Republic of the Philippines spouses Don Jesus and Do;a Florentina enumerated

SUPREME COURT in a prepared inventory, Exhibit 8-A, the essential

Manila features of which are stated in private respondents'
Brief, pp. 26-29, to wit: t.hqw
FIRST DIVISION
(1) Basis of the partition:
G.R. Nos. L-46430-31 July 30, 1979 Inventory (Annex A) of all
the properties of the Alsua
spouses, which inventory
FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE consists of 97 pages, all of
MADARETA, ESTEBAN P. RAMIREZ, and THE them signed by the
REGISTER OF DEEDS FOR ALBAY PROVINCE, spouses and all the above
petitioners, named heirs in the left
vs. margin of every page
COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, (parafo primers).
FERNANDO BUENVIAJE, FERNANDO ALSUA,
represented by his guardian, CLOTILDE S. ALSUA
and PABLO ALSUA, respondents. (2) An acknowledgment of
the spouses that all the
properties described in the
Rafael Triumfante for petitioners. inventory (Annex A) are
conjugal properties with
Sabido-Sabido & Associates and Madrid Law Office for the exception of five
private respondents. parcels of land Identified
with the figures of 1 to 5
and 30 shares of San Miguel
Brewery stock which are
paraphernal properties of
GUERRERO, J.:1wph1.t the late Do;a Tinay
(segundo parafo).
This is an appeal by certiorari from the decision of the
Court of Appeals in CA-G.R. Nos. 54492-R and 54493- (3) An acknowledgment
R which reversed the decision of the Court of First that during their marriage,
Instance of Albay allowing the probate of the win of they had nine children but
Don Jesus Alsua in Special Proceedings No. 699 and five of them died minors,
dismissing the complaint in Civil Case 3068 after unmarried (parafo tercero
declaring the two deeds of sale executed by Don Jesus y cuatro).
Alsua legal and valid. The respondent court 1 denied
the probate of the will, declared null and void the two
sales subject of the complaint and ordered the (4) An acknowledgment
defendants, petitioners herein, to pay damages to the that on the basis of Article
plaintiffs, now the private respondents, the sum of 1056 of the Civil Code (old)
Five Thousand Pesos (P5,000.00), to render an to avoid Possible
accounting of the properties in their possession and misunderstanding among
to reimburse the latter the net gain in the proportion their children concerning
that appertains to them in the properties from the the inheritance they are
date of the firing of the complaint up to complete entitled to in the event of
restoration plus Fifty Thousand Pesos (P50,000.00) as death of one of them they
attorney's fees and costs. have decided to effectuate
an extrajudicial partition
of all the properties
The antecedent events leading to the filing of these described in Annex "A"
two consolidated actions are the following. thereto under the
following terms and
On November 25, 1949, Don Jesus Alsua and his wife, conditions: (Parafo
Do;a Florentina Rella, both of Ligao, Albay, together quinto):
with all their living children, Francisca Alsua-Betts,
Pablo Alsua, Fernando Alsua thru this judicial To Francisca Alsua, married to Joseph O. Betts were
guardian Clotilde Samson, and Amparo Alsua de allotted or assigned all the real properties with the
Buenviaje, entered into a duly notarized agreement, improvements thereon specifically described from
Escritura de Particion Extrajudicial (Exhibit 8), over pages 1-12 of said inventory or, 34 parcels of land with
the then present and existing properties of the
a total land area of 5,720,364 sq. meters, with a book
or appraised value of P69,740.00.
To Pablo Alsua, married to Teresa Locsin were
allotted or assigned all the real properties with the
improvements thereon specifically described from
pages 12-20 of said inventory or, 26 parcels of land
with a total land area of 5,679,262 sq. meters, with a
book or appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson were
allotted or assigned all the real properties with the
improvements thereon specifically described from
pages 20-33 of said inventory or, 47 parcels of land
with a total land area of 6,639,810 sq. meters, with a
book or appraised value of P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje
were allotted or assigned all the real properties with
the improvements thereon specifically described from
pages 33-47 of said inventory or, 47 parcels of land
with a total land area of 5,630,715 sq. meters, with a
book or appraised value of P58,830.00. t.hqw over
(a) Each and every one of
the heirs named above
acknowledge and admit
that the totality of the
properties allotted and
adjudicated to the heirs as
described in the preceding
paragraph, constitute one
half of the properties
described in Annex "A",
including any amount of
cash deposited.
(b) That all the heirs
acknowledge and admit
that all the properties
assigned to them as their
hereditary portion
represent one-half not
only of the conjugal
properties but includes the
paraphernal properties for himself or herself
waiving now and forever
any complaint or claim
they have or they may
have concerning the
amount, value, extension
and location of the
properties that are
allotted to each and
everyone. They also waive
any claim they have or
they may have over the
remaining portion of the
properties, which spouses
reserved for themselves.
(c) That in case of death of
one of the spouses, each
and everyone of the heirs
acknowledge that the
properties which are left
in the possession of the
surviving spouse, including
any amount in cash, are
even less than the one-
half that should
correspond in absolute
ownership as his
legitimate participation in
the conjugal properties. In
consequence they waive
any claim that they have
or may have over said
portion of said properties
or any amount in cash
during the lifetime of the
surviving spouse, including
any right or claim they
have or they may have
the paraphernal
properties of Do;a Tinay
in the event the surviving
spouse is Don Jesus.
(d) The spouses on their
part in case of death of any
one of them, the surviving
spouse waives any claim he
or she may have over the
properties assigned or
adjudicated to the heirs
under and by virtue of this
deed. The properties
which were reserved for
them (the spouses) should
be considered as his or her
legitimate participation in
the conjugal properties
and the fair compensation
of his or her usufruct on
the properties that the
surviving spouse reserved
which shag be distributed
in equal shares among the
heirs upon his or her death
unless said properties of
some of them have been
disposed of during the
lifetime of the surviving
spouse.
(e) Any heir who may dare
question the validity and
legitimacy of the provision
contained herein shall be
under obligation to pay to
 the other heirs, in the
concept of damages and
prejudice, the sum of
P5,000.00 plus attorney's
fees.
(f) The provisions of this
deed shall bind the
successors of the herein
heirs.
(g) In the event of death of
one of the spouses, the
properties assigned or
adjudicated to each and
everyone of the heirs shall
be considered as his share
or participation in the
estate or as his inheritance
left by the deceased and
each heir shall become the
absolute owner of the
properties adjudicated to
him under this deed.
On January 5, 1955, Don Jesus and Do;a Florentina,
also known as Do;a Tinay separately executed their
respective holographic wills (Exhs. 6-B and 7-B), the
provisions of which were in conformity and in
implementation of the extrajudicial partition of
November 25, 1949. Their holographic wills similarly
provided for the institution of the other to his or her
share in the conjugal properties, the other half of the
conjugal assets having been partitioned to constitute
their legitime among their four living children in the
Extrajudicial Partition of 1949. The wigs also declared
that in the event of future acquisitions of other
properties by either of them, one-half thereof would
belong to the other spouse, and the other half shall
be divided equally among the four children. The
holographic will of Do;a Tinay written in Spanish
reads, as translated: t.hqw one-half (1/2) of my
TESTAMENT
I, FLORENTINA R. DE
ALSUA, 67 years old,
Filipina, married to Don
Jesus Alsua, resident of
and with postal address in
the Municipality of Ligao,
Province of Albay,
Philippines, being in the
full possession of my
mental and physical
faculties freely and
spontaneously execute this
my last will and testament
in my handwriting and
signed by me and
expressed in the Spanish
language which I speak,
write and understand, this
5th day of January, 1955 in
the Municipality of Ligao,
Province of Albay, and in
which I ordain and provide:
First: That in or about the
year 1906 I was married to
my husband Don Jesus
Alsua and begot nine (9)
children with him, four (4)
of whom are still living and
they are Francisco Alsua,
Pablo Alsua, Fernando
Alsua and Amparo Alsua.
The other five (5) died
during their minority,
single and without
children.
Second: That after my
marriage to my husband
Don Jesus Alsua and during
our conjugal union, and as
a result of our efforts and
industry, we were able to
acquire conjugal
properties consisting of
abaca (abales) and cacao
lands and urban lands
registered in the office of
the Registry of Property of
the Province of Albay and
in the City of Manila.
Third: That I institute as
my heirs with right to
inherit the following- my
spouse Don Jesus Alsua,
properties, real and
personal, and the other
half, to my children
Francisco Alsua, married
to Joseph O. Betts, Pablo
Alsua, Fernando Alsua,
married to Clotilde
Samson, and Amparo
Alsua, married to
Fernando Buenviaje, in
equal parts. It is to be
understood, however, that
the other half that
corresponds as legitime to
my above named children
have already been given to
them, pursuant to a
document dated
November 25, 1949 and
ratified on the same day,
month and year before
Notary Public Segundo G.
Flores (Reg. No. 525; Pag.
15; Lib. 11; Series of 1949)
enjoining each and
everyone of them to
respect and faithfully
comply with each and
every clause contained in
the said document.
Fourth: That should I
acquire new properties
after the execution of this
testament, the same shall
be partitioned among my
spouse and above named
children or the children
mentioned in above par. 3
in the same proportion
that is, one-half (1 1/2) to
my spouse; and the other
half to my children in
equal parts.
Fifth: That I name as my
executor my husband Don
Jesus Alsua without having
to post any bond.
IN VIRTUE WHEREOF, I
hereby sign in my own
handwriting this testament
on this 5th day of January,
1955 in the Municipality of
Ligao, Province of Albay,
Philippines. t.hqw might be acquired subsequently. Each spouse also
(Joint Record on appeal
pp. 420-423, CA-G.R. No.
54492-R)
As previously stated, Don Jesus Alsua executed a
separate but similar holographic will on the same day,
Jan. 5, 1955 in exactly the same terms and conditions
as the above will of his wife.
On May 21, 1956, the spouses Don Jesus and Do;a
Tinay filed before the Court of First Instance of Albay
their respective petitions for the probate of their
respective holographic wins which were docketed as
Special Proceedings No. 484 (Jesus Alsua, Petitioner)
and Special Proceedings No. 485 (Do;a Florentina
Ralla de Alsua, Petitioner).
On August 14, 1956, the spouses Don Jesus and Do;a
Tinay executed their mutual and reciprocal codicils
amending and supplementing their respective
holographic wins. Again, the codicils similarly
acknowledged and provided that one-half of all the
properties of the spouses, conjugal and paraphernal,
had been disposed of, conveyed to and partitioned
among their legitimate heirs in the "Escritura de
Particion" of November 25, 1949, but that they
reserved for themselves (the spouses Don Jesus and
Do;a Tinay) the other half or those not disposed of
to the said legitimate heirs under the above
agreement of partition, and that they mutually and
reciprocally bequeathed unto each other their
participation therein as well as in all properties which
declared that should she or he be the surviving
spouse, whatever belongs to him (or her or would
pertain to him or her, would be divided
S equally among
the four children. It was also declared
G in both codicils
that upon the death of either of Dthe spouses, the
surviving spouse was designated. mutually and
reciprocally as the executor or administrator
) of all the
properties reserved for themselves.F
L
The codicil executed by Do;a Tinay, O written in
R
Spanish reads, as translated: t.hqw
E
N
CODICIL T
I
N
This codicil supplements
and amendsA the preceding
testament.R That my spouse
and I have. agreed to divide
D
the properties which we
E
have acquired into 2 parts.
The 1/2 that would and as Ws inheritance the
correspond to me covers part of the free portion of
all the properties that I my property which have
have partitioned among not been allocated in favor
my children in the of my children in the
Document of Partition Document of Partition
dated November 25, 1949 aforecited and that which
before Notary Public should exceed 1/2 of the
Segundo G. Flores, Jr. conjugal property of gains
(Doc. No. 525; Pag. No. 15; that pertains to him as
Lib. No. 11; Series of 1949) above stated, including all
(and) even as the those properties which we
properties which by reason shall acquire after the
of this testament I leave to execution of this
my husband as his share document.
and the other half that
corresponds to my husband In case it should be God's
constitutes an the will that I survive my
properties that up to now spouse, I hereby declare
have not been disposed of, that it is my will that any
particularly the urban and all kinds of property
lands situated in Legaspi, that pertain to me or
Albay, Ligao of the would pertain to me,
Province of Albay and in which have not been
the City of Manila, with disposed of pursuant to the
the exception of that partition, should be
portion that I bequeath to divided equally among my
my husband as his above-mentioned heirs
inheritance and his after my death. Ligao,
legitimate. Albay, Philippines, August
14,1956. t.hqw
That I institute as my heirs
with the right to inherit my
husband Don Jesus Alsua
and my children Francisco
Alsua, Pablo Alsua,
Fernando Alsua and
Amparo Alsua. I leave to
my aforecited children all
the properties described in
the above mentioned
Document of Partition
dated November 25, 1949
which correspond to each
one of them and in the
profits (fruits) expressed
in the same, and in the
event that the properties
granted to one or any of
my children should exceed
in quantity or value those
corresponding to another
or others, I hereby declare
that it is my will that the
same be divided among my
children as their
inheritance from the free
portion of my property.

