Neri vs. Akutin
Testate succession remains just
Facts
o Neri had 6 kids with his first wife and another 5 kids with his second
wife, herein private respondents.
One of the kids in the first marriage died, leaving. 7 kids of
her own.
o Neri, in his testament, stated that the children from the first marriage
shall no longer succeed from him as they had already received their
shares during Neris lifetime.
TC found no evidence that they received anything land
given was public lands and so wasnt part of Neris property
Land actually left was also claimed by the 2nd marriage and
so cant say 1st already received share
o The trial court found all children (from both marriages) to be intestate
heirs of Neri. The appellate court modified this decision, stating that
the disposal of the free portion of the will was valid.
CA quoted OCC 851 which states that despite
disinheritance, the legacies, betterment, and other
testamentary dispositions are valid insofar as they do not
encroach upon the legitime.
CA found 1/3 betterment valid, and 1/3 legacy valid.
o Certiorari by the administration of the estate, 1st wife, and kids from
1st wife. SC originally ruled in favor of the appellants (1 st marriage)
ruling that there was preterition
Issues
o (1) W/N there was preterition?
o (2) What are the effects of preterition? Wasnt it appealed?
o (3) Instant case
Held
o (1) Yes
based on the factual findings of the lower courts, the
testator left all his property by virtue of a universal title to
the children by his second marriage. Even though walang
express dis-inheritance of the 1st marriage kids, the fact that
everything was given to the 2nd, is already preterition
HENCE annulled and intestate succession
declared open.
o (2) Read.
Manresa
814 (preterition of forced heirs in a direct line)
annuls the institution of heirs, while 851
(disinheritance without stated cause) just modifies
it insofar as the prejudice caused and legacies and
betterments are valid as long as they do not harm
the heir. [Manresas example Bachelor]
o 814: Only legatees and betterment
unaffected if not inofficious. Intestate
succession open
o 851: L/B/Other testamentary dispositions
unaffected IF not prejudicial to adjusted
legitime.
adjusted (like 817)
This is because of the presumed will of the
testator. When the testator dis-inherits, it is
presumed that he intended to do so based on
some reason. While this is insufficient to deprive
him of his legitime, but it is sufficient to deprive him
of the rest of the inheritance.
Contrast to this is preterition where the
presumption is that the omission was by mistake
(i.e. born after, didnt know existed, etc) and so it
is presumed that had the testator known, he
wouldve instituted the omitted person as an heir
not only with respect to the legitime but also to the
other parts (free portion, betterment)
Sanchez
Effect of disinheritance is much less in scope than
preterition as it only annuls the institution
INSOFAR as prejudicial (preterition makes no
qualifier annulled lang)
What about 817
817 is explained as the general rule, applicable
when the law does not provide specific rules for a
certain case (unfortunately for 2nd marriage, there
are specific rules for preterition and disinheritance
HENCE 817 does not apply
o (3) In the instant case, the children and 2nd wife were instituted as
heirs and not merely as legatees or mejoras (betterments) HENCE
the annulment applies to their institution.
PR (2nd) theory is wrong in saying that they should be
treated as legatees. To treat them as such would be to
destroy the distinction between 814, 817, and 851 which
would create a surplasage of the law which the legislative
could not have intended.
Institution of heirs is a bequest by universal title of
property that is undetermined. Legacy refers to
specific property bequeathed by a particular or
special title. The first is also different from a
betterment which should be made expressly as
such - Institution of heirs cannot be considered
institution of legacy.
Bocobos Dissent
o No Preterition
The findings of the lower court show that the children of the
first marriage have already received their legitime.
Preterition requires that one or some of the members of the
direct line be totally deprived of their legitime.
Manresa: needs to be TOTAL omission, otherwise
diff.
The fact that what was given to them were public
lands still cannot support preterition preterition
 requires OMISSION of the heir, and not making a When the institution of an heir is completely annulled as in
mistake as to what is given. The fact na mali the case of preterition, the intestate succession is opened
binigay means that they were still included in the insofar as the portion of the inheritance not yet disposed of
will. by virtue of legacy, improvement, or donation.
Also may debt forgiveness which operates as Will still in effect, what happens is that the clause limiting
being succeeded money. Three of the 6 kids sa 1st the heirs to those from the 2nd marriage is nullified.
marriage had utang. Doesnt mean equal shares, it just means that all
Getulia (deceased daughter) and his grand-kids of the kids and both wives shall continue the
through her were not forgotten. We cant assume testators personality.
that at the time he was making his will, which is Mandas and Mejoras to the 2nd kids remain in
when one searches ones conscience, he forgot effect. The will is clear in wanting to dispose all
his child who passed away before he did. Also, property in favor of the 2nd marriage kids. ( o need
Getulias debt was forgiven also. to expressly say na legacy, just make it so that
Because theres no preterition, the laws cited do not apply! sa kanila all thats left)
o The free-disposal portion and betterment are valid. While it seems more equitable to just divide it equally, but
In case there was preterition, the 2nd family will still be so long as the legitime is not impaired, the testator is free to
entitled to 1/3 free disposal, 1/3 of the betterments, and their distribute his property among his kids as he saw fit and fair
share in the legitime. this is why even in preterition, mandas and mejoras are
While the cited law (814) states that the institution of heirs valid to the extent that they are not inofficious.
is annulled. We must remember that the mandas and Basta testator can give 2/3 (1/3 mejora, 1/3 manda) + share
mejoras which are not inofficious, are still valid! but the in the legitime to the 2nd marriage kids.
legacies and betterments, insofar as they are not
inofficious, shall be valid
Testator can always freely dispose of the free-
portion. The only thing which may be against the
will of the testator is the legitime.
Other testamentary dispositions (not the institution
of heirs), remain valid as long as they do not
encroach upon their limits (1/3 improvements, and
legacies do not exceed the free portion, in case of
excess, it will be adjusted)
o For clarity see the history of the institution of heirs in Spain
In the old days, the institution of the heir was the main
feature of a will. In case such disposition is missing, such
wills, in the old days, would be held invalid. (roman law was
more rituary than the lax german law)
This was a novel feature of succession law.
Nothing in other legislation supported the idea of
the disposition of ones character which will be
continued by another.
Previous Purpose of institution have someone continue
the personality of the testator. However, after the passage
of the Ordenamiento de Acala, there is already separation
between the concept of a will and that of the institution of
heirs (wills no longer require institution)
Because of this separation, the failure to properly Alvarez vs. IAC
institute (preterition), does not completely Facts
invalidate the will!!! If di naman absolute pre-req o Aniceto Yanes owned Lot 773 (150k SQM) in Murcia, Negros
ng will ang institution, why would improper Occidental. He was survived by his children and his grandchildren,
institution invalidate it? the latter being the private respondents in this case.
o Effect of 814 Kids: Rufino (estelita, iluminada, jesus) Felipe (Antonio,
rosales) Teodora (Jovito but di kasama)
 o Aniceto left Lots 773 and 823. But Teresita, his child, was only able o AKA heirs are still bound by the contracts
to tend to 823 (24 hec) of the deceased party.
o When Rufino came back to Negros (post-Japanese occupation), his o JBL REYES in Estate of Hemady vs.
child found out that lot 773 was in the possession of Santiago, Luzon Surety We follow the general
Fuentebella, and Alvarez. Apparently, Santiago possessed a TCT transmissibility of rights. This rule is
over the land, which was eventually sold to Alvarez. because of the depersonalization of
Two years later, the Yanes heirs filed a complaint for the patrimonial rights obligations have
return of possession and ownership of the disputed lots + evolved into a relation from patrimony to
accounting of the produce + damages. patrimony with the persons occupying
CFI ruled in favor of the PRs ordering Alvarez to reconvey only a representative position, barring
the lots to them. Problem was, part of the lot was already those rare cases where the obligation is
sold to someone else by Alvarez (Siason) strictly personal, i.e., is contracted intuitu
o The execution of the reconveyance having failed, PR filed for a personae, in consideration of its
declaration of nullity of Siasons title and issuance of a new one to performance by a specific person and by
them. no other.
