalid as to the other half for the very simple reason that
Flaviano Moreto, the vendor, had the legal right to more than 781 sq.
meters of the communal estate, a title which he could dispose,
alienate in favor of the vendees-petitioners. The title may be proindiviso or inchoate but the moment the co-owner as vendor pointed
out its location and even indicated the boundaries over which the
fences were to be erected without objection, protest or complaint by
the other co-owners, on the contrary they acquiesced and tolerated
such alienation, occupation and possession, We rule that a factual
partition or termination of the co-ownership, although partial, was
created, and barred not only the vendor, Flaviano Moreto, but also
his heirs, the private respondents herein from asserting as against
the vendees-petitioners any right or title in derogation of the deed of
sale executed by said vendor Flaviano Moreto.
Equity commands that the private respondents, the successors of
both the deceased spouses, Flaviano Moreto and Monica Maniega be
not allowed to impugn the sale executed by Flaviano Moreto who
indisputably received the consideration of P900.00 and which he,
including his children, benefitted from the same. Moreover, as the
heirs of both Monica Maniega and Flaviano Moreto, private
respondents are duty-bound to comply with the provisions of Article
1458 and 1495, Civil Code, which is the obligation of the vendor of
the property of delivering and transfering the ownership of the whole
property sold, which is transmitted on his death to his heirs, the
herein private respondents. The articles cited provide, thus:
"Art. 1458. By the contract of sale one of the contracting parties
obligates himself to transfer the ownership of and to deliver a
determinate thing, and the other party to pay therefor a price certain
in money or its equivalent.
A contract of sale may be absolute or conditional."
13
"Art. 1495. The vendor is bound to transfer the ownership of and

deliver, as well as warrant the thing which is the object of the sale."
Under Article 776, New Civil Code, the inheritance which private
respondents received from their deceased parents and/or
predecessors-in-interest included all the property rights and
obligations which were not extinguished by their parents' death.
And under Art. 1311, paragraph 1, New Civil Code, the contract of
sale executed by the deceased Flaviano Moreto took effect between
the parties, their assigns and heirs, who are the private respondents
herein. Accordingly, to the private respondents is transmitted the
obligation to deliver in full ownership the whole area of 781 sq.
meters to the petitioners (which was the original obligation of their
predecessor Flaviano Moreto) and not only one-half thereof. Private
respondents must comply with said obligation.
The records reveal that the area of 781 sq. meters sold to and
occupied by petitioners for more than 9 years already as of the filing
of the complaint in 1961 had been re-surveyed by private land
surveyor Daniel Aranas. Petitioners are entitled to a segregation of
the area from Transfer Certificate of Title No. T-9843 covering Lot
1496 and they are also entitled to the issuance of a new Transfer
Certificate of Title in their name based on the relocation survey.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed
from is hereby AFFIRMED with modification in the sense that the sale
made and executed by Flaviano Moreto in favor of the petitionersvendees is hereby declared legal and valid in its entirety.
Petitioners are hereby declared owners in full ownership of the 781
sq. meters at the eastern portion of Lot 1496 now occupied by said
petitioners and whereon their houses and piggery coral stand.
The Register of Deeds of Laguna is hereby ordered to segregate the
area of 781 sq. meters from Certificate of Title No. 9843 and to issue
a new Transfer Certificate of Title to the petitioners covering the
segregated area of 781 sq. meters.
No costs.
SO ORDERED.
G.R. No. 47931, June 27, 1941
TESTAMENTARIA DEL FINADO REV. P. ELEUTERIO PILAPIL. ADRIANO
MENDOZA, SOLICITANTE Y APELADO, CONTRA CALIXTO PILAPIL Y
OTROS, OPOSITORES Y APELANTES.
DECISION
DIAZ, M.
Las cuestiones principales que los opositores nos presentan para su
resolucidn, al apelar de la decision del Juzgado de Primera Instancia
de Cebu, dictada en el expediente de testamentaria No. 407 de
dicho Juzgado, pueden reducirse a las siguientes:
" Si el Juzgado de Cebu podia nombrar el 4 de marzo de 1939, al
apelado como administrador especial de los bienes relictos del
finado P. Eleuterio Pilapil (expediente de testamentaria No. 407),
estando como estaba entonces actuando como administrador de los
mismos bienes, desde el 7 de febrero de 1939, el apelante Calixto
Pilapil, que promovio un dia antes, el Expediente de Intestado del
mismo flnado P. Eleuterio Pilapil, en dicho Juzgado (expediente No.
399, Juzgado de Cebu) ; y
" Si procedia y procede la legalization como testamento o disposicion
de ultima voluntad del finado P. Eleuterio Pilapil, del documento
obrante en autos como Exhibit A que es un duplicado al carbon del
Exhibit C.
Los hechos pertinentes que hay que tener en cuenta al resolver las
cuestiones propuestas son, segun se desprenden de la decision
apelada y de los mismos documentos que el Juzgado declaro ser
testamento y ultima voluntad del finado P. Eleuterio Pilapil, los que a
continuation se relatan:
El P. Eleuterio Pilapil, siendo Cura de la parroquia de Mualboal de la
Provincia de Cebu, fallecio en la ciudad de este nombre el 6 de
diciembre de 1935. No habiendose presentado ningun testamento
suyo despues de su muerte, por lo menos hasta principios de febrero
de 1939, su hermano Calixto Pilapil promovio el dia 6 de dichos mes
y afio, el expediente de intestado No. 399 para pedir que fuese
nombrado administrador de los bienes relictos de el. Recibida a
prueba la solicitud que habia presentado para el indicado fin, previas
las publicaciones de los avisos prescritos por la ley, y oyendo el
Juzgado previamente a los que comparecieron para oponerse a la
misma, entre los cuales estaban el mismo apelado y Simeona Pilapil,
el Juzgado se la concedio, nombrandole acto seguido administrador
de dicho Intestado. A los pocos dias, o sea el 4 de marzo de 1939, el
apelado promovio a su vez el expediente No. 407 de que antes se ha
hecho mencion, para pedir la legalization como testamento del
finado P. Eleuterio Pilapil, del Exhibit A que es el duplicado al carbon
del Exhibit C. Hay entre las clausulas de dichos dos documentos, las
que se insertan a continuation por su pertinencia a las cuestiones
planteadas y tambten por la importancia que tienen:
14
"Yo, Eleuterio Pilapil, Sacerdote de la Iglesia Cato1ica Apostolka

Romana, de sesenta y ocho aos de edad, natural de Liloan,
actualmente, Cura Parroco de la Parroquia de Mualboal, Provincia de
Cebu, I. F., gozando de salud y en PLENO USO DE MIS FACULTADES
MENTALES, por la presente, publico, declaro y otorgo lo siguiente
como mi testamento y I LTIMA VOLUNTAD:
"ART. PRIMERO: Instituyo y nombro al Sr. Adriano Ilendoza, mi
sobrino politico, casado, mayor de edad y vecino del Municipio de
Liloan, Provincia de Cebu, I. F., ALBACEA-EJECUTOR de este mi
Testamento y Ultima Voluntad: Entendiendose, Que, en caso de
imposibilidad, negligencia u otra causa con que se cohibe hacer
cumplir este mi Testamento y Ultima Voluntad, mediante fianza,
dispongo y ordeno que sea sustituido en el cargo de albaceaojecutor
de este mi Testamento y trltima Voluntad, por mi Primo, Jose
Cabatingan, casado, mayor de edad, residente del Municipio de
Mualboal, Provincia de Cebu, I. F., quien se encargara y hara que se
cumplan estas mis siguientes disposicionos:
*******
"2.a Dispongo y ordeno que este mi Testamento y trltima Voluntad
NO se ventile en el Juzgado, toda vez que este Testamento y iJltima
Voluntad, simplemente corrobora, afirma y asegura la legitimidad de
los documentos de compraventa de mis bienes;
*******
"ART. Segundo: Por la presente, hago constar que este Mi
Testamento y Ultima Voluntad, que corrobora, afirma y asegura la
legitimidad de documentos por mi otorgados a los compradores
consta de dos articulos; contiene dieciseis disposiciones y esta
escrito en tres paginas;
*******
"Cebu, Cebu, I. F.,
hoy dia 27 de
noviembre de 1935.
(Firmad "ELEUTERI
o)
O PILAPIL
"Testado
r";
al final de los mismos (exhibits A y C), hay esta clausula de
atestiguamiento:
"Al que leyere:
SALUD,
Nosotros los que abajo firmamos, hacemos constar: Que el preinserto Testamento y Ultima Voluntad, ha sido suscrito, declarado y
jurado por el Testador, Rev. P. Eleuterio Pilapil en presencia de todos
nosotros y a ruego de dicho Testador, firmamos cada uno de
nosotros en presencia de nosotros, aqui en Cebu, Cebu, I. F., hoy dia

27 de noviembre de 1935.
(Firmad "WENCESLA
os)
O PILAPIL
"Testig
o
"MARCELO
PILAPIL
"Testig
o
"EUGENIO K.
PILAPIL
"Testig
o"
Los dos documentos, exhibits A y C, constan de tres paginas; y en el
margen izquierdo de cada una de las dos primeras, aparecen las
firmas que se ven al final del cuerpo principal de dichos documentos
y de su clausula de atestiguamiento; y que son, segun las pruebas,
firmas del finado P. Eleuterio Pilapil, y de los testigos Wenceslao
Pilapil, Marcelo Pilapil y Eugenio K. Pilapil.
En el lugar de la fecha tanto de los dos documentos como de su
clausula de atestiguamiento, aparece escrita la palabra "Cebu" sobre
algo que se trato de raspar pero que aun puede verse que decia
"Mualboal"; y aparecen tambien el guarismo "27" y el nombre de
mes: "Noviembre", escrito este ultimo sobre una palabra raspada
que aun puede verse tambien sin ninguna dificultad, por lo menos
en el Exhibit A, que dice: "Octubre". En el ultimo parrafo de la pagina
2 cuya continuation aparece en las dos primeras lineas de la pagina
siguiente, (pagina 3), que es la ultima, hay la mencion expresa
siguiente: "contiene dieciseis disposiciones y esta escrito en tres
paginas". Al pie de las paginas (1) y (2) hay respectivamente estas
notas: "Pase a la 2a. pagina"; "Pase a la 3". pagina". Y debe notarse
que tanto en el uno como en el otro de los aludidos Exhibits A y C, no
hay mas que dos articulos ("Art. Primero" y "Art. Segundo"), y
dieciseis disposiciones.
Las razones en que los apelantes se apoyan para sostener que no
procede la legalization de ninguna de los dos expresados
documentos como testamento del finado P. Eleuterio Pilapil, son
estas:
(a) Que contienen raspaduras y alteraciones que el apelado dejo de
explicar;
(b) Que no se ha probado que el finado,prescindiendo de lo que
consta en los referidos documentos exhibits A y C, era de edad
competente para testar;
15
(c) Que tampoco se ha probado que el finado poseia el espafiol que

es el lenguaje en que aparecen escritos los referidos documentos;
(d) Que en una de las clausulas de dichos documentos hay la
prohibition de que se ventilen en los Tribunales;
(e) Que ninguno de los dos se ha preparado, firmado y atestiguado
de conformidad con las disposiciones del articulo 618 del Codigo de
Procedimiento Civil.
Con respecto a la primera cuestion, debe decirse que, segun nos lo
dice la misma Pieza de Apelacion de los apelantes, los dos
expedientes Nos. 399 y 407 se promovieron en dos Salas distintas
del Juzgado de Primera Instancia de Cebu. El primero fue promovido
en la Sala III; y el ultimo, en la Sala II. Al enterarse el Juez de una de
dichas Salas que habia una relation directa entre uno y otro, dispuso
que los dos se conociesen por un solo Juez; de ahi que ambos se
consideraran como uno solo para evitar lo que el hiencionado Juez
dijo: "incompatibilidad en la administracion de los bienes de dicho
difunto", refiriendose al finado P. Eleuterio Pilapil.
Indudablemente no le falto razon al Juzgado de Cebu para nombrar
administrador especial en el expediente No. 407, al apelado, porque
en los documentos que alii se trataban de legalizar como testamento
y disposieion de ultima voluntad del finado P. Eleuterio Pilapil, consta
el encargo expreso de que lo fuese. Ademas, no habia ni hay
ninguna ley que prohiba a los Tribunales que conocen de un
expediente de testamentaria o de intestado, nombrar a mas de un
administrador; y, en el caso de que se trata ocurrio que se dejo sin
efecto el nombramiento del apelante como administrador, luego que
se fundieron los dos referidos expedientes. Mas todavia; si el
propdsito de los apelantes al proponer la cuestion de que venimos
hablando, es dejar sin efecto el nombramiento expedido a favor del
apelado como administrador especial, vano es y vano ha de ser
dicho proposito, porque el insistir en el equivale a estar apelando de
una orden del Juzgado que nombra a un administrador especial ; y la
ley no permite apelacion contra ordenes de dicha naturaleza. Es
terminante la disposieion de ley que dice: "No se permitira la
apelacion contra el nombramiento de dicho administrador especial".
(Art. 660, Ley No. 190.)
En adicion a todo esto debe decirse que, si hubo algun error en el
nombramiento del apelado como administrador especial, por la
razon de que otro en propiedad ya estaba nombrado por el Juzgado,
el error, si tal puede llamarse, no ha sido de tal naturaleza que haya
causado perjuicio alguno a nadie, y menos a la Testamentaria del
finado P. Eleuterio Pilapil.
Las raspaduras y alteraciones que se notan en Ips exhibits A y C
constituyen unos hechos a los que ahora, por primera vez, y en esta
instancia, se quiere llamar la atencion, cuando ello debio haberse
hecho mientras la causa se hallaba todavia en el Juzgado de su
procedencia. No podemos tener]os en cuenta en el presente estado

de las actuaciones porque, suponiendo que entonces ya existian,
puede y debe decirse, aunque no Io dijo en terminos expresos el
Juzgado de Cebu, que considero que no viciaban dichos documentos;
pues es presuncion juris tantum que "todos los hechos relacionados
con los puntos discutidos en un juicio fueron expuestos al juzgado y
apreciados por el". (Art. 334, par. 16, Ley No. 190.) Y no lo viciaron
en efecto, porque se desprende de las mismas circunstancias del
caso, que se hicieron precisamente para poner las cosas en su
verdadero lugar. Los dos exhibits A y C fueron preparados por el
finado P. Eleuterio Pilapil en Mualboal donde era Cura Parroco, antes
de ser trasladado para ser tratado de su enf ermedad que le causo la
muerte, al Southern Islands Hospital de Cebu, donde murid
Fundandose el Juzgado en estos hechos que se probaron en juicio,
declaro lo siguiente: "La intervencidn de los tres testigos
instrumental del documento tuvo lugar de una manera casual, en
ocasion en que los mismos fueron a visitarle a Eleuterio Pilapil que
estaba enfermo en el Southern Islands Hospital, y alii el hoy finado
les rogo que actuaran de testigos del documento que ya tenia
entonces preparado".
Al prepararlos el, estando en Mualboal, no era mas que natural que
expresase en los mismos que alii fueron preparados, y dejase en
bianco la fecha pero sin dejar de poner el nombre del mes en que se
pusieron en limpio, es decir, octubre de 1935.
Cuanto a la edad del testador y cuanto a si hablaba el espanol que
es la lengua en que aparecen redactados los dos exhibits, o no, debe
decirse que siendo sacerdote y Cura de la parroquia de Mudboal,
Cebu, debe presumirse f undadamente que tenia la edad
competente para testar, y que entendfa y hablaba el espanol, pues,
es de conocimiento general que para ser Cura de una parroquia, uno
debe ser sacerdote, y para serlo, son necesarios muchos aos de
estudio en seminarios donde se habla el espanol que es una lengua
tan oficial como la inglesa. Por otra parte, no consta que se haya
probado que el testador no entendia dicha lengua.
La disposicion del testador de que su "Testamento y tiltima Voluntad
no se ventile en el Juzgado", no puede despojar a los Tribunales de
su autoridad para determinar si su referido testamento es legalizable
o no. No son las partes interesadas en un sentido u otro en un
asunto, las que pueden conferir o quitar jurisdiccion y autoridad a los
Tribunales para resolver y decidir lo que la misma ley quiere que se
resuelva y se decida. Debe tenerse presente que la ley manda bajo
pena, que se entreguen al Juzgado los testamentos otorgados por un
testador, luego que este muera, por la persona a quien su custodia
se haya encomendado, con el fin indudablemente de que se pueda
determinai" si procede su legalizacion y se pueda al propio tiempo
disponer de sus bienes segun lo manda en los mismos; o si por el
16
contrario, debe declararsele muerto intestado.por no ser susceptible

de legalizacion el que hubiese otorgado. (Arts. 626 al 631, Ley No.
190.) Ademas, no siendo abogado el testador, no es de extranar que
haya consignado en su testamento la prohibieion de que,usando
sus mismas palabras, "se ventile en el Juzgado".
Y cuanto a que los exhibits A y C no pueden ser legalizados porque
no se prepararon ni se firmaron de conformidad con la ley,
diciendose que sus paginas no estan numeradas con letras; y porque
en su clausula de atestiguamiento no se expresa que los mismos
fueron firmados por los tres testigos instrumentales, en presencia del
testador, baste llamar la atencion al hecho de que al pie de la
primera pagina hay en letras la nota que dice claramente:
"Pase a la 2". pagina"; y al hecho de que, al pie de esta segunda
pagina, hay esta otra nota: "Pase a la 3". pagina"; y baste llamar
tambien la atencion a las dos primeras Hneas de dicha tercera
pagina que es la ultima, donde, para completar la disposicion que se
encierra on el ultimo parrafo de la pagina anterior, o sea segunda, sc
dice lo siguiente:
"* * * consta de dos
avticulos; con
tiene dieciseis
disposiciones y esta
escrito
en tres paginas",
lo cual concuerda fielmente con los verdaderos hechos tales como
aparecen en los refer idos dos exhibits, porque contienen
efeetivamente dos articulos y dieciseis disposiciones, y no mas, y no
menos.
En la clausula de atestiguamiento en una y otra copia del
Testamento objeto de cuestion, se afirma por los tres testigos
instrumentales que la firmai-on, que
"el pre-inserto
Testamento y tfltima
Voluntad, ha sido
suscrito, declarado y
jurado por el Testador,
Rev. P. Eleuterio
Pilapil en presencia
de todos nosotros";
y a renglon seguido, se afirma tambien por los mismos testigos que:
"a ruego de dicho

