Professional Documents
Culture Documents
774
Estate of K. H. Hemady v. Luzon Surety (1956) [6]
* The responsibility of the heirs for the debts of their decedent cannot exceed
the value of the inheritance they receive from him. Heirs succeed not only to th
e rights of the deceased but also to his obligations.
* General rule: a party s contractual rights and obligations are transmissible to
the successors.
* Exceptions under Art. 1311:
1) Nature of the obligation
2) Intransmissibility by stipulation of the parties
3) Obligation is not transmissible by operation of law
Art. 777
Unson v. Del Rosario (1953) [12]
The law in force at the time of the decedent s death will determine who the heirs
should be.
* Art. 2253 provides that rights which are declared for the first time by the ne
w Civil Code shall have retroactive effect even though the event which gave rise
to them may have occurred under the former legislation, but this is so only whe
n the new rights do not prejudice any vested or acquired right of the same origi
n. In instant case, M s right of ownership over the lands became vested in 1945 up
on the death of her husband. The new right in favor of the illegitimate children
by the deceased cannot be asserted to the impairment of the vested right of M o
ver the lands in dispute.
De Borja v. Vda de Borja (1972) [14]
Ownership passes to the heir at the very moment of death, who therefore, from th
at moment acquires the right to dispose of his share
* Hereditary share in a decedent s estate is transmitted or vested immediately fro
m the moment of the death of such causante or predecessor in interest. Thus, the
re is no legal bar to a successor (with requisite contracting capacity) disposin
g his hereditary share immediately after such death, even if the actual extent o
f such share is not determined until the subsequent liquidation of the estate.
Bonilla v. Barcena (1976) [16]
The heirs have the right to be substituted for the deceased as party on an actio
n that survives.
* While it is true that a person who is dead cannot sue in court, yet he can be
substituted by his heirs in pursuing the case up to its completion.
* The moment of death is the determining factor when the heirs acquire a definit
e right to the inheritance whether such right be pure or contingent. Thus, when
F died, her claim or right to the parcel s of land in litigation was not extingu
ished by her death but was transmitted to her heirs upon her death. Her heirs ha
ve thus acquired interest in the properties in litigation and became parties-in-
interest in the case.
* The question as to whether an action survives or not depends on the nature of
the action and the damage sued for.
1) Survive: wrong complained of affects primarily and principally property and p
roperty rights, the injuries to the person being merely incidental
2) Not survive: injury complained of is to the person, the property and rights o
f property affected being incidental.
* In instant case, an action to quiet title over land in litigation affects prim
arily and principally property and property rights, and therefore is one that su
rvives even after F s death.
Art. 804
Suroza v. Honrado (1981) [41]
Art. 804 provisions are mandatory. Consequently, failure to comply with the two
requirements nullifies the will.
* The will on its face is void because it is written in English, a language not
known to the illiterate testatrix, and which is probably a forged will because s
he and the attesting witnesses did not appear before the notary as admitted by t
he notary himself.
* A judge who admits to probate such a will should face disciplinary action. In
the absence of opposition, the judge should have personally conducted the hearin
g on the probate of the will so that he could have ascertained whether the will
was validly executed.
Abangan v. Abangan (1919) [46]
It may sometimes be presumed that the testator knew the language in which the wi
ll was written.
* The circumstance appearing in the will itself that the same was executed in Ce
bu and in the dialect of this locality where the testatrix was a neighbor [sic]
is enough, in the absence of any proof to the contrary, to presume that she knew
this dialect in which the will was written.
RFB: same ruling in Gonzales v. Laurel (1923). On the authority of these cases i
t seems that, in order for the presumption to apply, the following must appear:
1) The will must be in language or dialect generally spoken in the place of exec
ution; and
2) The testator must be a native or resident of said locality
Art. 806
Payad v. Tolentino (1936) [49]
Thumb mark as signature.
* Testatrix, assisted by counsel, placed her thumb mark on each and every page o
f the questioned will and that said counsel merely wrote her name to indicate th
e place where she placed said thumb mark. In other words, counsel did not sign f
or the testatrix. She signed by placing her thumb mark on each and every page th
ereof. A statute requiring a will to be signed is satisfied if the signature is mad
e by the testator s mark. It is clear, therefore, that it was not necessary that th
e attestation clause in question should state that the testatrix requested her c
ounsel to sign her name inasmuch as the testatrix signed the will in question in
accordance with law.