Siason won the case. The fact na the heirs didnt inherit the property
o Since the 2nd case failed, the Yaneses opted to file an ex-parte itself is of no moment since they still received the
motion for the issuance of an alias writ of execution. Yaneses lost, monetary equivalent thereof from their fathers
with the court noting that the judgment could not be enforced against estate.
Siason as he was not a party to the first case (Return of possession BUT ONLY LIABLE TO THE EXTENT OF THE
vs. Alvarez) VALUE OF THEIR INHERITANCE!!
o Yaneses filed a third case which they won against Alvarez but was
dismissed against Siason. The heirs of Alvarez (legitimate children)
were ordered to pay P20k as the actual value of the lots.
Issues
o (1) Prescription/Estoppel bars retrial of right to the land/money?
o (2) W/N Father Alvarezs liabilities for the value of the property can
be passed on to the kids?
Held
o (1) Yes
The fact that the Yaneses were illegally deprived of their
property was undisputed, and the trial court judgment (1 st
case) finding such to be the case is already final and
executory.
The fact that Siason was a buyer in good faith was also
unquestioned trial court did not annul the sale but
sustained it!
Rights were already adjudicated!
o (2) Yes. Transmissible.
NCC 1311 Contracts take effect only between the parties,
their assigns and heirs except in case where the rights and
obligations arising from the contract are not transmissible
by their nature, or by stipulation or by provision of law. The Vitug vs. CA
heir is not liable beyond the value of the property received Facts
from the decedent. o Dolores Vitug died in NYC, USA, leaving two wills wherein private
Not altered by Rule 89 that money debts must be respondent Rowena Corona was instituted as an executrix. In
liquidated and paid from estate before residue is Corona vs. CA, the Supreme Court also instituted Alonte and Mr.
distributed to heirs BECAUSE ultimately, the effect Vitug as co-administrators.
is the same Heirs receive the same amount o Vitug filed a motion asking the court for authority to sell certain shares
regardless of late payment of the debt because the of stock and other real properties belonging to the estate.
debt reduces their entitlement to receive.
 Vitug explained that this was to pay-off an advance he
earlier made for the benefit of the estate, when he paid the
estates estate taxes from his own bank account.
o Executrix Corona opposed this motion on the ground that the bank
account was part of their conjugal property. Hence, Vitug had never
paid the taxes from his own accounts and is therefore not entitled to
payment.
Vitug then explained that the account was his, by virtue of
a survivorship agreement executed between him, the
testator, and the bank
o The Trial courts upheld the validity of this Survivorship Agreement,
but the CA declared it to be mortis causa. Problem was, it did not
follow the prescribed form of wills, and was hence invalid.
Issues
o (1) W/N the conveyance through a survivorship agreement is valid?
o (2) W/N it modifies the property relations between the spouses?
Held
o (1) Yes NOT MORTIS CAUSA
Wills are defined as a "a personal, solemn, revocable and
free act by which a capacitated person disposes of his
property and rights and declares or complies with duties to
take effect after his death."
Emphasis is placed on his property and rights
more simply, the object to be transmitted must be
owned by the testator.
In this case, the money belonged to both spouses
and not just the testator. As it was acquired during
the existence of marital relations, and because
there is no proof to the contrary, it is presumed that
it is conjugal property
Jurisprudence upholds the validity of Survivorship
Agreements in case there is joint-ownership of a bank
account, in which case ownership over the entire account
ends up in the co-owner should the other die.
ALSO NOT INTER VIVOS
The ownership was consolidated only once the
wife died.
ALSO NOT A DONATION BETWEEN SPOUSES Montinola vs. Herbosa
Involved no conveyance of ownership from one Facts
spouse to another o Jose Rizal was prosecuted for the crime of founding illegal
o (2) No. associations to induce rebellion. He was convicted and was
The spouses are not prohibited to invest the conjugal sentenced to death. On the eve of his execution, he hid his writing
property which belongs to them both. They merely put what Mi Ultimo Adios in an alcohol lamp which came into the possession
rightfully belonged to them in a money-making venture. of his sister, Dona Trinidad Rizal.
They did not dispose of it in favor of the other, which would o Dona Trinidad Rizal sold Rizal relics. The problem was that both
have arguably been sanctionable as a prohibited donation petitioner and respondent were claiming ownership as buyers over
o The Survivorship Agreement is merely an obligation with a term, with the Rizal relics.
such term being the death of either of the spouses. During the course of trial, despite both parties claiming to
STILL, the court warns that such agreements will be have bought from a private party, the trial court used Dona
invalidated if they are shown to be merely a cloak to hide an Trinidad Rizals doubt as to whether she could sell it or not
inofficious donation between spouses to invalidate the sale.
 According to the trial court, the sentence against Rizal for the way Dona was raised (respectfully) it is doubtful she would
civil indemnity was transmissible to the heirs (as was engage in double-dealing and fraud.
decreed in the conviction). Thus the state, being owed by o 3. No symbolic tradition made allegedly, Dona kept the stuff
Jose Rizal, had a lien over the Rizal Relics sold by Dona anyway
Trinidad Rizal. o 4. Laches allegedly bought 4 years before demanding
Issues Herbosa owns it
o (1) W/N the judgment may still be demanded from the Rizal family? o Proved purchase through lucrative title + in his possession
o (2) W/N the state owned the Rizal Relics because Mi Ultimo Adios
was a holographic will?
Held
o (1) No.
Rizals death sparked the revolution against the Spanish
rulers. After the defeat of the Spanish, and despite the
Americans being in power, Jose Rizal was hailed as a
martyr and a hero.
History has repudiated Rizals conviction, as well
as the civil judgment against him.
To sustain the trial courts view is to reject the
verdict of history written by the Filipino people
Besides, Rizal was convicted for Rebellion. It is a legal
axiom that upon a change of sovereignty, all political acts
or acts with political color become void.
o (2) No. No animus testandi
Mi Ultimo Adios is a work of literature. If Rizal had intended
it to function as a will, he would have entitled it Mi Ultimo
Voluntad. The words used by Rizal expressed parting, not
bequeathing.
Furthermore, at the time of his death, Jose Rizal
did not have much property to Bequeath anyway.
Also, there was a mis-translation in the English
version of Mi Ultimo Adios. The word leave was
mistranslated to give. So the phrase to thee (the
state), I give to you all, when in fact the correct
translation was to thee, I leave to you all, my
family, friends, etc.
Besides, there were tons and tons of formalities that Mi
Ultimo Adios did not comply with anyway stamped paper Enriquez vs Abadia
for the year, signed, date is placed by testator, etc Facts
Lesson o Father Abadia, Parish Priest of Talisay, Cebu, executed a document
o An instrument which expresses last wishes, thoughts, and advice, purporting to be his Last Will and Testament. He died some 20 years
but does not contain a disposition of property nor was made with later in a different municipality, as an evacuee. Died 1943. Will 1923.
animus testandi, cannot be considered as a will in the legal sense of He left properties worth 8,000 pesos in value.
the term One of his legatees, Enriquez, filed for probate in a Cebu
CFI. This petition was contested by cousins and nephews
On the matter of who owns it. who wouldve inherited Father Abadias properties had he
Montinola presented a deed of sale, alleging that he bought it directly from left no will.