Testador, firmamos
cada uno de
nosotros, aqui en
Cebu, Cebu,
I. F., hoy dia 27 de
noviembre de
1935."
La frase "a ruego de dicho Testador", unida a la de que suscribio y
firmo su testamento en presencia de los testigos instrumentales,
permite y justifica la inferencia de que el testador estaba presente
cuando los ultimos estamparon alii sus respectivas firmas.
El proposito de la ley al establecer las formalfdades que se requieren
en un testamento, es indudablemente asegurar y garantizar su
autenticidad contra la mala fe y el fraude, para evitar que aquellos
que no tienen derecho a suceder al testador, le sucedan y salgan
beneficiados con ]a legalizacion del mismo. Se ha cumplido dicho
proposito en el caso de que se viene hablando porque, en el mismo
cuerpo del testamento y en la mismo pagina donde aparece la
clausula de atestiguamiento, o sea la tercera, se expresa que el
testamento consta de tres paginas y porque cada una de las dos
primeras lleva en parte la nota en letras, y en parte la nota en
guarismos, de que son respectivamente la primera y segunda
paginas del mismo. Estos hechos excluyen evidentemente todo
temor, toda sospecha, o todo asomo de duda de que se haya
sustituido alguna de sus paginas con otra.
Algo mas que en el caso de Nayve contra Mojal y Aguilar (47 Jur. Fil.,
160), que fue aclarada mediante la causa de Gumban contra
Gorecho y otros (50 Jur. Fil., 31), hay en el presente caso porque alii
no habia mas que las notas: "Pag1. 1"; "Pag. 2"; "Pag. 3"; y "Pag. 4"
en la cara respectiva de las cuatro paginas de que se compone, y en
el presente hay los datos ya mencionados y hay ademas la
constancia inserta en las dos primeras lineas de la tercera pagina de
los exhibits A y C, de que los mismos estan compuestos de tres
paginas, y contienen dos articulos y dieciseis disposiciones.
Son por consiguierite de perfects aplicacion al caso de que se trata
lo que dijimos eh las causas de Rodriguez contra Yap, R. G. No.
45924, mayo 18, 1939; y Dichoso contra De Gorostiza (57 Jur. Fil.,
456). Dijimos en dichas causas, respectivamente, lo siguiente:
"La redaccion de la clausula de atestiguamiento en este testamento
no esta tecnicamente libre de reparos, pero, es sustancialmente un
cumplimiento suficiente de la ley.
Mantenemos el criterio de que debe exigirse el cumplimiento estricto
de los requisitos substanciales del testamento, para asegurar su
autenticidad, pero, al mismo tiempo creemos que no deben tenerse
en cuenta defectos de forma que no pueden afectar a este fin y que,
17
por otra part, de tenerse en cuenta, podrian frustrar la voluntad del

testador." (Rodriguez contra Yap, supra.)
"No debera permitirse que las formalidades legales obstaculicen el
empleo de buen sentido comun en la consideracion de testamentos
y que frustren los deseos de los difuntos solemnemente expresados
en sus testamentos, en cuanto a cuyo otorgamiento no hay ni
siquiera sombra de mala fe ni de frande". (Dichoso contra De
Gorostiza, supra.)
Por todo lo expuesto, hallando arreglada a derecho la decision
apelada del Juzgado de Primera Instancia de Cebu, por la presente,
la confirmamos, condenando a los apelantes a pagar las costas. Asi
se ordena.
Avancea, Pres., Diaz, Laurel, Moran, y Horrilleno, MM., estan
conformes.
G.R. NO. 147145, January 31, 2005
TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONGNOBLE, PETITIONER, VS. ALIPIO ABAJA AND NOEL ABELLAR,
RESPONDENTS.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review[1] assailing the Decision[2]
of the Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644.
The Court of Appeals sustained the Resolution[3] of the Regional Trial
Court of Kabankalan, Negros Occidental, Branch 61 (RTCKabankalan), admitting to probate the last will and testament of
Alipio Abada (Abada).
The Antecedent Facts
Abada died sometime in May 1940.[4] His widow Paula Toray
(Toray) died sometime in September 1943. Both died without
legitimate children.
On 13 September 1968, Alipio C. Abaja (Alipio) filed with the then
Court of First Instance of Negros Occidental (now RTC-Kabankalan) a
petition,[5] docketed as SP No. 070 (313-8668), for the probate of
the last will and testament (will) of Abada. Abada allegedly named
as his testamentary heirs his natural children Eulogio Abaja
(Eulogio) and Rosario Cordova. Alipio is the son of Eulogio.
Nicanor Caponong (Caponong) opposed the petition on the ground
that Abada left no will when he died in 1940. Caponong further
alleged that the will, if Abada really executed it, should be disallowed
for the following reasons: (1) it was not executed and attested as
required by law; (2) it was not intended as the last will of the
testator; and (3) it was procured by undue and improper pressure
and influence on the part of the beneficiaries. Citing the same
grounds invoked by Caponong, the alleged intestate heirs of Abada,
namely, Joel, Julian, Paz, Evangeline, Geronimo, Humberto, Teodora
and Elena Abada (Joel Abada, et al.), and Levi, Leandro, Antonio,
Florian, Hernani and Carmela Tronco (Levi Tronco, et al.), also
opposed the petition. The oppositors are the nephews, nieces and
grandchildren of Abada and Toray.
On 13 September 1968, Alipio filed another petition[6] before the
RTC-Kabankalan, docketed as SP No. 071 (312-8669), for the probate
of the last will and testament of Toray. Caponong, Joel Abada, et al.,
and Levi Tronco, et al. opposed the petition on the same grounds
they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a petition[7] before the RTCKabankalan, docketed as SP No. 069 (309), praying for the issuance
in his name of letters of administration of the intestate estate of
Abada and Toray.
In an Order dated 14 August 1981, the RTC-Kabankalan admitted to
probate the will of Toray. Since the oppositors did not file any motion
for reconsideration, the order allowing the probate of Torays will
became final and executory.[8]
In an order dated 23 November 1990, the RTC-Kabankalan
designated Belinda Caponong-Noble (Caponong-Noble) Special
Administratrix of the estate of Abada and Toray.[9] Caponong-Noble
moved for the dismissal of the petition for probate of the will of
Abada. The RTC-Kabankalan denied the motion in an Order dated 20
August 1991.[10]
Sometime in 1993, during the proceedings, Presiding Judge Rodolfo
S. Layumas discovered that in an Order dated 16 March 1992, former
Presiding Judge Edgardo Catilo had already submitted the case for
decision. Thus, the RTC-Kabankalan rendered a Resolution dated 22
June 1994, as follows:
There having been sufficient notice to the heirs as required by law;
that there is substantial compliance with the formalities of a Will as
the law directs and that the petitioner through his testimony and the
deposition of Felix Gallinero was able to establish the regularity of
the execution of the said Will and further, there being no evidence of
bad faith and fraud, or substitution of the said Will, the Last Will and
Testament of Alipio Abada dated June 4, 1932 is admitted and
allowed probate.
18
The Applicable Law

As prayed for by counsel, Noel Abbellar[11] is appointed
administrator of the estate of Paula Toray who shall discharge his
duties as such after letters of administration shall have been
issued in his favor and after taking his oath and filing a bond in the
amount of Ten Thousand (P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present administratrix of the estate of
Alipio Abada shall continue discharging her duties as such until
further orders from this Court.
SO ORDERED.[12]
The RTC-Kabankalan ruled on the only issue raised by the oppositors
in their motions to dismiss the petition for probate, that is, whether
the will of Abada has an attestation clause as required by law. The
RTC-Kabankalan further held that the failure of the oppositors to
raise any other matter forecloses all other issues.
Not satisfied with the Resolution, Caponong-Noble filed a notice of
appeal.
In a Decision promulgated on 12 January 2001, the Court of Appeals
affirmed the Resolution of the RTC-Kabankalan. The appellate court
found that the RTC-Kabankalan properly admitted to probate the will
of Abada.
Hence, the present recourse by Caponong-Noble.
The Issues
The petition raises the following issues:
What laws apply to the probate of the last will of Abada;
Whether the will of Abada requires acknowledgment before a notary
public;[13]
Whether the will must expressly state that it is written in a language
or dialect known to the testator;
Whether the will of Abada has an attestation clause, and if so,
whether the attestation clause complies with the requirements of
the applicable laws;
Whether Caponong-Noble is precluded from raising the issue of
whether the will of Abada is written in a language known to Abada;
Whether evidence aliunde may be resorted to in the probate of the
will of Abada.
The Ruling of the Court
The Court of Appeals did not err in sustaining the RTC-Kabankalan in
admitting to probate the will of Abada.
Abada executed his will on 4 June 1932. The laws in force at that
time are the Civil Code of 1889 or the Old Civil Code, and Act No. 190
or the Code of Civil Procedure[14] which governed the execution of
wills before the enactment of the New Civil Code.
The matter in dispute in the present case is the attestation clause in
the will of Abada. Section 618 of the Code of Civil Procedure, as
amended by Act No. 2645,[15] governs the form of the attestation
clause of Abadas will.[16] Section 618 of the Code of Civil
Procedure, as amended, provides:
SEC. 618. Requisites of will. No will, except as provided in the
preceding section,[17] shall be valid to pass any estate, real or
personal, nor charge or affect the same, unless it be written in the
language or dialect known by the testator and signed by him, or by
the testators name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of each
other. The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, on the left margin, and
said pages shall be numbered correlatively in letters placed on the
upper part of each sheet. The attestation shall state the number of
sheets or pages used, upon which the will is written, and the fact
that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in
the presence of three witnesses, and the latter witnessed and signed
the will and all pages thereof in the presence of the testator and of
each other.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the requisites of a
will are the following:
(1) The will must be written in the language or dialect known by the
testator;
(2) The will must be signed by the testator, or by the testators
name written by some other person in his presence, and by his
express direction;
(3) The will must be attested and subscribed by three or more
credible witnesses in the presence of the testator and of each other;
(4) The testator or the person requested by him to write his name
and the instrumental witnesses of the will must sign each and every
19
page of the will on the left margin;

(5) The pages of the will must be numbered correlatively in letters
placed on the upper part of each sheet;
(6) The attestation shall state the number of sheets or pages used,
upon which the will is written, and the fact that the testator signed
the will and every page of the will, or caused some other person to
write his name, under his express direction, in the presence of three
witnesses, and the witnesses witnessed and signed the will and all
pages of the will in the presence of the testator and of each other.
Caponong-Noble asserts that the will of Abada does not indicate that
it is written in a language or dialect known to the testator. Further,
she maintains that the will is not acknowledged before a notary
public. She cites in particular Articles 804 and 805 of the Old Civil
Code, thus:
Art. 804. Every will must be in writing and executed in [a] language
or dialect known to the testator.
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. xxx[18]
Caponong-Noble actually cited Articles 804 and 806 of the New Civil
Code.[19] Article 804 of the Old Civil Code is about the rights and
obligations of administrators of the property of an absentee, while
Article 806 of the Old Civil Code defines a legitime.
Articles 804 and 806 of the New Civil Code are new provisions.
Article 804 of the New Civil Code is taken from Section 618 of the
Code of Civil Procedure.[20] Article 806 of the New Civil Code is
taken from Article 685 of the Old Civil Code[21] which provides:
Art. 685. The notary and two of the witnesses who authenticate the
will must be acquainted with the testator, or, should they not know
him, he shall be identified by two witnesses who are acquainted with
him and are known to the notary and to the attesting witnesses. The
notary and the witnesses shall also endeavor to assure themselves
that the testator has, in their judgment, the legal capacity required
to make a will.
Witnesses authenticating a will without the attendance of a notary,
in cases falling under Articles 700 and 701, are also required to know
the testator.
However, the Code of Civil Procedure[22] repealed Article 685 of the
Old Civil Code. Under the Code of Civil Procedure, the intervention of
a notary is not necessary in the execution of any will.[23] Therefore,
Abadas will does not require acknowledgment before a notary
public.
Caponong-Noble points out that nowhere in the will can one discern
that Abada knew the Spanish language. She alleges that such defect
is fatal and must result in the disallowance of the will. On this issue,
the Court of Appeals held that the matter was not raised in the
motion to dismiss, and that it is now too late to raise the issue on
appeal. We agree with Caponong-Noble that the doctrine of estoppel
does not apply in probate proceedings.[24] In addition, the language
used in the will is part of the requisites under Section 618 of the
Code of Civil Procedure and the Court deems it proper to pass upon
this issue.
Nevertheless, Caponong-Nobles contention must still fail. There is
no statutory requirement to state in the will itself that the testator
knew the language or dialect used in the will.[25] This is a matter
that a party may establish by proof aliunde.[26] Caponong-Noble
further argues that Alipio, in his testimony, has failed, among others,
to show that Abada knew or understood the contents of the will and
the Spanish language used in the will. However, Alipio testified that
Abada used to gather Spanish-speaking people in their place. In
these gatherings, Abada and his companions would talk in the
Spanish language.[27] This sufficiently proves that Abada speaks the
Spanish language.
The Attestation Clause of Abadas Will
A scrutiny of Abadas will shows that it has an attestation clause.
The attestation clause of Abadas will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima
voluntad y testamento en presencia de nosotros, habiendo tambien
el testador firmado en nuestra presencia en el margen izquierdo de
todas y cada una de las hojas del mismo. Y en testimonio de ello,
cada uno de nosotros lo firmamos en presencia de nosotros y del
testador al pie de este documento y en el margen izquierdo de todas
y cada una de las dos hojas de que esta compuesto el mismo, las
cuales estan paginadas correlativamente con las letras UNO y
DOS en la parte superior de la carrilla.[28]
Caponong-Noble proceeds to point out several defects in the
attestation clause. Caponong-Noble alleges that the attestation
clause fails to state the number of pages on which the will is written.
The allegation has no merit. The phrase en el margen izquierdo de
todas y cada una de las dos hojas de que esta compuesto el mismo
which means in the left margin of each and every one of the two
pages consisting of the same shows that the will consists of two
pages. The pages are numbered correlatively with the letters ONE
and TWO as can be gleaned from the phrase las cuales estan
20
paginadas correlativamente con las letras UNO y DOS.

Caponong-Noble further alleges that the attestation clause fails to
state expressly that the testator signed the will and its every page in
the presence of three witnesses. She then faults the Court of
Appeals for applying to the present case the rule on substantial
compliance found in Article 809 of the New Civil Code.[29]
The first sentence of the attestation clause reads: Suscrito y
declarado por el testador Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros, habiendo tambien el testador
firmado en nuestra presencia en el margen izquierdo de todas y
cada una de las hojas del mismo. The English translation is:
Subscribed and professed by the testator Alipio Abada as his last
will and testament in our presence, the testator having also signed it
in our presence on the left margin of each and every one of the
pages of the same. The attestation clause clearly states that
Abada signed the will and its every page in the presence of the
witnesses.
However, Caponong-Noble is correct in saying that the attestation
clause does not indicate the number of witnesses. On this point, the
Court agrees with the appellate court in applying the rule on
substantial compliance in determining the number of witnesses.
While the attestation clause does not state the number of witnesses,
a close inspection of the will shows that three witnesses signed it.
This Court has applied the rule on substantial compliance even
before the effectivity of the New Civil Code. In Dichoso de Ticson v.
De Gorostiza,[30] the Court recognized that there are two divergent
tendencies in the law on wills, one being based on strict construction
and the other on liberal construction. In Dichoso, the Court noted
that Abangan v. Abangan,[31] the basic case on the liberal
construction, is cited with approval in later decisions of the Court.
In Adeva vda. De Leynez v. Leynez,[32] the petitioner, arguing for
liberal construction of applicable laws, enumerated a long line of
cases to support her argument while the respondent, contending
that the rule on strict construction should apply, also cited a long
series of cases to support his view. The Court, after examining the
cases invoked by the parties, held:
x x x It is, of course, not possible to lay down a general rule, rigid
and inflexible, which would be applicable to all cases. More than
anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the will, and the
instrument appears to have been executed substantially in

accordance with the requirements of the law, the inclination should,
in the absence of any suggestion of bad faith, forgery or fraud, lean
towards its admission to probate, although the document may suffer
from some imperfection of language, or other non-essential defect. x
x x.
An attestation clause is made for the purpose of preserving, in
permanent form, a record of the facts attending the execution of the
will, so that in case of failure of the memory of the subscribing
witnesses, or other casualty, they may still be proved. (Thompson on
Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected
where its attestation clause serves the purpose of the law. x x x [33]
We rule to apply the liberal construction in the probate of Abadas
will. Abadas will clearly shows four signatures: that of Abada and of
three other persons. It is reasonable to conclude that there are three
witnesses to the will. The question on the number of the witnesses
is answered by an examination of the will itself and without the need
for presentation of evidence aliunde. The Court explained the extent
and limits of the rule on liberal construction, thus:
[T]he so-called liberal rule does not offer any puzzle or difficulty, nor
does it open the door to serious consequences. The later decisions
do tell us when and where to stop; they draw the dividing line with
precision. They do not allow evidence aliunde to fill a void in any
part of the document or supply missing details that should appear in
the will itself. They only permit a probe into the will, an exploration
within its confines, to ascertain its meaning or to determine the
existence or absence of the requisite formalities of law. This clear,
sharp limitation eliminates uncertainty and ought to banish any fear
of dire results.[34] (Emphasis supplied)
The phrase en presencia de nosotros or in our presence coupled
with the signatures appearing on the will itself and after the
attestation clause could only mean that: (1) Abada subscribed to
and professed before the three witnesses that the document was his
last will, and (2) Abada signed the will and the left margin of each
page of the will in the presence of these three witnesses.
Finally, Caponong-Noble alleges that the attestation clause does not
expressly state the circumstances that the witnesses witnessed and
signed the will and all its pages in the presence of the testator and of
each other. This Court has ruled:
Precision of language in the drafting of an attestation clause is
desirable. However, it is not imperative that a parrot-like copy of the
words of the statute be made. It is sufficient if from the language
employed it can reasonably be deduced that the attestation clause
fulfills what the law expects of it.[35]
21
The last part of the attestation clause states en testimonio de ello,

cada uno de nosotros lo firmamos en presencia de nosotros y del
testador. In English, this means in its witness, every one of us also
signed in our presence and of the testator. This clearly shows that
the attesting witnesses witnessed the signing of the will of the
testator, and that each witness signed the will in the presence of one
another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12
January 2001 in CA-G.R. CV No. 47644.
SO ORDERED
G.R. No. 103554, May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA,
JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,
HELEN CABALLERO, SANTOS CABALLERO, PABLO CABALLERO,
VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO
ABAPO, REPRESENTED HEREIN BY HIS ATTORNEY-IN-FACT,
ARMSTICIA* ABAPO VELANO, AND CONSESO CANEDA,
REPRESENTED HEREIN BY HIS HEIRS, JESUS CANEDA,
NATIVIDAD CANEDA AND ARTURO CANEDA, PETITIONERS, VS.
HON. COURT OF APPEALS AND WILLIAM CABRERA, AS SPECIAL
ADMINISTRATOR OF THE ESTATE OF MATEO CABALLERO,
RESPONDENTS.
DECISION
REGALADO, J.:
Presented for resolution by this Court in the present petition for
review on certiorari is the issue of whether or not the attestation
clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in relation
to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a
widower without any children and already in the twilight years of his
life, executed a last will and testament at his residence in Talisay,
Cebu before three attesting witnesses, namely, Cipriano Labuca,
Gregorio Cabando and Flaviano Toregosa. The said testator was duly
assisted by his lawyer, Atty. Emilio Lumontad, and a notary public,
Atty. Filoteo Manigos, in the preparation of that last will.[1] It was
declared therein, among other things, that the testator was leaving
by way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do

not appear to be related to the testator. [2]
Four months later, or on April 4, 1979, Mateo Caballero himself filed
a petition docketed as Special Proceeding No. 3899-R before Branch
II of the then Court of First Instance of Cebu seeking the probate of
his last will and testament. The probate court set the petition for
hearing on August 20, 1979 but the same and subsequent scheduled
hearings were postponed for one reason or another. On May 29,
1980, the testator passed away before his petition could finally be
heard by the probate court.[3] On February 25, 1981, Benoni
Cabrera, one of the legatees named in the will, sought his
appointment as special administrator of the testator's estate, the
estimated value of which was P24,000.00, and he was so appointed
by the probate court in its order of March 6, 1981.[4]
Thereafter, herein petitioners, claiming to be nephews and nieces of
the testator, instituted a second petition, entitled In the Matter of
the Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of
First Instance of Cebu. On October 18, 1982, herein petitioners had
their said petition for intestate proceedings consolidated with Special
Proceeding No. 3899-R in Branch II of the Court of First Instance of
Cebu and opposed thereat the probate of the testator's will and the
appointment of a special administrator for his estate.[5]
Benoni Cabrera died on February 8, 1982 hence the probate court,
now known as Branch XV of the Regional Trial Court of Cebu,
appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the
records of Special Proceeding No. 3965-R to the archives since the
testate proceedings for the probate of the will had to be heard and
resolved first. On March 26, 1984 the case was reraffled and
eventually assigned to Branch XII of the Regional Trial Court of Cebu
where it remained until the conclusion of the probate proceedings. [6]
In the course of the hearing in Special Proceeding No. 3899-R, herein
petitioners appeared as oppositors and objected to the allowance of
the testator's will on the ground that on the alleged date of its
execution, the testator was already in a poor state of health such
that he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the signature
of the testator therein.[7]
On the other hand, one of the attesting witnesses, Cipriano Labuca,
and the notary public, Atty. Filoteo Manigos, testified that the
[
[
[
[
[
22
testator executed the will in question in their presence while he was

of sound and disposing mind and that, contrary to the assertions of
the oppositors, Mateo Caballero was in good health and was not
unduly influenced in any way in the execution of his will. Labuca also
testified that he and the other witnesses attested and signed the will
in the presence of the testator and of each other. The other two
attesting witnesses were not presented in the probate hearing as
they had died by then.[8]
On April 5, 1988, the probate court rendered a decision declaring the
will in question as the last will and testament of the late Mateo
Caballero, on the ratiocination that:
"x x x The self-serving testimony of the two witnesses of the
oppositors cannot overcome the positive testimonies of Atty. Filoteo
Manigos and Cipriano Labuca who clearly told the Court that indeed
Mateo Caballero executed this Last Will and Testament now marked
Exhibit C on December 5, 1978. Moreover, the fact that it was
Mateo Caballero who initiated the probate of his Will during his
lifetime when he caused the filing of the original petition now
marked Exhibit 'D' clearly underscores the fact that this was indeed
his Last Will. At the start, counsel for the oppositors manifested that
he would want the signature of Mateo Caballero in Exhibit C'
examined by a handwriting expert of the NBI but it would seem that
despite their avowal and intention for the examination of this
signature of Mateo Caballero in Exhibit C', nothing came out of it
because they abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses for the
oppositors.
"All told, it is the finding of this Court that Exhibit C' is the Last Will
and Testament of Mateo Caballero and that it was executed in
accordance with all the requisites of law."[9]
Undaunted by said judgment of the probate court, petitioners
elevated the case to the Court of Appeals in CA-G.R. CV No. 19669.
They asserted therein that the will in question is null and void for the
reason that its attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will
witnessed the testator signing the will in their presence and that
they also signed the will and all the pages thereof in the presence of
the testator and of one another.
On October 15, 1991, respondent court promulgated its decision[10]
affirming that of the trial court, and ruling that the attestation clause
in the last will of Mateo Caballero substantially complies with Article
805 of the Civil Code, thus:
[
[
[
"The question therefore is whether the attestation clause in question