I leave to my spouse Don

Jesus Alsua as his legitime
 (joint Record on Appeal
pp. 423-425, CA-G.R. No.
54492-R)
And as stated previously, on the same day, August 14,
1956, Don Jesus executed also a separate but similar
codicil in exactly the same terms and conditions as
the above codicil of his wife. Also on the same day of
August 14, 1956, the spouses Don Jesus and Do;a
Tinay both filed their respective supplemental
petitions for the probate of their respective codicils
in the probate proceedings earlier filed. On February
19, 1957, their respective holographic wins and the
codicils thereto were duly admitted to probate.
Upon the death of Do;a Tinay on October 2, 1959,
Don Jesus was named executor to serve without bond
in an order issued by the probate court on October 13,
1959. Letters testamentary having been issued in
favor of Don Jesus, he took his oath of office and
performed his duties as such until July 1, 1960.
Thereafter in the early part of November, 1959, Don
Jesus cancelled his holographic will in the presence of
his bookkeeper and secretary, Esteban P. Ramirez,
whom he instructed to make a list of all his remaining
properties with their corresponding descriptions. His
lawyer, Atty. Gregorio imperial Sr. was then
instructed to draft a new will which was duly signed
by Don Jesus and his attesting witnesses on November
14, 1959 at Ms home in Ligao, Albay. This notarial will
and testament (Exh. A) of Don Jesus executed on
November 14, 1959 had three essential features: (a)
it expressly cancelled, revoked and annulled all the
provisions of Don Jesus' holographic will of January 5,
1955 and his codicil of August 14, 1956; (b) it provided
for the collation of all his properties donated to his
four living children by virtue of the "Escritura de
Particion Extra. judicial" of 1949, and that such
properties be taken into account in the partition of
his estate among the children; and (c) it instituted his
children as legatees/devisees of certain specific
properties, and as to the rest of the properties and
whatever may be subsequently acquired in the future,
before his death, were to be given to Francisca and
Pablo, naming Francesca as executrix to serve
without a bond.
After all debts, funeral charges and other expenses of
the estate of Do;a Tinay had been paid, all her heirs
including Don Jesus, submitted to the probate court
for approval a deed of partition executed on
December 19, 1959 (Exh. 7-Q) and which essentially
confirmed the provisions of the partition of 1949, the
holographic will and codicil of Do;a Tinay. On July 6,
1960, the court approved the partition of 1959 and on
January 6, 1961 declared the termination of the
proceedings on the estate of Do;a Tinay.
On May 6,1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein Francisca Alsua
Betts, as the executrix named in the will of November
14, 1959, filed a petition for the probate of said new
will of Don Jesus Alsua before the Court of First
Instance of Albay and was docketed as Special
Proceedings No. 699. Oppositions thereto were filed
by Pablo, Amparo and Fernando, thru his judicial
guardian Clotilde Samson, on the following grounds:
(a) that Don Jesus was not of sound and disposing
mind at the time of the execution of the alleged will;
(b) that the will was executed under duress or
influence of fear or threats; or it was procured by
undue and improper pressure and influence on the
part of the main beneficiaries and of person or
persons in collusion with them, or the signature of the
testator was secured by or thru fraud; (c) that the will
was not executed according to the formal
requirements of the law; and (d) that the alleged will
subject of probate contravened the Extrajudicial
Partition of 1949 agreed upon by him, his deceased
spouse, Do;a Tinay, and all his children, Francisco,
Pablo, Amparo and Fernando thru his judicial guardian
Clotilde Samson, and also contravened Don Jesus' own
probated holographic will and codicil of 1955 and
1956, respectively, essentially confirming and
implementing the said partition of 1949 which had
already been partially executed by all the signatories
thereto in the partition of the estate of Do;a Tinay
in December, 1959.
On the basis of Francisca's designation as executrix in
the new will dated November 14, 1959, the Probate
Court appointed her Administratrix of the estate of
her late father, Don Jesus Alsua. She then filed with
the Probate Court an inventory of the properties of
the estate which, according to the oppositors therein
(the private respondents now) did not include some
properties appearing in the agreement of November
25. 1949 or in the inventory attached thereto as
Annex "A" and in the "Escritura de Particion" of
December 19, 1959 as belonging to or should pertain
to Don Jesus. According to the oppositors, these
properties consist of thirty- three (33) premium
agricultural lots with a total land area of 1,187,970
square meters, or approximately 119 hectares and
with a total assessed value of P48,410.00 or a
probable total market value of P238,000.00 at only
P2,000.00 per hectare, and four (4) commercial urban
lots Ideally located in the business section of Legazpi
City including the lot and the building presently
occupied by the well-known "Mayon Hotel" with an
assessed value of approximately P117,260.00 or a
probable market value at the time of P469,040.00. It
appearing from the new will that these properties
were bequeathed to Pablo Alsua and Francisco Alsua-
Betts, specifically, 3 parcels of the 33 agricultural
lands to Pablo and the rest to Francisco, the
oppositors also raised in issue the non-inclusion of
said properties in the inventory of the estate of their
late father. In answer, Francisco claimed ownership
over the same, alleging that she bought the properties
from their father and presenting the two Deeds of
Sale now being assailed, one dated August 26, 1961
purporting to show the sale of the 33 parcels of
agricultural land to Francisco by their father for the
price of P70,000.00 and the other dated November
26, 1962 evidencing the sale of the four urban lots for
the sum of P80,000.00. Claiming fraud in the sales,
the oppositors filed Civil Case No. 3068, seeking the
annulment of the aforesaid two deeds of sale, with
damages, which upon agreement of the parties was
then jointly heard and tried with Special Proceedings
No. 699 for probate of the Last Will and Testament of
Don Jesus executed on November 14, 1959.
After a joint hearing of the merits of these two cases,
the Court of First Instance of Albay promulgated a
decision on January 15, 1973, the dispositive portion
of which states: t.hqw
WHEREFORE, in view of all
the foregoing, judgment is
hereby rendered, to wit:
1. In Special Proceedings
699, the Court hereby
APPROVES and ALLOWS the
Will executed by Don Jesus
Alsua at Ligao, Albay, on
November 14, 1959, which
had been marked as
Exhibit A, consisting of
nine (9) pages, and orders
that the same be made the
basis for division and
distribution of the estate
of said testator;
2. In Civil Case 3068, the
Court hereby dismisses the
complaint and holds that
the sale on August 26, 1961
(Exh. U) and the sale on
November 26, 1962 (Exh.
W), are lawful and valid
sales and accordingly
conveyed title to the
VENDEE thereof. The
Plaintiffs in Civil Case
3068. are ordered jointly
and severally to pay to the
defendant, Francisco Alsua
Betts Fifty Thousand Pesos
(P50,000.00) as damages
and Fifty Thousand
(P50,000.00) Pesos for
attorney's fees or a total of
One Hundred Thousand
Pesos (P100,000.00) and to
pay the costs.
On appeal by herein respondents to the Court of
Appeals, the court reversed the appealed decision in
a judgment rendered on April 4, 1977, the dispositive
portion of which states, as translated, thus
t.hqw
IN VIEW OF THE
FOREGOING, this Tribunal
finds itself constrained to
set aside as it hereby sets
aside the decision
appealed from in the
following manner: (1) in
Special Proceedings 699,
the probate of the will,
Exh. A, is hereby denied;
(2) in Civil Case No. 3068,
Exhs. U and W and the
titles issued on the basis
thereof are hereby
declared null and void,
ordering the appellees
Francisco Alsua and Joseph
Betts to pay to the
plaintiffs in the concept of
fixed damages, the sum of
P5,000.00 and to render an
accounting of properties in
their possession and to
reimburse the plaintiffs
the net gain, in the
proportion that appertains
to them in the properties
subject of litigation in Civil
Case No. 3068 from the
date of the filing of this
complaint, up to the
complete restoration of
the properties pertaining
to (plaintiffs) pursuant to
Article 2208 of the New
Civil Code, paragraph 11,
ordering them in addition
to pay to the plaintiffs and
oppositors the sum of
P50,000.00 as attorney's
fees, and the costs.
Hence, the petition at bar assailing the respondent
court's decision on four assigned errors, to wit:
t.hqw
I. The respondent Court of
Appeals erred in not
affirming the findings of
the probate court (Special
Proceedings No. 699) that
private respondents,
oppositors to the probate
of the will, are in estoppel
 to question the
competence of testator
Don Jesus Alsua.
II. The respondent Court of
Appeals grossly erred in
holding that testator Don
Jesus Alsua cannot revoke
his previous will.
of a testament, would
seem inimical to public
policy. Over and above the
interest of private parties
is that of the state to see
that testamentary
dispositions be carried out
if, and only if, executed
conformably to law.