Dona Trinidad Rizal for one peso. SC agreed with the trial court that the deed o The sole-surviving witness testified that Father Abadia signed his will
of sale is invalid because: after personally preparing it in Spanish which he understood. The
o 1. Too low a price! 1 peso for items worth 20,000 pesos witness was able to point out numerous details including the
o 2. Couldnt have been sold to him since it was in the custody of numbering on the pages (per folio/sheet, but the law required per
Rizals relatives including Donas nephews and such. Considering page), where he signed it (left hand margin for every page but he
was wrong and signed every leaf lang), and how he prepared it
 (some of the pages, only he signed, but law requires testator and
three witnesses)
o The CFI found the exhibit to be a holographic will, being in the
handwriting of the testator. 1952
Important: The CFI noted that while holographic wills were
prohibited/null under the law in effect when Father Abadia
made them, since the new civil code was already in effect
during the hearing, the holographic will shall be allowed
under a liberal view to carry out the intention of the testator.
Issues
o (1) W/N this will should be considered?
Held
o (1) No.
New Civil Code, while allowing holographic wills, also states
in article 795 that the validity of a will as to its form depends
upon the observance of the law in force at the time it is
made
Although the will operates upon and after the
death of the testator, the wishes of the testator are
given solemn expression upon the execution of the
will, and hence, the legacy or bequest becomes a
completed act.
Re: view that intention trumps all.
The general rule is that the legislature cannot
validate void wills.
The argument is that new statutes passed after
execution and after death which tends to lessen
the formal requirements to effectuate a will should
be interpreted in favor of testacy. However, once
dead, the legatees obtain a vested right. Similarly,
if upon death, no right was vested in the first place,
no right can be granted by a statute enacted after
the fact.
In re: Will of Riosa
Facts
o Riosa died in 1917, leaving a will executed some 9 years prior. In
that will, he disposed of 35,000 pesos worth of properties. The will
he made was in accordance with the law then in force. Died 1943,
Will 1908. Law change 1916
Problem was, sometime in 1916, a year before his death
and 8 years after he made the will, the law changed! A new
requirement was created the signature of the testator and
the witnesses on the left margin of each and every page.
o Comparison between the laws
o In previous jurisprudence, it was already held that the will remains
valid if the death occurs before the law is amended, and that a will
made after the regulation was passed should comply with the
regulation. BUT there was never an instance to pass upon a case
such as the instant case
The will was created prior to the new law, but the testator
died after the new rules were already in effect.
o Three views
Invalid if didnt change to comply
Rationale: before death actually occurs, the
supposed will is a mere inchoate act which may
become the will after the fact of death.
Valid if complied with old law when executed
The old English view.
[Justice Sharswood] Retrospective laws generally
work injustice, and ought to be construed only
when the mandate of the legislature is imperative.
o Unjustly frustrate his right of disposition.
o While ignorance of the law is not
excused, the testator also enjoys the
right to presume that his act will not be
affected by some future regulation
New regulation retroactive only if its pro-testacy.
Issues
o (1) which of the three views do we apply in this jurisdiction?
Held
o (1) 2nd Rule Valid if compliant with the law in force at time of
execution
The reasoning behind the first is fallacious the will
executed is more than an inchoate act. It is a completed act
upon execution and attestation.
Jimenez vs. Fernandez
Facts
o Suplicia Jimenez had in her name, the title of a land in Labrador,
Pangasinan. The lot was divided into two portions the eastern and
western side, with the former having 436 square meters, and the
latter side, 2,500 square meters.
o The land previously belonged to Fermin Jimenez who had two sons
Fortunato and Carlos. Fortunato died before Fermin, leaving one
daughter by the name of Suplicia.
After Fermin died, the lot was divided in equal shares pro-
indiviso to uncle-niece Carlos and Suplicia. A title was
issued in their name, in equal shares pro-indiviso.
o Carlos the uncle died, leaving behind his illegitimate daughter,
Melecia Cayabyab. Melecia took possession of the eastern portion
of the lot (436 sqm)
 Melecia sold the lot to Cagampan and Defendant Grado,
thru an Exchange of Real Properties. They have occupied
the property ever since.
o Some 25 years later, Suplicia executed an affidavit adjudicating upon
herself ownership of the eastern side. This was after a manifestation
that she was the sole heir of her uncle Carlos.
Title over the entire lot was issued in her name. After which
she, together with her husband, filed an action against
Grado and her son.
Suplicia lost the case. Grado was declared the absolute
owner of the property. CA affirmed. Mo.re. denied.
Issues
o (1) W/N Suplicia was the sole heir, and therefore Melecias
disposition to Grado was void?
Held
o (1) Yes
Suplicia was the sole heir.
No proof that Melecia was the daughter of Carlos
Jimenez
More importantly, even if Melecia was the daughter of
Carlos Jimenez, she would not have successional rights.
NCC 2263! Since Carlos died prior to the effectivity of
the New Civil Code, the inheritance rules of the Civil
Code of 1889 apply
Under the old code, illegitimate children cannot be
heirs. The only ones which could be heirs are
legitimate, legitimated, and acknowledged
natural children.
Melecia could not have been an acknowledged
natural child because at the time of her birth,
Carlos Jimenez was married to a woman not Miciano vs. Brimo
her mother. Thus she cannot be considered a Facts
natural child born out of a common law marriage. o The judicially appointed administrator filed a scheme of partition for
Error Regarding TCT the estate of the deceased Joseph Brimo. Josephs brother, Andre
CA also made an error in relying upon Brimo, opposed the scheme.
jurisprudence to hold that Melecia has acquired Court approved the scheme
the property through prescription. o Andre assigns the following errors
Even in the said cited case the principle of Approval of the partition
imprescriptibility of Torrens Titles was respected. Denial of his participation in the inheritance
Sulpicia's ownership over her one-half of the land Denial of his Mo.Re.
and which is the land in dispute was always Approval of the purchase made by Lana of Josephs
covered by a Torrens title, and therefore, no business
Declaration that the Turkish Laws are impertinent to his
amount of possession thereof by the respondents,
cause
could ever defeat her proprietary rights thereon. It
is apparent, that the right of plaintiff (now o Andres opposition is based on the fact that the will violates Turkish
petitioner) to institute this action to recover law, which are pertinent in this case based on OCC 10 which states
possession of the portion of the land in question that
based on the Torrens Title of Sulpicia Jimenez, Nevertheless, legal and testamentary successions, in
T.C.T. No. 82275 (Exhibit "A") is imprescriptible respect to the order of succession as well as to the
and not barred under the doctrine of laches. amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the
national law of the person whose succession is in
 question, whatever may be the nature of the property or
the country in which it may be situated.
Issues
o (1) W/N Turkish Laws apply?
o (2) W/N his exclusion in the will (as a legatee) is okay?
Held
o (1) No.
Andre failed to prove that the will was against Turkish Laws,
as he failed to present evidence showing what the
Turkish Laws were on that matter. In the absence of such
evidence, they are presumed to be the same as those of
the Philippines.
He recognized the fact that he proved nothing he
asked for a postponement of the proceedings till he can
get a testimony from a Turkish official
That he was not given another opportunity to prove such
laws does not constitute an error. It is discretionary with the
trial court.
o (2) No
The last part of the 2nd clause of the will states that
He is a Turkish citizen by conquest and not by free
choice, and having resided in the Philippines for a
considerable amount of time, in the land where he
acquired all the property he possesses, it is
Josephs wish that his property be distributed in
accordance with PH law.
Request that all relatives respect this ^ wish,
otherwise, cancel and annul disposition in such
relatives favor
Conditional institution of Andre as a legatee. HOWEVER, Cayetano vs. Leonides
this clause is void for violating OCC 792 Facts
Impossible/Illegal conditions shall be considered not o Adoracion Campos died, leaving her dad Hermogenes Campos, and
imposed and shall not prejudice the heir or legatee in her sisters Nenita Paguia, Remedios Lopez, and Marieta Medina as
any manner whatsoever, even should the testator the surviving heirs. Because Hermogenes was the only surviving
otherwise provide. heir, he executed an Affidavit of Adjudication whereby he adjudicated
The aforementioned condition is void seeing as it unto himself the ownership of the entire estate of Adoracion Campos.
calls for ignoring OCC 10 and the application o Nenita (sister), 11 months later, filed a petition for reprobate of a will
of Turkish Law. allegedly executed by Adoracion while she was in the US.