may be considered as having substantially complied with the
requirements of Art. 805 of the Civil Code. What appears in the
attestation clause which the oppositors claim to be defective is we
do certify that the testament was read by him and the testator,
Mateo Caballero, has published unto us the foregoing will consisting
of THREE PAGES, including the acknowledgment, each page
numbered correlatively in letters on the upper part of each page, as
his Last Will and Testament, and he has signed the same and every
page thereof, on the spaces provided for his signature and on the left
hand margin in the presence of the said testator and in the presence
of each and all of us (underlining supplied).
"To our thinking, this is sufficient compliance and no evidence need
be presented to indicate the meaning that the said will was signed
by the testator and by them (the witnesses) in the presence of all of
them and of one another. Or as the language of the law would have
it that the testator signed the will in the presence of the
instrumental witnesses, and that the latter witnessed and signed the
will and all the pages thereof in the presence of the testator and of
one another. If not completely or ideally perfect in accordance with
the wordings of Art. 805 but (sic) the phrase as formulated is in
substantial compliance with the requirement of the law. "[11]
Petitioners moved for the reconsideration of said ruling of
respondent court, but the same was denied in the latter's resolution
of January 14, 1992,[12] hence this appeal now before us. Petitioners
assert that respondent court has ruled upon said issue in a manner
not in accord with the law and the settled jurisprudence on the
matter and are now questioning once more, on the same ground as
that raised before respondent court, the validity of the attestation
clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly
hereafter explain, after some prefatory observations which we feel
should be made in aid of the rationale for our resolution of the
controversy.
1. A will has been defined as a species of conveyance whereby a
person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate after his death. [13]
Under the Civil Code, there are two kinds of wills which a testator
may execute.[14] The first kind is the ordinary or attested will, the
execution of which is governed by Articles 804 to 809 of the Code.
Article 805 requires that:
[
[
[
[
23
"Art. 805. Every will, other than a holographic will, must be

subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and
the instrumental witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on the left margin, and
all the pages shall be numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every
page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses,
and that the 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."
In addition, the ordinary will must be acknowledged before a notary
public by the testator and the attesting witnesses,[15] hence it is
likewise known as a notarial will. Where the testator is deaf or a
deaf-mute, Article 807 requires that he must personally read the will,
if able to do so. Otherwise, he should designate two persons who will
read the will and communicate its contents to him in a practicable
manner. On the other hand, if the testator is blind, the will should be
read to him twice; once, by anyone of the witnesses thereto, and
then again, by the notary public before whom it is acknowledged. [16]
The other kind of will is the holographic will, which Article 810
defines as one that is entirely written, dated, and signed by the hand
of the testator himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common requirement in both
kinds of wills is that they should be in writing and must have been
executed in a language or dialect known to the testator. [17]
However, in the case of an ordinary or attested will, its attestation
clause need not be written in a language or dialect known to the
testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise
need not even be known to the attesting witnesses.[18] The last
paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
[
[
[
[
An attestation clause refers to that part of an ordinary will whereby

the attesting witnesses certify that the instrument has been
executed before them and to the manner of the execution of the
same.[19] It is a separate memorandum or record of the facts
surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with the
essential formalities required by law has been observed.[20] It is
made for the purpose of preserving in a permanent form a record of
the facts that attended the execution of a particular will, so that in
case of failure of the memory of the attesting witnesses, or other
casualty, such facts may still be proved. [21]
Under the third paragraph of Article 805, such a clause, the complete
lack of which would result in the invalidity of the will, [22] should
state (1) the number of pages used upon which the will is written; (2)
that the testator signed, or expressly caused another to sign, the will
and every page thereof in the presence of the attesting witnesses;
and (3) that the attesting witnesses witnessed the signing by the
testator of the will and all its pages, and that said witnesses also
signed the will and every page thereof in the presence of the
testator and of one another.
The purpose of the law in requiring the clause to state the number of
pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent
any increase or decrease in the pages;[23] whereas the subscription
of the signatures of the testator and the attesting witnesses is made
for the purpose of authentication and identification, and thus
indicates that the will is the very same instrument executed by the
testator and attested to by the witnesses.[24]
Further, by attesting and subscribing to the will, the witnesses
thereby declare the due execution of the will as embodied in the
attestation clause.[25] The attestation clause, therefore, provides
strong legal guaranties for the due execution of a will and to insure
the authenticity thereof.[26] As it appertains only to the witnesses
and not to the testator, it need be signed only by them.[27] Where it
is left unsigned, it would result in the invalidation of the will as it
would be possible and easy to add the clause on a subsequent
occasion in the absence of the testator and the witnesses.[28]
In its report, the Code Commission commented on the reasons of the
law for requiring the formalities to be followed in the execution of
wills, in the following manner:
"The underlying and fundamental objectives permeating the
provisions on the law on wills in this Project consists in the
liberalization of the manner of their execution with the end in view of
giving the testator more freedom in expressing his last wishes, but
24
with sufficient safeguards and restrictions to prevent the commission

of fraud and the exercise of undue and improper pressure and
influence upon the testator.
"This objective is in accord with the modern tendency with respect to
the formalities in the execution of wills. x x x "[29]
2. An examination of the last will and testament of Mateo Caballero
shows that it is comprised of three sheets all of which have been
numbered correlatively, with the left margin of each page thereof
bearing the respective signatures of the testator and the three
attesting witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect and is
signed at the foot thereof by the testator. The attestation clause in
question, on the other hand, is recited in the English language and is
likewise signed at the end thereof by the three attesting witnesses
thereto.[30] Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:
"We, the undersigned attesting Witnesses, whose Residences and
postal addresses appear on the Opposite of our respective names,
we do hereby certify that the Testament was read by him and the
testator, MATEO CABALLERO, has published unto us the foregoing
Will consisting of THREE PAGES, including the Acknowledgment, each
page numbered correlatively in letters on the upper part of each
page, as his Last Will and Testament and he has signed the same
and every page thereof, on the spaces provided for his signature and
on the left hand margin, in the presence of the said testator and in
the presence of each and all of us. "
It will be noted that Article 805 requires that the witnesses should
both attest and subscribe to the will in the presence of the testator
and of one another. "Attestation" and "subscription" differ in
meaning. Attestation is the act of the senses, while subscription is
the act of the hand. The former is mental, the latter mechanical, and
to attest a will is to know that it was published as such, and to certify
the facts required to constitute an actual and legal publication; but
to subscribe a paper published as a will is only to write on the same
paper the names of the witnesses, for the sole purpose of
identification.[31]
In Taboada vs. Rosal,[32] we clarified that attestation consists in
witnessing the testator's execution of the will in order to see and
take note mentally that those things are done which the statute
requires for the execution of a will and that the signature of the
testator exists as a fact. On the other hand, subscription is the
signing of the witnesses' names upon the same paper for the
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purpose of identification of such paper as the will which was

executed by the testator. As it involves a mental act, there would be
no means, therefore, of ascertaining by a physical examination of
the will whether the witnesses had indeed signed in the presence of
the testator and of each other unless this is substantially expressed
in the attestation.
It is contended by petitioners that the aforequoted attestation
clause, in contravention of the express requirements of the third
paragraph of Article 805 of the Civil Code for attestation clauses,
fails to specifically state the fact that the attesting witnesses
witnessed the testator sign the will and all its pages in their presence
and that they, the witnesses, likewise signed the will and every page
thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation
clause herein assailed is the fact that while it recites that the
testator indeed signed the will and all its pages in the presence of
the three attesting witnesses and states as well the number of pages
that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each
other.
The phrase "and he has signed the same and every page thereof, on
the spaces provided for his signature and on the left hand margin,"
obviously refers to the testator and not the instrumental witnesses
as it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence
of the testator and in the presence of each and all of us" may, at first
blush, appear to likewise signify and refer to the witnesses, it must,
however, be interpreted as referring only to the testator signing in
the presence of the witnesses since said phrase immediately follows
the words "he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin." What
is then clearly lacking, in the final logical analysis, is the statement
that the witnesses signed the will and ever page thereof in the
presence of the testator and of one another.
It is our considered view that the absence of that statement required
by law is a fatal defect or imperfection which must necessarily result
in the disallowance of the will that is here sought to be admitted to
probate. Petitioners are correct in pointing out that the aforestated
defect in the attestation clause obviously cannot be characterized as
merely involving the form of the will or the language used therein
which would warrant the application of the substantial compliance
rule, as contemplated in the pertinent provision thereon in the Civil
Code, to wit:
"Art. 809. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the
25
form of attestation or in the language used therein shall not render

the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of
article 805" (Underscoring supplied.)
While it may be true that the attestation clause is indeed subscribed
at the end thereof and at the left margin of each page by the three
attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witnesses affixed their respective signatures
in the presence of the testator and of each other since, as petitioners
correctly observed, the presence of said signatures only establishes
the fact that it was indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in the presence of the
testator and of each other. The execution of a will is supposed to be
one act so that where the testator and the witnesses sign on various
days or occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity.[33]
We believe that the following comment of former Justice J.B.L.
Reyes[34] regarding Article 809, wherein he urged caution in the
application of the substantial compliance rule therein, is correct and
should be applied in the case under consideration, as well as to
future cases with similar questions:
"x x x The rule must be limited to disregarding those defects that
can be supplied by an examination of the will itself: whether all the
pages are consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing witnesses are three
or the will was notarized. All these are facts that the will itself can
reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of
pages, and whether all persons required to sign did so in the
presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate
proceedings." (Emphasis ours.)
3. We stress once more that under Article 809, the defects or
imperfections must only be with respect to the form of the
attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that
the will was really executed and attested in compliance with Article
805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an
examination of the will itself without resorting to evidence aliunde,
whether oral or written.
The foregoing considerations do not apply where the attestation
clause totally omits the fact that the attesting witnesses signed each
and every page of the will in the presence of the testator and of each
other.[35] In such a situation, the defect is not only in the form or the
language of the attestation clause but the total absence of a specific
element required by Article 805 to be specifically stated in the
attestation clause of a will. That is precisely the defect complained of
in the present case since there is no plausible way by which we can
read into the questioned attestation clause any statement, or an
implication thereof, that the attesting witnesses did actually bear
witness to the signing by the testator of the will and all its pages and
that said instrumental witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809
cannot be invoked or relied on by respondents since it presupposes
that the defects in the attestation clause can be cured or supplied by
the text of the will or a consideration of matters apparent therefrom
which would provide the data not expressed in the attestation clause
or from which it may necessarily be gleaned or clearly inferred that
the acts not stated in the omitted textual requirements were actually
complied with in the execution of the will. In other words, the defects
must be remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied only by
extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from which such facts
may be plausibly deduced. What private respondent insists on are
the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental witnesses,
oblivious of the fact that he is thereby resorting to extrinsic evidence
to prove the same and would accordingly be doing by indirection
what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there
was a divergence of views as to which manner of interpretation
should be followed in resolving issues centering on compliance with
the legal formalities required in the execution of wills. The formal
requirements were at that time embodied primarily in Section 618 of
Act No. 190, the Code of Civil Procedure. Said section was later
amended by Act No. 2645, but the provisions respecting said
formalities found in Act No. 190 and the amendment thereto were
practically reproduced and adopted in the Civil Code.
One view advanced the liberal or substantial compliance rule. This
was first laid down in the case of Abangan vs. Abangan, [36] where it
was held that the object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and
authenticity. Therefore, the laws on this subject should be
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interpreted in such a way as to attain these primordial ends.

Nonetheless, it was also emphasized that one must not lose sight of
the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will, hence when an interpretation
already given assures such ends, any other interpretation
whatsoever that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must
be disregarded. The subsequent cases of Avera vs. Garcia, [37]
Aldaba vs. Roque,[38] Unson vs. Abella,[39] Pecson vs. Coronel,[40]
Fernandez vs. Vergel de Dios, et al.,[41] and Nayve vs. Mojal, et al.
[
42] all adhered to this position.
The other view which advocated the rule that statutes which
prescribe the formalities that should be observed in the execution of
wills are mandatory in nature and are to be strictly construed was
followed in the subsequent cases of In the Matter of the Estate of
Saguinsin,[43] In re Will of Andrada,[44] Uy Coque vs. Sioca, [45] In re
Estate of Neumark,[46] and Sano vs. Quintana.[47]
Gumban vs. Gorecho, et al.,[48] provided the Court with the occasion
to clarify the seemingly conflicting decisions in the aforementioned
cases. In said case of Gumban, the attestation clause had failed to
state that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator. The will in
question was disallowed, with these reasons therefor:
"In support of their argument on the assignment of error abovementioned, appellants rely on a series of cases of this court
beginning with (I)n the Matter of the (E)state of Saguinsin ([1920],
41 Phil., 875), continuing with In re Will of Andrada [1921], 42 Phil.,
180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re
Estate of Neumark ([1923], 46 Phil., 841), and ending with Sano vs.
Quintana ([1925], 48 Phil., 506). Appellee counters with the citation
of a series of cases beginning with Abangan vs. Abangan ([1919], 40
Phil., 476), continuing through Aldaba vs. Roque, ([1922], 43 Phil.,
378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and
culminating in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In
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its last analysis, our task is to contrast and, if possible, conciliate, the
last two decisions cited by opposing counsel, namely, those of Sano
vs. Quintana, supra, and Nayve vs. Mojal and Aguilar, supra.
"In the case of Sano vs. Quintana, supra, it was decided that an
attestation clause which does not recite that the witnesses signed
the will and each and every page thereof on the left margin in the
presence of the testator is defective, and such a defect annuls the
will. The case of Uy Coque vs. Sioca, supra, was cited, but the case
of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal and Aguilar, supra,
wherein it was held that the attestation clause must state the fact
that the testator and the witnesses reciprocally saw the signing of
the will, for such an act cannot be proved by the mere exhibition of
the will, if it is not stated therein. It was also held that the fact that
the testator and the witnesses signed each and every page of the
will can be proved also by the mere examination of the signatures
appearing on the document itself, and the omission to state such
evident facts does not invalidate the will.
"It is a habit of courts to reaffirm or distinguish previous cases;
seldom do they admit inconsistency in doctrine. Yet here, unless
aided by casuistry of the extreme type, it would be impossible to
reconcile the Mojal and Quintana decisions. They are fundamentally
at variance. If we rely on one, we affirm. If we rely on the other, we
reverse.
"In resolvingthis puzzling question of authority, three outstanding
points may be mentioned. In the first place, the Mojal decision was
concurred in by only four members of the court, less than a majority,
with two strong dissenting opinions; the Quintana decision was
concurred in by seven members of the court, a clear majority, with
one formal dissent. In the second place, the Mojal decision was
promulgated in December, 1924, while the Quintana decision was
promulgated in December 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the Quintana
decision is believed more nearly to conform to the applicable
provisions of the law.
"The right to dispose of property by will is governed entirely by
statute. The law of the case is here found in section 61 of the Code
of Civil Procedure, as amended by Act No. 2645, and in section 634
of the same Code, as unamended. It is in part provided in section 61,
as amended that 'No will * * * shall be valid * * * unless * * *.' It is
further provided in the same section that 'The attestation shall state
the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof,
or caused some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence
27
of the testator and of each other.' Codal section 634 provides that
'The will shall be disallowed in either of the following cases: 1. If not
executed and attested as in this Act provided. The law not alone
carefully makes use of the imperative, but cautiously goes further
and makes use of the negative, to enforce legislative intention. It is
not within the province of the courts to disregard the legislative
purpose so emphatically and clearly expressed.
"We adopt and reaffirm the decision in the case of Sano vs.
Quintana, supra, and, to the extent necessary, modify the decision in
the case of Nayve vs. Mojal and Aguilar, supra." (Emphases in the
original text).
But after the Gumban clarificatory pronouncement, there were
decisions of the Court that once more appeared to revive the
seeming diversity of views that was earlier threshed out therein. The
cases of Quinto vs. Morata,[49] Rodriguez vs. Alcala,[50] Echevarria
vs. Sarmiento,[51] and Testate Estate of Toray[52] went the way of
the ruling as restated in Gumban. But De Gala vs. Gonzales, et
al.,[53] Rey vs. Cartagena,[54] De Ticson vs. De Gorostiza,[55]
Sebastian vs. Panganiban,[56] Rodriguez vs. Yap,[57] Grey vs.
Fabia,[58] Leynez vs. Leynez,[59] Martir vs. Martir,[60] Alcala vs. De
Villa,[61] Sabado vs. Fernandez,[62] Mendoza vs. Pilapil,[63] and
Lopez vs. Liboro,[64] veered away from the strict interpretation rule
and established a trend toward an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of
views and of the undeniable inclination towards a liberal
construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the
modern tendency to give a liberal approach to the interpretation of
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wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:
"The present law provides for only one form of executing a will, and
that is, in accordance with the formalities prescribed by Section 618
of the Code of Civil Procedure as amended by Act No. 2645. The
Supreme Court of the Philippines had previously upheld the strict
compliance with the legal formalities and had even said that the
provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory,
and non-compliance therewith invalidated the will (Uy Coque vs.
Sioca, 43 Phil. 405). These decisions necessarily restrained the
freedom of the testator in disposing of his property.
"However, in recent years the Supreme Court changed its attitude
and has become more liberal in the interpretation of the formalities
in the execution of wills. This liberal view is enunciated in the cases
of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.
Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R. No.
46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18,
1941.
"In the above mentioned decisions of our Supreme Court, it has
practically gone back to the original provisions of Section 618 of the
Code of Civil Procedure before its amendment by Act No. 2645 in the
year 1916. To turn this attitude into a legislative declaration and to
attain the main objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the Project is
recommended, which reads:
'ART. 829. In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact executed
and attested in substantial compliance with all the requirements of
article 829.'"[65]
The so-called liberal rule, the Court said in Gil vs. Murciano, [66]
"does not offer any puzzle or difficulty, nor does it open the door to
serious consequences. The later decisions do tell us when and where
to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply
missing details that should appear in the will itself. They only permit
a probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty
and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that
omissions which can be supplied by an examination of the will itself,
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without the need of resorting to extrinsic evidence, will not be fatal

and, correspondingly, would not obstruct the allowance to probate of
the will being assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the invalidation
of the attestation clause and ultimately, of the will itself. [67]
WHEREFORE, the petition is hereby GRANTED and the impugned
decision of respondent court is hereby REVERSED and SET ASIDE.
The court a quo is accordingly directed to forthwith DISMISS its
Special Proceeding No. 3899-R (Petition for the Probate of the Last
Will and Testament of Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the Matter of the Intestate Estate of Mateo
Caballero) as an active case and thereafter duly proceed with the
settlement of the estate of the said decedent.
SO ORDERED.
G.R. No. 123486, August 12, 1999
EUGENIA RAMONAL CODOY, AND MANUEL RAMONAL, PETITIONERS,
VS. EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, AND EUFEMIA
PATIGAS, RESPONDENTS.
DECISION
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the
Court of Appeals[1] and its resolution denying reconsideration,
ruling:
"Upon the unrebutted testimony of appellant Evangeline Calugay
and witness Matilde Ramonal Binanay, the authenticity of testators
holographic will has been established and the handwriting and
signature therein (exhibit S) are hers, enough to probate said will.
Reversal of the judgment appealed from and the probate of the
holographic will in question be called for. The rule is that after
plaintiff has completed presentation of his evidence and the
defendant files a motion for judgment on demurrer to evidence on
the ground that upon the facts and the law plaintiff has shown no
right to relief, if the motion is granted and the order to dismissal is
reversed on appeal, the movant loses his right to present evidence in
his behalf (Sec. 1 Rule 35 Revised Rules of Court). Judgment may,
therefore, be rendered for appellant in the instant case.
"Wherefore, the order appealed from is REVERSED and judgment
rendered allowing the probate of the holographic will of the testator
Matilde Seo Vda. de Ramonal."[2]
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and
Eufemia Patigas, devisees and legatees of the holographic will of the
[
deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial
Court, Misamis Oriental, Branch 18, a petition[3] for probate of the
holographic will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo
Vda. de Ramonal, was of sound and disposing mind when she
executed the will on August 30, 1978, that there was no fraud, undue
influence, and duress employed in the person of the testator, and
the will was written voluntarily.
The assessed value of the decedent's property, including all real and
personal property was about P400,000.00, at the time of her death.
[4]
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed
an opposition[5] to the petition for probate, alleging that the
holographic will was a forgery and that the same is even illegible.
This gives an impression that a "third hand" of an interested party
other than the "true hand" of Matilde Seo Vda. de Ramonal
executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing
on the will after every disposition is out of the ordinary. If the
deceased was the one who executed the will, and was not forced,
the dates and the signature should appear at the bottom after the
dispositions, as regularly done and not after every disposition. And
assuming that the holographic will is in the handwriting of the
deceased, it was procured by undue and improper pressure and
influence on the part of the beneficiaries, or through fraud and
trickery.
Respondents presented six (6) witnesses and various documentary
evidence. Petitioners instead of presenting their evidence, filed a
demurrer[6] to evidence, claiming that respondents failed to
establish sufficient factual and legal basis for the probate of the
holographic will of the deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the
dispositive portion of which reads:
"WHEREFORE, in view of the foregoing consideration, the Demurrer
to Evidence having being well taken, same is granted, and the
petition for probate of the document (Exhibit "S") on the purported
Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied
for insufficiency of evidence and lack of merits."[7]
On December 12, 1990, respondents filed a notice of appeal,[8] and
in support of their appeal, the respondents once again reiterated the
29
testimony of the following witnesses, namely: (1) Augusto Neri; (2)

Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad;
(5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses,
we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis
Oriental, where the special proceedings for the probate of the
holographic will of the deceased was filed. He produced and
identified the. records of the case. The documents presented bear
the signature of the deceased, Matilde Seo Vda. de Ramonal, for
the purpose of laying the basis for comparison of the handwriting of
the testatrix, with the writing treated or admitted as genuine by the
party against whom the evidence is offered.
deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.