III. The respondent court's The Supreme Court of New

finding is grounded York aptly said in Re
entirely on speculation, Canfield's Will, 300 N.Y.S.,
surmises or conjectures 502: t.hqw
resulting in a gross
misapprehension of facts. 'The
primary
IV. The respondent court purpose
grossly erred in annulling of the
the sales of August 26, proceedi
1961 (Exh. U), and of ng is not
November 26, 1962 (Exh. to
W). establish
the
existenc
On the first issue of estoppel raised in the assignment e of the
of errors, We hold that the same is of no moment. The right of
controversy as to the competency or incompetency of any
Don Jesus Alsua to execute his will cannot be living
determined by acts of the herein private respondents person,
as oppositors to the will in formally agreeing in writing but to
jointly with the petitioner Francisca Alsua de Betts determi
that their father, Don Jesus Alsua, be appointed by ne
the court executor of the will of their mother in whether
Special Proceedings No. 485, Testate Estate of Do;a or not
Florentina Ralla de Alsua and in subsequently the
petitioning the court not to require Don Jesus Alsua deceden
to file any accounting as executor in the proceedings, t has
which petitioners claim and was upheld by the trial perform
court as constituting estoppel on the part of the ed the
private respondents from questioning the acts
competence of Don Jesus Alsua. specifie
d by the
The principle of estoppel is not applicable in probate pertinen
proceedings, a ruling laid down in the case of Testate t
Estate of the Late Procopia Apostol Benedicta Obispo, statutes,
et al vs. Remedios Obispo, 50 O.G. 614, penned by which
Justice J.B.L. Reyes, an eminent and recognized are the
authority on Civil Law when he was still in the Court essential
of Appeals, and We quote: t.hqw prerequi
sites to
Finally, probate personal
proceedings involve public directio
interest, and the n of the
application therein of the mode of
rile of estoppel, when it devoluti
win block the on of his
ascertainment of the truth property
as to the circumstances on
surrounding the execution death.
There is
no legal Wilt 262
but N.Y.,
merely a 284,
moral 294,
duty 186,
resting N.E.,
upon a 787;
propone Matter
nt to of
attempt Marrima
to n's
validate Estate,
the 124
wishes Misc.
of the 320,
departe 325,
d, and 208,
he may N.Y.S.,
and 672;
frequent Foley,
ly does S.,
receive affirmed
no 217 app.
personal Div.,
benefit 733, 216
from the N.Y.S.,
perform 126,
ance of Henders
the act. on, S.,
Matter
One of of
the most Draske's
fundame Estate,
ntal 160
concepti Misc.
ons of 587,
probate 593,
law, is 290,
that it is N.Y.S.,
the duty 581). To
of the that
court to end, the
effectua court is,
te, in so in
far as effect,
may be an
compati addition
ble with al party
the to every
public litigatio
interest, n
the affectin
devoluti g the
onary disposal
wishes of the
of a assets of
decease the
d person decease
(Matter d.
of Matter
Watson's of Van
Valkenb
 urgh's execution of the questioned will and testament of Don
Estate, Jesus, declaring: t.hqw
164
Misc. ... and going back to the
295, previous question,
298, whether the questioned
N.Y.S., will and testament of
219.' November 14, 1959, Exh.
A, was executed in
The next issue that commands Our attention is accordance with Arts. 805-
whether the respondent court erred in not allowing 809 of the New Civil Code,
the probate of the last will and testament of Don this Tribunal from the very
Jesus Alsua. Petitioners claim that the disallowance beginning accepts the
was based on speculations, surmises or conjectures, findings of the inferior
disregarding the facts as found by the trial court. The court concerning the
Civil Court is very clear and explicit in providing the question, t.hqw
cases where a will may be disallowed under Article
839 which provides as follows: t.hqw On
October
Art. 839. The will shall be 2, 1959,
disallowed in any of the Do;a
following cases: Florenti
na died
(1) If the formalities at Ligao,
required by law have not Albay.
been complied with; About 2
weeks
after
(2) If the testator was said
insane, or otherwise death of
mentally incapable of his wife,
making a wilt at the time Don
of its execution; Jesus
Alsua
(3) If it was executed decided
through force or under to make
duress, or the influence of a new
fear, or threats; will,
thereby
(4) If it was procured by revoking
undue and improper and
pressure and influence, on cancelli
the part of the beneficiary ng his
or of some other person; previous
holograp
hic will
(5) If the signature of the which he
testator was procured by made on
fraud, January
5, 1955
(6) If the testator acted by and also
mistake or did not intend its
that the instrument he codicil
signed should be his will at dated
the time of affixing his August
signature thereto. 14,
1956. In
The issue under consideration appears to Us to have the
been answered by the respondent court itself when it presenc
accepted the findings of the trial court on the due e of his
bookkee
per and latter
secretar came
y, accompa
Esteban nied by
P. his son,
Ramirez, Atty.
he Jorge S,
crossed Imperial
out in , who,
ink each incident
and ally, is
every now a
page of judge of
said the
page he Court of
wrote on First
each Instance
page the of Naga
word City,
"cancela Camarin
do", and es Sur.
affixed Don
his Jesus
signatur informe
e d his
thereon lawyers
(Exh V- that he
5, V-6, wanted
consecut to make
ively up a new
to and will, and
includin accordin
g Exh. V- gly gave
14). He more
then detailed
instruct instructi
ed ons as to
Ramirez how he
to make wanted
a list of to divide
all s his
properti properti
es with es
their among
correspo his four
nding children
descripti . He
ons. handed
to them
Meanwhi a list and
le, Don on the
Jesus left he
Alsua indicate
sent for d the
his name of
lawyer, the child
Don to whom
Gregorio the
Imperial listed
, Sr. and properti
the es shall
pertain.
Atty. Jorge S.
Jorge Imperial
Imperial to put
took the win
notes of in final
the form. He
instructi further
ons of told
Don Atty,
Jesus Jorge
Alsua. Imperial
To Don that the
Jesus, signing
Spanish of the
is his will
major should
language be at his
, as in home in
fact his Ligao, in
conversa the
tions morning
with Don of
Gregorio Novemb
are er 14,
always 1959,
in and that
Spanish. the
A few witnesse
days s should
before be Mr.
Novemb Ramon
er 14, Balana,
1959, the then
Atty. Register
Jorge S. of Deeds
Imperial of Albay;
showed Mr. Jose
to Don Madariet
Jesus a who is
the a friend
semi- of the
final family;
draft of and Mr.
the will Jose
and Gaya
after who is a
reading sort of
it Don employe
Jesus e of Don
said that Jesus.
it was as
directed Thus in
by him, the
and morning
after of
making a Novemb
few er 14,
minor 1959,
correcti Don
ons, he Gregorio
instruct and
ed Atty.
Atty. ushered
Jorge S. in by Mr.
Imperial Jose
, riding Gaya,
in a and the
sedan, latter
stopped requeste
at the d them
Legaspi to be
residenc seated
e of Mr. at the
Ramon usual
Balana, receivin
and g room
informe on the
d the ground
latter floor
that Don while he
Jesus announc
was ed their
requesti arrival
ng him to Don
to be Jesus
one of who was
the on the
attesting second
witnesse floor.
s to his Soon
will. Mr. Don
Balana, Jesus
having a came
very down,
high carrying
regard with him
for Don the will
Jesus, to be
consider signed
ed it an placed
honor to inside a
be so cartolina
asked, folder.
and He
gladly greeted
went Don
with the Gregorio
Imperial , Mr.
s. They Balan,
arrived and
at the Atty.
residenc Imperial
e of Don and
Jesus at immedia
Ligao; tely
Albay, joined
almost them in
ten conversa
o'clock tion. Mr.
of that Gaya
morning called
, and for Mr.
they Jose
were Madariet
a, whose Don
residenc Jesus
e is just Alsua,
across Don
the road Gregorio
from the Imperial
house of Atty.
Don Jorge S.
Jesus. Imperial
Mr. Mr.
Madariet Ramon
a was Balana,
already Mr. Jose
informe Madariet
d by Don a, and
Jesus Mr. Jose
himself Gaya. All
about the
the fact witnesse
of s who
signing testified
the will for the
that petition
morning er
, and so, declared
on being that Don
advised Jesus
by Mr. was in
Gaya bright
that the and
Imperial lively
s had conversa
already tion
arrived, which
Madariet ran from
a problem
proceed s of
ed to the farming
residenc and the
e of Don merits of
Jesus, French-
without made
much wines.
delay. At 1 1:00
With the o'clock,
coming Don
of Gregorio
Madariet made a
a and remark
the that it is
coming about
back of time to
Gaya, do what
there they
were were
now six there
people for, and
gathere this was
d in the followed
living by a
room, more or
namely: less
stateme e
nt from s
Jesus, p
who a
said: r
t.hq a
w s
e
' r
P t
r e
e s
i t
s i
a g
m o
e s
n d
t e
e r
e n
s i
p u
o l
r t
l i
o m
q o
u v
e o
h l
e u
H n
a t
m a
a d
d y
o t
a e
u s
s t
t a
e m
d e
e n
s t
q o
u q
e u
e e
s h
t a
e s
n i
p d
r o
e p
s r
e e
n p
t a
r
a u
d m
o e
p n
o t
r o
e t
l e
a n
b g
o o
g a
a q
d u
o i
S c
r o
. n
G m
r i
e g
g o
o y
r e
i n
o c
I u
m e
p n
e t
r r
i o
a q
l u
s e
e ,
g d
u e
n s
m p
i u
s e
i s
n d
s e
t l
r o
u h
c e
c l
i e
o i
n d
e o
s ,
c e
u s
y t
o a
d s
o a
c t
i o
s c
f u
a a
c t
t r
o o
r (
i 4
a )
m h
e i
n j
t o
e s
h t
e o
c d
h o
o s
s e
e g
g o
u s
n .
m '
i (
s p
i p
n .
s 4
t 3
r -
u 4
c 4
c ,
i t
o .
n s
e .
s n
, .
C ,
o h
m e
o a
s r
a i
b n
e g
n o
u f
s D
t e
e c
d e
e m
s b
t e
e r
n 7
g ,
 1 person
9 signing
6 by
7 indicatin
, g the
S proper
a place
r where
t the
e signatur
. e shall
be
On written.
request Don
of Don Jesus, as
Jesus, testator,
all of signed
them first.
moved After
to the signing
big the
round original
table on and the
another two
part of other
the sets, the
same three
sala for sets
convenie were
nce in then
signing passed
because to Mr.
there Ramon
were Balana
chairs all who
around signed as
this attesting
table. witness.
The will After Mr.
which Balana,
consiste Mr. Jose
d of nine Madariet
pages, a signed
with a next as
duplicat another
e, and attesting
triplicat witness,
e was and
laid on when
the Mr.
round Madariet
table a
and the finished
signing signing
began, all the
with three
Atty. sets, the
Jorge S. same
Imperial were
assisting passed
each to Mr.
Jose
Gaya The
who also original
signed as will was
the third marked
attesting as Exh. A
witness. (or set
On each A); the
of the duplicat
three e as Exh.
sets, K (or set
Don K) and
Jesus the
signed triplicat
ten e of Don
times, Jesus,
one on Mr.
the Balana,
margin Mr.
of each Madariet
of the a, and
nine Mr. Gaya
pages, were
and at Identifie
the end d by Mr.
of the Balana,
instrume Mr.
nt Madariet
proper. a and
Each of Atty.
the (now
three Judge)
attesting imperial
witnesse . It was
s also
(Balana, clearly
Madariet establish
a and ed that
Gaya) when
signed Don
eleven Jesus
times on signed
each the will
set, Mr.
one on Balana,
the Mr.
margin Madariet
of each a, and
of the Mr. Gaya
nine were
pages, present
one at and
the end witnesse
of the d said
instrume signing,
nt and that
proper when
and one each of
below these
the three
attestati witnesse
on s was
clause. signing,
Don placed
Jesus them
and the inside
two the
other same
attesting folder.
witnesse At that
s were moment
present , it was
and already
Witnessi about
ng said 12:30
Signing. P.M. and
The Don
signing Jesus
by the invited
testator all of
and the them to
attesting lunch,
witnesse which
s having invitatio
been n was
complet gladly
ed, Atty. accepte
Jorge S. d by all
Imperial of then-
as L (pp.
Notary 474-480,
Public Joint
with Record
commiss on
ion for Appeal
the in CA-
entire G.R. No.
province 54492-R)
of Albay,
notarize which findings are
d the supported by the
wilt and evidence, - it is quite
sealed it difficult to conclude that
with his the same had not complied
notarial with the requirements of
seat Arts. 804- 806 of the New
which Civil Code. ... (CA
seal he Decision, pp. 13-16, as
brought translated).
along
that
morning This cited portion of the appealed decision accepts as
. After a fact that the findings of the lower court declaring
all the the contested will as having been executed with all
three the formal requirements of a valid will, are supported
sets by the evidence. This finding is conclusive upon this
were Tribunal and We cannot alter, review or revise the
notarize same. Hence, there is no further need for Us to dwell
d, they on the matter as both the lower court and the
were all respondent appellate court have declared that these
given are the facts and such facts are fully borne and
back to supported by the records. We find no error in the
Don conclusion arrived at that the contested will was duly
Jesus executed in accordance with law. We rule that the
who questioned last will and testament of Don Jesus Alsua
fully complied with the formal requirements of the Nevertheless, no contract
law. may be entered into with
respect to future
Respondent court, however, denied probate of the inheritances, except those
will after ,'noting certain details which were a little the object of which is to
bit difficult to reconcile with the ordinary course of make a division inter vivos
things and of life." First was the fact that the spouses of an estate, in
Don Jesus and Do;a Tinay together with their four accordance with Article
children Francisco, Pablo, Amparo and Fernando had 1056.
executed the Extrajudicial Partition of November 25,
1949 (Exh. A) which divided the conjugal properties All services not contrary to
of the spouses between the spouses themselves and law or to good morals may
the children under the terms and conditions and also be the subject-
dispositions herein before stated and to implement its matter of contract.
provisions, Don Jesus and Do;a Tinay subsequently
executed separately their respective holographic wigs Article 1056 specifically uses the word "testator" from
both dated January 5, 1955 and codicils dated August which the clear intent of the law may be deduced that
14, 1956 with the same terms and conditions as the privilege of partitioning one's estate by acts inter
reproduced herein earlier. Both holographic wills and vivos is restricted only to one who has made a prior
codicils having been probated thereafter and upon will or testament. In other words, Article 1056 being
the death of Do;a Tinay, Don Jesus was appointed an exception cannot be given a wider scope as to
executor of the will and in due time the partition of include in the exception any person whether he has
the properties or estate of Do;a Tinay was approved made a will or not.
by the probate court on July 6, 1960.
Respondent court citing the same Article concluded
The respondent court ruled that the Extrajudicial that under both the old and new Civil Code, a person
Partition of November 25, 1949 was an enforceable who executes a will is permitted at the same time or
contract which was binding on Don Jesus Alsua as the a little thereafter or even before as long as he
surviving spouse, barring him from violating said mentions this fact in the will, to partition his
partition agreement, barring him from revoking his properties pursuant to the provisions of Article 1056
holographic will of January 5, 1955 and his codicil of of the old Civil Code. The court further added that
August 14, 1956, and further barring him from jurisprudence is to the effect that the partition
executing his new will and testament of November 14, presupposes the execution of the will that it ratifies
1959, now the subject of the probate proceedings or effectuates, citing the case of Legasto vs. Verzosa,
elevated to this Court. 54 Phil. 776. Finally, respondent court held the
opinion that the extrajudicial partition of November
We do not agree with this ruling of the Court of 14, 1949 was ratified in the holographic will executed
Appeals. We hold that the Extrajudicial Partition of by Don Jesus on Jan. 5, 1955 and in the codicil of
November 25, 1949 is null and void under Article 1056 August 14, 1956.
in relation to Article 1271 of the old Civil Code which
are applicable hereto. These Articles provide as Again, We do not agree with this ruling of the
follows: t.hqw respondent court. In Legasto vs. Verzosa, supra, the
Supreme Court categorically declared the necessity of
Art. 1056. If the testator a prior will before the testator can partition his
should make a partition of properties among his heirs, and We quote the
his property by an act inter pertinent portions of the decision: t.hqw
vivos, or by will, such
partition shall stand in so The first question to
far as it does not prejudice decide in the instant
the legitime of the forced appeal is whether the
heirs. ... partition made by Sabina
Almadin of her property
Art. 1271. All things, even among her nieces, the
future ones, which are not defendants and appellants
excluded from the herein, was valid and
commerce of man, may be enforceable.
the subject-matter of
contracts. Article 1056 of the Civil
Code provides:
Art. 1056. If the testator
should make a partition of
his property by an act inter
vivos, or by will, such
partition shall stand in so
far as it does not prejudice
the legitime of the forced
heirs.
The Supreme Court of
Spain, in a decision
rendered on June 13,
1903, laid down the
following doctrine:
Considering that the
language of article 1056
cannot be interpreted to
mean that a person may,
by acts inter vivos,
partition his property
referred to in the section
wherein said article is
found, without the
authority of a testament
containing an expression
of his last will, or the
authority of law, for,
otherwise, a partition thus
made would be
tantamount to making a
will in a manner not
provided for, authorized,
nor included in the chapter
referring to testaments,
and especially, to the
forms thereof, which is
entirely different from the
legal consequences of a
free disposition made by
parents during their
lifetime, whereby they
give to their children the
whole or a part of their
property;