Matias v. Salud (1958) [50]
* The legal requisite that the will should be signed by testator is satisfied by
a thumbprint or other mark affixed by him; and that where such mark is affixed
by the decedent, it is unnecessary to state in the attestation clause that anoth
er person wrote the testator s name at his request.
* In the instant case, it was shown that the herpes zoster that afflicted the ri
ght arm and shoulder of the testatrix made writing a difficult and painful act,
to the extent that, after writing one signature on the second page, she dropped
the pen because of an attack of pain that lasted many minutes, and evidently dis
couraged attempts to sign.
* It is to be conceded that where a testator employs an unfamiliar way of signin
g, and both the attestation clause and the will are silent on the matter, such s
ilence is a factor to be considered against the authenticity of the testament; b
ut the failure to describe the unusual signature by itself alone is not sufficie
nt to refuse probate when the evidence for the proponent fully satisfies the cou
rt that the will was executed and witnessed as required by law.
Garcia v. Lacuesta (1951) [54]
A cross as signature.
* It is not here presented that the cross appearing on the will is the usual sig
nature of the testator or even one of the ways by which he signed his name. The
mere sing of a cross cannot be likened to a thumbmark, because the cross cannot
and does not have the trustworthiness of a thumbmark.
Barut v. Cabacungan (1912) [56]
When agent must write.
* As regards the validity of the will, it is unimportant whether the person who
writes the name of the testatrix signs his own or not. The important thing is th
at it clearly appears that the name of the testatrix was signed at her express d
irection in the presence of the three witnesses and that they attested and subsc
ribed it in her presence and in the presence of each other.
* It may be wise, as a practical matter that the one who signs the testator s name
signs also hi own; but that is not essential to the validity of the will.
Nera v. Raymundo (1911) [61]
Signing in the presence of witnesses
* Jaboneta v. Gustilo: The true test of presence of the testator and the witnesse
s in the execution of a will is not whether they actually saw each other sign, b
ut whether they might have seen each other sign, had they chosen to do so, consi
dering their mental and physical position with relation to each other at the mom
ent of inscription of each signature.
* The position of the parties with relation to each other at the moment of the s
ubscription of each signature must be such that they may see each other sign if
they choose to do so. Jaboneta doctrine: the question whether the testator and t
he subscribing witnesses to an alleged will sign the instrument in the presence
of each other does not depend upon proof of the fact that their eyes were actual
ly cast upon the paper at the moment of its subscription by each of them, but th
at at that moment existing conditions and their position with relation to each o
ther were such that by merely casting their eyes in the proper direction they co
uld have seen each other sign.
Icasiano v. Icasiano (1964) [64]
* The inadvertent failure of one witness to affix his signature to one page of a
testament, due to the simultaneous lifting of two pages in the course of signin
g, is not per se sufficient to justify denial of probate. That the failure of th
e witness to sign page three was entirely through pure oversight is shown by his
own testimony as well as by the duplicate copy of the will, which bears a compl
ete set of signatures in every page.
RFB: The Icasiano holding cannot, and should not, be taken as a departure from t
he rule that the will should be signed by the witnesses on every page. The carbo
n duplicate was regular in all aspects. A cavalier disregard of the formal requi
rements of wills in reliance on Icasiano is not recommended.
Cagro v. Cagro (1953) [68]
The signatures of the witnesses must be at the bottom of the attestation clause.
* Fact: signature of the three witnesses do not appear on the bottom of the atte
station clause, but the page containing the clause is signed by the witnesses on
the left-hand margin.
* The attestation clause is a memorandum of the facts attending the execution of
the will required by law to be made by the attesting witnesses, and it must neces
sarily bear their signature. An unsigned attestation clause cannot be considered
as an act of the witnesses, since the omission of their signature at the bottom
thereof negatives their participation.
* The signatures on the left-hand margin cannot be deemed as their signature to
the clause because said signatures are in compliance with the legal mandate that
the will be signed on the left-hand margin of all its pages. If an attestation
clause not signed by the witnesses at the bottom thereof, be admitted as suffici
ent, it would be easy to add such clause to a will on a subsequent occasion and
in the absence of the testator and any or all of the witnesses.