The fifth witness presented was Mrs. Teresita Vedad, an employee of
the Department of Environment and Natural Resources, Region 10.
She testified that she processed the application of the deceased for
pasture permit and was familiar with the signature of the deceased,
since the deceased signed documents in her presence, when the
latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that
she had lived with the deceased since birth, and was in fact adopted
by the latter. That after a long period of time she became familiar
with the signature of the deceased. She testified that the signature
appearing in the holographic will is the true and genuine signature of
Matilde Seo Vda. de Ramonal.
Generosa Senon, election registrar of Cagayan de Oro, was

presented to produce and identify the voter's affidavit of the
decedent. However, the voters' affidavit was not produced for the
same was already destroyed and no longer available.
The holographic will which was written in Visayan, is translated in

English as follows:
"Instruction
"August 30, 1978
Matilde Ramonal Binanay, testified that the deceased Matilde Seo

Vda. de Ramonal was her aunt, and that after the death of Matilde's
husband, the latter lived with her in her parent's house for eleven
(11) years, from 1958 to 1969. During those eleven (11) years of
close association with the deceased, she acquired familiarity with
her signature and handwriting as she used to accompany her
(deceased Matilde Seo Vda. de Ramonal) in collecting rentals from
her various tenants of commercial buildings, and the deceased
always issued receipts. In addition to this, she (witness Matilde
Binanay) assisted the deceased in posting the records of the
accounts, and carried personal letters of the deceased to her
creditors.
"1. My share at Cogon, Raminal Street, for Evangeline Calugay.
Matilde Ramonal Binanay further testified that at the time of the

death of Matilde Vda. de Ramonal, she left a holographic will dated
August 30, 1978, which was personally and entirely written, dated
and signed, by the deceased and that all the dispositions therein, the
dates, and the signatures in said will, were that of the deceased.
"3. My jewelry's shall be divided among:
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal
of Cagayan de Oro, he was a practicing lawyer, and handled all the
pleadings and documents signed by the deceased in connection with
the intestate proceedings of her late husband, as a result of which he
is familiar with the handwriting of the latter. He testified that the
signature appearing in the holographic will was similar to that of the
"3. Evangeline Calugay
"(Sgd) Matilde Vda de Ramonal

"August 30, 1978
"2. Josefina Salcedo must be given 1,500 square meters at Pinikitan
Street.
"August 30, 1978
"1. Eufemia Patigas

"2. Josefina Salcedo
"(Sgd)Matilde Vda de Ramonal

"August 30, 1978
30
"4. I bequeath my one (1) hectare land at Mandumol, Indahag to

Evangeline R. Calugay
"August 30, 1978
and the signature are in the handwriting of the testator." There may
be no available witness acquainted with the testator's hand; or even
if so familiarized, the witness may be unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of article 811 may
thus become an impossibility. That is evidently the reason why the
second paragraph of article 811 prescribes that--
"5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in
favor of Evangeline R. Calugay, Helen must continue with the Sta.
Cruz, once I am no longer around.
"in the absence of any competent witness referred to in the

preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to."
"As can be seen, the law foresees the possibility that no qualified
witness may be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the
will), and provides for resort to expert evidence to supply the
deficiency.
"August 30, 1978

"6. Bury me where my husband Justo is ever buried.
"August 30,1978
"Gene and Manuel:
"Follow my instruction in order that I will rest peacefully.
"Mama
"Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision[9]
ruling that the appeal was meritorious. Citing the decision in the
case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B.
L. Reyes, a recognized authority in civil law, the Court of Appeals
held:
"x x x even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present civil
code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no
witness may have been present at the execution of the holographic
will, none being required by law (art. 810, new civil code), it
becomes obvious that the existence of witnesses possessing the
requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and producing
any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare
(truthfully, of course, even if the law does not express) "that the will
"It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino v.
Francisco, 57 PHIL 742). But it can not be ignored that the
requirement can be considered mandatory only in case of ordinary
testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential
to their validity (Art. 805). Where the will is holographic, no witness
need be present (art.10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are to
be avoided.
"Again, under Art.811, the resort to expert evidence is conditioned
by the words "if the court deem it necessary", which reveal that what
the law deems essential is that the court should be convinced of the
will's authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the will
is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or
none of those produced is convincing, the court may still, and in fact
it should resort to handwriting experts. The duty of the court, in fine,
is to exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be
carried into effect.
"Paraphrasing Azaola vs. Singson, even if the genuineness of the
holographic will were contested, Article 811 of the civil code cannot
be interpreted as to require the compulsory presentation of three
31
witnesses to identify the handwriting of the testator, under penalty

of the having the probate denied. No witness need be present in the
execution of the holographic will. And the rule requiring the
production of three witnesses is merely permissive. What the law
deems essential is that the court is convinced of the authenticity of
the will. Its duty is to exhaust all available lines of inquiry, for the
state is as much interested in the proponent that the true intention
of the testator be carried into effect. And because the law leaves it
to the trial court to decide if experts are still needed, no unfavorable
inference can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses dissatisfaction with
the testimony of the lay witnesses.[10]
According to the Court of Appeals, Evangeline Calugay, Matilde
Ramonal Binanay and other witnesses definitely and in no uncertain
terms testified that the handwriting and signature in the holographic
will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the Court of Appeals
sustained the authenticity of the holographic will and the
handwriting and signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109
Phil. 102, relied upon by the respondent Court of Appeals, was
applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to prove
that the date, text, and signature on the holographic will were
written entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the
signatures in the holographic will of Matilde Seo Vda. de
Ramonal.
In this petition, the petitioners ask whether the provisions of Article
811 of the Civil Code are permissive or mandatory. The article
provides, as a requirement for the probate of a contested
holographic will, that at least three witnesses explicitly declare that
the signature in the will is the genuine signature of the testator.
We are convinced, based on the language used, that Article 811 of
the Civil Code is mandatory. The word "shall" connotes a mandatory
order. We have ruled that "shall" in a statute commonly denotes an
imperative obligation and is inconsistent with the idea of discretion

and that the presumption is that the word "shall," when used in a
statute is mandatory."[11]
Laws are enacted to achieve a goal intended and to guide against an
evil or mischief that aims to prevent. In the case at bar, the goal to
achieve is to give effect to the wishes of the deceased and the evil to
be prevented is the possibility that unscrupulous individuals who for
their benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present
petition is to determine the true intent of the deceased. An
exhaustive and objective consideration of the evidence is imperative
to establish the true intent of the testator.
It will be noted that not all the witnesses presented by the
respondents testified explicitly that they were familiar with the
handwriting of the testator. In the case of Augusto Neri, clerk of
court, Court of First Instance, Misamis Oriental, he merely identified
the record of Special Proceedings No. 427 before said court. He was
not presented to declare explicitly that the signature appearing in
the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City,
was presented to identify the signature of the deceased in the
voters' affidavit, which was not even produced as it was no longer
available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal
resided with your parents at Pinikitan, Cagayan de Oro City.
Would you tell the court what was your occupation or how did
Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez
streets.[12]
xxx
Q. Who sometime accompany her?
A. I sometimes accompany her
Q. In collecting rentals does she issue receipts?
A. Yes, sir.[13]
32
xxx
Q. Showing to you the receipt dated 23 October 1979, is this the
one you are referring to as one of the receipts which she issued
to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal, whose
signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that that is a signature of Matilde vda. De
Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde
vda de Ramonal kept records of the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of
Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.[14]
xxx
Q. In addition to collection of rentals, posting records of accounts of
tenants and deed of sale which you said what else did you do to
acquire familiarity of the signature of Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde
Q. To whom?
A. To her creditors.[15]
xxx
Q. You testified that at the time of her death she left a will. I am
showing to you a document with its title "tugon" is this the

document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit "S", there is that handwritten "tugon",
whose handwriting is this?
A. My aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.[16]
What Ms. Binanay saw were pre-prepared receipts and letters of the
deceased, which she either mailed or gave to her tenants. She did
not declare that she saw the deceased sign a document or write a
note.
Further, during the cross-examination, the counsel for petitioners
elicited the fact that the will was not found in the personal
belongings of the deceased but was in the possession of Ms.
Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners
if the late Matilde Seno vda de Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mother's possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this
was originally in the possession of your mother?
A. 1985.[17]
xxx
Q. Now, Mrs. Binanay was there any particular reason why your
mother left that will to you and therefore you have that in your
possession?
A. It was not given to me by my mother, I took that in the aparador
when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
33
Q. For what purpose?

A. Just to seek advice.
Q. Advice of what?
A. About the will.[18]
In her testimony it was also evident that Ms. Binanay kept the fact
about the will from petitioners, the legally adopted children of the
deceased. Such actions put in issue her motive of keeping the will a
secret to petitioners and revealing it only after the death of Matilde
Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly
person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk
agilely and she could go to her building to collect rentals, is that
correct?
A. Yes, sir.[19]
xxx
Q. Now, let us go to the third signature of Matilde Ramonal. Do you
know that there are retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L
in Matilde is continued towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.[20]
xxx
Q. Now, that was 1979, remember one year after the alleged
holographic will. Now, you identified a document marked as
Exhibit R. This is dated January 8,1978 which is only about eight
months from August 30,1978. Do you notice that the signature
Matilde Vda de Ramonal is beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she
was healthy was not sickly and she was agile. Now, you said she
was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not
present and you just tried to explain yourself out because of the
apparent inconsistencies?
A. That was I think. (sic)
Q. Now, you already observed this signature dated 1978, the same
year as the alleged holographic will. In exhibit I, you will notice
that there is no retracing; there is no hesitancy and the signature
was written on a fluid movement. x x x And in fact , the name
Eufemia R. Patigas here refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the
questioned signature appearing in the alleged holographic will
marked as Exhibit X but in the handwriting themselves, here you
will notice the hesitancy and tremors, do you notice that?
A. Yes, sir.[21]
Evangeline Calugay declared that the holographic will was written,
dated and signed in the handwriting of the testator. She testified
that:
Q. You testified that you stayed with the house of the spouses
Matilde and Justo Ramonal for the period of 22 years. Could you
tell the court the services if any which you rendered to Matilde
Ramonal?
A. During my stay I used to go with her to the church, to the market
and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying
taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity
of the handwriting of Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.[22]
34
xxx
Q. Now, I am showing to you Exhibit S which is captioned "tugon"
dated Agosto 30, 1978 there is a signature here below item No. 1,
will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.[23]
So, the only reason that Evangeline can give as to why she was
familiar with the handwriting of the deceased was because she lived
with her since birth. She never declared that she saw the deceased
write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is
my godfather. Actually I am related to the husband by
consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.[24]
xxx
Q. Can you tell this court whether the spouses Justo Ramonal and
Matilde Ramonal have legitimate children?
A. As far as I know they have no legitimate children.[25]
xxx
Q. You said after becoming a lawyer you practice your profession?
Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de
Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of
counsel as in what case is that, Fiscal?
A. It is about the project partition to terminate the property, which
was under the court before.[26]
Q. Appearing in special proceeding no. 427 is the amended

inventory which is marked as exhibit N of the estate of Justo
Ramonal and there appears a signature over the type written
word Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de
Ramonal.[27]
xxx
Q. Aside from attending as counsel in that Special Proceeding Case
No. 427 what were the other assistance wherein you were
rendering professional service to the deceased Matilde Vda de
Ramonal?
A. I can not remember if I have assisted her in other matters but if
there are documents to show that I have assisted then I can
recall.[28]
xxx
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly
go over this document, Fiscal Waga and tell the court whether
you are familiar with the handwriting contained in that document
marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs.
Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de
Ramonal, can you tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of
partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal,
can you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde
vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
xxx
35
Q. How about this signature in item no. 4, can you tell the court
whose signature is this?
A. The same is true with the signature in item no. 4. It seems that
they are similar.[29]
xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of
Matilde Vda de Ramonal Appearing in exhibit S seems to be the
signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her
signature because it is similar to the signature of the project of
partition which you have made?
A. That is true.[30]
From the testimonies of these witnesses, the Court of Appeals
allowed the will to probate and disregard the requirement of three
witnesses in case of contested holographic will, citing the decision in
Azaola vs. Singson,[31] ruling that the requirement is merely
directory and not mandatory.
In the case of Ajero vs. Court of Appeals,[32] we said that "the object
of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will."
However, we cannot eliminate the possibility of a false document
being adjudged as the will of the testator, which is why if the
holographic will is contested, that law requires three witnesses to
declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased
but with one of the respondents, who kept it even before the death
of the deceased. In the testimony of Ms. Binanay, she revealed that
the will was in her possession as early as 1985, or five years before
the death of the deceased.
There was no opportunity for an expert to compare the signature and
the handwriting of the deceased with other documents signed and
executed by her during her lifetime. The only chance at comparison
was during the cross-examination of Ms. Binanay when the lawyer of

petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic
will and she is not a handwriting expert. Even the former lawyer of
the deceased expressed doubts as to the authenticity of the
signature in the holographic will.
A visual examination of the holographic will convince us that the
strokes are different when compared with other documents written
by the testator. The signature of the testator in some of the
disposition is not readable. There were uneven strokes, retracing and
erasures on the will.
Comparing the signature in the holographic will dated August 30,
1978,[33] and the signatures in several documents such as the
application letter for pasture permit dated December 30, 1980,[34]
and a letter dated June 16, 1978,[35] the strokes are different. In the
letters, there are continuous flows of the strokes, evidencing that
there is no hesitation in writing unlike that of the holographic will.
We, therefore, cannot be certain that the holographic will was in the
handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The
records are ordered remanded to the court of origin with instructions
to allow petitioners to adduce evidence in support of their opposition
to the probate of the holographic will of the deceased Matilde Seo
Vda. de Ramonal.
No costs.
SO ORDERED.
G.R. No. 106720, September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, PETITIONERS, VS. THE
COURT OF APPEALS AND CLEMENTE SAND, RESPONDENTS.
DECISION
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
36
probate is the holographic will of the late Annie Sand, who died on
November 25, 1982.
In the will, decedent named as devisees, the following: petitioners
Roberto and Thelma Ajero, private respondent Clemente Sand,
Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S.
Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the
time of its execution, she was of sound and disposing mind, not
acting under duress, fraud or undue influence, and was in every
respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither
the testament's body nor the signature therein was in decedent's
handwriting; it contained alterations and corrections which were not
duly signed by decedent; and, the will was procured by petitioners
through improper pressure and undue influence. The petition was
likewise opposed by Dr. Jose Ajero. He contested the disposition in
the will of a house and lot located in Cabadbaran, Agusan Del Norte.
He claimed that said property could not be conveyed by decedent in
its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate. It found, inter alia:
"Considering then that the probate proceedings herein must decide
only the question of identity of the will, its due execution and the
testamentary capacity of the testatrix, this probate court finds no
reason at all for the disallowance of the will for its failure to comply
with the formalities prescribed by law nor for lack of testamentary
capacity of the testatrix.
"For one, no evidence was presented to show that the will in
question is different from the will actually executed by the testatrix.
The only objections raised by the oppositors xxx 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 testatrix,
(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 xxx.
The will itself shows that the testatrix even had detailed knowledge
of the nature of her estate. She even identified the lot number and
square meters of the lots she had conveyed by will. The objects of
her bounty were likewise identified explicitly. And considering that
she had even written a nursing book which contained the law and
jurisprudence on will and succession, there is more than sufficient
showing that she knows the character of the testamentary act.
"In this wise, the question of identity of the will, its due execution
and the testamentary capacity of the testatrix has to be resolved in
favor of the allowance of probate of the will submitted herein.
"Likewise, no evidence was presented to show sufficient reason for
the disallowance of herein holographic will. While it was alleged that
the said will was procured by undue and improper pressure and
influence on the part of the beneficiary or of some other person, the
evidence adduced have not shown any instance where improper
pressure or influence was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that the testatrix was still
alert at the time of the execution of the will, i.e., at or around the
time of her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has a mind of
her own. Her independence of character and to some extent, her
sense of superiority, which has been testified to in Court, all show
the unlikelihood of her being unduly influenced or improperly
pressured to make the aforesaid will. It must be noted that the
undue influence or improper pressure in question herein only refer to
the making of a will and not as to the specific testamentary
provisions therein which is the proper subject of another proceeding.
Hence, under the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
37
"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:
"Article 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."
"Article 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 wills shall be
disallowed in any of the following cases:
"(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to
make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or
threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other person for
his benefit;
(e) If the signature of the testator was procured by fraud or trick,
and he did not intend that the instrument should be his will at the
time of fixing his signature thereto."
In the same vein, Article 839 of the New Civil Code reads:
"Article 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.
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." (Italics supplied.)
Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably handwritten
by the testator.
38
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, xxx 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 omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895."[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:
"Article 678: A will is called holographic when the testator writes it
himself in the form and with the requisites required in Article 688."
"Article 688: Holographic wills may be executed only by persons of
full age.
"In order that the will be valid it must be drawn on stamped paper
corresponding to the year of its execution, written in its entirety by
the testator and signed by him, and must contain a statement of the
year, month and day of its execution.
"If it should contain any erased, corrected, or interlined words, the
testator must identify them over his signature.
"Foreigners may execute holographic wills in their own language."
This separation and distinction adds support to the interpretation
that only the requirements of Article 810 of the New Civil Code -- and
not those found in Articles 813 and 814 of the same Code -- are
essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could
not validly dispose of the house and lot located in Cabadbaran,
Agusan del Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass
only upon the extrinsic validity of the will sought to be probated.
However, in exceptional instances, courts are not powerless to do
what the 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.
Narvasa, C.J., (Chairman), Padilla, Regalado, and Mendoza, JJ.,
concur.
G.R. No. L-14003, August 05, 1960
FEDERICO AZAOLA, PETITIONER AND APPELLANT, VS. CESARIO
SINGSON, OPPOSITOR AND APPELLEE.
DECISION
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15
January 1958 by the Court of First Instance of Quezon City in its
Special Proceedings No. Q-2640, involves the determination of the
quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed
from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the
petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance
died at 13 Luskot, Quezon City, known to be the last residence of
said testatrix; that Francisco Azaola, petitioner herein for probate of
the holographic will, submitted the said holographic will (Exh. C)
whereby Maria Milagros Azaola was made the sole heir as against
the nephew of the deceased Cesario Singson; that witness Francisco
Azaola testified that he saw the holographic will (Exh. C) one month,
39
more or less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testified also that he
recognized all the signatures appearing in the holographic will (Exh.
C) as the handwriting of the testatrix and to reinforce said
statement, witness presented the mortgage (Exh. E), the special
power of attorney (Exh. F), and the general power of attorney (Exh.
F-1), besides the deeds of sale (Exhs. G and G-1) including an
affidavit (Exh. G-2), and that there were further exhibited in court
two residence certificates (Exhs. H and H-1) to show the signatures
of the testatrix, for comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well
as the signatures appearing therein are the signatures of the
testatrix; that said witness, in answer to a question of his counsel
admitted that the holographic will was handed to him by the
testatrix, "apparently it must have been written by her" (t.s.n., p.
11). However, on page 16 on the same transcript of the stenographic
notes, when the same witness was asked by counsel if he was
familiar with the penmanship and handwriting of the deceased
Fortunata Vda. de Yance, he answered positively in the affirmative
and when he was asked again whether the penmanship referred to in
the previous answer as appearing in the holographic will (Exh. C)
was hers (testatrix'), he answered, "I would definitely say it is hers";
that it was also established in the proceedings that the assessed
value of the property of the deceased in Luskot, Quezon City, is in
the amount of P7,000.00."
The opposition to the probate was on the ground that (1) the
execution of the will was procured by undue and improper pressure
and influence on the part of the petitioner and his wife, and (2) that
the testatrix did not seriously intend the instrument to be her last
will, and that the same was actually written either on the 5th or 6th
day of August 1957 and not on November 20, 1956 as appears on
the will.
The probate was denied on the ground that under Article 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are fn the writing of the
testatrix, the probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently that the body
of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to
produce more than one witness because the will's authenticity was
not questioned; and second, that Article 811 does not mandatorily
require the production of three witnesses to identify the handwriting
and signature of a holographic will, even if its authenticity should be
denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following

effect:
"Art. 811. In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and signature
of the testator explicitly declare that the will and the signature are in
the handwriting of the testator. If the will is contested, at least three
of such witnesses shall be required.
In the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony
may be resorted to. (691a)"
We agree with the appellant that since the authenticity of the will
was not contested, he was not required to produce more than one
witness; but even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present Civil
Code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no
witness may have been present at the execution of a holographic
will, none being required by law (Art. 810, new Civil Code), it
becomes obvious that the existence of witnesses possessing the
requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and producing
any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare
(truthfully, of course, even if the law does not so express) "that the
will and the signature are in the handwriting of the testator". There
may be no available witness acquainted with the testator's hand; or
even if so familiarized, the witnesses may be unwilling to give a
positive opinion. Compliance with the rule of paragraph 1 of Article
811 may thus become an impossibility. That is evidently the reason
why the second paragraph of Article 811 prescribes that
"in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to."
As can be seen, the law foresees the possibility that no qualified
witness may be found (or what amounts to the same, thing, that no
competent witness may be willing to testify to the authenticity of the
will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). But it can not be ignored that the
requirement can be considered mandatory only in the case of
ordinary testaments, precisely because the presence of at least
40
three witnesses at the execution of ordinary wills is made by law

essential to their validity (Art. 805). Where the will is holographic, no
witness need be present (Art. 10), and the rule requiring production
of three witnesses must be deemed merely permissive if absurd
results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned
by the words "if the Court deem it necessary", which reveal that
what the law deems essential is that the Court should be convinced
of the will's authenticity. Where the prescribed number of witnesses
is produced and the court is convinced by their testimony that the
will is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or
none of those produced is convincing, the Court may still, and in fact
it should, resort to handwriting experts. The duty of the court, in fine,
is to exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be
carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish
Civil Code of 1889, the noted Commentator, Mucius Scaevola (Vol.
12, 2nd Ed., p. 421), sagely remarks:
"La manera como esta concebida la redaccion del ultimo apartado
de dicho precepto induce la conclusion de que siempre o por lo
menos, en la mayor parte de los casos, el Juez debe acudir al criterio
pericial para que le ilustre acerca de la autenticidad del testamento
olografo, aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de
proceder en resoluciones de transcendencia asi lo exige, y la indole
delicada y peligrosa del testamento olografo, lo hace necesario para
mayor garantia de todos los intereses comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion
facultativa del dicho profano de los testigos y un modo de
desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de
la autenticidad que trata de averiguar y declarar. Para eso se ha
escrito la frase del citado ultimo apartado, (siempre que el Juez lo
estime conveniente), haya habido o no testigos y dudaran o no estos
respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe de formarse con independencia
de los sucesos y die su significacion, para responder debidamente de
las resoluciones que haya de dictar."
And because the law leaves it to the trial court to decide if experts
are still needed, no unfavourable inference can be drawn from a
party's failure to offer expert evidence, until arid unless the court
expresses dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of
the Civil Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this