Considering that,
inasmuch as the second
paragraph of article 1271
makes reference to the
aforesaid article, in
providing that no contracts
may be entered into with
respect to future
inheritances except those
the object of which is to
make a division inter vivos
of the estate in
accordance with article
1056, it is evident that said
difference likewise leads
to the conclusion that a
partition thus made should
be on the basis of a
testamentary or legal
succession and should be
made in conformity with
the fundamental rules
thereof and the order of
the heirs entitled to the
estate, because neither of
the two provisions could
be given a wider meaning
or scope than that they
simply provide for the
division of the estate
during the lifetime of the
owner, which, otherwise,
would have to be done
upon the death of the
testator in order to carry
into effect the partition of
the estate among the
persons interested.
Manresa comments on the
same article as follows:
A distinction must be made
between the disposition of
property and its division;
and the provision of article
1056 authorizing the
testator to dispose of his
property by acts inter
vivos or by last will, must
be understood in
accordance with this
distinction. The Idea is to
divide the estate among
the heirs designated by the
testator. This designation
constitutes the disposition
of the properties to take
effect after his death, and
said act must necessarily
appear in the testament
because it is the
expression of the testator's
last will and must be
surrounded by appropriate
formalities. Then comes
the second part, to wit,
the division in conformity
with that disposition, and
the testator may make this
division in the same will or
in another will, or by an
act inter vivos. With these
words, the law, in article
1056 as well as in article
 1057, which we shall
hereafter examine, makes
allusion to the forms or
manner of making the
partition and not to the
effects thereof, which
means that, for purposes
of partition the formal
solemnities which must
accompany every
testament or last will are
not necessary. Neither is it
necessary to observe the
special for. realities
required in case of
donations, because it is
not a matter of disposing
gratuitously of properties,
but of dividing those which
already have been legally
disposed of.
It is thus seen that both
the Spanish Supreme Court
and the learned and
authoritative
commentator, Manresa,
are of opinion that a
testator may, by an act
inter vivos, partition his
property, but he must first
make a will with all the
formalities provided for by
law. And it could not be
otherwise, for without a
will there can be no
testator; when the law,
therefore, speaks of the
partition inter vivos made
by a testator of his
property, it necessarily
refers to that property
which he has devised to his
heirs. A person who
disposes of his property
gratis inter vivos is not
called a testator, but a
donor. In employing the
word "testator," the law
evidently desired to
distinguish between one
who freely donates his
property in life and one
who disposes of it by will
to take effect after his
death.
We are not in conformity with the holding of the
respondent court that the extrajudicial partition of
November 25, 1949 which under the old Civil Code
was expressly prohibited as against public policy had
been validly ratified by the holographic will of Don
Jesus executed on January 5, 1955 and his codicil of
August 14, 1956. Such a holding of the appellate court
that a person who executes a will is permitted to
partition his properties pursuant to the provisions of
Article 1056 of the old Civil Code even before
executing his will as long as he mentions this fact in
the will, is not warranted under the ruling of Legasto
vs. Verzosa, supra and the commentary of Manresa as
quoted above. We rule, therefore, that the
respondent court erred in denying probate to the will
of Don Jesus dated November 14, 1959; it erred in
holding that Don Jesus being a party to the
extrajudicial partition of 1949 was contractually
bound by the provisions thereof and hence could not
revoke his participation therein by the simple
expedience of making a new will with contrary
provisions or dispositions. It is an error because the
so-called extrajudicial partition of 1949 is void and
inoperative as a partition; neither is it a valid or
enforceable contract because it involved future
inheritance; it may only be given effect as a donation
inter vivos of specific properties to the heirs made by
the parents.
Considering that the document, the extrajudicial
partition of November 25, 1949, contained specific
designation of properties allotted to each child, We
rule that there was substantial compliance with the
rules on donations inter vivos under the old Civil Code
(Article 633). On the other hand, there could have
been no valid donation to the children of the other
half reserved as the free portion of Don Jesus and
Do;a Tinay which, as stated in the deed, was to be
divided equally among the children for the simple
reason that the property or properties were not
specifically described in the public instrument, an
essential requirement under Article 633 which
provides as follows: t.hqw
Art. 633. In order that a
donation or real property
be valid it must be made
by public instrument in
which the property
donated must be
specifically described and
in the amount of the
encumbrances to be
assumed by the donee
expressed.
The acceptance must be
made in the deed of gift or
in a separate public
writing; but it shall
produce no effect if not
made during the lifetime
of the donor.
 If the acceptance is made otra mitad (1/2) para mis
by separate public hijos en partes iguales.
instrument, authentic
notice thereof shall be For purposes of clarity and convenience, this fourth
given the donor, and this clause provided that "Should I acquire new properties
proceeding shall be noted after the execution of this testament, the same shall
in both instruments. be partitioned among my spouse and above named
children or the children mentioned in above par. 3 in
This other half, therefore, remained as the disposable the same proportion, that is, one- half (1/2) to my
free portion of the spouses which may be disposed of spouse; and the other half to my children in equal
in such manner that either of the spouses would like parts." From the above-quoted provision, the children
in regards to his or her share in such portion, would only inherit together with Don Jesus whatever
unencumbered by the provision enjoining the last new properties Do;a Tinay would acquire after the
surviving spouse to give equally to the children what execution of her will.
belongs or-would pertain to him or her. The end
result, therefore, is that Don Jesus and Do;a Tinay, Likewise, the codicil of Do;a Tinay instituted her
in the Deed of 1949, made to their children valid husband as sole heir to her share in the free portion
donations of only one-half of their combined of the conjugal assets, and We quote that part of the
properties which must be charged against their codicil: t.hqw
legitime and cannot anymore be revoked unless
inofficious; the other half remained entirely at the
free disposal of the spouses with regards to their Dejo a mi esposo Jesus
respective shares. Alsua como su legitima y
como herencia que se
sacara de ni cuenta de
Upon the death of Do;a Tinay on October 2, 1959, libre disposicion todos
her share in the free portion was distributed in aquellos bienes de los que
accordance with her holographic will dated January no he dispuesto aun en
25, 1955 and her codicil dated August 14, 1956. It favor de mis hijos en la
must be stressed here that the distribution of her escritura de reparticion
properties was subject to her holographic win and precitada y que
codicil, independently of the holographic will and excedieran de la mitad de
codicil of Don Jesus executed by him on the same gananciales que le
date. This is fundamental because otherwise, to corresponds tal como
consider both wills and codicils jointly would be to arriba declare, incluyendo
circumvent the prohibition of the Civil Code on joint todos aquenos bienes que
wills (Art. 818) and secondly because upon the death se adquiriesen por
of Do;a Tinay, only her estate was being settled, and nosotros despues de
not that of Don Jesus. otorgado por mi este
testamento.
We have carefully examined the provisions of the
holographic will and codicil of Do;a Tinay and We Para el caso de que Dios
find no indication whatsoever that Do;a Tinay dispusiera que yo
expressly or impliedly instituted both the husband and sobreviviera a mi esposo
her children as heirs to her free portion of her share declaro que es mi voluntad
in the conjugal assets. In her holographic will, que todas las propiedades
mention of her children as heirs was made in the de todo genero que me
fourth clause but it only provided that, to wit: pertenecen y me pudieran
t.hqw pertenecer, no dispuestas
aun en la reparticion, se
Cuatro. Que si yo dividan por igual entre mis
adquieriese nuevase herederos mencionados
propiedades despues de despues de mi muerte.
otorgado este mi
testamento seran las Again for purposes of clarity and convenience, the
mismas repartados entre above portion states: t.hqw
mi esposo o hijos arriba
mencionada en el parrafo
tercero su la misma I leave to my spouse Don
proporcion o sea: la mitad Jesus Alsua as his legitime
(1/2) para is esposa; y la and as his inheritance the
 part of the free portion of
my property which have
not been allocated in favor
of my children in the
Document of Partition
aforecited and that which
should exceed 1/2 of the
conjugal property of gains
that pertains to him as
above stated, including all
those properties which we
shall acquire after the
execution of this
document.
In case it should be God's
will that I survive my
spouse, I hereby declare
that it is my will that any
and all kinds of property
that pertains to me or
would pertain to me,
which have not been
disposed of pursuant to the
partition, should be
divided equally among my
above-mentioned heirs
after my death.
The children, therefore, would only receive equal
shares in the remaining estate of Do;a Tinay in the
event that she should be the surviving spouse. To
stress the point, Do;a Tinay did not oblige her
husband to give equally to the children, upon his
death, all such properties she was bequeathing him.
Considering now the efficacy of Don Jesus' last will
and testament executed on November 14, 1959 in
view of Our holding that Do;a Tinay's wig and codicil
did not stipulate that Don Jesus will bestow the
properties equally to the children, it follows that all
the properties of Do;a Tinay bequeathed to Don
Jesus under her holographic win and codicil became
part of Don Jesus' estate unburdened by any condition
obligation or proviso.
Respondents insist that Don Jesus was bound by the
extrajudicial partition of November 25, 1949 and had
in fact conformed to said Partition by making a
holographic will and codicil with exactly the same
provisions as those of Do;a Tinay, which respondent
court sustained. We rule, however, that Don Jesus
was not forever bound thereby for his previous
holographic will and codicil as such, would remain
revokable at his discretion. Art. 828 of the new Civil
Code is clear: "A win may be revoked by the testator
at any time before his death. Any waiver or restriction
of this right is void." There can be no restriction that
may be made on his absolute freedom to revoke his
holographic will and codicil previously made. This
would still hold true even if such previous will had as
in the case at bar already been probated (Palacios v.
Palacios, 106 Phil. 739). For in the first place, probate
only authenticates the will and does not pass upon the
efficacy of the dispositions therein. And secondly, the
rights to the succession are transmitted only from the
moment of the death of the decedent (Article 777,
New Civil Code). In fine, Don Jesus retained the
liberty of disposing of his property before his death to
whomsoever he chose, provided the legitime of the
forced heirs are not prejudiced, which is not herein
claimed for it is undisputed that only the free portion
of the whole Alsua estate is being contested.
After clearly establishing that only Don Jesus was
named as sole heir instituted to the remaining estate
of Do;a Tinay in her holographic will and codicil
resulting in all such properties becoming the
properties of Don Jesus alone, and after clearly
pointing out that Don Jesus can, in law, revoke his
previous holographic will and codicil, by making
another win expressly cancelling and revoking the
former, the next issue for the Court's resolution is the
validity of the provisions of the contested will.
Though the law and jurisprudence are clear that only
questions about the extrinsic validity of the will may
be entertained by the probate court, the Court had,
on more than one occasion, passed upon the intrinsic
validity of a will even before it had been
authenticated. Thus We declared in Nuguid v. Nuguid,
17 SCRA 499: t.hqw
The parties shunted aside
the question of whether or
not the will should be
allowed to probate. For
them, the meat of the case
is the intrinsic validity of
the wilt Normally this
comes only after the court
has declared that the will
has been duly
authenticated. ...
... If the case were to be
remanded for probate of
the wilt nothing will be
gained. On the contrary,
this litigation win be
protracted and for ought
that appears in the record,
in the event of probate or
if the court rejects the will
probability exists that the
case win come up once
again before us on the
issue of the intrinsic
validity or nullity of the
wilt Result: waste of time,
effort, expense, plus
 added anxiety. These are interpretation of a will in
the practical order to effect what the
considerations that induce court believes to be an
us to a behalf that we equitable division of the
might as well meet head- estate of a deceased
on the time of the validity person. The only functions
of the provisions of the will of the courts in these cases
in question. ... is to carry out the
intention of the deceased
The last Will and Testament of Don Jesus executed on as manifested in the wig.
November 14, 1959 contained an express revocation Once that intention has
of his holographic wig of January 5, 1955 and the been determined through
codicil of August 14, 1956; a statement requiring that a careful reading of the
all of his properties donated to his children in the will or wills, and provided
Deed of 1949 be collated and taken into account in the law on legitimes has
the partition of his estate; the institution of all his not been violated, it is
children as devisees and legatees to certain specific beyond the place of
properties; a statement bequeathing the rest of his judicial cognizance to
properties and all that may be acquired in the future, inquire into the fairness or
before his death, to Pablo and Francesca; and a unfairness of any devise or
statement naming Francesca as executrix without bequeast. The court
bond. should not sit in judgment
upon the motives and
sentiments of the
Considering these testamentary provisions, a close testatrix, first, because as
scrutiny of the properties distributed to the children already stated, nothing in
under the Deed of 1949 and those distributed under the law restrained her
the contested will of Don Jesus does not show that the from disposing of her
former had in fact been included in the latter. This property in any manner
being so, it must be presumed that the intention of she desired, and secondly,
Don Jesus in his last win was not to revoke the because there are no
donations already made in the Deed of 1949 but only adequate means of
to redistribute his remaining estate, or that portion ascertaining the inward
of the conjugal assets totally left to his free disposal process of her conscience.
and that which he received as his inheritance from She was the sole judge of
Do;a Tinay. The legitimes of the forced heirs were her own attitude toward
left unimpaired, as in fact, not one of said forced those who expected her
heirs claimed or intimated otherwise. The properties bounty. ...
that were disposed of in the contested will belonged
wholly to Don Jesus Alsua's free portion and may be
diamond of by him to whomsoever he may choose. Respondent court, in trying to rationalize the will of
Don Jesus which allegedly benefited and favored the
petitioner to the prejudice of the other heirs who
If he now favored Francesca more, as claimed by would have been entitled to an equal share under the
private respondents, or Pablo as in fact he was, We extrajudicial partition of 1949, faced two
cannot and may not sit in judgment upon the motives alternatives-one, to consider Don Jesus as a man of
and sentiments of Don Jesus in doing so. We have culture and honor and would not snow himself to
clearly laid down this rule in Bustamante v. Arevalo, violate the previous agreement, and the other as one
73 Phil. 635, to wit: t.hqw whose mental faculties or his possession of the same
had been diminished considering that when the will
... nevertheless it would was executed, he was already 84 years of age and in
be venturesome for the view of his weakness and advanced age, the actual
court to advance its own administration of his properties had been left to his
Idea of a just distribution assistant Madarieta who, for his part received
of the property in the face instructions from Francisco and her husband, Joseph
of a different mode of Betts. According to the court, the better explanation
disposition so clearly is the latter, which is not legally tenable. Under
expressed by the testatrix Article 799 of the New Civil Code which provides as
in the latter will. ... follows: t.hqw