Since its void, its deemed never to have been Nenita alleged that Adoracion was a US-Citizen when she
written. Thus the disposition in favor of Andre died and was a permanent citizen of Philly. However, she
stands. He is a legatee. died while visiting the Philippines, temporarily residing
in Malate.
Nenita said that the will was probated in Pennsylvania. She
said that the appointed executrix denied the appointment
and that she should be appointed instead to facilitate the
disposition of the properties found in the Philippines.
o The Dad opposed the reprobate of the will saying that it was a
forgery, and that it was null and void. Even if they followed US laws,
it would work injustice to him.
o However, a few months later, Hermo filed a motion to dismiss
opposition, stating that he was able to verify the veracity of her
daughters will.
 o CFI judge Leonidas ruled in favor of the validity of the will.
However, Hermogenes soon filed a petition for relief. He
stated that the signed withdrawal of his opposition was
obtained fraudulently it was sneaked in between some
of his work documents and so he signed it without knowing
what it was.
Petition for relief was set for hearing but he failed
to appear.
o For Hermogeness failure to appear multiple times in court, Judge
Leonidas dismissed the petition for relief for failure to present
evidence in support thereof.
o Hermogenes died and left a will, questioned by Nenita Paguia and
her sisters. The will appointed Polly Cayetano as the executrix.
Cayetano thereafter substituted herself as petitioner in place of
Hermogenes in the instant case.
Paguia et al questioned Pollys right as the
successional rights from hermos death belong to her
and her sisters, being the forced heirs of Hermogenes.
Issues
o (1) W/N the reprobate of Adoracions will was valid?
o (2) W/N Hermo is deprived of his legitime?
Held
o (1) Yes
No GAOD. No proof was adduced that the motion to
withdraw was obtained fraudulently, and that Atty. Loyola
was not his counsel of record. After moving to withdraw, he
even filed a manifestation wherein he confirmed that his
motion to dismiss opposition was his voluntary act and
deed!
Atty. Lagrosa had long withdrawn
Probate courts authority limited to extrinsic validity of the
will, due execution thereof, testatrixs testamentary capacity
and the compliance with the requisites or solemnities
prescribed by law
The intrinsic validity of the will is decided AFTER
the will has been authenticated EXCEPT when
practical considerations demand that the intrinsic
validity of the will be passed upon even before it is
probated.
o (2) No
While it appears that Hermo was preterited, the daughters
established that Adoracion was an American Citizen when
she died, a permanent resident of Philly, and therefore,
NCC 16 and 1039 apply
Thus the law which governs is Pennsylvania law.
Hermo theory: against public policy and PH law na
walang legitime si Hermo.
o Wrong! Settled rule is that intrinsic
validity of the will is based on the
national law of the decedent Bellis vs.
Bellis.
o Re: absence of notice of petition for relief
The fact that he requested "for the future setting of the case
for hearing . . ." did not mean that at the next hearing, the
motion to vacate would be heard and given preference in
lieu of the petition for relief. Furthermore, such request
should be embodied in a motion and not in a mere notice of
hearing.
o Re: Lack of JD
Rule 73 Section 1 if lives in a foreign nation, the CFI where
he or she has an estate shall have jurisdiction over the case.
In re Will of Ana Abangan (Gertrudis Abangan vs. Anastacia Abangan)
Facts
o CFI of Cebu admitted to probate Ana Abangans will. It consisted of
two sheets, the first containing the dispositions, duly signed on Anas
behalf as well as by three witnesses. The second sheet contains an
attestation clause duly signed by the three witnesses.
None of the sheets are signed on the left margin by the
testatrix and the three witnesses.
None are numbered by letters
o Gertrudis Abangan argues that the formal defects justify a denial of
the probate of the will
Issues
o (1) W/N the lack of a signature in the left margin as well as the lack
of proper numbering makes the will void?
Held
o (1) No.
The purpose of Act 2645, requiring such signature and
numbering, is to avoid the substitution of any of the sheets
in a will, thereby changing the testators dispositions.
But when the dispositions are wholly written on one sheet,
signed at the bottom by the testator and the three witnesses
(aka this case), requiring a signature at the left margin
would be purposeless.
 The statute contemplates a situation where the will
is made up of a number of pages where some of
the pages, the testator and the witnesses do not
sign. Otherwise, the law would be requiring double
signatures which is completely pointless.
Likewise, the purpose of the numbering is system is for the
court to see if a page had been omitted or not. This cant be
the case when all the dispositions are made in one page
anyway, in which case the requirement cannot apply
because the purpose does not apply.
Same logic as with the 2nd sheet (attestation
clause)
o The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guaranty their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a
way as to attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object of the law
to restrain and curtail the exercise of the right to make a will. So when
an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the
testator's last will, must be disregarded. lawphil.net
o RE 804: No proof she speaks Cebuano Will was executed in Cebu,
in the dialect of the locality where Ana Abangan lived. In the absence
of contrary proof, she is presumed to know how to speak/write
Cebuano
Suroza vs. Honrado (Sir disagrees)
Will Case
o Corporal Mauro Suroza (Philippine Scouts) married Marcelina
Salvador Suroza. While they were childless, they took into their
custody a child by the name of Agapito who took the surname Suroza
and who considered the couple as his parents (see: marriage
contract)
Agapito married Nenita. Agapito became a soldier and was
declared disabled. His wife Nenita was appointed as his
guardian (their child Lilia became a med-tech and worked
abroad)
o A woman named Arsenia Dela Cruz instituted 2 nd guardianship
proceedings According to her, Nenita was not actually living in the
same place as Agapito. Moreover, Nenita was unfaithful to Agapito.
o History repeats itself Spouses Sy begot a child name Marilyn Sy.
Marilyn Sy was brought to Arsenia Dela Cruz when she was a few
years old. Arsenia then brought her to Mauros wife Marcelina.
Marcelina raised her as a grand-daughter, allegedly the son
of Agapito, though the latter never legally-adopted the
Marilyn.
o Marcelina supposedly executed a will when she was 73. It was in
English and was thumbmarked by her.
o Marcelina died in 1974.
At that time, she resided in Makati, Rizal. She owned a 150-
sqm house and lot.
o Marcelinas executrix, her laundrywoman named Marina Peje,
initiation probate proceedings. It was assigned to Judge Honrado.
Because there was no opposition, Honrado declared Peje
as the rightful administratrix. The judge issued an order
allowing Peje to withdraw Marcelinas bank accounts.
Upon Motion of Marina, Judge Honrado likewise granted a
petition to cause a Sheriff to eject the occupants of
Marcelinas house in Rizal!!! One of which was Nenita.
o In spite of the fact that Judge Honrado was already aware of other
persons claiming to be the heirs of the testatrix, he nevertheless
issued an order probating the will Marilyn was declared heiress.
o Nenita opposed the probate on the ground that it was forged (her
mother-in-law was illiterate, testified to by Marcelinas niece)
Peje then argued that Marilyn was the daughter of Agapito
AND Arsenia Dela Cruz, admitting that Agapito was not a
blood-relative of Marcelina and therefore heiress Marilyn
and testatrix were not related.
o Nenita filed a case to annul the probate. But it was also assigned to
Judge Honrado! So he dismissed the same.