Court has been called upon to construe the import of said article, the
interest of justice would be better served, in our opinion, by giving
the parties ample opportunity to adduce additional evidence,
including expert witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and
the records ordered remanded to the Court of origin, with
instructions to hold a new trial in conformity with this opinion. But
evidence already on record shall not be retaken. No costs.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera,
and Gutierrez David, JJ., concur.
Paras, C.J., Montemayor, and Endencia, JJ., took no part.
SECOND DIVISION
G.R. No. 138842, October 18, 2000
NATIVIDAD P. NAZARENO, MAXIMINO P. NAZARENO, JR., PETITIONERS,
VS. COURT OF APPEALS, ESTATE OF MAXIMINO A. NAZARENO, SR.,
ROMEO P. NAZARENO AND ELIZA NAZARENO, RESPONDENTS.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision[1] of the
Court of Appeals in CA-GR CV No. 39441 dated May 29, 1998
affirming with modifications the decision of the Regional Trial Court,
Branch 107, Quezon City, in an action for annulment of sale and
damages.
Maximino Nazareno, Sr. and Aurea Poblete were husband and wife.
Aurea died on April 15, 1970, while Maximino, Sr. died on December
18, 1980. They had five children, namely, Natividad, Romeo, Jose,
Pacifico, and Maximino, Jr. Natividad and Maximino, Jr. are the
petitioners in this case, while the estate of Maximino, Sr., Romeo,
and his wife Eliza Nazareno are the respondents.
During their marriage, Maximino Nazareno, Sr. and Aurea Poblete
acquired properties in Quezon City and in the Province of Cavite. It is
the ownership of some of these properties that is in question in this
case.
It appears that after the death of Maximino, Sr., Romeo filed an
intestate case in the Court of First Instance of Cavite, Branch XV,
where the case was docketed as Sp. Proc. No. NC-28. Upon the
reorganization of the courts in 1983, the case was transferred to the
Regional Trial Court of Naic, Cavite. Romeo was appointed
administrator of his father's estate.
In the course of the intestate proceedings, Romeo discovered that
his parents had executed several deeds of sale conveying a number
41
of real properties in favor of his sister, Natividad. One of the deeds

involved six lots in Quezon City which were allegedly sold by
Maximino, Sr., with the consent of Aurea, to Natividad on January 29,
1970 for the total amount of P47,800.00. The Deed of Absolute Sale
reads as follows:
DEED OF ABSOLUTE SALE
KNOW ALL MEN BY THESE PRESENTS:
I, MAXIMINO A. NAZARENO, Filipino, married to Aurea PobleteNazareno, of legal age and a resident of the Mun. of Naic, Prov. of
Cavite, Philippines, WITNESSETHThat I am the absolute registered owner of six (6) parcels of land
with the improvements thereon situated in Quezon City, Philippines,
which parcels of land are herewith described and bounded as
follows, to wit:
"TRANS. CERT. OF TITLE NO. 140946"
"A parcel of land (Lot 3-B of the subdivision plan Psd-47404, being a
portion of Lot 3, Block D-3 described on plan Bsd-10642, G.L.R.O.
Record No.) situated in the Quirino District, Quezon City. Bounded on
the N., along line 1-2 by Lot 15, Block D-3 of plan Bsd - 10642; along
line 2-3 by Lot 4, Block D-3 of plan Bsd-10642; along line 3-4 by
Aurora Boulevard (Road Lot-1, Bsd-10642); and along line 4-1 by Lot
3-D of the subdivision plan. Beginning at a point marked "1" on plan,
being S.29 deg. 26'E., 1156.22 m. from B.L.L.M. 9, Quezon City,
thence N. 79 deg. 53'E.,
12.50 m. to point 2;
thence S. 10 deg. 07'E.,
thence S. 79 deg. 53'W.,
thence N. 10 deg. 07'W.,
40.00 m. to the point
of beginning; containing an area of FIVE HUNDRED (500) SQUARE
METERS. All points referred to are indicated on the plan and are
marked on the ground as follows: points "1" and "4" by P.L.S. Cyl.
Conc. Mons. bearings true; date of the original survey, April 8-July
15, 1920 and that of the subdivision survey, March 25, 1956."
"A parcel of land (Lot 3, Block 93 of the subdivision plan Psd-57970
being a portion of Lot 6, Pcs-4786, G.L.R.O. Rec. No. 917) situated in
Quirino District Quezon City. Bounded on the NW., along line 1-2, by
Lot 1, Block 93; on the NE., along line 2-3, by Road Lot 101; on the
SE., along line 3-4, by Road Lot 100; on the SW., along line 4-1, by
Lot 4, Block 93; all of the subdivision plan. Beginning at point marked
"1" on plan, being S. 65 deg. 40' 3339.92 m. from B.L.L.M. No. 1,
Marikina, Rizal;
thence N. 23 deg. 28 min.

E., 11.70 m. to point "2";
thence S. 66 deg. 32 min.
E., 18.00 m. to point "3";
thence S. 23 deg. 28 min.
W., 11.70 m. to point "4";
thence N. 66 deg. 32. min.
W., 18.00 m. to the point
of beginning; containing an area of TWO HUNDRED TEN SQUARE
METERS AND SIXTY SQUARE DECIMETERS (210.60). All points
referred to are indicated on the plan and are marked on the ground
by B.L. Cyl. Conc. Mons. 15 x 60 cm.; bearings true; date of the
original survey, Nov. 10, 1920 and Jan. 31-March 31, 1924 and that
of the subdivision survey, February 1 to September 30, 1954. Date
approved - March 9, 1962."
"A parcel of land (Lot No. 10, of the consolidation and subdivision
plan Pcs-988, being a portion of the consolidated Lot No. 26, Block
No. 6, Psd-127, and Lots Nos. 27-A and 27-B, Psd-14901, G.L.R.O.
Record No. 917), situated in the District of Cubao, Quezon City,
Island of Luzon. Bounded on the NE., by Lot No. 4 of the
consolidation and subdivision plan; on the SE., by Lot No. 11 of the
consolidation and subdivision plan; on the SW., by Lot No. 3 of the
consolidation and subdivision plan; and on the NW., by Lot No. 9 of
the consolidation and subdivision plan. Beginning at a point marked
"1" on the plan, being S. 7 deg. 26'W., 4269.90 m. more or less from
B.L.L.M. No. 1, Mp. of Mariquina;
12.00 m. to point "2";
29.99 m. to point "3";
12.00 m to point "4";
29.99 m. to the point of
beginning; containing an area of THREE HUNDRED SIXTY SQUARE
METERS (360), more or less. All points referred to are indicated on
the plan and on the ground are marked by P.L.S. Conc. Mons. 15 x 60
cm.; bearings true; declination 0 deg. 50'E., date of the original
survey, April 8 to July 15, 1920, and that of the consolidation and
subdivision survey, April 24 to 26, 1941." "TRANS. CERT. OF TITLE
NO. 118886"
42
consolidation and subdivision plan; on the SE., by Lot No. 12 of the
consolidation and subdivision plan; on the NW., by Lot No. 10 of the
consolidation and subdivision plan. Beginning at a point marked "1"
on plan, being S. 79 deg. 07'W., 4264.00 m. more or less from
B.L.L.M. No. 1, Mp. of Mariquina;
29.99 m. to point "2";
12.00 m. to point "3";
29.99 m. to point "4";
the plan and on the ground, are marked by P.L.S. Conc. Mons. 15 x
60 cm.; bearings true; declination 0 deg. 50'E.; date of the original
subdivision survey, April 24 to 26, 1941."
29.99 m. to point "2";
12.00 m. to point "3";
29.99 m. to point "4";
"A parcel of land (Lot No. 13 of the consolidation and subdivision
consolidation and subdivision plan; on the SE., by Lot No. 14, of the
consolidation; and subdivision plan; on the SW., by Lot No. 3 of the
consolidation and subdivision plan; and on the NW., by Lot No. 12, of
the consolidation and subdivision plan. Beginning at the point
marked "1" on plan, being S.78 deg. 48'W., 4258.20 m. more or less
from B.L.L.M. No. 1, Mp. of Mariquina;
30.00 m. to point "2";
12.00 m. to point "3";
29.99 m. to point "4";
thence S.25 deg. 00'E.,
12.00 m. to point of
METERS (360, more or less. All points referred to are indicated on the
plan and on the ground are marked by P.L.S. Conc. Mons. 15 x 60
consolidation and subdivision plan; on the SE., by Lot No. 15, of the
consolidation and subdivision plan; and on the NW., by Lot No. 13 of
the consolidation and subdivision plan. Beginning at the point
marked "1" on plan, being S.78 deg. 48'W., 4258.20 m. more or less
from B.L.L.M. No. 1, Mp. of Mariquina;
12.00 m. to point "2";
30.00 m. to point "3";
12.00 m. to point "4";
thence N.64 deg. 58'E.,
the plan and on the ground are marked by P.L.S. Conc. Mons. 15 x 60
That for and in consideration of the sum of FORTY THREE THOUSAND
PESOS (P43,000.00) PHILIPPINE CURRENCY, to me in hand paid by
NATIVIDAD P. NAZARENO, Filipino, single, of legal age and a resident
of the Mun. of Naic, Prov. of Cavite, Philippines, the receipt whereof is
43
acknowledged to my entire satisfaction, I do hereby CEDE, SELL,

TRANSFER, CONVEY and ASSIGN unto the said Natividad P. Nazareno,
her heirs, administrators and assigns, all my title, rights, interests
and participations to the abovedescribed parcels of land with the
improvements thereon, with the exception of LOT NO. 11 COVERED
BY T.C.T. NO. 118886, free of any and all liens and encumbrances;
and
That for and in consideration of the sum of FOUR THOUSAND EIGHT
HUNDRED PESOS (P4,800.00) PHILIPPINE CURRENCY, to me in hand
paid by NATIVIDAD P. NAZARENO, Filipino, single, of legal age and a
resident of the Mun. of Naic, Prov. of Cavite, Philippines, the receipt
whereof is acknowledged to my entire satisfaction, I do hereby CEDE,
SELL, TRANSFER, CONVEY and ASSIGN unto the said Natividad P.
Nazareno, her heirs, administrators and assigns, all my title, rights,
interests and participations in and to Lot No. 11 covered by T.C.T. No.
118886 above-described, free of any and all liens and
encumbrances, with the understanding that the title to be issued in
relation hereto shall be separate and distinct from the title to be
issued in connection with Lots Nos. 13 and 14, although covered by
the same title.
IN WITNESS WHEREOF, I have hereunto signed this deed of absolute
sale in the City of Manila, Philippines, this 29th day of January, 1970.
[2]
By virtue of this deed, transfer certificates of title were issued to
Natividad, to wit: TCT No. 162738 (Lot 3-B),[3] TCT No. 162739 (Lot
3),[4] TCT No. 162735 (Lot 10),[5] TCT No. 162736 (Lot 11),[6] and
TCT No. 162737 (Lots 13 and 14),[7] all of the Register of Deeds of
Quezon City.
Among the lots covered by the above Deed of Sale is Lot 3-B which is
registered under TCT No. 140946. This lot had been occupied by
Romeo, his wife Eliza, and by Maximino, Jr. since 1969. Unknown to
Romeo, Natividad sold Lot 3-B on July 31, 1982 to Maximino, Jr.,[8]
for which reason the latter was issued TCT No. 293701 by the
Register of Deeds of Quezon City.[9]
When Romeo found out about the sale to Maximino, Jr., he and his
wife Eliza locked Maximino, Jr. out of the house. On August 4, 1983,
Maximino, Jr. brought an action for recovery of possession and
damages with prayer for writs of preliminary injunction and
mandatory injunction with the Regional Trial Court of Quezon City. On
December 12, 1986, the trial court ruled in favor of Maximino, Jr. In
CA-G.R. CV No. 12932, the Court of Appeals affirmed the decision of
the trial court.[10]
On June 15, 1988, Romeo in turn filed, on behalf of the estate of
Maximino, Sr., the present case for annulment of sale with damages
against Natividad and Maximino, Jr. The case was filed in the
Regional Trial Court of Quezon City, where it was docketed as Civil
Case No. 88-58.[11] Romeo sought the declaration of nullity of the

sale made on January 29, 1970 to Natividad and that made on July
31, 1982 to Maximino, Jr. on the ground that both sales were void for
lack of consideration.
On March 1, 1990, Natividad and Maximino, Jr. filed a third-party
complaint against the spouses Romeo and Eliza.[12] They alleged
that Lot 3, which was included in the Deed of Absolute Sale of
January 29, 1970 to Natividad, had been surreptitiously appropriated
by Romeo by securing for himself a new title (TCT No. 277968) in his
name.[13] They alleged that Lot 3 is being leased by the spouses
Romeo and Eliza to third persons. They therefore sought the
annulment of the transfer to Romeo and the cancellation of his title,
the eviction of Romeo and his wife Eliza and all persons claiming
rights from Lot 3, and the payment of damages.
The issues having been joined, the case was set for trial. Romeo
presented evidence to show that Maximino and Aurea Nazareno
never intended to sell the six lots to Natividad and that Natividad
was only to hold the said lots in trust for her siblings. He presented
the Deed of Partition and Distribution dated June 28, 1962 executed
by Maximino Sr. and Aurea and duly signed by all of their children,
except Jose, who was then abroad and was represented by their
mother, Aurea. By virtue of this deed, the nine lots subject of this
Deed of Partition were assigned by raffle as follows:
Romeo - Lot 25-L (642 m2)
Natividad - Lots 23 (312 m2) and 24 (379 m2)
Maximino, Jr. - Lots 6 (338 m2) and 7 (338 m2)
Pacifico - Lots 13 (360 m2) and 14 (360 m2)
Jose - Lots 10 (360 m2) and 11 (360 m2)
Romeo received the title to Lot 25-L under his name,[14] while
Maximino, Jr. received Lots 6 and 7 through a Deed of Sale dated
August 16, 1966 for the amount of P9,500.00.[15] Pacifico and Jose's
shares were allegedly given to Natividad, who agreed to give Lots 10
and 11 to Jose, in the event the latter came back from abroad.
Natividad's share, on the other hand, was sold to third persons[16]
because she allegedly did not like the location of the two lots. But,
Romeo said, the money realized from the sale was given to
Natividad.
Romeo also testified that Lot 3-B was bought for him by his father,
while Lot 3 was sold to him for P7,000.00 by his parents on July 4,
1969.[17] However, he admitted that a document was executed by
his parents transferring six properties in Quezon City, i.e., Lots 3, 3B, 10, 11, 13, and 14, to Natividad.
Romeo further testified that, although the deeds of sale executed by
his parents in their favor stated that the sale was for a consideration,
they never really paid any amount for the supposed sale. The
transfer was made in this manner in order to avoid the payment of
44
inheritance taxes.[18] Romeo denied stealing Lot 3 from his sister

but instead claimed that the title to said lot was given to him by
Natividad in 1981 after their father died.
Natividad and Maximino, Jr. claimed that the Deed of Partition and
Distribution executed in 1962 was not really carried out. Instead, in
December of 1969, their parents offered to sell to them the six lots in
Quezon City, i.e., Lots 3, 3-B, 10, 11, 13 and 14. However, it was only
Natividad who bought the six properties because she was the only
one financially able to do so. Natividad said she sold Lots 13 and 14
to Ros-Alva Marketing Corp.[19] and Lot 3-B to Maximino, Jr. for
P175,000.00.[20] Natividad admitted that Romeo and the latter's
wife were occupying Lot 3-B at that time and that she did not tell the
latter about the sale she had made to Maximino, Jr.
Natividad said that she had the title to Lot 3 but it somehow got lost.
She could not get an original copy of the said title because the
records of the Registrar of Deeds had been destroyed by fire. She
claimed she was surprised to learn that Romeo was able to obtain a
title to Lot 3 in his name.
Natividad insisted that she paid the amount stated in the Deed of
Absolute Sale dated January 29, 1970. She alleged that their parents
had sold these properties to their children instead of merely giving
the same to them in order to impose on them the value of hardwork.
Natividad accused Romeo of filing this case to harass her after
Romeo lost in the action for recovery of possession (Civil Case No. Q39018) which had been brought against him by Maximino, Jr. It
appears that before the case filed by Romeo could be decided, the
Court of Appeals rendered a decision in CA-GR CV No. 12932
affirming the trial court's decision in favor of Maximino, Jr.
On August 10, 1992, the trial court rendered a decision, the
dispositive portion of which states:
WHEREFORE, judgment is hereby rendered declaring the nullity of
the Deed of Sale dated January 29, 1970. Except as to Lots 3, 3-B, 13
and 14 which had passed on to third persons, the defendant
Natividad shall hold the rest in trust for Jose Nazareno to whom the
same had been adjudicated. The Register of Deeds of Quezon City is
directed to annotate this judgment on Transfer Certificate of Titles
Nos. 162735 and 162736 as a lien in the titles of Natividad P.
Nazareno.
The defendants' counterclaim is dismissed. Likewise, the third-party
complaint is dismissed.
The defendants are hereby directed to pay to the plaintiff jointly and
severally the sum of P30,000 as and for attorney's fees. Likewise, the
third-party plaintiff is directed to pay the third-party defendant's
attorney's fees of P20,000.
All other claims by one party against the other are dismissed.
SO ORDERED.[21]
Natividad and Maximino, Jr. filed a motion for reconsideration. As a

result, on October 14, 1992 the trial court modified its decision as
follows: WHEREFORE, the plaintiff's Partial Motion for
Reconsideration is hereby granted. The judgment dated August 10,
1992 is hereby amended, such that the first paragraph of its
dispositive portion is correspondingly modified to read as follows:
"WHEREFORE, judgment is hereby rendered declaring the nullity of
the Deeds of Sale dated January 29, 1970 and July 31, 1982. "Except
as to Lots 3, 13 and 14 which had passed on to third person, the
defendant Natividad shall hold the rest OF THE PROPERTIES
COVERED BY THE DEED OF SALE DATED JANUARY 29, 1970 (LOTS 10
and 11) in trust for Jose Nazareno to whom the same had been
adjudicated.
"The Register of Deeds of Quezon City is directed to annotate this
judgment on Transfer Certificates of Title No. 162735 and 162736 as
a lien on the titles of Natividad P. Nazareno.
"LIKEWISE, THE SAID REGISTER OF DEEDS IS DIRECTED TO CANCEL
TCT NO. 293701 (formerly 162705) OVER LOT 3-B AND RESTORE TCT
NO. 140946 IN THE NAME OF MAXIMINO NAZARENO SR. AND AUREA
POBLETE."[22]
On appeal to the Court of Appeals, the decision of the trial court was
modified in the sense that titles to Lot 3 (in the name of Romeo
Nazareno) and Lot 3-B (in the name of Maximino Nazareno, Jr.), as
well as to Lots 10 and 11 were cancelled and ordered restored to the
estate of Maximino Nazareno, Sr. The dispositive portion of the
decision dated May 29, 1998 reads:
WHEREFORE, the appeal is GRANTED. The decision and the order in
question are modified as follows:
The Deed of Absolute Sale dated 29 January 1970 and the Deed of
Absolute Sale dated 31 July 1982 are hereby declared null and void;
Except as to Lots 13 and 14 ownership of which has passed on to
third persons, it is hereby declared that Lots 3, 3-B, 10 and 11 shall
form part of the estate of the deceased Maximino Nazareno, Sr.;
The Register of Deeds of Quezon City is hereby ordered to restore
TCT No. 140946 (covering Lot 3-B), TCT No. 132019 (covering Lot 3),
TCT No. 118885 (covering Lot 10), and TCT No. 118886 (covering Lot
11).[23]
Petitioners filed a motion for reconsideration but it was denied in a
resolution dated May 27, 1999. Hence this petition.
Petitioners raise the following issues:
WHETHER OR NOT THE UNCORROBORATED TESTIMONY OF PRIVATE
RESPONDENT ROMEO P. NAZARENO CAN DESTROY THE FULL FAITH
AND CREDIT ACCORDED TO NOTARIZED DOCUMENTS LIKE THE DEED
OF ABSOLUTE SALE DATED JANUARY 29, 1970 (EXH. 1) EXECUTED BY
THE DECEASED SPOUSES MAXIMINO A. NAZARENO, SR. AND AUREA
POBLETE IN FAVOR OF PETITIONER NATIVIDAD P. NAZARENO.
45
WHETHER OR NOT THE RESPONDENT COURT GROSSLY