It would be a dangerous Art. 799. To be of sound

precedent to strain the mind, it is not necessary
 that the testator be in full
possession of all his
reasoning faculties, or that
his mind be wholly
unbroken, unimpaired, or
unshattered by disease,
injury or other cause.
It shall be sufficient if the
testator was able at the
time of making the will to
know the nature of the
estate to be disposed of,
the proper objects of his
bounty, and the character
of the testamentary act,
The test of testamentary capacity is at the time of
the making of the win. Mere weakness of mind or
partial imbecility from disease of body or from age-
does not render a person incapable of making a will.
t.hqw detailed instructions to his lawyer as to how he
Between the highest
degree of soundness of
mind and memory which
unquestionably carries
with it full testamentary
capacity, and that degrees
of mental aberration
generally known as
insanity or Idiocy, there
are numberless degrees of
mental capacity or
incapacity and while on
one hand it has been held
that mere weakness of
mind, or partial imbecility
from disease of body, or
from age, will not render a
person incapable of
making a will; a weak or
feebleminded person may
make a valid will, provided
he has understanding and
memory sufficient to
enable him to know what
he is about to do and how
or to whom he is disposing
of his property. To
constitute a sound and
disposing mind, it is not
necessary that the mind be
unbroken or unimpaired or
unshattered by disease or
otherwise. It has been held
that testamentary
incapacity does not
necessarily require that a
person shall actually be
insane or of unsound mind.
(Bugnao vs. Ubag, 14 Phil.
163).
The Civil Code itself provides under Article 798 that
in order to make a will, it is essential that the testator
be of sound mind at the time of its execution, and
under Article 800, the law presumes that every person
is of sound mind in the absence of proof to the
contrary. In the case at bar, the acceptance by the
respondent court of the findings of fact of the trial
court on the due execution of the last win and
testament of Don Jesus has foreclosed any and all
claim to the contrary that the will was not executed
in accordance with the requirements of the law. But
more than that, gleaned from the quoted portions of
the appealed decision, the described behavior of Don
Jesus is not that of a mentally incapacitated person
nor one suffering from "senile dementia" as claimed
by private respondents. From these accepted facts,
We find that: (a) it was Don Jesus himself who gave
wanted to divide his properties among his children by
means of a list of his properties should pertain; (b)
the semi-final draft of the contested will prepared by
his lawyer w-as even corrected by Don Jesus; (c) on
the day of the signing of the will at his house in Ligao,
"Don Jesus was in bright and lively spirits ..., leading
in the conversation which ran from problems of
farming and the merits of French-made wines"; (d) the
signing of the will by Don Jesus and his attesting
witnesses was made after a statement from Don Jesus
of the purpose of their meeting or gathering, to wit:
t.hqw
Precisamente es por lo que
he Ilamado a ustedes que
eaten presentes para ser
testigos de mi ultima
voluntad y testamento que
ha sido preparado por el
abogado Sr. Gregorio
Imperial segun mis
instrucciones cuyo
documents tengo aqui con
migo y encuentro que,
despues de lo he leido,
esta satisfactoriamente
hecho segun mis
ingtrucciones, Como saben
ustedes tengo cuatro (4)
hijos todos ellos.
Clearly then, Don Jesus knew exactly what his actions
were and the fun implications thereof.
In rejecting probate of the wilt respondent court
further pointed out other details which, in the words
of the decision "are a little bit difficult to reconcile
with the ordinary course of things and of fife" such as
the fact that Don Jesus had sought the probate of his
will of January 5, 1955 and his codicil of August 14,
1956 during his lifetime but insofar as the will of
November 14, 1959 is concerned, he had no intention
of seeking the probate thereof during his lifetime, the
alleged redundant and unnecessary proceedings
undertaken by Don Jesus in the properties under
question to petitioner Franciso Alsua-Betts when the
same properties had already been bequeathed to her
in the will of November 14, 1959 and that "nothing,
absolutely nothing, could be made the basis for
finding that Don Jesus Alsua had regarded his other
children with less favor, and that he was more
sympathetic to Francisca so as to or forget the former
depriving them of benefits already given to them and
rewarding the latter with disproportionate
advantages or benefits, to such an extreme as to
violate his previous disposition consecrated in the
previous extrajudicial partition, Exh. 8."
We agree with the petitioner that these details which
respondent court found difficult to reconcile with the
ordinary course of things and of life are mere
conjectures, surmises or speculations which,
however, do not warrant or justify disallowance of the
probate of the win of Don Jesus. The fact that Don
Jesus did not cause his will to be probated during his
lifetime while his previous holographic win and codicil
were duly probated when he was still alive is a mere
speculation which depends entirely on the discretion
of Don Jesus as the testator. The law does not require
that a will be probated during the lifetime of the
testator and for not doing so there cannot arise any
favorable or unfavorable consequence therefrom. The
parties cannot correctly guess or surmise the motives
of the testator and neither can the courts. Such
surmise, speculation or conjecture is no valid and
legal ground to reject allowance or disallowance of
the wig. The same thing can be said as to whatever
reason Don Jesus had for selling the properties to his
daughter Francisca when he had already assigned the
same properties to her in his will. While We can
speculate that Don Jesus desired to have possession
of the properties transferred to Francisca after the
sale instead of waiting for his death may be a
reasonable explanation or speculation for the act of
the testator and yet there is no certainty that such
was actually the reason. This is as good a conjecture
as the respondents may offer or as difficult to accept
which respondent court believes. A conjecture is
always a conjecture; it can never be admitted as
evidence.
Now, the annulment case. The only issue raised anent
the civil case for annulment of the two Deeds of Sale
executed by and between Don Jesus and petitioner
Francisco is their validity or nullity. Private
respondents mainly contend that the sales were
fictitious or simulated, there having been no actual
consideration paid. They further insist that the issue
raised is a question of fact and, therefore, not
reviewable in a certiorari proceeding before the
Supreme Court. On the other hand, petitioners herein
maintain that it was error for the respondent court to
set aside on appeal the factual findings of the trial
court that the two sales were valid.
It is true that the jurisprudence of this Court in cases
brought to Us from the Court of Appeals is limited to
reviewing and revising the errors of law imputed to it,
its findings of fact being conclusive; and this same
principle applies even if the Court of Appeals was in
disagreement with the lower court as to the weight of
evidence with a consequent reversal of its findings of
fact. But what should not be ignored by lawyers and
litigants alike is the more basic principle that the
"findings of fact" described as "final" or "conclusive"
are those borne out by the record or those which are
based upon substantial evidence. The general rule
laid down by the Supreme Court does not declare the
absolute correctness of all the findings of fact made
by the Court of Appeals. These are exceptions to the
general rule, where We have reviewed and revised
the findings of fact of the Court of Appeals. Among
the exceptions to the rule that findings of fact by the
Court of Appeals cannot be reviewed on appeals by
certiorari are:
1. When the conclusion is a finding grounded entirely
on speculation, surmises or conjectures (Joaquin vs.
Navarro, 93 Phil. 257);
2. When the inference made is manifestly mistaken,
absurd or impossible (Luna vs. Linatok, 74 Phil. 15);
3. Where there is a grave abuse of discretion (Buyco
vs. People, 51 O.G. 2927);
4. When the judgment is based on a misapprehension
of facts (Cruz vs. Sosing, L-4875, Nov. 27, 1953);
5. When the findings of fact are conflicting (Casica vs.
Villaseca, L-9590, April 30, 1957); and
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 (Evangelists vs. Alto Surety & Ins. Co., L-
11139, April 23, 1958; Ramos vs. Pepsi Cola, L-22533,
Feb. 9, 1967, 19 SCRA 289).
In the case at bar, We find and so declare that the
respondent court's conclusion as to the nullity of the
contested sales was not supported by the evidence on
record and adduced during the trial.
Evident from the records are the following
documentary evidence: (1) Exhibit U, a deed of sale
over agricultural lands executed on August 26, 1961
by Don Jesus in favor of Francisca for the
consideration of Seventy Thousand Pesos
(P70,000.00), which document bears the signature of
Don Jesus, not assailed as a forgery, and the signature
of Pablo Alsua as an instrumental witness, again not
assailed as a forgery nor alleged as done thru fraud,
force or threat. (2) Exhibit "W", a deed of sale over
urban lots executed on November 16, 1962 for the
consideration of Eighty Thousand Pesos (P80,000.00),
which document also bears the signature of Don
Jesus, also admittedly not a forgery. (3) Exhibit "F", a
document dated August 26, 1961 and signed by Don
Jesus and Pablo Alsua as witness, acknowledging
receipt of a Bank of Philippine Island Check No. 0252
in the amount of Seventy Thousand Pesos
(P70,000.00) for the sale of 33 parcels of agricultural
land to Francisco under the same date; again, Pablo
did not deny the genuineness of his signature. (4)
Exhibit "X", a Bank of the Philippine Islands Check No.
D-6979 dated November 26, 1962, in the amount of
P32,644.71, drawn and signed by Francesca, payable
to Don Jesus. (5) Exhibit "X-1", a second Bank of
Philippine Islands Check (No. D-6980) also dated
November 26, 1962 in the amount of ?47,355.29,
drawn by Francisco and payable to Don Jesus. (6)
Exhibit "X-3 " and "X-5 ", endorsements on the back of
the last two checks by Don Jesus, again, his signatures
thereon were not assailed. (7) Exhibit "A" (in the
annulment case), a Bureau of Internal Revenue
Receipt (No. 2347260) dated November 29, 1962 with
a notation acknowledging the receipt of BPI Check No.
D-6980 in the amount of P47,355.29 from Don Jesus
Alsua in payment of Balance of Transfer of Tax Ass.
No. EA-35415-19 plus interest. We are convinced and
satisfied from this array of documentary evidence
that in fact, Don Jesus sold the subject properties to
his daughter, Francisca for the total consideration of
P150,000.00.
The claim of the private respondents that the sales
were fictitious and void for being without cause or
consideration is as weak and flimsy as the ground
upon which the respondent court upheld said claim on
the basis that there was no need for funds in Don
Jesus' old age aside from the speculation that there
was nothing in the evidence that showed what
motivated Don Jesus to change his mind as to favor
Francesca and discriminate against the other
children. The two contracts of same executed by Don
Jesus in favor of Francesca are evidenced by Exhibits
"U" and "W", the genuineness of which were not at all
assailed at any time during this long drawn-out
litigation of 15 years standing. That the consideration
stated in the contracts were paid is also sufficiently
proved as the receipts thereof by Don Jesus were even
signed by one of the private respondents, Pablo Alsua,
as a witness. The latter cannot now deny the payment
of the consideration And even of he now allege that
in fact no transfer of money was involved, We find his
allegation belied by Exhibits "X-3 " and "X-5 ", which
show that the checks of Francisco made payable to
Don Jesus. were in fact given to Don Jesus as he
endorsed them on the back thereof, and most
specifically Exhibit "A" in the annulment case, which
proved that Don Jesus actually used Exhibit "XI " to
complete payment on the estate and inheritance tax
on the estate of his wife to the Bureau of Internal
Revenue.
Private respondents further insist that the sales were
fraudulent because of the inadequacy of the given
price. Inadequacy of consideration does not vitiate a
contract unless it is proven which in the case at bar
was not, that there was fraud, mistake or undue
influence. (Article 1355, New Civil Code). We do not
find the stipulated price as so inadequate to shock the
court's conscience, considering that the price paid
was much higher than the assessed value of the
subject properties and considering that the sales were
effected by a father to her daughter in which case
filial love must be taken into account.
WHEREFORE, IN VIEW OF THE FOREGOING, the
decision appealed from is hereby set aside. The
decision of the Court of First Instance Of Albay in
Special Proceedings No. 699 and Civil Case No. 3068
is hereby reinstated, with costs against respondents.
SO ORDERED.
Teehankee (Chairman), Makasiar and Fernandez, JJ.,
concur.1wph1.t
De Castro, J., took no part.
Melencio Herrera, J., concur in the result.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-10027 November 13, 1915
ROSENDO HERNAEZ y ESPINOSA, plaintiff-appellant,
vs.
MATEO HERNAEZ y ESPINOSA, ET AL., defendants-
appellants.
Ruperto Montinola for plaintiff.
Enrique C. Locsin for defendants.
TRENT, J.:
The spouses, Pedro Hernaez and Juana Espinosa,
died, leaving several legitimate descendants. Neither
of their estates had been divided up to the date of
the institution of this action, but were both under
administration. Their son, Domingo Hernaez y
Espinosa, sold all his interest in both his father's and
mother's estate to his son, Vicente Hernaez y Tuason,
on November 6, 1901. Notwithstanding the fact that
Domingo Hernaez y Espinosa had thus parted with all
his interest in the estates of his two parents, he
executed a document of sale in favor of Alejandro
Montelibano y Ramos on February 27, 1907, in which
he purported to convey all his undivided interest in
his mother's estate. On the same date he executed
another document of sale in which he purported to
convey to Jose Montelibano Uy-Cana four-eighteenths
of his interest in his mother's estate. Both of these
sales were made with the connivance of his son,
Vicente Hernaez y Tuason. Hence, although Vicente
Hernaez y Tuason had actually purchased all of his
father's interests in the estates of Pedro Hernaez and
Juana Espinosa as early as November 6, 1901, and
was, on February 27, 1907, the undoubted owner
thereof, he is effectually estopped from asserting his
title as against either of the vendees mentioned in the
documents of sale dated February 27, 1907, to which
we have just referred. (Code Civ. Pro., sec. 333, No.
1.) Bigelow on Estoppel (p. 607) says:
. . . it is now a well-established principle that
where the true owner of property, for
however short a time, holds out another, or,
with knowledge of his own right, allows
another to appear as the owner of or as
having full power of disposition over the
property, the same being in the latter's
actual possession, and innocent third parties
are thus led into dealing with such apparent
owner, they will be protected.
On August 19, 1912, Jose Montelibano Uy-Cana sold
his interest in the estate to Alejandro Montelibano y
Ramos. By this transfer, the latter stood owner of all
the interest of Domingo Hernaez y Espinosa in the
estate of Pedro Hernaez, and five-eighteenths of his
interest in the estate of Juana Espinosa as against
Vicente Hernaez y Espinosa.
It is admitted that Rosendo Hernaez y Espinosa,
another son of the deceased spouses administrator of
the estates, was notified of Montelibano's purchases
on January 8, 1913, when he received notice of
Montelibano's motion, entered in the administration
proceedings, asking that he (Montelibano) be
substituted as assignee of the interests of various
heirs of the estate which he had acquired by
purchase. Notwithstanding this knowledge, Rosendo
Hernaez y Espinosa entered into a contract of sale
with Vicente Hernaez y Tuason, whereby the latter
purported to convey all the interest, which he had
acquired from his father, in the estate of the
deceased spouses, Pedro Hernaez and Juana Espinosa.
It will be remembered that he purchased his father's
share of the estate on November 6, 1901; that he is
estopped from asserting title to any interest in his
grandfather's estate and in five-eighteenths of his
grandmother's estate. Rosendo Hernandez y Espinosa
purchased with full knowledge of these facts. He,
therefore, acquired thirteen-eighteenths of the
interest of Domingo Hernaez y Espinosa in the estate
of the latter's mother nothing more. lawph!l.net
That rule is that the holder [Alejandro
Montelibano y Ramos] of a prior equitable
right has priority over the purchaser
[Rosendo Hernandez y Espinosa] of a
subsequent estate (whether legal or
equitable) without value, or with notice of
the equitable right, but not as against a
subsequent purchaser for value and without
notice. (Ewart on Estoppel, p. 199.)
Alejandro Montelibano y Ramos has acquired in his
interest in the estate of the deceased spouses for a