* Dissenting opinion of Bautista Angelo: (a) substantial compliance; (b) the unc
ontradicted testimony of the witnesses that the clause was already written in th
e will when the same was signed obviates fear of the majority that the clause ma
y have been only added on a subsequent occasion and not at the signing of the wi
ll.
Javellana v. Ledesma (1955) [70]
Acknowledgement before a notary public.
* Fact: Codicil signed by testatrix and witnesses at the hospital; the notary pu
blic brought the codicil to his office, and signed and sealed it there.
* Whether or not the notary signed the certification of acknowledgement in the p
resence of the testatrix and the witnesses does not affect the validity of the c
odicil. The Civil Code does not require that the signing of the testator, witnes
ses and notary should be accomplished in one single act.
* The subsequent signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein is not part of the
acknowledgement itself nor of the testamentary act.
RFB: (a) ratio: The certification of acknowledgement need not be signed in the p
resence of the testator and the witnesses; (b) obiter: Art. 806 does not require
that the testator and the witnesses must acknowledge on the same day that it wa
s executed.
Cruz v. Villasor (1973) [72]
The notary public cannot be counted as one of the attesting witnesses.
* The notary public before whom the will was acknowledged cannot be considered a
s the third instrumental witness since he cannot acknowledge before himself his
having signed the will. If the third witness were the notary public himself, he
would have to avow, assent, or admit his having signed the will in front of hims
elf. This cannot be done because he cannot split his personality into two so tha
t one will appear before the other to acknowledge his participation in the makin
g of the will.
* Furthermore, the function of the notary public is, among others, to guard agai
nst any illegal or immoral arrangement. That function would be defeated if the n
otary public were one of the attesting or instrumental witnesses. For then he wo
uld be interested in sustaining the validity of his own act.
* To allow the notary public to act as third witness, or one of the attesting an
d acknowledging witnesses, would have the effect of having only two attesting wi
tnesses to the will which would be in contravention of the Article 805 requiring
at least three credible witnesses to act as such and of Article 806 which requi
res that the testator and the required number of witnesses must appear before th
e notary public to acknowledge the will.
Art. 808
Garcia v. Vasquez (1970) [75]
Provision of Article 808 mandatory.
* Fact: testatrix s vision was mainly for viewing distant objects and not for read
ing print.
* For all intents and purposes of the rules on probate, the testatrix was not un
like a blind testator, and the due execution of her will would have required obs
ervance of Article 808. The rationale behind the requirement of reading the will
to the testator if he is blind or incapable of reading the will himself (as whe
n he is illiterate) , is to make the provisions thereof known to him, so that he
may be able to object if they are not in accordance with his wishes.
Alvarado v. Gaviola (1993) [80]
The requirement has been liberally applied, the SC declaring substantial complia
nce to be sufficient.
* Facts: The lawyer who drafted the will and subsequent codicil read them aloud
in the presence of the testator, the three instrumental witnesses and the notary
public. The latter four followed the reading with their own respective copies p
reviously furnished them.
* Substantial compliance is acceptable where the purpose of the law has been sat
isfied, because the solemnities surrounding the execution of wills are intended
to protect the testator from all kinds of fraud and trickery but are never inten
ded to be so rigid and inflexible as to destroy testamentary privilege.
* It was not only the lawyer who read the documents. The notary public and the t
hree instrumental witnesses likewise read the will and codicil, albeit silently.
With four persons following the reading word with their own copies, it can be s
afely concluded that the testator was reasonably assured that what was read to h
im (those which he affirmed were in accordance with his instructions), were the
terms actually appearing in the typewritten documents.
Art. 809
Caneda v. CA (1993) [87]
* Fact: petitioners aver that the attestation clause is fatally defective since
it fails to specifically state that the instrumental witnesses to the will witne
ssed the testator signing the will in their presence and that they also signed t
he will and all the pages thereof in the presence of the testator and of one ano
ther.
* SC agrees with petitioners. The absence of a statement that the witnesses sign
ed the will and every page thereof in the presence of the testator and of one an
other is a fatal defect which must necessarily result in the disallowance of the
will. Such defect in the attestation clause cannot be characterized as merely i
nvolving form of the will or the language used therein which would warrant the a
pplication of the substantial compliance rule contemplated in Art. 809. The defe
ct is not only in the form or the language of the attestation clause but the tot
al absence of a specific element required by Art. 805 to be specifically stated
in the attestation clause.