MISAPPRECIATED THE FACTS OF THE CASE WITH RESPECT TO THE
VALIDITY OF THE SAID DEED OF ABSOLUTE SALE DATED JANUARY 29,
1970 (EXH. 1) IN THE LIGHT OF THE FOLLOWING:
A) THE DOCUMENTARY EVIDENCE, ALL OF WHICH ARE NOTARIZED,
EXECUTED BY THE DECEASED SPOUSES DURING THEIR LIFETIME
INVOLVING SOME OF THEIR CONJUGAL PROPERTIES.
B) THE EXECUTION OF AN EXTRA-JUDICIAL PARTITION WITH WAIVER
OF RIGHTS AND CONFIRMATION OF SALE DATED MAY 24, 1975 (EXH.
14A) OF THE ESTATE OF AUREA POBLETE BY THE DECEASED
MAXIMINO A. NAZARENO, SR. AND THEIR CHILDREN INVOLVING THE
ONLY REMAINING ESTATE OF AUREA POBLETE THUS IMPLIEDLY
ADMITTING THE VALIDITY OF PREVIOUS DISPOSITIONS MADE BY SAID
DECEASED SPOUSES ON THEIR CONJUGAL PROPERTIES, HALF OF
WHICH WOULD HAVE BECOME A PART OF AUREA POBLETE'S ESTATE
UPON HER DEMISE.
C) THE ADMISSION MADE BY MAXIMINO A. NAZARENO, SR. IN HIS
TESTIMONY IN OPEN COURT ON AUGUST 13, 1980 DURING HIS
LIFETIME IN CIVIL CASE NO. NC-712 (EXH. 81, 81B) THAT HE HAD
SOLD CERTAIN PROPERTIES IN FAVOR OF NATIVIDAD P. NAZARENO
THUS BELYING THE CLAIM OF ROMEO P. NAZARENO THAT THE DEED
OF ABSOLUTE SALE DATED JANUARY 29, 1970 IS ONE AMONG THE
DOCUMENTS EXECUTED BY THE DECEASED SPOUSES TO BE
WITHOUT CONSIDERATION.
D) THE ADMISSIONS MADE BY ROMEO P. NAZARENO HIMSELF
CONTAINED IN A FINAL DECISION OF THE RESPONDENT COURT IN
CA-GR CV NO. 12932 DATED AUGUST 31, 1992 AND AN ANNEX
APPEARING IN HIS ANSWER TO THE COMPLAINT IN CIVIL CASE NO. Q39018 (EXH. 11-B) INVOLVING LOT 3B, ONE OF THE PROPERTIES IN
QUESTION THAT THE SAID PROPERTY IS OWNED BY PETITIONER
NATIVIDAD P. NAZARENO.
E) THE PARTIAL PROJECT OF PARTITION DATED MAY 24, 1995 WHICH
WAS APPROVED BY THE INTESTATE COURT IN SP. PROC. NO. NC-28
AND EXECUTED IN ACCORDANCE WITH THE LATTER COURT'S FINAL
ORDER DATED JULY 9, 1991 DETERMINING WHICH WERE THE
REMAINING PROPERTIES OF THE ESTATE.
WHETHER OR NOT THE DEED OF ABSOLUTE SALE DATED JANUARY
29, 1970 EXECUTED BY THE DECEASED SPOUSES MAXIMINO A.
NAZARENO, SR. AND AUREA POBLETE DURING THEIR LIFETIME
INVOLVING THEIR CONJUGAL PROPERTIES IS AN INDIVISIBLE
CONTRACT? AND IF SO WHETHER OR NOT UPON THEIR DEATH, THE
ESTATE OF MAXIMINO A. NAZARENO, SR. ALONE CAN SEEK THE
ANNULMENT OF SAID SALE?
WHETHER OR NOT THE SALE OF LOT 3 UNDER THE DEED OF
ABSOLUTE SALE DATED JANUARY 29, 1970 IN FAVOR OF PETITIONER
NATIVIDAD P. NAZARENO, IS VALID CONSIDERING THAT AS PER THE
ORDER OF THE LOWER COURT DATED NOVEMBER 21, 1990. ROMEO

NAZARENO ADMITTED THAT HE DID NOT PAY THE CONSIDERATION
STATED IN THE DEED OF ABSOLUTE SALE DATED JULY 4, 1969
EXECUTED BY THE DECEASED SPOUSES IN HIS FAVOR (EXH. M-2).
WHETHER OR NOT AS A CONSEQUENCE, THE TITLE ISSUED IN THE
NAME OF ROMEO P. NAZARENO, TCT NO. 277968 (EXH. M) SHOULD
BE CANCELLED AND DECLARED NULL AND VOID AND A NEW ONE
ISSUED IN FAVOR OF NATIVIDAD P. NAZARENO PURSUANT TO THE
DEED OF ABSOLUTE SALE EXECUTED IN THE LATTER'S FAVOR ON
JANUARY 29, 1970 BY THE DECEASED SPOUSES.[24]
We find the petition to be without merit.
First. Petitioners argue that the lone testimony of Romeo is
insufficient to overcome the presumption of validity accorded to a
notarized document.
To begin with, the findings of fact of the Court of Appeals are
conclusive on the parties and carry even more weight when these
coincide with the factual findings of the trial court. This Court will not
weigh the evidence all over again unless there is a showing that the
findings of the lower court are totally devoid of support or are clearly
erroneous so as to constitute serious abuse of discretion.[25] The
lone testimony of a witness, if credible, is sufficient. In this case, the
testimony of Romeo that no consideration was ever paid for the sale
of the six lots to Natividad was found to be credible both by the trial
court and by the Court of Appeals and it has not been successfully
rebutted by petitioners. We, therefore, have no reason to overturn
the findings by the two courts giving credence to his testimony.
The fact that the deed of sale was notarized is not a guarantee of the
validity of its contents. As held in Suntay v. Court of Appeals:[26]
Though the notarization of the deed of sale in question vests in its
favor the presumption of regularity, it is not the intention nor the
function of the notary public to validate and make binding an
instrument never, in the first place, intended to have any binding
legal effect upon the parties thereto. The intention of the parties still
and always is the primary consideration in determining the true
nature of a contract.
Second. Petitioners make capital of the fact that in C.A.-G.R. CV No.
12932, which was declared final by this Court in G.R. No. 107684, the
Court of Appeals upheld the right of Maximino, Jr. to recover
possession of Lot 3-B. In that case, the Court of Appeals held:
As shown in the preceding disquisition, Natividad P. Nazareno
acquired the property in dispute by purchase in 1970. She was
issued Transfer Certificate of Title No. 162738 of the Registry of
Deeds of Quezon City. When her parents died, her mother Aurea
Poblete-Nazareno in 1970 and her father Maximino A. Nazareno, Sr.
in 1980, Natividad P. Nazareno had long been the exclusive owner of
the property in question. There was no way therefore that the
46
aforesaid property could belong to the estate of the spouses

Maximino Nazareno, Sr. and Aurea Poblete. The mere fact that
Romeo P. Nazareno included the same property in an inventory of
the properties of the deceased Maximino A. Nazareno, Sr. will not
adversely affect the ownership of the said realty. Appellant Romeo P.
Nazareno's suspicion that his parents had entrusted all their assets
under the care and in the name of Natividad P. Nazareno, their eldest
living sister who was still single, to be divided upon their demise to
all the compulsory heirs, has not progressed beyond mere
speculation. His barefaced allegation on the point not only is without
any corroboration but is even belied by documentary evidence. The
deed of absolute sale (Exhibit "B"), being a public document (Rule
132, Secs. 19 and 23, Revised Rules on Evidence), is entitled to great
weight; to contradict the same, there must be evidence that is clear,
convincing and more than merely preponderant (Yturralde vs.
Aganon, 28 SCRA 407; Favor vs. Court of Appeals, 194 SCRA 308).
Defendants-appellants' own conduct disproves their claim of coownership over the property in question. Being themselves the
owner of a ten-unit apartment building along Stanford St., Cubao
Quezon City, defendants-appellants, in a letter of demand to vacate
addressed to their tenants (Exhibits "P", "P-1" and "P-2") in said
apartment, admitted that the house and lot located at No. 979
Aurora Blvd., Quezon City where they were residing did not belong to
them. Also, when they applied for a permit to repair the subject
property in 1977, they stated that the property belonged to and was
registered in the name of Natividad P. Nazareno. Among the
documents submitted to support their application for a building
permit was a copy of TCT No. 162738 of the Registry of Deeds of
Quezon City in the name of Natividad Nazareno (Exhibit "O" and
submarkings; tsn March 15, 1985, pp. 4-5).[27]
To be sure, that case was for recovery of possession based on
ownership of Lot 3-B. The parties in that case were Maximino, Jr., as
plaintiff, and the spouses Romeo and Eliza, as defendants. On the
other hand, the parties in the present case for annulment of sale are
the estate of Maximino, Sr., as plaintiff, and Natividad and Maximino,
Jr., as defendants. Romeo and Eliza were named third-party
defendants after a third-party complaint was filed by Natividad and
Maximino, Jr. As already stated, however, this third-party complaint
concerned Lot 3, and not Lot 3-B.
The estate of a deceased person is a juridical entity that has a
personality of its own.[28] Though Romeo represented at one time
the estate of Maximino, Sr., the latter has a separate and distinct
personality from the former. Hence, the judgment in CA-GR CV No.
12932 regarding the ownership of Maximino, Jr. over Lot 3-B binds
Romeo and Eliza only, and not the estate of Maximino, Sr., which also
has a right to recover properties which were wrongfully disposed.
Furthermore, Natividad's title was clearly not an issue in the first

case. In other words, the title to the other five lots subject of the
present deed of sale was not in issue in that case. If the first case
resolved anything, it was the ownership of Maximino, Jr. over Lot 3-B
alone.
Third. Petitioners allege that, as shown by several deeds of sale
executed by Maximino, Sr. and Aurea during their lifetime, the
intention to dispose of their real properties is clear. Consequently,
they argue that the Deed of Sale of January 29, 1970 should also be
deemed valid.
This is a non-sequitur. The fact that other properties had allegedly
been sold by the spouses Maximino, Sr. and Aurea does not
necessarily show that the Deed of Sale made on January 29, 1970 is
valid.
Romeo does not dispute that their parents had executed deeds of
sale. The question, however, is whether these sales were made for a
consideration. The trial court and the Court of Appeals found that the
Nazareno spouses transferred their properties to their children by
fictitious sales in order to avoid the payment of inheritance taxes.
Indeed, it was found both by the trial court and by the Court of
Appeals that Natividad had no means to pay for the six lots subject
of the Deed of Sale.
All these convince the Court that Natividad had no means to pay for
all the lots she purportedly purchased from her parents. What is
more, Romeo's admission that he did not pay for the transfer to him
of lots 3 and 25-L despite the considerations stated in the deed of
sale is a declaration against interest and must ring with resounding
truth. The question is, why should Natividad be treated any
differently, i.e., with consideration for the sale to her, when she is
admittedly the closest to her parents and the one staying with them
and managing their affairs? It just seems without reason. Anyway,
the Court is convinced that the questioned Deed of Sale dated
January 29, 1970 (Exh. "A" or "1") is simulated for lack of
consideration, and therefore ineffective and void.[29]
In affirming this ruling, the Court of Appeals said:
Facts and circumstances indicate badges of a simulated sale which
make the Deed of Absolute Sale dated 29 January 1970 void and of
no effect. In the case of Suntay vs. Court of Appeals (251 SCRA 430
[1995]), the Supreme Court held that badges of simulation make a
deed of sale null and void since parties thereto enter into a
transaction to which they did not intend to be legally bound.
It appears that it was the practice in the Nazareno family to make
simulated transfers of ownership of real properties to their children
in order to avoid the payment of inheritance taxes. Per the testimony
of Romeo, he acquired Lot 25-L from his parents through a fictitious
or simulated sale wherein no consideration was paid by him. He even
47
truthfully admitted that the sale of Lot 3 to him on 04 July 1969

(Deed of Absolute Sale, Records, Vol. II, p. 453) likewise had no
consideration. This document was signed by the spouses Max, Sr.
and Aurea as vendors while defendant-appellant Natividad signed as
witness.[30]
Fourth. Petitioners argue further:
The Deed of Absolute Sale dated January 29, 1970 is an indivisible
contract founded on an indivisible obligation. As such, it being
indivisible, it can not be annulled by only one of them. And since this
suit was filed only by the estate of Maximino A. Nazareno, Sr. without
including the estate of Aurea Poblete, the present suit must fail. The
estate of Maximino A. Nazareno, Sr. can not cause its annulment
while its validity is sustained by the estate of Aurea Poblete.[31]
An obligation is indivisible when it cannot be validly performed in
parts, whatever may be the nature of the thing which is the object
thereof. The indivisibility refers to the prestation and not to the
object thereof.[32] In the present case, the Deed of Sale of January
29, 1970 supposedly conveyed the six lots to Natividad. The
obligation is clearly indivisible because the performance of the
contract cannot be done in parts, otherwise the value of what is
transferred is diminished. Petitioners are therefore mistaken in
basing the indivisibility of a contract on the number of obligors.
In any case, if petitioners' only point is that the estate of Maximino,
Sr. alone cannot contest the validity of the Deed of Sale because the
estate of Aurea has not yet been settled, the argument would
nonetheless be without merit. The validity of the contract can be
questioned by anyone affected by it.[33] A void contract is inexistent
from the beginning. Hence, even if the estate of Maximino, Sr. alone
contests the validity of the sale, the outcome of the suit will bind the
estate of Aurea as if no sale took place at all.
Fifth. As to the third-party complaint concerning Lot 3, we find that
this has been passed upon by the trial court and the Court of
Appeals. As Romeo admitted, no consideration was paid by him to
his parents for the Deed of Sale. Therefore, the sale was void for
having been simulated. Natividad never acquired ownership over the
property because the Deed of Sale in her favor is also void for being
without consideration and title to Lot 3 cannot be issued in her
name.
Nonetheless, it cannot be denied that Maximino, Sr. intended to give
the six Quezon City lots to Natividad. As Romeo testified, their
parents executed the Deed of Sale in favor of Natividad because the
latter was the only "female and the only unmarried member of the
family."[34] She was thus entrusted with the real properties in behalf
of her siblings. As she herself admitted, she intended to convey Lots
10 and 11 to Jose in the event the latter returned from abroad. There
was thus an implied trust constituted in her favor. Art. 1449 of the
Civil Code states:
There is also an implied trust when a donation is made to a person
but it appears that although the legal estate is transmitted to the
donee, he nevertheless is either to have no beneficial interest or only
a part thereof.
There being an implied trust, the lots in question are therefore
subject to collation in accordance with Art. 1061 which states:
Every compulsory heir, who succeeds with other compulsory heirs,
must bring into the mass of the estate any property or right which he
may have received from the decedent, during the lifetime of the
latter, by way of donation, or any other gratuitous title, in order that
it may be computed in the determination of the legitime of each heir,
and in the account of the partition.
As held by the trial court, the sale of Lots 13 and 14 to Ros-Alva
Marketing, Corp. on April 20, 1979[35] will have to be upheld for RosAlva Marketing is an innocent purchaser for value which relied on the
title of Natividad. The rule is settled that "every person dealing with
registered land may safely rely on the correctness of the certificate
of title issued therefor and the law will in no way oblige him to go
behind the certificate to determine the condition of the
property."[36]
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
G.R. Nos. 75005-06, February 15, 1990
JOSE RIVERA, PETITIONER, VS. INTERMEDIATE APPELLATE COURT
AND ADELAIDO J. RIVERA, RESPONDENTS.
DECISION
CRUZ, J.:
Was there only one Venancio Rivera in Mabalacat, Pampanga, or
were there two? On May 30, 1975, a prominent and wealthy resident
of that town named Venancio Rivera died. On July 28, 1975, Jose
Rivera, claiming to be the only surviving legitimate son of the
deceased, filed a petition for the issuance of letters of administration
over Venancio's estate. Docketed as SP No. 1076, this petition was
opposed by Adelaido J. Rivera, who denied that Jose was the son of
the decedent. Adelaido averred that Venancio was his father and did
not die intestate but in fact left two holographic wills.[1]
On November 7, 1975, Adelaido J. Rivera filed, also with the Regional
Trial Court of Angeles City, a petition for the probate of the
holographic wills. Docketed as SP No. 1091, this petition was in turn
opposed by Jose Rivera, who reiterated that he was the sole heir of
Venancio's intestate estate.[2]
On November 11, 1975, the two cases were consolidated. Adelaido J.
Rivera was later appointed special administrator. After joint trial,
48
Judge Eliodoro B. Guinto found that Jose Rivera was not the son of
the decedent but of a different Venancio Rivera who was married to
Maria Vital. The Venancio Rivera whose estate was in question was
married to Maria Jocson, by whom he had seven children, including
Adelaido. Jose Rivera had no claim to this estate because the
decedent was not his father. The holographic wills were also
admitted to probate.[3]
On appeal, the decision of the trial court was affirmed by the then
Intermediate Appellate Court.[4] Its decision is now the subject of
this petition, which urges the reversal of the respondent court.
In support of his claim that he was the sole heir of the late Venancio
Rivera, Jose sought to show that the said person was married in 1928
to Maria Vital, who was his mother. He submitted for this purpose
Exhibit A, the marriage certificate of the couple and Exhibit B, his
own baptismal certificate where the couple was indicated as his
parents. The petitioner also presented Domingo Santos, who testified
that Jose was indeed the son of the couple and that he saw Venancio
and Jose together several times.[5] Jose himself stressed that
Adelaido considered him a half-brother and kissed his hand as a sign
of respect whenever they met. He insisted that Adelaido and his
brothers and sisters were illegitimate children, sired by Venancio
with Maria Jocson.[6]
Adelaido, for his part, maintained that he and his brothers and
sisters were born to Venancio Rivera and Maria Jocson, who were
legally married and lived as such for many years. He explained that
he could not present his parents marriage certificate because the
record of marriages for 1942 in Mabalacat were destroyed when the
town was burned during the war, as certified by Exhibit 6.[7] He also
submitted his own birth certificate and those of his sisters Zenaida
and Yolanda Rivera, who were each described therein as the
legitimate children of Venancio Rivera and Maria Jocson.[8] Atty.
Regalado P. Morales, then 71 years of age, affirmed that he knew the
deceased and his parents, Magno Rivera and Gertrudes de los Reyes,
and it was during the Japanese occupation that Venancio introduced
to him Maria Jocson as his wife.[9] To prove that there were in fact
two persons by the same name of Venancio Rivera, Adelaido offered
Venancio Rivera's baptismal certificate showing that his parents
were Magno Rivera and Gertrudes de los Reyes,[10] as contrasted
with the marriage certificate submitted by Jose, which indicated that
the Venancio Rivera subject thereof was the son of Florencio Rivera
and Estrudez Reyes.[11] He also denied kissing Jose's hand or
recognizing him as a brother.[12]
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his parents marriage
certificate because, as he explained it, the marriage records for 1942
in the Mabalacat civil registry were burned during the war. Even so,
he could still rely on the presumption of marriage, since it is not