Administrative Charge
o Nenita filed a case against Honrado, who allegedly probated a
fraudulent will, without making any factual finding that the will was
written in a language known by the testatrix. She also denounced the
clerk of court who did not give her access to the record of the probate
case saying that its a futile effort.
o 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.
o Administrative action may be taken against a judge of the court of
first instance for serious misconduct or inefficiency
Misconduct implies malice or a wrongful intent, not a mere
error of judgment.
Inefficiency implies negligence, incompetence, ignorance
and carelessness.
Issues
o (1) W/N judge should be punished?
Held
o (1) Yes
Respondent judge, on perusing the will 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.
Also wouldve noticed the institution of a sole-
heiress
Will stated that testatrix understood English. But in its
concluding paragraph, it stated that it was read to the
testatrix and translated to Filipino.
Only conclusion she doesnt speak English and
therefore the will violated NCC 804 that every will
 must be executed in a language or dialect known
to the testator.
Also hastily prepared
testator imbis na testatrix
Matias vs. Salud
Facts
o Gabina Raquel died. Aurea Matias, Raquels niece, initiated probate
proceedings of her last will and testament. Aurea is also the sole heir
of Raquel, excluding a number properties bequeathed to other
nieces
o Basilia Salud, a first cousin of the deceased, opposed the probate.
Likewise moved for the dismissal of Rodriguez as special
administrator, and the appointment instead of Plata.
Saluds motion was granted after hearing. It was found that
Rodriguez had been abusing his authority and was guilty of
gross negligence.
o The court appointed Salud as the special administratrix, to be
assisted by her niece Victorina Salud and by Ramon Plata.
o Some time later, Matias asked that the order instituting
administrators be set-aside, and that she instead be placed, together
with Rodriguez.
Argument: Salud is over 80 y.o., is blind, and is physically
incapable to perform his duties. In fact, Victorina was
included just so Basilia can see/interpret/advise.
Denied.
o Basilia retired because of old age and recommended the institution
of Victorina. Aurea opposed this saying that Victorina was biased
against her and had interest against her institution as an heir.
Aurea proposed that the administration be placed under
PNB instead.
o Victorina and Ramon asked for permission to collect rents due and
to collect produce from the testatrixs lands and to sell the palay
therein.
GRANTED
Case
o Petitioner Aurea then instituted the present action against Judge.
Gonzales and Salud and Plata to annul. Aurea argues that she
should have preference over who the administrators are because of
her sole heiress
+ Rodriguez not given a chance to be heard
+ bawal mag-institute ng more than one admin which is
basically what Victorina is.
Issues
o (1) W/N the respondent judge acted within the scope of his JD?
Held
o (1) No.
Rodriguez received notice of hearing the day AFTER the
hearing
Motion of Basilia was to institute Plata and not herself or
Victorina
Phsyical disability of Basilia. Judge knew kaya Victorina.
Appointed three people... May 2 factions, equal rep!
Judge here replaced decision of co-equal judge in
appointing Rod
Probate of will still not final. Hence jurisprudence should be
followed cases say that dont designate someone who
has the same beneficial interest
Matias Case 1958
The Court of First Instance of Cavite denied probate of the purported will of Gabina
Raquel (Raquel).
Raquel left no descendants or ascendants. According to proponents, she executed
the subject will in the presence of Modesta Gonzalez (Gonzalez), Felipa Samala
(Samala) and Lourdes Samonte (Samonte), as well as Atty. Agbunag (Agbunag),
who prepared the instrument.
Purported features of the will:
o In Spanish, Three pages
o There is a signature Gabina Raquel found on the lower half of the
second page, preceding the attestation clause, which is apparently
of admitted authenticity. (Logical end)
o There is a smudge in violet ink found alongside the above
signature, with blurred ridge lines, claimed by the proponents
to be a thumbmark affixed by the testatrix.
o Signatures appear on the left margin of each page and on the third
page.
o A violet ink similar to the one previously described, is found on the
upper part of each pages left margin, accompanied by the written
names Gabina Raquel and Lourdes Samonte.
Most of Raquels properties were bequeathed to her niece Aurea Matias (Aurea)
in recompense for the services rendered to me for more than 30 years with some
legacies made to her other nephews and nieces surnamed Salud and Matias. It is
conceded that Raquel has testamentary capacity despite being of 90 years of age,
 and being ailed with the disease herpes zoster. Undisputed as well is her mastery
of Spanish, and her capability to sign her name.
Aurea was appointed executrix without bond.
PROPONENTS EVIDENCE
Deceased told Atty. Agbunag to draft her will. It was brought to her in the morning
of January 27, 1950, at which time she received the witnesses in the ante sala of
here house.
When the witnesses were seated around a table with her and Agbunag, the latter
read the will, and Raquel manifested conformity thereto by affixing her
thumbmark at the foot of the document and the left margin of each page.
Allegedly upon Agbunags insistence, she attempted to sign using his fountain
pen, but was only able to affix her signature in the lower half of page 2 because
immediately after, she dropped the pen grasping her right shoulder in pain.
Upon seeing that Raquel cannot proceed, Agbunag instructed Samonte to write
Gabina Raquel by Lourdes Samonte next to each thumbmark.
Following this, the witnesses signed at the foot of the attestation clause (SEE:
Notes) and at each pages left margin.
OPPOSITORS
Gonzalez was unable to testify as to these matters; she was suffering from high
blood pressure, and expert evidence was to the effect that her memory was
impaired, and unusual excitement might cost her life.
Basilia Salud, a niece of Raquel, opposed the probate of the will.
CFI Ruled in favor of the opposition on the following grounds:
1) The attestation clause did not state that Raquel and the witnesses
signed each page of the will, and the words Gabina Raquel by
Lourdes Samonte do not express that Samonte was directed to
sign for Raquel.
2) Proponent did not adequately explain the non-production of Modesta
Gonzalez as witness, contrary to the Rules.
3) The alleged signing and thumbmarking by Raquel were not done in
the witnesses presence, and neither did the latter group sign in
Raquels presence.
4) Fraud and bad faith attended the wills execution.
The CFI gave credence to the testimony of Capt. Fernandez of the Philippine
Constabulary Criminal Laboratory, who testified that 1) the fingerprints were
impressed over the name of Raquel and after this name was written, contrary to
proponents testimony, 2) Gabina Raquel by Lourdes Samonte were falsified
and appear to have been written over a previous tracing, 3) the person who wrote
Gabina Raquel by Lourdes Samonte is different from the one who wrote
Lourdes Samonte following the attestation clause, 4) Samontes signature was
written only after Samalas, contrary to their testimony, and 5) different pens were
used in signing the signatures.
(topic) Whether the attestation clause should be held defective considering that
the fingermark of Raquel cannot be regarded as her valid signature since it does
not show distinct ridge lines, and the attestation fails to state that Samonte
signed for her NO.
The legal requisite that the will should be signed by the testator is satisfied by a
thumbprint or other mark affixed by him; and where such mark is affixed by
the decedent, it is unnecessary to state in the attestation clause that another
person wrote the testators name at his request. It does not appear that the
Court ever held that the absence of such a description is a fatal defect.
The oppositions reliance on Garcia v. Lacuesta does not hold water as in that
case, no showing was made that the cross mark was the testators habitual
signature, nor was any explanation given why he should use a cross when he knew
how to sign.
It is shown in the instant case that Raquels herpes zoster made writing a difficult
and painful act, which discouraged attempts to sign.
As to the clarity of the ridge impressions, it is so dependent on aleatory
circumstances (consistency of the ink, overinking, slipping of the finger, etc.) as to
require a dexterity that can be expected of very few persons, and we do not believe
testators should be required to possess the skill of trained officers. Where a
testator employs an unfamiliar way of signing, and both the attestation clause and
the will are silent on the matter, the silence is to be considered against the
authenticity of the testament; but the failure to describe the unusual signature by
itself alone is not sufficient to refuse probate when the evidence for the proponent
fully satisfies the court that the will was executed and witnessed as required by
law.