* Proper interpretation of the substantial compliance rule in Art. 809: Omission
which can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidence aliunde ( from another sour
ce, from elsewhere, from outside source ) would result in the invalidation of the
attestation clause and ultimately, of the will itself.
Art. 810
Roxas v. De Jesus (1985) [103]
* Issue: whether FEB./61 appearing in the holographic will is a valid compliance w
ith Art. 810.
* A complete date is required to provide against such contingencies as that of t
wo competing wills executed on the same day, or of a testator becoming insane on
the day on which a will was executed. There is no contingency in this case.
* As a general rule, the date in a holographic will should include the day, month,
and year of its execution. However, when, as in the case at bar, there is no ap
pearance of fraud, bad faith, undue influence and pressure and the authenticity
of the will is established and the only issue is whether or not the date FEB./91 i
s a valid compliance with Art. 810, probate of the holographic will should be al
lowed under the principle of substantial compliance.
Labrador v. CA (1990) [105]
* Fact: date appears in the body of the holographic will.
* The law does not specify a particular location where the date should be placed
in the will. The only requirements are that the date be in the will itself and
executed in the hand of the testator. Both requirements are present in the subje
ct will.
Art. 811
Azaola v. Singson (1960) [110]
The three-witness provision in case of contested holographic wills is directory,
not mandatory.
* Since the authenticity of the will was not contested, proponent was not requir
ed to produce more than one witness; but even if the genuineness of the holograp
hic will were contested, Art. 811 cannot be interpreted as to require the compul
sory presentation of three witnesses to identify the handwriting of the testator
, under the 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, it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter beyond the control of the pr
oponent.
* Art. 811 foresees the possibility that no qualified witness may be found (or w
hat amounts to the same thing, that no competent witness may be willing to testi
fy to the authenticity of the will, and provides for resort to expert evidence t
o supply the deficiency. Such resort to expert evidence is conditioned by if the
Court deem it necessary, which reveal that what the law deems essential is that t
he Court should be convinced of the will s authenticity. Since the law leaves it t
o the trial court to decide if experts are still needed, no unfavorable inferenc
e can be drawn from a party s failure to offer expert evidence, until and unless t
he court expresses dissatisfaction with the testimony of the lay witnesses.
* SC s conclusion: the rule of Art. 811, par. 1, is merely directory and is not ma
ndatory.
Codoy v.Calugay (1999)
* Fact: holographic will challenged for forgery. 6 witnesses of proponent did no
t categorically state that they know the handwriting and signature of the testat
rix; whereas, 2 did so.
* Issue: whether the provisions of Art. 811 is mandatory, i.e., for probate of c
ontested holographic will at least three witnesses explicitly declare the signat
ure in the will is the genuine signature of the testator.
* SC (Pardo): We are convinced, based on the language used, that Article 811 is man
datory. We have ruled that shall in a statute commonly denotes an imperative obli
gation and is inconsistent with the idea of discretion and that the presumption
is that the word shall when used in a statute is mandatory. Case remanded because t
he Court found that the testimony of the aforesaid 2 witnesses was not convincin
g.
Query: has this ruling reversed Azaola, supra.?
1) Azaola is not on all fours with this case. Here, the will was contested (gro
und: forgery), in Azaola the will was not contested.
2) RFB s personal view: No, because the basis of the remand that the Court did not
find the testimony of the 2 witnesses satisfactory is perfectly consistent with Az
aola that QUALITY of the testimony, not the quantity of the witnesses, is the cr
iterion. Thus, SC s statement that three-witness rule is mandatory is an obiter.
We can read Azaola and Godoy together.
Gan v. Yap (1958) [114]
In the probate of a holographic will, the document itself must be produced. Ther
efore, a lost holographic will cannot be probated.
* When the will itself is not submitted, the means of opposition and of assessin
g the evidence, are not available. And then, the only guaranty of authenticity the
testator s handwriting has disappeared.
* The execution and the contents of a lost or destroyed holographic will may not
be proved by the bare testimony of witnesses who have seen and/or read such wil
l.
* Ordinary vs. holographic wills. The difference lies in the nature of wills. In
holographic wills, the only guarantee of authenticity is the handwriting itself
; in ordinary wills, the testimony of the subscribing or instrumental witnesses
and of the notary. The loss of the holographic will entails the loss of the only
medium of proof; if the ordinary will is lost, the subscribing witnesses are av
ailable to authenticate.