denied that Venancio Rivera and Maria Jocson lived together as
husband and wife for many years, begetting seven children in all
during that time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions favor the solidarity of the family.
Thus every intendment of the law or fact leans toward the validity of
marriage, the indissolubility of the marriage bonds, the legitimacy of
children, x x x.
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable presumptions. The following presumptions are
satisfactory if uncontradicted, but may be contradicted and
overcome by other evidence:
xxx xxx xxx
(aa) That a man and woman deporting themselves as husband and
wife have entered into a lawful contract of marriage.
By contrast, although Jose did present his parents' marriage
certificate, Venancio was described therein as the son of Florencio
Rivera. Presumably, he was not the same Venancio Rivera described
in Exhibit 4, his baptismal certificate, as the son of Magno Rivera.
While we realize that such baptismal certificate is not conclusive
evidence of Venancio's filiation (which is not the issue here) it may
nonetheless be considered to determine his real identity. Jose insists
that Magno and Florencio are one and the same person, arguing that
it is not uncommon for a person to be called by different names. The
Court is not convinced. There is no evidence that Venancio's father
was called either Magno or Florencio. What is more likely is that two
or more persons may live at the same time and bear the same
name, even in the same community. That is what the courts below
found in the cases at bar.
What this Court considers particularly intriguing is why, if it is true
that he was the legitimate son of Venancio Rivera, Jose did not assert
his right as such when his father was still alive. By his own account,
Jose supported himself and presumably also his mother Maria Vital
- as a gasoline attendant and driver for many years. All the time, his
father was residing in the same town and obviously prospering
and available for support. His alleged father was openly living with
another woman and raising another family, but this was apparently
accepted by Jose without protest, taking no step whatsoever to
invoke his status. If, as he insists, he and Venancio Rivera were on
cordial terms, there is no reason why the father did not help the son
and instead left Jose to fend for himself as a humble worker while his
other children by Maria Jocson enjoyed a comfortable life. Such
paternal discrimination is difficult to understand, especially if it is
considered - assuming the claims to be true that Jose was the
49
oldest and, by his own account, the only legitimate child of Venancio
Rivera.
And there is also Maria Vital, whose attitude is no less
incomprehensible. As Venancio's legitimate wife if indeed she was
she should have objected when her husband abandoned her and
founded another family by another woman, and in the same town at
that. Seeing that the children of Maria Jocson were being raised well
while her own son Jose was practically ignored and neglected, she
nevertheless did not demand for him at least support, if not better
treatment, from his legitimate father. It is unnatural for a lawful wife
to say nothing if she is deserted in favor of another woman and for a
caring mother not to protect her son's interests from his wayward
father's neglect. The fact is that this forsaken wife never demanded
support from her wealthy if errant husband. She did not file a
complaint for bigamy or concubinage against Venancio Rivera and
Maria Jocson, the alleged partners in crime and sin. Maria Vital was
completely passive and complaisant.
Significantly, as noted by the respondent court, Maria Vital was not
even presented at the trial to support her son's allegations that she
was the decedent's lawful wife. Jose says this was not done because
she was already old and bedridden then. But there was no
impediment to the taking of her deposition in her own house. No
effort was made toward this end although her testimony was vital to
the petitioner's cause. Jose dismisses such testimony as merely
"cumulative," but this Court does not agree. Having alleged that
Maria Jocson's marriage to Venancio Rivera was null and void, Jose
had the burden of proving that serious allegation.
We find from the evidence of record that the respondent court did
not err in holding that the Venancio Rivera who married Maria Jocson
in 1942 was not the same person who married Maria Vital, Jose's
legitimate mother, in 1928. Jose belonged to a humbler family which
had no relation whatsoever with the family of Venancio Rivera and
Maria Vital. This was more prosperous and prominent. Except for the
curious identity of names of the head of each, there is no evidence
linking the two families or showing that the deceased Venancio
Rivera was the head of both.
Now for the holographic wills. The respondent court considered them
valid because it found them to have been written, dated and signed
by the testator himself in accordance with Article 810 of the Civil
Code. It also held there was no necessity of presenting the three
witnesses required under Article 811 because the authenticity of the
wills had not been questioned.
The existence and therefore also the authenticity of the holographic
wills were questioned by Jose Rivera. In his own petition in SP No.
1076, he declared that Venancio Rivera died intestate; and in SP No.
1091, he denied the existence of the holographic wills presented by
Adelaido Rivera for probate. In both proceedings, Jose Rivera

opposed the holographic wills submitted by Adelaido Rivera and
claimed that they were spurious. Consequently, it may be argued,
the respondent court should have applied Article 811 of the Civil
Code, providing as follows:
In the probate of a holographic will, it shall be necessary that at least
one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three of
such witnesses shall be required.
The flaw in this argument is that, as we have already determined,
Jose Rivera is not the son of the deceased Venancio Rivera whose
estate is in question. Hence, being a mere strange, he had no
personality to contest the wills and his opposition thereto did not
have the legal effect of requiring the three witnesses. The testimony
of Zenaida and Venacio Rivera, Jr., who authenticated the wills as
having been written and signed by their father, was sufficient
WHEREFORE, the petition is DENIED and the challenged decision is
AFFIRMED, with costs against the petitioner.
SO ORDERED.
G.R. NOS. 140371-72, November 27, 2006
DY YIENG SEANGIO,BARBARA D. SEANGIO AND VIRGINIA D. SEANGIO,
PETITIONERS, VS. HON. AMOR A. REYES, IN HER CAPACITY AS
PRESIDING JUDGE, REGIONAL TRIAL COURT, NATIONAL CAPITAL
JUDICIAL REGION, BRANCH 21, MANILA, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D.
SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D.
SEANGIO-OBAS AND JAMES D. SEANGIO, RESPONDENTS.
DECISION
AZCUNA, J.:
This is a petition for certiorari[1] with application for the issuance of
a writ of preliminary injunction and/or temporary restraining order
seeking the nullification of the orders, dated August 10, 1999 and
October 14, 1999, of the Regional Trial Court of Manila, Branch 21
(the RTC), dismissing the petition for probate on the ground of
preterition, in the consolidated cases, docketed as SP. Proc. No. 9890870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the
Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al."
and "In the Matter of the Probate of the Will of Segundo C. Seangio v.
Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the
settlement of the intestate estate of the late Segundo Seangio,
50
docketed as Sp. Proc. No. 98-90870 of the RTC, and praying for the
appointment of private respondent Elisa D. Seangio-Santos as
special administrator and guardian ad litem of petitioner Dy Yieng
Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio,
opposed the petition. They contended that: 1) Dy Yieng is still very
healthy and in full command of her faculties; 2) the deceased
Segundo executed a general power of attorney in favor of Virginia
giving her the power to manage and exercise control and supervision
over his business in the Philippines; 3) Virginia is the most
competent and qualified to serve as the administrator of the estate
of Segundo because she is a certified public accountant; and, 4)
Segundo left a holographic will, dated September 20, 1995,
disinheriting one of the private respondents, Alfredo Seangio, for
cause. In view of the purported holographic will, petitioners averred
that in the event the decedent is found to have left a will, the
intestate proceedings are to be automatically suspended and
replaced by the proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of
Segundo, docketed as SP. Proc. No. 99-93396, was filed by
petitioners before the RTC. They likewise reiterated that the probate
proceedings should take precedence over SP. Proc. No. 98-90870
because testate proceedings take precedence and enjoy priority over
intestate proceedings.[2]
The document that petitioners refer to as Segundo's holographic will
is quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A
Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at
disposisyon ay tahasan at hayagang inaalisan ko ng lahat at
anumang mana ang paganay kong anak na si Alfredo Seangio dahil
siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng
masama harapan ko at mga kapatid niya na si Virginia Seangio labis
kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako
nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at
siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin
pagalan para makapagutang na kuarta siya at kanya asawa na si
Merna de los Reyes sa China Bangking Corporation na millon pesos
at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng

malaking kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa
na mga custome[r] ng Travel Center of the Philippines na
pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak
ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo
at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha
mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng
Manila sa harap ng tatlong saksi. [3]
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners' motion, SP. Proc. No. 98-90870
and SP. Proc. No. 99-93396 were consolidated.[4]
On July 1, 1999, private respondents moved for the dismissal of the
probate proceedings[5] primarily on the ground that the document
purporting to be the holographic will of Segundo does not contain
any disposition of the estate of the deceased and thus does not meet
the definition of a will under Article 783 of the Civil Code. According
to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and
nothing else; that all other compulsory heirs were not named nor
instituted as heir, devisee or legatee, hence, there is preterition
which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called
upon to rule only on the extrinsic validity of the will, it is not barred
from delving into the intrinsic validity of the same, and ordering the
dismissal of the petition for probate when on the face of the will it is
clear that it contains no testamentary disposition of the property of
the decedent.
Petitioners filed their opposition to the motion to dismiss contending
that: 1) generally, the authority of the probate court is limited only to
51
a determination of the extrinsic validity of the will; 2) private

respondents question the intrinsic and not the extrinsic validity of
the will; 3) disinheritance constitutes a disposition of the estate of a
decedent; and, 4) the rule on preterition does not apply because
Segundo's will does not constitute a universal heir or heirs to the
exclusion of one or more compulsory heirs.[6]
On August 10, 1999, the RTC issued its assailed order, dismissing the
petition for probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners
Dy Yieng Seangio, et al., clearly shows that there is preterition, as
the only heirs mentioned thereat are Alfredo and Virginia. [T]he other
heirs being omitted, Article 854 of the New Civil Code thus applies.
However, insofar as the widow Dy Yieng Seangio is concerned,
Article 854 does not apply, she not being a compulsory heir in the
direct line.
As such, this Court is bound to dismiss this petition, for to do
otherwise would amount to an abuse of discretion. The Supreme
Court in the case of Acain v. Intermediate Appellate Court [155 SCRA
100 (1987)] has made its position clear: "for ... respondents to have
tolerated the probate of the will and allowed the case to progress
when, on its face, the will appears to be intrinsically void ... would
have been an exercise in futility. It would have meant a waste of
time, effort, expense, plus added futility. The trial court could have
denied its probate outright or could have passed upon the intrinsic
validity of the testamentary provisions before the extrinsic validity of
the will was resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend
Proceedings is hereby DENIED for lack of merit. Special Proceedings
No. 99-93396 is hereby DISMISSED without pronouncement as to
costs.
SO ORDERED.[7]
Petitioners' motion for reconsideration was denied by the RTC in its
order dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION
OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN
ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE
QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER
1999 (ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH

SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE
PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL HEARING
FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS,
DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE
TESTATOR'S WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE
OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE
WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE
AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A
DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE
DUE EXECUTION THEREOF, THE TESTATOR'S TESTAMENTARY
CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR
SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS
THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE
WILL OF THE TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE
TESTATOR'S WILL THAT NO PRETERITON EXISTS AND THAT THE WILL
IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE
PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A
SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE
OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule
76 of the Rules of Court which respectively mandate the court to: a)
fix the time and place for proving the will when all concerned may
appear to contest the allowance thereof, and cause notice of such
time and place to be published three weeks successively previous to
the appointed time in a newspaper of general circulation; and, b)
cause the mailing of said notice to the heirs, legatees and devisees
of the testator Segundo;
Second, the holographic will does not contain any institution of an
heir, but rather, as its title clearly states, Kasulatan ng Pag-Aalis ng
Mana, simply contains a disinheritance of a compulsory heir. Thus,
there is no preterition in the decedent's will and the holographic will
on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and
private respondents alike, with the sole exception of Alfredo, to
inherit his estate. None of the compulsory heirs in the direct line of
Segundo were preterited in the holographic will since there was no
institution of an heir;
52
already made;
Fourth, inasmuch as it clearly appears from the face of the
holographic will that it is both intrinsically and extrinsically valid,
respondent judge was mandated to proceed with the hearing of the
testate case; and,
Lastly, the continuation of the proceedings in the intestate case will
work injustice to petitioners, and will render nugatory the
disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by
petitioners was dated, signed and written by him in his own
handwriting. Except on the ground of preterition, private
respondents did not raise any issue as regards the authenticity of
the document.
(5) A refusal without justifiable cause to support the parents or

ascendant who disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or
descendant;[8]
(7) When a child or descendant leads a dishonorable or disgraceful
life;
(8) Conviction of a crime which carries with it the penalty of civil
interdiction.
Now, the critical issue to be determined is whether the document
executed by Segundo can be considered as a holographic will.
The document, entitled Kasulatan ng Pag-Aalis ng Mana,

unmistakably showed Segundo's intention of excluding his eldest
son, Alfredo, as an heir to his estate for the reasons that he cited
therein. In effect, Alfredo was disinherited by Segundo.
A holographic will, as provided under Article 810 of the Civil Code,

must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in
or out of the Philippines, and need not be witnessed.
For disinheritance to be valid, Article 916 of the Civil Code requires

that the same must be effected through a will wherein the legal
cause therefor shall be specified. With regard to the reasons for the
disinheritance that were stated by Segundo in his document, the
Court believes that the incidents, taken as a whole, can be
considered a form of maltreatment of Segundo by his son, Alfredo,
and that the matter presents a sufficient cause for the disinheritance
of a child or descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as well as
illegitimate:
Segundo's document, although it may initially come across as a

mere disinheritance instrument, conforms to the formalities of a
holographic will prescribed by law. It is written, dated and signed by
the hand of Segundo himself. An intent to dispose mortis causa[9]
can be clearly deduced from the terms of the instrument, and while
it does not make an affirmative disposition of the latter's property,
the disinheritance of Alfredo, nonetheless, is an act of disposition in
itself. In other words, the disinheritance results in the disposition of
the property of the testator Segundo in favor of those who would
succeed in the absence of Alfredo.[10]
(1) When a child or descendant has been found guilty of an attempt

against the life of the testator, his or her spouse, descendants, or
ascendants;
(2) When a child or descendant has accused the testator of a crime
for which the law prescribes imprisonment for six years or more, if
the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or
undue influence causes the testator to make a will or to change one
Moreover, it is a fundamental principle that the intent or the will of

the testator, expressed in the form and within the limits prescribed
by law, must be recognized as the supreme law in succession. All
rules of construction are designed to ascertain and give effect to that
intention. It is only when the intention of the testator is contrary to
law, morals, or public policy that it cannot be given effect.[11]
Holographic wills, therefore, being usually prepared by one who is
not learned in the law, as illustrated in the present case, should be
construed more liberally than the ones drawn by an expert, taking
into account the circumstances surrounding the execution of the
instrument and the intention of the testator.[12] In this regard, the
Court is convinced that the document, even if captioned as
Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his
53
last testamentary act and was executed by him in accordance with

law in the form of a holographic will. Unless the will is probated,[13]
the disinheritance cannot be given effect.[14]
The parcel of agricultural land subject of the present controversy

contains 1.8144 hectares, identified as Lot 1849 (the lot), and
situated in Barangay Valle, Talavera, Nueva Ecija.
With regard to the issue on preterition,[15] the Court believes that

the compulsory heirs in the direct line were not preterited in the will.
It was, in the Court's opinion, Segundo's last expression to bequeath
his estate to all his compulsory heirs, with the sole exception of
Alfredo. Also, Segundo did not institute an heir [16] to the exclusion
of his other compulsory heirs. The mere mention of the name of one
of the petitioners, Virginia, in the document did not operate to
institute her as the universal heir. Her name was included plainly as
a witness to the altercation between Segundo and his son, Alfredo.
A Certificate of Land Ownership Award (CLOA) was issued to

Cristobal Olar (Olar) covering the lot on account of which he was
issued Transfer Certificate of Title No. CLOA-0-3514.
Considering that the questioned document is Segundo's holographic

will, and that the law favors testacy over intestacy, the probate of
the will cannot be dispensed with. Article 838 of the Civil Code
provides that no will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of Court.
Thus, unless the will is probated, the right of a person to dispose of
his property may be rendered nugatory.[17]
In view of the foregoing, the trial court, therefore, should have
allowed the holographic will to be probated. It is settled that testate
proceedings for the settlement of the estate of the decedent take
precedence over intestate proceedings for the same purpose.[18]
WHEREFORE, the petition is GRANTED. The Orders of the Regional
Trial Court of Manila, Branch 21, dated August 10, 1999 and October
14, 1999, are set aside. Respondent judge is directed to reinstate
and hear SP Proc. No. 99-93396 for the allowance of the holographic
will of Segundo Seangio. The intestate case or SP. Proc. No. 98-90870
is hereby suspended until the termination of the aforesaid testate
proceedings.
No costs.
SO ORDERED.
G.R. NO. 169193, November 30, 2006
SPOUSES ILUMINADA CAPITLE AND CIRILO CAPITLE,
PETITIONERS, VS. FORTUNATA ELBAMBUENA AND ROSALINDA
C. OLAR, RESPONDENTS.
CARPIO MORALES, J.:
DECISION
Respondents Fortunata Elbambuena (Fortunata) and Rosalinda Olar

(Rosalinda), spouse and daughter-in-law, respectively, of Olar, now
deceased, claim that Olar relinquished one-half or 0.9072 hectare of
the lot to Rosalinda by a "Kasunduan"[1] dated July 17, 1992 the
execution of which was witnessed by petitioner Cirilo Capitle; and
that the remaining portion of the lot was surrendered to Fortunata by
an undated document.[2]
Respondents, alleged that on petitioners' request, petitioners were
allowed to occupy the lot to pursue a means of livelihood. Since
1990, however, petitioners did not pay rentals despite demand
therefor, and neither did they heed the demand to return the
possession of the lot, drawing respondents to file a Petition for
Recovery of Possession and Payment of Back Rentals[3] against
petitioners before the Department of Agrarian Reform Adjudication
Board (DARAB) Regional Office in Talavera, Nueva Ecija, docketed as
DARAB Case No. 5987'NNE'96.
Petitioners, on the other hand, claiming that they have been in
possession of the lot since 1960, presented a "Waiver of Rights"[4]
executed by Olar wherein he renounced in their favor his rights and
participation over the lot; a "Sinumpaang Salaysay"[5] wherein Olar
acknowledged that he co-possessed the lot with petitioner Capitle
since 1960; and a Pinagsamang Patunay [6] from the Barangay
Agrarian Reform Committee (BARC) Chairman and barangay
chairman of Valle certifying that they (petitioners) are the actual
tillers and possessors of the lot.
Petitioners further claim that since 1959, respondent Fortunata was
already separated from Olar and she even remarried, thus giving her
no right to inherit from Olar.
While respondents' petition in DARAB Case No. 5987'NNE'96 was
pending before the Provincial Agrarian Reform Adjudicator (PARAD),
petitioners filed before the Municipal Agrarian Reform Officer (MARO)
of Talavera, Nueva Ecija a petition for cancellation of the CLOA issued
to Olar, docketed as DARAB Case No. 6261'NNE'97, claiming that
they are the new farmer-beneficiaries as shown by, among other
54
things, the "Waiver of Rights" executed by Olar.