valuable consideration and in good faith, and there
remains to the plaintiff, Rosendo Hernaez y Espinosa,
only the right of subrogation allowed him by article
1067 of the Civil Code, which reads as follows:
If any of the heirs should sell his hereditary
rights to a stranger before the division, all or
any of the co-heirs may subrogate himself in
the place of the purchaser, reimbursing him
for the value of the purchase, provided they
do so within the period of a month, to be
counted from the time they were informed
thereof.
On January 24, 1913, the plaintiff instituted this
action seeking to subrogate himself in the rights
acquired by Montelibano in the estate. Unless the
plaintiff can be charged with actual notice of the
conveyance by which Montelibano acquired these
interests, prior to January 8, 1913, it is clear that he
has opportunely asserted his right of subrogation. This
is purely a question of fact. As to the sales whereby
Domingo Hernaez y Espinosa parted with that portion
of his interest in the estate which is now held by
Alejandro Montelibano, as well as to those sales made
by other heirs to Montelibano, the trial court found
that the plaintiff, Rosendo Hernaez y Espinosa, was
not chargeable with notice prior to January 8, 1913.
After a careful examination of the record we see no
reason for disturbing this finding of fact. As a
consequence, the plaintiff, Rosendo Hernaez y
Espinosa, is entitled to exercise his right of
subrogation in accordance with article 1067, above
quoted. lawph!1.net
The interest which Jose Montelibano Uy-Cana
purchased from Domingo Hernaez y Espinosa on
February 27, 1907, for the sum of P4,500, he
afterwards transferred to Alejandro Montelibano y
Ramos for the sum of P10,000. In rendering judgment,
the trial court decreed that the plaintiff, Rosendo
Hernaez y Espinosa, should pay the latter sum for the
privilege of exercising the right of subrogation. This
was error. Article 1067 of the Civil Code provides that
the co-heir may exercise this right of subrogation
upon the payment to the purchaser of another heir's
interest, "el precio de la compra" (the purchase
price). Obviously, if the interest had not been resold,
the plaintiff, Rosendo Hernaez y Espinosa, would have
had to pay only the price for which Uy-Cana acquired
it. The purpose of the article cannot be evaded by a
reconveyance of the interest to a third person at a
higher price. Subsequent purchasers of the interest
acquire it burdened with the right of subrogation of
co-heirs at the price for which the heir who sold it
parted with it.
It is urged that the prices in some of the deeds of sale
by which Alejandro Montelibano y Ramos purchased
the interest of various heirs in the estates are
fictitious. This is a question of fact upon which both
parties adduced evidence, and we concur in the
opinion of the trial court that there is no basis to the
charge. For the foregoing reasons, the judgment of
the court is modified by substituting, as the price of
subrogation of the interest originally purchased by
Jose Montelibano Uy-Cana, the sum of P4,500, as set
out in Exhibit 7, for the sum of P10,000, the
consideration expressed in Exhibit 10. As modified,
the judgment appealed from is affirmed, without
costs. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25966 November 1, 1926
In the matter of the estate of Tomas Rodriguez,
deceased. MANUEL TORRES, special administrator,
and LUZ LOPEZ DE BUENO, heir, appellee,
vs.
MARGARITA LOPEZ, opponent-appellant.
Marcaida, Capili and Ocampo and Camus, Delgado and
Recto for appellant.
Araneta and Zaragoza for appellee.
STREET, J.:
This appeal involves a controversy over one-half of
the estate of Tomas Rodriguez, decedent. The
appellant, Margarita Lopez, claims said half by the
intestate succession as next of kin and nearest heir;
while the appellee, Luz Lopez de Bueno, claims the
same by accredition and in the character of universal
heir the will of the decedent. The trial court decided
the point of controversy in favor of Luz Lopez de
Bueno, and Margariat Lopez appealed.
The facts necessary to an understanding of the case
are these: On January 3, 1924, Tomas Rodriguez
executed his last will and testament, in the second
clause of which he declared:
I institute as the only and universal heirs to
all my property, my cousin Vicente F. Lopez
and his daughter Luz Lopez de Bueno.
Prior to the time of the execution of this will the
testator, Tomas Rodriguez, had been judicially
declared incapable of taking care of himself and had
been placed under the care of his cousin Vicente F.
Lopez, as guardian. On January 7, 1924, or only four
days after the will above-mentioned was made,
Vicente F. Lopez died; and the testator, Tomas
Rodriguez, died on February 25, 1924, thereafter. At
the time the will was made Vicente F. Lopez had not
presented his final accounts as guardian, and no such
accounts had been presented by him at the time of
his death. Margariat Lopez was a cousin and nearest
relative of the decedent. The will referred to, and
after having been contested, has been admitted to
probate by judicial determination (Torres and Lopez
de Bueno vs. Lopez, 48 Phil., 772).
Our discussion of the legal problem presented should
begin with article 753 of the Civil Code which in effect
declares that, with certain exceptions in favor of near
relatives, no testamentary provision shall be valid
when made by a ward in favor of his guardian before
the final accounts of the latter have been approved.
This provision is of undoubted application to the
situation before us; and the provision made in the will
of Tomas Rodriguez in favor of Vicente F. Lopez was
not any general incapacity on his part, but a special
incapacity due to the accidental relation of guardian
and ward existing between the parties.
We now pass to article 982 of the Civil Code, defining
the right of accretion. It is there declared, in effect,
that accretion take place in a testamentary
succession, first when the two or more persons are
called to the same inheritance or the same portion
thereof without special designation of shares; and
secondly, when one of the persons so called dies
before the testator or renounces the inheritance or is
disqualifying to receive it. In the case before us we
have a will calling Vicente F. Lopez and his daughter,
Luz Lopez de Bueno, to the same inheritance without
special designation of shares. In addition to this, one
of the persons named as heir has predeceased the
testator, this person being also disqualified to receive
the estate even if he had been alive at the time of the
testator's death. This article (982) is therefore also of
exact application to the case in hand; and its effect
is to give to the survivor, Luz Lopez de Bueno, not
only the undivided half which she would have
received in conjunction with her father if he had been
alive and qualified to take, but also the half which
pertained to him. There was no error whatever,
therefore, in the order of the trial court declaring Luz
Lopez de Bueno entitled to the whole estate.
The argument in favor of the appellant supposes that
there has supervened a partial intestacy with respect
to the half of the estate which was intended for
Vicente F. Lopez and that this half has descended to
the appellant, Margarita Lopez, as next of kin and sole
heir at law of the decedent. In this connection
attention is directed to article 764 of the Civil Code
wherein it is declared, among other things, that a will
may be valid even though the person instituted as heir
is disqualified to inherit. Our attention is next invited
to article 912 wherein it is declared, among other
things, that legal succession takes place if the heir
dies before the testator and also when the heir
instituted is disqualified to succeed. Upon these
provisions an argument is planted conducting to the
conclusion that the will of Tomas Rodriguez was valid,
notwithstanding the fact that one of the individuals
named as heirs in the will was disqualified to take,
and that as a consequence Margarita Lopez s entitled
to inherit the share of said disqualified heir.
We are the opinion that this contention is untenable
and that the appellee clearly has the better right. In
playing the provisions of the Code it is the duty of the
court to harmonize its provisions as far as possible,
giving due effect to all; and in case of conflict
between two provisions the more general is to be
considered as being limited by the more specific. As
between articles 912 and 983, it is obvious that the
former is the more general of the two, dealing, as it
does, with the general topic of intestate succession
while the latter is more specific, defining the
particular conditions under which accretion takes
place. In case of conflict, therefore, the provisions of
the former article must be considered limited by the
latter. Indeed, in subsection 3 of article 912 the
provision with respect to intestate succession is
expressly subordinated to article 983 by the
expression "and (if) there is no right of accretion." It
is true that the same express qualification is not found
in subsection 4 of article 912, yet it must be so
understood, in view of the rule of interpretation
above referred to, by which the more specific is held
to control the general. Besides, this interpretation
supplies the only possible means of harmonizing the
two provisions. In addition to this, article 986 of the
Civil Code affords independent proof that intestate
succession to a vacant portion can only occur when
accretion is impossible.
The attorneys for the appellant direct attention to
the fact that, under paragraph 4 of article 912,
intestate succession occurs when the heir instituted
is disqualified to succeed (incapaz de suceder), while,
under the last provision in paragraph 2 of article 982,
accretion occurs when one of the persons called to
inherit under the will is disqualified to receive the
inheritance (incapaz de recibirla). A distinction is
then drawn between incapacity to succeed and
incapacity to take, and it is contended that the
disability of Vicente F. Lopez was such as to bring the
case under article 912 rather than 982. We are of the
opinion that the case cannot be made to turn upon so
refined an interpretation of the language of the Code,
and at any rate the disability to which Vicente F.
Lopez was subject was not a general disability to
succeed but an accidental incapacity to receive the
legacy, a consideration which makes a case for
accretion rather than for intestate succession.
The opinions of the commentators, so far as they have
expressed themselves on the subject, tend to the
conclusion that the right of accretion with regard to
portions of an inheritance left vacant by the death or
disqualification of one of the heirs or his renunciation
of the inheritance is governed by article 912, without
being limited, to the extent supposed in appellant's
brief, by provisions of the Code relative to intestate
succession (Manresa, Comentarios al Codigo Civil
Espaol, 4th ed., vol. VII, pp. 310, 311; id., 34; 13
Mucius Scaevola, pp. 372, 373, 285-287; 16 Mucius
Scaevola, 186). Says Escriche: "It is to be understood
that one of the coheirs or colegatees fails if
nonexistent at the time of the making of the will, or
he renounces the inheritance or legacy, if he dies
before the testator, if the condition be not fulfilled,
or if he becomes otherwise incapacitated. . . .
(Diccionario de Legislacion y Jurisprudencia, vol. I, p.
225.)lawphil.net
In conclusion it may be worth observing that there has
always existed both in the civil and in the common
law a certain legal intendment, amounting to a mild
presumption, against partial intestacy. In Roman law,
as is well known, partial testacy systems a
presumption against it, a presumption which has its
basis in the supposed intention of the testator.
The judgment appealed from will be affirmed, and it
is so ordered, with costs against the appellant.
epublic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 1439 March 19, 1904
ANTONIO CASTAEDA, plaintiff-appellee,
vs.
JOSE E. ALEMANY, defendant-appellant.
Ledesma, Sumulong and Quintos for appellant.
The court erred in holding that all legal formalities
had been complied with in the execution of the will
of Doa Juana Moreno, as the proof shows that the
said will was not written in the presence of under the
express direction of the testratrix as required by
section 618 of the Code of Civil Procedure.
Antonio V. Herrero for appellee.
The grounds upon which a will may be disallowed are
limited to those mentioned in section 634 of the Code
of Civil Procedure.
WILLARD, J.:
(1) The evidence in this case shows to our satisfaction
that the will of Doa Juana Moreno was duly signed by
herself in the presence of three witnesses, who signed
it as witnesses in the presence of the testratrix and of
each other. It was therefore executed in conformity
with law.
There is nothing in the language of section 618 of the
Code of Civil Procedure which supports the claim of
the appellants that the will must be written by the
testator himself or by someone else in his presence
and under his express direction. That section requires
(1) that the will be in writing and (2) either that the
testator sign it himself or, if he does sign it, that it be
signed by some one in his presence and by his express
direction. Who does the mechanical work of writing
the will is a matter of indifference. The fact,
therefore, that in this case the will was typewritten
in the office of the lawyer for the testratrix is of no
consequence. The English text of section 618 is very
plain. The mistakes in translation found in the first
Spanish edition of the code have been corrected in
the second.
(2) To establish conclusively as against everyone, and
once for all, the facts that a will was executed with
the formalities required by law and that the testator
was in a condition to make a will, is the only purpose
of the proceedings under the new code for the
probate of a will. (Sec. 625.) The judgment in such
proceedings determines and can determine nothing
more. In them the court has no power to pass upon
the validity of any provisions made in the will. It can
not decide, for example, that a certain legacy is void
and another one valid. It could not in this case make
any decision upon the question whether the testratrix
had the power to appoint by will a guardian for the
property of her children by her first husband, or
whether the person so appointed was or was not a
suitable person to discharge such trust.
All such questions must be decided in some other
proceeding. The grounds on which a will may be
disallowed are stated the section 634. Unless one of
those grounds appears the will must be allowed. They
all have to do with the personal condition of the
testator at the time of its execution and the
formalities connected therewith. It follows that
neither this court nor the court below has any
jurisdiction in his proceedings to pass upon the
questions raised by the appellants by the assignment
of error relating to the appointment of a guardian for
the children of the deceased.
It is claimed by the appellants that there was no
testimony in the court below to show that the will
executed by the deceased was the same will
presented to the court and concerning which this
hearing was had. It is true that the evidence does not
show that the document in court was presented to the
witnesses and identified by them, as should have been
done. But we think that we are justified in saying that
it was assumed by all the parties during the trial in
the court below that the will about which the
witnesses were testifying was the document then in
court. No suggestion of any kind was then made by
the counsel for the appellants that it was not the
same instrument. In the last question put to the
witness Gonzales the phrase "this will" is used by the
counsel for the appellants. In their argument in that
court, found on page 15 of the record, they treat the
testimony of the witnesses as referring to the will
probate they were then opposing.
The judgment of the court below is affirmed,
eliminating therefrom, however, the clause "el cual
debera ejecutarse fiel y exactamente en todas sus
partes." The costs of this instance will be charged
against the appellants.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-
appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
AVANCEA, J.:
On September 19, 1917, the Court of First Instance of
Cebu admitted to probate Ana Abangan's will
executed July, 1916. From this decision the
opponent's appealed.
Said document, duly probated as Ana Abangan's will,
consists of two sheets, the first of which contains all
of the disposition of the testatrix, duly signed at the
bottom by Martin Montalban (in the name and under
the direction of the testatrix) and by three witnesses.
The following sheet contains only the attestation
clause duly signed at the bottom by the three
instrumental witnesses. Neither of these sheets is
signed on the left margin by the testatrix and the
three witnesses, nor numbered by letters; and these
omissions, according to appellants' contention, are
defects whereby the probate of the will should have
been denied. We are of the opinion that the will was
duly admitted to probate.
In requiring that each and every sheet of the will
should also be signed on the left margin by the
testator and three witnesses in the presence of each
other, Act No. 2645 (which is the one applicable in
the case) evidently has for its object (referring to the
body of the will itself) to avoid the substitution of any