Rodelas v. Aranza (1982) [122]
Exception to the Gan ruling.
* Issue: whether a lost holographic will can be proved by means of a photostatic
copy.
* Evidently, the photostatic or xerox copy of the lost or destroyed holographic
will may be admitted because the authenticity of the handwriting of the deceased
can be determined by the probate court (i.e., comparison can be made with the s
tandard writings of the testator.
Art. 814
Kalaw v. Relova (1984) [125]
Effect of non-compliance.
* Issue: whether the original unaltered text after subsequent alterations and in
sertions were voided by the Trial Court for lack of authentication by full signa
ture of the testatrix, should be probated or not.
* Velasco v. Lopez: when a number of erasures, corrections, and interlineations
made by the testator in a holographic will have not been noted under his signatu
re, the will is not thereby invalidated as a whole, but at most only as respects
the particular words, erased, or interlined.
* However, when as in this case, the holographic will in dispute had only one su
bstantial provision, which was altered by substituting the original heir with an
other, but which alteration did not carry the requisite of full authentication b
y the full signature of the testator, the effect must be that the entire will is
voided or revoked for the simple reason that nothing remains in the will after
that which could remain valid. To state that the will as first written should be
given efficacy is to disregard the seeming change of mind of the testatrix. But
that change of mind can neither be given effect because she failed to authentic
ate it in the manner required by lay by affixing her full signature.
* Velasco ruling must be held confined to such insertions, cancellations, erasur
es or alterations in a holographic will, which affect only the efficacy of the a
ltered words themselves but not the essence and validity of the will itself.
Subsection 4-Witnesses to Wills
Article 821
Gonzales vs. CA
Under the law, there is no mandatory requirement that the witness testif
y initially or at any time during the trial as to his good standing in the commu
nity, his reputation for trustworthiness and reliableness, his honesty and uprig
htness in order that his testimony may be believed and accepted by the trial cou
rt. It is enough that the qualifications enumerated in Article 820 of the Civil
Code are complied with, such that the soundness of his mind can be shown by or d
educed from his answers to the questions propounded to him, that his age (18 yea
rs or more) is shown from his appearance, testimony, or competently proved other
wise, as well as the fact that he is not blind, deaf or dumb and that he is able
to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. The attributes of the g
ood standing of the witness in the community, his reputation for trustworthiness
and reliableness, his honesty and uprightness are presumed of the witness unles
s the contrary is proved otherwise by the opposing party.
In probate proceedings, the instrumental witnesses are not character wit
nesses for they merely attest the execution of a will or testament and affirm th
e formalities attendant to said execution.
Credible witnesses' mean competent witnesses and not those who testify to
facts from or upon hearsay.
Subsection 6
Article 830
Maloto vs. CA
It is clear that the physical act of destruction of a will, like burning
in this case, does not per se constitute an effective revocation, unless the de
struction is coupled with animus revocandi on the part of the testator. It is no
t imperative that the physical destruction be done by the testator himself. It m
ay be performed by another person but under the express direction and in the pre
sence of the testator. Of course, it goes without saying that the document destr
oyed must be the will itself."Animus revocandi is only one of the necessary elem
ents for the effective revocation of a last will and testament. The intention to
revoke must be accompanied by the overt physical act of burning, tearing, oblit
erating, or cancelling the will carried out by the testator or by another person
in his presence and under his express direction.
Gago vs. Mamuyac
The law does not require any evidence of the revocation or cancellation
of the will to be preserved. It therefore becomes difficult at times to prove th
e cancellation or revocation of wills. The fact that such cancellation or revoca
tion has taken place must either remain unproved or be inferred from evidence sh
owing that after due search the original will cannot be found. Where a will whic
h cannot be found is shown to have been in the possession of the testator, when
last seen, the presumption is in the absence of other competent evidence, that t
he same was cancelled or destroyed. The same presumption arises where it is show
n that the testator had ready access to the will and it cannot be found after hi
s death. It will not be presumed that such will has been destroyed by any other
person without the knowledge or authority of the testator.
SECTION 5- Legitime
Article 887
Rosales vs. Rosales
The surviving spouse referred to in Article 887 who is entitled to the l
egitime, is the spouse of the decedent and not the spouse of a child who has pre
deceased the decedent.
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Wills and Succession
4 Blue 95 1