Attestation:
We, Modesta Gonzales, Felipe Zabala y Lourdes Samonte, hereby certify that this compueto testament
three useful pages was awarded as the last will and testament of Gavina Raquel , who has sucrito and
signed on its left margin and the bottom thereof, in the presence of each and every one of us, and also we
have signed and witnessed this will consist of three pages each in the presence of others and that of the
testator, on its left bank and at the foot of witnessings.
Garcia vs. Lacuesta
Facts
o Antero Mercado died in 1943. He had a will written in Ilocano,
containing an attestation clause:
We, the undersigned, by these presents so declare that the
foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this
attestation clause and that of the left margin of the three
pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which
is spoken and understood by the testator, and it bears the
corresponding number in letter which compose of three
pages and all them were signed in the presence of the
testator and witnesses, and the witnesses in the presence
of the testator and all and each and every one of us
witnesses.
Signed by three witnesses apart from Atty. Florentino
o The will appears to have been signed by Atty. Florentino Javier who
wrote the name of Antero Mercado followed by A reugo del testador
(at the request of the testator) and the name Florentino Javier
o Antero Mercado then wrote a cross immediately after his name.
o While the trial court allowed the will of Mercado, the CA reversed it
based on
 (1) Attestation clause failed to certify that the will was signed
on all the left margins of the three pages and at the end of
the will by the testator and witnesses
(2) AC failed to certify that after Javier signed and
placed a reugo del testador, the testator placed
crosses on his name AND on the left-hand margin of
the three pages the will consists of.
(3) AC failed to certify that the three witnesses signed the
will in all pages and in the presence of the testator and of
each other
Issues
o (1) W/N the attestation clause is fatally defective?
Held
o (1) Yes
It is fatally defective for failing to state the the testator
caused Javier to write the testators name under his
express direction, as required by Section 618 of the Code
of Civil Procedure.
The cross is insufficient. Javiers theory is that the cross
is akin to a thumb mark or a signature. This is wrong. The
cross cannot and does not have the trustworthiness of a
thumbmark
No need to discuss the attestation clause because the A
reugo del testador part was left unsigned, and therefore
this cannot be considered the will of the deceased.
Balonan vs. Abellana
Facts
o The CFI of Zamboanga City admitted the probate of Anacleta
Abellana. The case was appealed to the CA where it was argued
that the will was not signed according to law.
Anacletas will is written in Spanish and consists of 2
typewritten pages, double spaced.
The first page is signed by Juan Bello, under his name it is
TYPEWRITTEN that it was by the testator Anacleta
Abellana. It was also signed by the three witnesses on the
left margin.
On the second page, three witnesses signed at
the bottom. Juan Bello signed at the left margin,
again followed by the phrase by the testator
Anacleta Abellana
The second page was also signed by a notary
public
Issues
o (1) W/N Bellos signature, followed by the phrase, complies with the
requirements of law re: execution of wills?
Held - No
o NCC 805 - Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three
or more credible witness in the presence of the testator and of one
another. (Emphasis supplied.)
This is practically the same as the Code of Civil Procedure.
Both codes require that at the end of the will, the testator
himself signs the will or if he cant, another writes his name
in his presence and by his express direction
Jurisprudence: it is necessary that the testators
name be written by the person signing in his
stead (Bello) in the place where he could have
signed if he knew how or was able to do so,
and this in the testators presence and by his
express direction. Otherwise invalid!
Ex Parte Perdro Arcenas: should state the
following John Doe by the testator, Richard Doe;
or in this form: By the testator, John Doe, Richard
Doe. All this must be written by the witness
signing at the request of the testator.
Barut vs. Cabacungan the important thing is that it clearly
appears that the name of the testatrix was signed at her
express direction. It is unimportant whether the person
who writes the name of the testatrix signs his own or
not.
Here: the name of Anacleta Abellana, does not appear written under the will by said Abellana
herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express
requirement in the law that the testator must himself sign the will, or that his name be
affixed thereto by some other person in his presence and by his express direction.
In this case it was not written but was rather TYPEWRITTEN (sa first page lang)
Nera vs. Rimando
Facts
o The validity of a will was being questioned on the ground that one of
the subscribing witnesses was not actually inside the room when the
other witnesses signed the will. It was alleged that the erring witness
was in a connecting room, some 8-10 feet away, owing to the
smallness of the room where the testator was.
Additional detail the doorway of the small room leading to
the room where the erring witness was was covered by a
curtain.
o The trial court declared the will invalid, relying on the case of
Jaboneta vs. Gustilo where a will was invalidated when one of the
witnesses was in an outer room from where he had no line-of-vision
to the testator and the witnesses at the moment of inscription of each
signature
Issues
o (1) W/N the will is valid?
Held
o (1) Yes the erring witness was also in the small room.
 In the Jaboneta vs. Gustilo case the SC said that the true
test of presence of the testator and the witnesses in the
execution of a will is not whether they actually see each
other sign, but whether they might have been seen each
other sign, had they chosen to do so, considering their
mental and physical condition and position with
relation to each other at the moment of inscription of
each signature
Thus, capability to see, rather than actually seeing,
is important.
BTW this doesnt mean that its allowed if they can
see the signing, BY CHANGING PLACES,
because its important to note where they are at
the moment of signing, without having to move,
and if they could see from where they were at the
time.
As long as he can see by physically casting his
eyes in a certain direction
The evidence in the case relied upon by the trial judge
discloses that "at the moment when the witness Javellana
signed the document he was actually and physically present
and in such position with relation to Jaboneta that he could
see everything that took place by merely casting his
eyes in the proper direction and without any physical
obstruction to prevent his doing so."
It does not depend upon proof of the fact that their eyes
were actually cast upon the paper but that at that moment
existing conditions and their position with relation to each
other were such that by merely casting the eyes in the
proper direction they could have seen each other sign.
Not what is ACTUAL but that conditions were
present that by merely casting their eyes in the
proper direction.
Tabaoda vs. Rosal (no dates)
Facts
o Tabaoda attached the alleged last will and testament of the late Dorotea
Perez in a petition for probate. The will was in Cebuano-Visayan dialect,
consisting of two pages.
1st contained the testamentary dispositions, signed at the end
of every page by the testatrix alone and at the left hand margin
by the three witnesses.
2nd page contained an attestation clause and the
acknowledgement is signed at the end of the attestation clause
by the three attesting witnesses and at the left hand margin by
the testatrix (parang ni-reverse yung sa 1st page)
o Publication requirement complied with, no opposition was filed. The trial
court then commissioned the branch clerk to receive petitioners
evidence. Petitioner presented Timkang, one of the subscribing
witnesses to the will, who testified on its genuineness and due execution.
o The trial court then issued the order denying the probate of the will.
Petitioner was required to submit the list of intestate heirs.
o Mo. Re. not acted upon because judge was transferred to Pasig, Rizal.
Judge Rosal took his place (Leyte)
Rosal eventually denied the Mo. Re.
Issues
o (1) W/N NCC 805 requires that the testatrix and all the three
instrumental witnesses sign at the end (problem in this case refers
to the first page)
Judge Rosal argues that it does (sa baba) because the
signature of the witnesses also attests to the signature of
the testator.
Held
o (1) No.
The law uses the terms attested and subscribed.
Attestation consists in witnessing the testators execution of
the will in order to see and take note mentally what was
done (i.e. statutory requirements and if the testator actually
signed). Subscription refers to the signing of the witnesses
names upon the same paper for identification of such paper
as the will w/c was executed by the testator.
In this case, it was properly subscribed to.
Signatures of the witnesses at the left hand margin
of the first page is proper.