of said sheets, thereby changing the testator's
dispositions. But when these dispositions are wholly
written on only one sheet signed at the bottom by the
testator and three witnesses (as the instant case),
their signatures on the left margin of said sheet would
be completely purposeless. In requiring this signature
on the margin, the statute took into consideration,
undoubtedly, the case of a will written on several
sheets and must have referred to the sheets which the
testator and the witnesses do not have to sign at the
bottom. A different interpretation would assume that
the statute requires that this sheet, already signed at
the bottom, be signed twice. We cannot attribute to
the statute such an intention. As these signatures
must be written by the testator and the witnesses in
the presence of each other, it appears that, if the
signatures at the bottom of the sheet guaranties its
authenticity, another signature on its left margin
would be unneccessary; and if they do not guaranty,
same signatures, affixed on another part of same
sheet, would add nothing. We cannot assume that the
statute regards of such importance the place where
the testator and the witnesses must sign on the sheet
that it would consider that their signatures written on
the bottom do not guaranty the authenticity of the
sheet but, if repeated on the margin, give sufficient
security.
In requiring that each and every page of a will must
be numbered correlatively in letters placed on the
upper part of the sheet, it is likewise clear that the
object of Act No. 2645 is to know whether any sheet
of the will has been removed. But, when all the
dispositive parts of a will are written on one sheet
only, the object of the statute disappears because the
removal of this single sheet, although unnumbered,
cannot be hidden.
What has been said is also applicable to the
attestation clause. Wherefore, without considering
whether or not this clause is an essential part of the
will, we hold that in the one accompanying the will in
question, the signatures of the testatrix and of the
three witnesses on the margin and the numbering of
the pages of the sheet are formalities not required by
the statute. Moreover, referring specially to the
signature of the testatrix, we can add that same is not
necessary in the attestation clause because this, as its
name implies, appertains only to the witnesses and
not to the testator since the latter does not attest,
but executes, the will.
Synthesizing our opinion, we hold that in a will
consisting of two sheets the first of which contains all
the testamentary dispositions and is signed at the
bottom by the testator and three witnesses and the
second contains only the attestation clause and is
signed also at the bottom by the three witnesses, it is
not necessary that both sheets be further signed on
their margins by the testator and the witnesses, or be
paged.
The object of the solemnities surrounding the
execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject
should be interpreted in such a way as to attain these
primordal ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right
to make a will. So when an interpretation already
given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative
of the testator's last will, must be disregarded.
lawphil.net
As another ground for this appeal, it is alleged the
records do not show that the testarix knew the dialect
in which the will is written. But the circumstance
appearing in the will itself that same was executed in
the city of Cebu and in the dialect of this locality
where the testatrix was a neighbor is enough, in the
absence of any proof to the contrary, to presume that
she knew this dialect in which this will is written.
For the foregoing considerations, the judgment
appealed from is hereby affirmed with costs against
the appellants. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First
Instance of Rizal, Pasig Branch 25 and EVANGELINE
S. YUIPCO, Deputy Clerk of Court, respondents.
AQUINO, J.:
Should disciplinary action be taken against
respondent judge for having admitted to probate a
will, which 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
she and the attesting witnesses did not appear before
the notary as admitted by the notary himself?
That question arises under the pleadings filed in the
testate case and in the certiorari case in the Court of
Appeals which reveal the following tangled strands of
human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the
U.S. Army (Philippine Scouts), Fort McKinley, married
Marcelina Salvador in 1923 (p. 150, Spec. Proc. No.
7816). They were childless. They reared a boy named
Agapito who used the surname Suroza and who
considered them as his parents as shown in his 1945
marriage contract with Nenita de Vera (p. 15, Rollo of
CA-G.R. No. 08654-R; p. 148, Rollo of Testate Case
showing that Agapito was 5 years old when Mauro
married Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow,
became a pensioner of the Federal Government. That
explains why on her death she had accumulated some
cash in two banks.
Agapito and Nenita begot a child named Lilia who
became a medical technologist and went abroad.
Agapito also became a soldier. He was disabled and
his wife Nenita was appointed as his guardian in 1953
when he was declared an incompetent in Special
Proceeding No. 1807 of the Court of First Instance of
Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No.
08654-R).
In that connection, it should be noted that a woman
named Arsenia de la Cruz wanted also to be his
guardian in another proceeding. Arsenia tried to
prove that Nenita was living separately from Agapito
and that she (Nenita) admitted to Marcelina that she
was unfaithful to Agapito (pp. 61-63, Record of
testate case).
Judge Bienvenido A. Tan dismissed the second
guardianship proceeding and confirmed Nenita's
appointment as guardian of Agapito (p. 16, Rollo of
CA case). Agapito has been staying in a veteran's
hospital in San Francisco or Palo Alto, California (p.
87, Record).
On a date not indicated in the record, the spouses
Antonio Sy and Hermogena Talan begot a child named
Marilyn Sy, who, when a few days old, was entrusted
to Arsenia de la Cruz (apparently a girl friend of
Agapito) and who was later delivered to Marcelina
Salvador Suroza who brought her up as a supposed
daughter of Agapito and as her granddaughter (pp. 23-
26, Rollo of CA-G.R. No.SP-08654-R). Marilyn used the
surname Suroza. She stayed with Marcelina but was
not legally adopted by Agapito. She married Oscar
Medrano and is residing at 7666 J.B. Roxas Street,
Makati, apparently a neighbor of Marina Paje, a
resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in
Manila on July 23, 1973, when she was 73 years old.
That will which is in English was thumbmarked by
her. She was illiterate. Her letters in English to the
Veterans Administration were also thumbmarked by
her (pp. 38-39, CA Rollo). In that wig, Marcelina
bequeathed all her estate to her supposed
granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans
Hospital in Quezon City. At the time of her death, she
was a resident of 7374 San Maximo Street, Olimpia,
Makati, Rizal. She owned a 150-square meter lot and
house in that place. She acquired the lot in 1966 (p.
134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a
laundrywoman of Marcelina (P. 97, CA Rollo) and the
executrix in her will (the alternate executrix was
Juanita Macaraeg, mother of Oscar, Marilyn's
husband), filed with the Court of First Instance of
Rizal, Pasig Branch 25, a petition for the probate of
Marcelina's alleged will. The case was assigned to
Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado
commissioned his deputy clerk of court, Evangeline S.
Yuipco, to hear the evidence. The transcripts of the
stenographic notes taken at the hearing before the
deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado
appointed Marina as administratrix. On the following
day, April 1, Judge Honrado issued two orders
directing the Merchants Banking Corporation and the
Bank of America to allow Marina to withdraw the sum
of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon
Castro, the custodian of the passbooks, to deliver
them to Marina.
Upon motion of Marina, Judge Honrado issued another
order dated April 11, 1975, instructing a deputy
sheriff to eject the occupants of the testatrix's house,
among whom was Nenita V. Suroza, and to place
Marina in possession thereof.
That order alerted Nenita to the existence of the
testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the
decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11
ejecting them. They alleged that the decedent's son
Agapito was the sole heir of the deceased, that he has
a daughter named Lilia, that Nenita was Agapito's
guardian and that Marilyn was not Agapito's daughter
nor the decedent's granddaughter (pp. 52-68, Record
of testate case). Later, they questioned the probate
court's jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already
apprised that persons, other than Marilyn, were
claiming Marcelina's estate, he issued on April 23 an
order probating her supposed will wherein Marilyn
was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an
omnibus petition "to set aside proceedings, admit
opposition with counter-petition for administration
and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger
to Marcelina, that the will was not duly executed and
attested, that it was procured by means of undue
influence employed by Marina and Marilyn and that
the thumbmarks of the testatrix were procured by
fraud or trick.
Nenita further alleged that the institution of Marilyn
as heir is void because of the preterition of Agapito
and that Marina was not qualified to act as executrix
(pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida
A. Penaojas the housemaid of Marcelina, who swore
that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the
ejectment order (filed on April 18) and her omnibus
motion to set aside the proceedings (filed on April
24), Nenita filed the next day, April 25, an opposition
to the probate of the will and a counter-petition for
letters of administration. In that opposition, Nenita
assailed the due execution of the will and stated the
names and addresses of Marcelina's intestate heirs,
her nieces and nephews (pp. 113-121, Record). Nenita
was not aware of the decree of probate dated April
23, 1975.
To that opposition was attached an affidavit of
Dominga Salvador Teodocio, Marcelina's niece, who
swore that Marcelina never executed a win (pp. 124-
125, Record).
Marina in her answer to Nenita's motion to set aside
the proceedings admitted that Marilyn was not
Marcelina's granddaughter but was the daughter of
Agapito and Arsenia de la Cruz and that Agapito was
not Marcelina's son but merely an anak-anakan who
was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed
Nenita's counter-petition for the issuance of letters of
administration because of the non-appearance of her
counsel at the hearing. She moved for the
reconsideration of that order.
In a motion dated December 5, 1975, for the
consolidation of all pending incidents, Nenita V.
Suroza reiterated her contention that the alleged will
is void because Marcelina did not appear before the
notary and because it is written in English which is not
known to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied"
the various incidents "raised" by Nenita (p. 284,
Record).
Instead of appealing from that order and the order
probating the wig, Nenita "filed a case to annul" the
probate proceedings (p. 332, Record). That case, Civil
Case No. 24276, Suroza vs. Paje and Honrado (p. 398,
Record), was also assigned to Judge Honrado. He
dismissed it in his order of February 16, 1977 (pp. 398-
402, Record).
Judge Honrado in his order dated December 22, 1977,
after noting that the executrix had delivered the
estate to Marilyn, and that the estate tax had been
paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated
October 12, 1978, filed in this Court, Nenita charged
Judge Honrado with having probated the fraudulent
will of Marcelina. The complainant reiterated her
contention that the testatrix was illiterate as shown
by the fact that she affixed her thumbmark to the will
and that she did not know English, the language in
which the win was written. (In the decree of probate
Judge Honrado did not make any finding that the will
was written in a language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of
his knowledge that the testatrix had a son named
Agapito (the testatrix's supposed sole compulsory and
legal heir), who was preterited in the will, did not
take into account the consequences of such a
preterition.
Nenita disclosed that she talked several times with
Judge Honrado and informed him that the testatrix
did not know the executrix Marina Paje, that the
beneficiary's real name is Marilyn Sy and that she was
not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted
corruptly in allowing Marina and her cohorts to
withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy
clerk of court, for not giving her access to the record
of the probate case by alleging that it was useless for
Nenita to oppose the probate since Judge Honrado
would not change his decision. Nenita also said that
Evangeline insinuated that if she (Nenita) had ten
thousand pesos, the case might be decided in her
favor. Evangeline allegedly advised Nenita to desist
from claiming the properties of the testatrix because
she (Nenita) had no rights thereto and, should she
persist, she might lose her pension from the Federal
Government.
Judge Honrado in his brief comment did not deal
specifically with the allegations of the complaint. He
merely pointed to the fact that Nenita did not appeal
from the decree of probate and that in a motion dated
July 6, 1976 she asked for a thirty day period within
which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she
never talked with Nenita and that the latter did not
mention Evangeline in her letter dated September 11,
1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that
she (Evangeline) prevented Nenita from having access
to the record of the testamentary proceeding.
Evangeline was not the custodian of the record.
Evangeline " strongly, vehemently and flatly denied"
Nenita's charge that she (Evangeline) said that the
sum of ten thousand pesos was needed in order that
Nenita could get a favorable decision. Evangeline also
denied that she has any knowledge of Nenita's pension
from the Federal Government.
The 1978 complaint against Judge Honorado was
brought to attention of this Court in the Court
Administrator's memorandum of September 25, 1980.
The case was referred to Justice Juan A. Sison of the
Court of Appeals for investigation, report and
recommendation. He submitted a report dated
October 7, 1981.
On December 14, 1978, Nenita filed in the Court of
Appeals against Judge Honrado a petition for
certiorari and prohibition wherein she prayed that the
will, the decree of probate and all the proceedings in
the probate case be declared void.
Attached to the petition was the affidavit of Domingo
P. Aquino, who notarized the will. He swore that the
testatrix and the three attesting witnesses did not
appear before him and that he notarized the will
"just to accommodate a brother lawyer on the
condition" that said lawyer would bring to the notary
the testatrix and the witnesses but the lawyer never
complied with his commitment.
The Court of Appeals dismissed the petition because
Nenita's remedy was an appeal and her failure to do
so did not entitle her to resort to the special civil
action of certiorari (Suroza vs. Honrado, CA-G.R. No.
SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on
November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot
and academic.
We hold that disciplinary action should be taken
against respondent judge for his improper disposition
of the testate case which might have resulted in a
miscarriage of justice because the decedent's legal
heirs and not the instituted heiress in the void win
should have inherited the decedent's estate.
A judge may be criminally liable or knowingly
rendering an unjust judgment or interlocutory order
or rendering a manifestly unjust judgment or
interlocutory order by reason of inexcusable
negligence or ignorance (Arts. 204 to 206, Revised
Penal Code).
Administrative action may be taken against a judge of
the court of first instance for serious misconduct or
inefficiency ( Sec. 67, Judiciary Law). Misconduct
implies malice or a wrongful intent, not a mere error
of judgment. "For serious misconduct to exist, there
must be reliable evidence showing that the judicial
acts complained of were corrupt or inspired by an
intention to violate the law, or were in persistent
disregard of well-known legal rules" (In re
lmpeachment of Horrilleno, 43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence,
ignorance and carelessness. A judge would be
inexcusably negligent if he failed to observe in the
performance of his duties that diligence, prudence
and circumspection which the law requires in the
rendition of any public service (In re Climaco, Adm.
Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
The case against respondent Yuipco has become moot
and academic because she is no longer employed in
the judiciary. Since September 1, 1980 she has been
assistant city fiscal of Surigao City. She is beyond this
Court's disciplinary jurisdiction (Peralta vs. Firm Adm.
Matter No. 2044-CFI November 21, 1980, 101 SCRA
225).