By Decision[7] dated August 20, 1997 which jointly resolved DARAB
Case Nos. 5987'NNE'96 and 6261'NNE'97, the PARAD ruled in favor
of petitioners, the decretal portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered:
ORDERING AND DECLARING
DARAB Case No. 5987'NNE'96 DISMISSED for lack of merit;
The recall/cancellation of TCT No. CLOA-0-3514 previously issued to
the late Cristobal Olar;
The PARO, DAR-North, Talavera, Nueva Ecija thru the Chief, Landed
Estate Section to cause the issuance of a new CLOA in the name of
Iluminada Capitle married to Cirilo Capitle;
The Register of Deeds of Nueva Ecija to cancel TCT No. CLOA-0-3514
adverted to if the same is already registered and cause the
registration of a new CLOA in the name of Iluminada Capitle married
to C[i]rilo Capitle; and
Other claims and counterclaims likewise DISMISSED for lack of legal
basis.[8]
Respondents appealed the decision to the DARAB, arguing that the
PARAD erred in holding that:
I.
. . . PETITIONERS FORTUNATA ELBAMBUENA AND ROSALINDA OLAR
CAN NO LONGER RECOVER POSSESSION OVER THE SUBJECT FARM
LOT, MUCH LESS DEMAND PAYMENT OF LEASE RENTALS FROM THE
RESPONDENTS.
II.
. . . THE PETITION FOR RECALL/CANCELLATION OF TCT NO. CLOA-03514 PREVIOUSLY ISSUED TO THE LATE CRISTOBAL OLAR WOULD
PROSPER.[9]
By Decision[10] of December 29, 2003, the DARAB set aside the
PARAD's decision, disposing as follows:
WHEREFORE, premises considered, the appealed decision is SET
ASIDE and a new judgment is hereby rendered:
Ordering Spouses Capitle and any or all persons acting in their
behalf to immediately vacate the subject landholding and deliver the
same to Fortunata Elbambuena and Rosalinda C. Olar;
Ordering the issuance of CLOA in favor of Fortunata Elbambuena and
Rosalinda C. Olar as legal heirs of Cristobal Olar.
Setting aside the decision of the Adjudicator a quo in DARAB
Regional Case No. 6261'NNE'97 for lack of jurisdiction over the
persons of the Heirs of Cristobal Olar;
The demand for back lease rentals by [respondents] is denied for
lack of merit.[11]
Petitioners elevated the case to the Court of Appeals via petition for
review, arguing that the DARAB erred:
IN CONCLUDING THAT THE POSSESSION OF LOT NO. 1849 since 1960
DESERVES NO MERIT THERE BEING NO BASIS BOTH IN FACT AND IN
LAW;
THAT THE PRESUMPTION, THE CLOA WAS ISSUED TO CRISTOBAL
OLAR IN THE REGULAR COURSE [OF] OFFICIAL FUNCTION WAS
NEVER OVERCOME BY CONTRARY EVIDENCE;
THAT THE WAIVER EXECUTED BY CRISTOBAL OLAR IN FAVOR OF SPS.
CAPITLE IS VOID FOR BEING CONTRARY TO LAW AND PUBLIC POLICY;
IN CONCLUDING THAT THE TRANSFER ACTION CONDUCTED BY THE
SAMAHANG NAYON OF VALLE, TALAVERA, NUEVA ECIJA CONTAINS
SUBSTANTIAL AND MATERIAL DEFECTS; [and]
IN CONCLUDING THAT THE CANCELLATION OF TCT No. CLOA-0-3514
DOES NOT BIND FORTUNATA ELBAMBUENA AND ROSALINDA OLAR
BECAUSE THEY WERE NOT MADE PARTY TO DARAB CASE NO.
6261'NNE'97.[12]
By the challenged Decision of November 23, 2004,[13] the appellate
court affirmed in toto the DARAB decision, ratiocinating as follows:
The DARAB correctly found that petitioners-appellants' possession of
the questioned property since 1960 is of dubious legality. No amount
of possession under whatever claim (actual tilling and actual
possession) can clothe petitioner-appellants with any lawful right
over the questioned property. Reason: It can be gleaned from the
factual antecedents that petitioners-appellants' stay in Cristobal
Olar's property was, or had been , by mere tolerance of respondentsappellees. Indeed, so much is clear from the averments on page 5 of
their petition: "xxx; that Cristobal Olar beginning 1959 up to the time
of his death in 1995 lived all alone by himself and his companions in
his house are the Spouses Iluminada and Cirilo Capitle xxx." These
averments, being in the nature of judicial admissions, are conclusive
and binding on petitioners-appellants and can no longer be
controverted. This simply meant that no title of ownership as farmer
beneficiary was passed unto the Capitles, thereby rendering
ineffective the certification issued by the MARO of Talavera, Nueva
Ecija. Even the Board Resolution of the Samahang Nayon of Valle,
Talavera, Nueva Ecija, naming the Capitles as new allocatees of the
landholding, had no binding effect, as the said samahang nayon is
not the proper authority under the law with power to pass upon the
legal issue as to who rightfully deserves to own Cristobal Olar's
landholding after him. Besides which, there was nothing amiss with
the DARAB's ruling relative to the issuance of the Certificate of Land
Ownership Award to Cristobal Olar, as this was done in the regular
course of an official function. It simply established the fact that
petitioners-appellants' claim could in no way legally stand against
Cristobal Olar, whose title under the CLOA cannot be overthrown or
55
supplanted by some organizational resolution and/or barangay

attestations/certifications. On the other hand, Cristobal Olar's death
substantially passed all his rights and interest in and over the
subject property to his legal heirs by operation of law. In the case at
bench, to herein respondents-appellees: to Fortunata Elbambuena,
being his surviving wife, and to Rosalinda Olar, his son's surviving
spouse, acting for and in behalf of her children with Nemesio Olar.
This is as it should, considering that rights to the succession are
transmitted from the moment of death of the decedent. And since
Fortunata Elbambuena and Rosalinda Olar's relationship with
Cristobal Olar was in this case never put in issue, their being legal
heirs of the deceased gave them unqualified right to participate in all
proceedings affecting the subject property.
What is more, as shown in the records, the respondent in DARAB
Case No. 6261'NN[']97 was the MARO OF TALAVERA, N.E. Private
respondents-appellees were not impleaded therein. But as heirs of
Cristobal Olar, private respondents-appellees ought to have been so
impleaded. The Rules mandate that the full names of all the real
parties in interest whether natural or juridical persons or entities
authorized by law shall be stated in the caption of the complaint or
petition. Who is a "real party in interest"? He is that party who stands
to be benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit. Tested by this criterion, Fortunata
Elbambuena's legitime and Rosalinda Olar stood to be "injured" by
the glaringly erroneous decision of the PARAD, Talavera, Nueva Ecija.
Hence, that decision must be vacated, it having transgressed
substantive rights protected by law.[14] (Emphasis and italics in the
original; underscoring supplied)
Hence, the present petition which reiterates the above-enumerated
errors petitioners proffered before the appellate court.
Petitioners maintain that their possession since 1960 was
satisfactorily established by evidence including Olar's "Waiver of
Rights," Board Resolution of the Samahang Nayon of Valle naming
petitioners as new allocatee, Joint Certification of the BARC Chairman
and barangay chairman, and MARO Certification that they have been
in actual possession of the lot.
Although the CLOA was issued to Olar, petitioners contend that their
preferential right over the lot should be recognized, they being the
transferees pursuant to the "Waiver of Rights" and the actual tillers
thereof.
Petitioners concede that although Olar's death passed all his rights
and interest over the lot to his legal heirs, his intent of not
bequeathing them to his estranged wife but to a relative, who helped

him in tilling the lot and who took care of him, should be accorded
respect over the intent of the law on hereditary succession.
Finally, petitioners claim that respondents are not qualified to
become farmer-beneficiaries under the CARP as they did not till or
cultivate the property nor help Olar in his farming activities.
The petition fails.
Petitioners' argument that "[i]t would be absurd for [Olar] to
bequeath his property to his estranged wife not to a relative who had
indeed helped him in tilling the property and [took] good care of his
needs,"[15] is a virtual admission that their possession was not in
the concept of owners, they having merely "helped" in tilling the lot,
thereby acknowledging that Olar was the actual possessor and tiller.
Absent evidence to the contrary, the presumption that the public
officers who issued the CLOA to Olar regularly performed their
duties, including adhering to the provisions of Section 22 of the
Comprehensive Agrarian Reform Law (CARL) which provides:
SECTION 22. Qualified Beneficiaries. The lands covered by the
CARP shall be distributed as much as possible to landless residents
of the same barangay, or in the absence thereof, landless residents
of the same municipality in the following order of priority:
(a) agricultural lessees and share tenants;
(b) regular farmworkers;
(c) seasonal farmworkers;
(d) other farmworkers;
(e) actual tillers or occupants of public lands;
(f) collectives or cooperatives of the above beneficiaries; and
(g) others directly working on the land.
Provided, however, That the children of landowners who are qualified
under Section 6 of this Act shall be given preference in the
distribution of the land of their parents; And provided further, That
actual tenant-tillers in the landholding shall not be ejected or
removed therefrom.
Beneficiaries under Presidential Decree No. 27 who have culpably
sold, disposed of, or abandoned their land are disqualified to become
beneficiaries under this Program.
A basic qualification of a beneficiary shall be his willingness, aptitude
and ability to cultivate and make the land as productive as possible.
The DAR shall adopt a system of monitoring the record of
performance of each beneficiary, so that any beneficiary guilty of
56
negligence or misuse of the land or any support extended to him

shall forfeit his right to continue as such beneficiary. The DAR shall
submit reports on the performance of the beneficiaries to the PARC.
x x x x,
thus stands.
Even assuming arguendo that petitioners were indeed the actual
tillers of the lot, their petition for the cancellation of the CLOA issued
in favor of Olar would not bind respondents as they were not
impleaded.
Although estranged from Olar, respondent Fortunata remained his
wife and legal heir, mere estrangement not being a legal ground for
the disqualification of a surviving spouse as an heir of the deceased
spouse.[16] Rosalinda, on the other hand, is the surviving spouse of
Olar's son. The two are thus real parties-in-interest who stand to be
injured or benefited by the judgment on the cancellation of the CLOA
issued in Olar's name.[17]
WHEREFORE, the petition is DENIED.
Costs against petitioners.
SO ORDERED.
G.R. No. 145545, June 30, 2008
PAZ SAMANIEGO-CELADA, PETITIONER, VS. LUCIA D. ABENA,
RESPONDENT.
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the 1997 Rules of Civil
Procedure seeking to reverse the Decision[1] dated October 13, 2000
of the Court of Appeals in CA-G.R. CV No. 41756, which affirmed the
Decision[2] dated March 2, 1993 of the Regional Trial Court (RTC),
Branch 66, Makati City. The RTC had declared the last will and
testament of Margarita S. Mayores probated and designated
respondent Lucia D. Abena as the executor of her will. It also ordered
the issuance of letters testamentary in favor of respondent.
Petitioner Paz Samaniego-Celada was the first cousin of decedent
Margarita S. Mayores (Margarita) while respondent was the
decedent's lifelong companion since 1929.
On April 27, 1987, Margarita died single and without any ascending
nor descending heirs as her parents, grandparents and siblings
predeceased her. She was survived by her first cousins Catalina
Samaniego-Bombay, Manuelita Samaniego Sajonia, Feliza
Samaniego, and petitioner.
Before her death, Margarita executed a Last Will and Testament[3]
on February 2, 1987 where she bequeathed one-half of her undivided
share of a real property located at Singalong Manila, consisting of
209.8 square meters, and covered by Transfer Certificate of Title
(TCT) No. 1343 to respondent, Norma A. Pahingalo, and Florentino M.
Abena in equal shares or one-third portion each. She likewise
bequeathed one-half of her undivided share of a real property
located at San Antonio Village, Makati, consisting of 225 square
meters, and covered by TCT No. 68920 to respondent, Isabelo M.
Abena, and Amanda M. Abena in equal shares or one-third portion
each. Margarita also left all her personal properties to respondent
whom she likewise designated as sole executor of her will.
On August 11, 1987, petitioner filed a petition for letters of
administration of the estate of Margarita before the RTC of Makati.
The case was docketed as SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for probate of the
will of Margarita before the RTC of Makati. The case was docketed as
SP Proc. No. M-1607 and consolidated with SP Proc. No. M-1531.
On March 2, 1993, the RTC rendered a decision declaring the last will
and testament of Margarita probated and respondent as the
executor of the will. The dispositive portion of the decision states:
In view of the foregoing, judgment is hereby rendered:
1) declaring the will as probated;
2) declaring Lucia Abena as the executor of the will who will serve as
such without a bond as stated in paragraph VI of the probated will;
3) ordering the issuance of letters testamentary in favor of Lucia
Abena.
So ordered.[4]
Petitioner appealed the RTC decision to the Court of Appeals. But the
Court of Appeals, in a decision dated October 13, 2000, affirmed in
toto the RTC ruling. The dispositive portion of the Court of Appeals'
decision states:
57
WHEREFORE, foregoing premises considered, the appeal having no

merit in fact and in law, is hereby ORDERED DISMISSED and the
appealed Decision of the trial court AFFIRMED IN TOTO, with cost to
oppositors-appellants.
Court of Appeals should have declared her and her siblings as the
legal heirs of Margarita since they are her only living collateral
relatives in accordance with Articles 1009[9] and 1010[10] of the
Civil Code.
SO ORDERED.[5]
Respondent, for her part, argues in her Memorandum[11] that the

petition for review raises questions of fact, not of law and as a rule,
findings of fact of the Court of Appeals are final and conclusive and
cannot be reviewed on appeal to the Supreme Court. She also points
out that although the Court of Appeals at the outset opined there
was no compelling reason to review the petition, the Court of
Appeals proceeded to tackle the assigned errors and rule that the
will was validly executed, sustaining the findings of the trial court
that the formalities required by law were duly complied with. The
Court of Appeals also concurred with the findings of the trial court
that the testator, Margarita, was of sound mind when she executed
the will.
Hence, the instant petition citing the following issues:

I.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR IN NOT INVALIDATING THE WILL SINCE IT DID
NOT CONFORM TO THE FORMALITIES REQUIRED BY LAW;
II.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN
NOT INVALIDATING THE WILL BECAUSE IT WAS PROCURED THROUGH
UNDUE INFLUENCE AND PRESSURE[;] AND
III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT
DECLARING PETITIONER, HER SIBLINGS AND COUSIN AS THE LEGAL
HEIRS OF MARGARITA S. MAYORES AND IN NOT ISSUING LETTERS OF
ADMINISTRATION TO HER.[6]
Briefly stated, the issues are (1) whether the Court of Appeals erred
in not declaring the will invalid for failure to comply with the
formalities required by law, (2) whether said court erred in not
declaring the will invalid because it was procured through undue
influence and pressure, and (3) whether it erred in not declaring
petitioner and her siblings as the legal heirs of Margarita, and in not
issuing letters of administration to petitioner.
Petitioner, in her Memorandum,[7] argues that Margarita's will failed
to comply with the formalities required under Article 805[8] of the
Civil Code because the will was not signed by the testator in the
presence of the instrumental witnesses and in the presence of one
another. She also argues that the signatures of the testator on pages
A, B, and C of the will are not the same or similar, indicating that
they were not signed on the same day. She further argues that the
will was procured through undue influence and pressure because at
the time of execution of the will, Margarita was weak, sickly, jobless
and entirely dependent upon respondent and her nephews for
support, and these alleged handicaps allegedly affected her freedom
and willpower to decide on her own. Petitioner thus concludes that
Margarita's total dependence on respondent and her nephews
compelled her to sign the will. Petitioner likewise argues that the
After careful consideration of the parties' contentions, we rule in

favor of respondent.
We find that the issues raised by petitioner concern pure questions
of fact, which may not be the subject of a petition for review on
certiorari under Rule 45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the will
was signed by the testator in the presence of the witnesses and of
one another, whether or not the signatures of the witnesses on the
pages of the will were signed on the same day, and whether or not
undue influence was exerted upon the testator which compelled her
to sign the will, are all questions of fact.
This Court does not resolve questions of fact in a petition for review
under Rule 45 of the 1997 Rules of Civil Procedure. Section 1[12] of
Rule 45 limits this Court's review to questions of law only.
Well-settled is the rule that the Supreme Court is not a trier of facts.
When supported by substantial evidence, the findings of fact of the
Court of Appeals are conclusive and binding on the parties and are
not reviewable by this Court, unless the case falls under any of the
following recognized exceptions:
(1) When the conclusion is a finding grounded entirely on
speculation, surmises and conjectures;
(2) When the inference made is manifestly mistaken, absurd or
impossible;
58
(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its findings, went beyond
the issues of the case and the same is contrary to the admissions of
both appellant and appellee;
(7) When the findings are contrary to those of the trial court;
(8) When the findings of fact are conclusions without citation of
specific evidence on which they are based;
(9) When the facts set forth in the petition as well as in the
petitioners' main and reply briefs are not disputed by the
respondents; and
(10) When the findings of fact of the Court of Appeals are premised
on the supposed absence of evidence and contradicted by the
evidence on record.[13]
We find that this case does not involve any of the abovementioned
exceptions.
Nonetheless, a review of the findings of the RTC as upheld by the
Court of Appeals, reveal that petitioner's arguments lack basis. The
RTC correctly held:
With [regard] to the contention of the oppositors [Paz SamaniegoCelada, et al.] that the testator [Margarita Mayores] was not
mentally capable of making a will at the time of the execution
thereof, the same is without merit. The oppositors failed to establish,
by preponderance of evidence, said allegation and contradict the
presumption that the testator was of sound mind (See Article 800 of
the Civil Code). In fact, witness for the oppositors, Dr. Ramon
Lamberte, who, in some occasions, attended to the testator months
before her death, testified that Margarita Mayores could engage in a
normal conversation and he even stated that the illness of the
testator does not warrant hospitalization.... Not one of the
oppositor's witnesses has mentioned any instance that they
observed act/s of the testator during her lifetime that could be
construed as a manifestation of mental incapacity. The testator may
be admitted to be physically weak but it does not necessarily follow
that she was not of sound mind. [The] testimonies of contestant
witnesses are pure aforethought.
Anent the contestants' submission that the will is fatally defective for
the reason that its attestation clause states that the will is composed
of three (3) pages while in truth and in fact, the will consists of two
(2) pages only because the attestation is not a part of the notarial
will, the same is not accurate. While it is true that the attestation
clause is not a part of the will, the court, after examining the totality
of the will, is of the considered opinion that error in the number of
pages of the will as stated in the attestation clause is not material to
invalidate the subject will. It must be noted that the subject
instrument is consecutively lettered with pages A, B, and C which is
a sufficient safeguard from the possibility of an omission of some of
the pages. The error must have been brought about by the honest
belief that the will is the whole instrument consisting of three (3)
pages inclusive of the attestation clause and the acknowledgement.
The position of the court is in consonance with the "doctrine of
liberal interpretation" enunciated in Article 809 of the Civil Code
which reads:
"In the absence of bad faith, forgery or fraud, or undue [and]
improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render
the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of
Article 805."
The court also rejects the contention of the oppositors that the
signatures of the testator were affixed on different occasions based
on their observation that the signature on the first page is allegedly
different in size, texture and appearance as compared with the
signatures in the succeeding pages. After examination of the
signatures, the court does not share the same observation as the
oppositors. The picture (Exhibit "H-3") shows that the testator was
affixing her signature in the presence of the instrumental witnesses
and the notary. There is no evidence to show that the first signature
was procured earlier than February 2, 1987.
Finally, the court finds that no pressure nor undue influence was
exerted on the testator to execute the subject will. In fact, the
picture reveals that the testator was in a good mood and smiling
with the other witnesses while executing the subject will (See Exhibit
"H").
In fine, the court finds that the testator was mentally capable of
making the will at the time of its execution, that the notarial will
presented to the court is the same notarial will that was executed
and that all the formal requirements (See Article 805 of the Civil
59
Code) in the execution of a will have been substantially complied

with in the subject notarial will.[14] (Emphasis supplied.)
Thus, we find no reason to disturb the abovementioned findings of
the RTC. Since, petitioner and her siblings are not compulsory heirs
of the decedent under Article 887[15] of the Civil Code and as the
decedent validly disposed of her properties in a will duly executed
and probated, petitioner has no legal right to claim any part of the
decedent's estate.
WHEREFORE, the petition is DENIED. The assailed Decision dated
October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756 is
AFFIRMED.
Costs against petitioner.
SO ORDERED.
60
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G.R. No.

4275, March 23, 1909

the hereditary rights of her children with respect to the inheritance

whose distributive share is affected by the determination of such

Although the Civil Code considerably improved the condition of

It is most illogical arid contrary to every rule of correct interpretation,

(Ibid., Vol. II, 171.)

Navarro Amandi (Cuestionario del Codigo Civil) raises the question:

In support of the foregoing the following authorities may be cited:

The theory of the law of transmission is also entirely inapplicable in

omnia. According to article 659 of the Civil Code, "the inheritance

For all of the foregoing reasons we hereby reverse the judgment

heirs of the latter. There is no reason or legal provision whatever to

persons designated to succeed to the intestate estate of a natural

On January 17, 2000, after petitioner presented her evidence,

ART. 806. Every will must be acknowledged before a notary public by

The Court cannot turn a blind eye to Atty. Directo's participation in

G.R. No. 33365, December 20, 1930

For comparative purposes, Exhibit 8, a document of sale containing

all surnamed Mendoza.

which defendants are declared lawful owners and entitled to its

The fundamental and crucial issue in the case at bar is whether

There is no question that when the petitioners purchased the

It is also not disputed that immediately after the execution of the

'After proper survey segregating the eastern one-half portion with an

Wills Set 2 | Atty Taleon

Again, there is no dispute that the houses of the spouses Cornelio

"Art. 1495. The vendor is bound to transfer the ownership of and

"Yo, Eleuterio Pilapil, Sacerdote de la Iglesia Cato1ica Apostolka

nosotros en presencia de nosotros, aqui en Cebu, Cebu, I. F., hoy dia

(c) Que tampoco se ha probado que el finado poseia el espafiol que

procedencia. No podemos tener]os en cuenta en el presente estado

contrario, debe declararsele muerto intestado.por no ser susceptible

"a ruego de dicho

por otra part, de tenerse en cuenta, podrian frustrar la voluntad del

The Applicable Law

page of the will on the left margin;

paginadas correlativamente con las letras UNO y DOS.

instrument appears to have been executed substantially in

The last part of the attestation clause states en testimonio de ello,

Wills Set 2 | Atty Taleon

Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do

testator executed the will in question in their presence while he was

Wills Set 2 | Atty Taleon

"The question therefore is whether the attestation clause in question

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

Wills Set 2 | Atty Taleon

An attestation clause refers to that part of an ordinary will whereby

with sufficient safeguards and restrictions to prevent the commission

Wills Set 2 | Atty Taleon

purpose of identification of such paper as the will which was

form of attestation or in the language used therein shall not render

Wills Set 2 | Atty Taleon

interpreted in such a way as to attain these primordial ends.

Wills Set 2 | Atty Taleon

Wills Set 2 | Atty Taleon

without the need of resorting to extrinsic evidence, will not be fatal

Wills Set 2 | Atty Taleon

testimony of the following witnesses, namely: (1) Augusto Neri; (2)

deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.

Generosa Senon, election registrar of Cagayan de Oro, was

The holographic will which was written in Visayan, is translated in

Matilde Ramonal Binanay, testified that the deceased Matilde Seo

"1. My share at Cogon, Raminal Street, for Evangeline Calugay.