While perfection in the drafting of a will may be
desirable, unsubstantial departure should be
ignored. The law is to be liberally construed, as
the purpose of the law, anyway, is giving the
will of the deceased effect. Will was identified
by an attesting witness anyway
Re: didnt state how many pages will was in the attestation
doesnt matter in this case where it is discernible that it is
composed of only 2 pages. 2nd page is marked with
pagina dos
Case where last page of the testamentary part references
number of pages is sufficient. Basta avoid fraud!
Icasiano vs. Icasiano (died 1958; will 1956)
Facts
o Probate proceedings for the last will and testament of Josefa
Villacorte began. The will allegedly called for the appointment of
petitioner Celso Icasiano as the executor thereof. Publication in
manila chronicle and personal service to known heirs.
Natividad Icasiano, daughter of the testatrix, filed her
opposition. She petitioned to have herself appointed
instead.
The court issued an order instituting the Philippine Trust
company as special administrator. After this, testatrixs son
Enrique Icasiano likewise filed his opposition.
o Celso began introducing his evidence. One of these included a
duplicate will with all the legal requirements, which he found only as
of late.
Enrique and Natividad filed their oppositions to the
introduction of the duplicate will BUT it was admitted
together with the original.
 Duplicate last will and testament shows -
It was executed by the deceased in her daughter
Felisas house before and attested to by three
witnesses: Torres, Natividad (not her), and Diy. It
was notarized in Manila, and was actually written
by Atty. Samson, who was also present during the
execution and signing of the decedents last will
and testament, together with former governor
Rustia and judge Icasiano and a little girl.
Torres, Natividad, and Samson testified to the due
execution and authenticity of the will as well as the
duplicate thereof. They said that only the original
was brought to Manila, the latter kept in Bulacan.
Discrepancy: one witness failed to sign the originals page
3. But the duplicate was signed by all three. Natividad said
he might have lifted two pages instead of one after signing
page 2.
o Oppositors tried to prove that the signatures on the second were
mere forgeries, not being signed on the same occasion as the
original.
They also argued that the provisions heavily favored the
interests of the three attorneys attesting, enjoining the
testators actual children from looking for more property lest
their share be forfeited.
Issues
o (1) W/N forged?
o (2) W/N void for not following form?
o (3) W/N fraud/undue influence?
Held
o (1) No.
Testimony of the expert witness re: signatures left the court
unconvinced, being directly contradicted by an expert
presented by the proponents. But this is also the case
because of the irregularity of the standards he used in
drawing his conclusion. Such expert used only three other
signatures of the testatrix besides those affixed to the
original of the testament. With such a standard, it is
insufficient to convince this court of the forgery alleged.
Variances in the blueness of the ink is unreliable, since
different types of paper were used, having different
surfaces and reflecting power.
o (2)
Failure of witness to sign one page of a testament is not
sufficient grounds to justify denial of probate. There is an
impossibility of substitution because the other two signed
anyway, and because the very same notary public
notarized the page the same way and with the same
marks.
The law should not be so strict and literal as to penalize a
testatrix on account of inadvertence of a single witness over
whose conduct she had no control.
o (3) No
just because some heirs are more favored than others
doesnt mean that there has been fraud. Diversity of
apportionment is the usual reason for making a will.
Cagro, Vicente vs. Cagro, Pelagio (died 1949)
Facts
o CFI Samar admitted to probate the will allegedly executed by Vicente
Cagro who on February 14, 1949.
o The main objection insisted upon by the Pelagio Cagro in that the will
is fatally defective, because its attestation clause is not signed by
the attesting witnesses. There is no question that the signatures
of the three witnesses to the will do not appear at the bottom of
the attestation clause, although the page containing the same
is signed by the witnesses on the left-hand margin.
o We are of the opinion that the position taken by the appellant is
correct. The attestation clause is 'a memorandum of the facts
attending the execution of the will' required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as an act
of the witnesses, since the omission of their signatures at the
bottom thereof negatives their participation.
o The petitioner and appellee contends that signatures of the three
witnesses on the left-hand margin conform substantially to the law
and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin of
all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of the
witnesses.
Gabucan vs. Manta (no dates)
Facts
o CFI Camiguin dismissed the probate of the will of Rogaciano
Gabucan. It was dismissed because the requisite documentary
stamp was not affixed to the notarial acknowledgement in the will.
The judge said this means it cannot be admitted as evidence, as per
Tax Code 238:
SEC. 238. Effect of failure to stamp taxable
document. An instrument, document, or paper which is
required by law to be stamped and which has been signed,
issued, accepted, or transferred without being duly
stamped, shall not be recorded, nor shall it or any copy
thereof or any record of transfer of the same be admitted or
used in evidence in any court until the requisite stamp or
stamps shall have been affixed thereto and cancelled.
No notary public or other officer authorized to administer
oaths shall add his jurat or acknowledgment to any
document subject to documentary stamp tax unless the
 proper documentary stamps are affixed thereto and
cancelled.
o The probate court assumed that wills fell under this proviso. Further,
judge Manta refused to reconsider even after the stamp was placed
therein.
o Mandamus to the SC
Issues
o (1) W/N will should be probated?
Held
o (1) Yes.
What the probate court should have done was to require the
petitioner or proponent to affix the requisite thirty-centavo
documentary stamp to the notarial acknowledgment of the
will which is the taxable portion of that document.
That procedure may be implied from the provision of section
238 that the non-admissibility of the document, which does
not bear the requisite documentary stamp, subsists only
"until the requisite stamp or stamps shall have been
affixed thereto and cancelled."
Thus, it was held that the documentary stamp may be
affixed at the time the taxable document is presented in
evidence. Note the holding in Azarraga vs. Rodriguez that
the lack of the documentary stamp on a document does not
invalidate such document.
Javellana vs. Ledesma (will 1950, codicil 1952)
Facts
o CFI Iloilo admitted to probate the documents in the Visayan dialect
as the will of Apolinaria Javellana signed while she was at the San
Pablo Hospital. Witnesses were Ramon Tabiana, Gloria Tabiana,
and Yap. The oppositors is Matea Ledesma, the closest relative and
sister of the deceased, who argued that the will did not follow formal
requirements.
Originally, the opposition also claimed that the testatrix
lacked testamentary capacity and the w ill was procured
through undue influence. These grounds were abandoned.
o Three questions left (1) whether the testament of 1950 was
executed by the testatrix in the presence of the instrumental
witnesses; (2) whether the acknowledgment clause was signed and
the notarial seal affixed by the notary without the presence of the
testatrix and the witnesses; and (3) if so, whether the codicil was
thereby rendered invalid and ineffective.
Matea argued that the lower court erred in not giving
credence to her witnesses the deceaseds cook and driver
who testified to the fact that they heard the supposed
witness Yap tell the testatrix they prepared the will for her,
but due to her sickness, she couldnt sign it in the presence
of all three witnesses (just in front of Yap)
Issues
o (1) W/N invalid will?
Held
o (1) No.
No grounds for reversing trial courts rejection of the
improbable story of the witnesses. It was squarely
contested by the testimony of the opposing witnesses that
the testament was executed in the presence of the testatrix
and of each other.
Highly unlikely and contrary to usage to defraud an
80-year old lady.
Highly unlikely that they didnt think to all just go to
where she was, instead of having her go where
they were.
Inconsistency in the testimony at first they heard
yap say testamento but after that they retracted
hearing such word.
Driver was proven to be too far (an entire storey
below) to be able to hear what they were talking
about.
The fact that it used some Spanish words doesnt invalidate
the will, considering that these are of common usage
anyway (i.e. legado, partes iguales, plena propiedad). This
is not proof that the testatrix did not understand her will.
Besides, the testatrix was a woman of wide business
interests.
o Important
Variation re: notary does not show perversion. Witnesses
said that the notary signed it at the same occasion. The
notary said he went to his office to sign the same.