In this case, respondent judge, on perusing the will SO ORDERED.

and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix,
could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated

that English was a language "understood and known"
to the testatrix. But in its concluding paragraph, it
was stated that the will was read to the testatrix "and
translated into Filipino language". (p. 16, Record of
testate case). That could only mean that the will was
written in a language not known to the illiterate
testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code
that every will must be executed in a language or
dialect known to the testator. Thus, a will written in
English, which was not known to the Igorot testator,
is void and was disallowed (Acop vs. Piraso, 52 Phil.
660).

The hasty preparation of the will is shown in the

attestation clause and notarial acknowledgment
where Marcelina Salvador Suroza is repeatedly
referred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he

could have noted not only the anomaly as to the
language of the will but also that there was something
wrong in instituting the supposed granddaughter as
sole heiress and giving nothing at all to her supposed
father who was still alive.

Furthermore, after the hearing conducted by

respondent deputy clerk of court, respondent judge
could have noticed that the notary was not presented
as a witness.

In spite of the absence of an opposition, respondent

judge should have personally conducted the hearing
on the probate of the will so that he could have
ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and

dereliction of duty to be inexcusable.

WHEREFORE, for inefficiency in handling the testate

case of Marcelina S. Suroza, a fine equivalent to his
salary for one month is imposed on respondent judge
(his compulsory retirement falls on December 25,
1981).