At any rate, unlike old civil code, NCC does not require that
the signing of the testator, witnesses, and notary should be
in one single act.
Provision re: witnesses and testator signing in the
presence of each other is separate from every will
must be acknowledged before a notary public by
the testator and the witnesses [805 vs.
The subsequent signing and sealing by the notary
of his certification that the testament was duly
acknowledged by the participants therein is no part
of the acknowledgment itself nor of the
testamentary act. Hence their separate execution
out of the presence of the testatrix and her
witnesses can not be said to violate the rule that
 testaments should be completed without
interruption
Garcia vs. Vasquez.
Facts
o Three sets of petitions in this case
1st petition appeal from CFI order admitting probte of
Gliceria del Rosario (dated 29 December 1960)
2nd and 3rd petition filed by heirs seeking to remove the
special administratrix (niece Consuelo Gonzales-Precilla);
notice of lis pendens on the property in the name of Alfonso
Precilla, husband of the administratrix.
o Gliceria died unmarried leaving no descendants nor ascendants,
nor does she have collateral relatives. At the time she died in 2
September 1965, she was more or less 90 years old, with an estate
of mostly money.
o Consuelo filed for probate and for her appointment pending the
appointment of a regular administratrix.
Opposed by several groups of heirs
Consuelo had adverse interests
1960 not intended to be true will, procured thru
influence (oppositor Garcia presented a 9 June
1956 one)
testatrix did not know the object of her bounty.
Instrument itself reveals irregularities
o CFI appointed Consuelo as special administratrix on the basis of her
having management over the properties even during the lifetime of
the deceased.
o Oppositors filed a case for her immediate removal, alleging that
Consuelo and her dead husband fraudulently coerced the decedent
in selling them 3 parcels of land worth 300k for 30k.
Alleged that Consuelo obtained owners duplicates of TCTs
over the lots for inventory when in fact she used this to
obtain ownership over the lots presented the duplicate +
alleged deed of sale.
Register of deeds issued a TCT in Consuelos husbands
name.
o Cases
CFI: admitted to probate no evidence that Gliceria was of
unsound mind. Later will not precluded by earlier one.
CFI: even if deed of sale is null, it doesnt justify removal as
special administratrix.
CFI: petition for deposit of titles denied because old titles
cant be produced, the new duplicate ones replaced by one
issued in favor of Consuelos husband.
Issues
o (1) W/N 1960 will is valid?
Oppositors say that Glicerias eyesight in 1960 was so
poor that she could not have read the will.
o (2) W/N Consuelo should be removed as special admin?
Held
o (1) No.
Witnesses for the 1960 will uniformly testify that they were
requested by Consuelos husband (Alfonso Precilla).
When they went to Glicerias home, she was of clear and
unsound mind, although being aided by Precilla as she
walked.
Gliceria read the will silently first. Signed it. Then
the witnesses signed it in the presence of
everyone.
When the notary asked for everyones resident
certificates, Precilla had a copy of everyones
which he gave. The Notary checked if they
matched the actual ones.
Undeniable that Pricilla has an interest.
Looks like he wrote it hes a visayan who isnt
conversant in Tagalog, which explains
grammatical errors in the will.
The witnesses were close friends of his who went
to Glicerias house upon Pricillas request. Pricilla
handled them well fetched them from the gate
and Decena from his haberdashery.
Read first eyesight but anyway Gliceria was like a
blind testator and hence NCC 808 should apply! The
rationale is that a testator should know what is written
on the will as to make changes in case of errors.
o (2) Yes
Adverse interests her husbands ownership vs. rights of
estate
Eyesight
o Dr. Tamesiss declarations are very material and illuminating.
Gliceria went to him in 1960
Left eye cataract, abnormal pressure, possible glaucoma.
Right eye far-sightedness, at least 20 feet away.
o Despite operation, five feet minimum distance to count fingers. she
could only see forms but not read. That is on the left eye, the same
goes for the right although the right is better than the left one
o Med-Cert in 1965 said that under supervision until 1963 with good
vision refers to after her wearing glasses and taking medicine.
o The testimony of the doctor who has 1 st-hand knowledge fully
establish her bad eyesight Gliceria couldnt have read the will in
1960.
Note na she read it silently
o Because of the eye-sight, the appearance of the will acquires striking
significance (see Notes)
Preparation without any regard for the decedents eye-sight
and the errors show that it was prepared in haste.
It is difficult to understsand that such an important
document would be contained in an informal and untidy
 instrument. She would have surely seen the errors had
she actually been able to read.
The record is thus convincing that the supposed testatrix
could not have physically read or understood the alleged
testament, Exhibit D, and that its admission to probate
was erroneous and should be reversed.
o Fact na she was able to greet her guests on her birthday and arrange
flowers and cook food before she executed the will doesnt mean she
was able to read it! Closely typed page! Such acts dont require vision
at close range. Neither is the signing of checks and writing name na
muscle-memory na.
Notes
o 1960 Will
attestation clause and acknowledgment crammed into
a single sheet of paper, no margins whatsoever such
that they used shortcut symbols such as &
Typos HULINH, ALFONSA, MERCRDS,
ACKNOWLEDGED
1956 will 1960 will
12 pages in Spanish 1 page in Tagalog
Messrs. Cabrera, Messrs. Rosales, Decena,
Ayala, Marquez Lopez
Ack. Notary public Natividad
Ayala
Alvarado vs. Gaviola
Facts
o November 5, 1977, 79-y.o. Brigido Alvarado executed a notarial will
entitled Huling Habilin dis-inheriting his illegitimate son Cesar
Alvarado (petitioner) and expressly revoking a previous holographic
will.
o The witnesses of the will as well as Brigidos lawyer Rino testified
that Brigido didnt read the final draft of the will himself. Rino, who
drafted it, read it aloud in Brigidos presence as well as the three
witnesses and the notary public.
The latter four followed reading using their own copies.
o December 29, 1977, a codicil entitled Kasulatan ng Pagbabago ng
Ilang Pagpapasiya na Nasasaad sa Huling Habilin (date) ni Brigido
Alvarado).
Some changes were made in the testamentary dispositions
since Brigido needed money for an eye operation.
He had Glaucoma at the time. Still, the disinheritance and
revocation of the past will was left unchanged.
Again, he didnt read it himself. Rino read it out loud to him.
o Brigido died in January 3, 1979. Rino filed for probate.
Illegitimate son Cesar filed an opposition arguing that the
will was not executed and attested to as required by law,
and that the testator was insane at the time of its execution.
And that it was attended by duress.
o RTC granted probate.
o Cesar appealed arguing that Brigido counted as blind hence 808
shouldve been complied with
o CA dismissed appeal saying that Brigido was not blind and that even
if he were blind, 808 was substantially complied with when both
documents were read aloud to the testator with the witnesses and
notary.
(1) W/N petitioner counted as blind? YES
o Brigido was not totally blind however his vision on both eyes was of
counting fingers at 3 feet because of his glaucoma which he had
been suffering from for several years even prior to his first doctors
visit in Dec. 1977.
Poor/defective/blurred vision = cant read = 808. Garcia vs.
Vasquez tells us that the rationale of the law is to make the
provisions known to him so that he may object.
(2) W/N 808 complied with? SUBSTANTIALLY
o Purpose to make known so that may be objected to before signing.
Substantial compliance is acceptable where the purpose is satisfied
(prevent fraud and trickery BUT not intended to destroy testamentary
privilege)
Circumstances showing substantial compliance: (a) will and codicil read aloud
in the presence of _, _ _ _, _; testator affirmed contents after and only signed
after. (b) no evidence testator was misled. (c) even before execution of Huling
Habilin, the testator had been affirming the truth and authenticity of the drafts
of HH. (d) Not only Rino read it, while he was reading it out loud, the _ _ _, _,
had also been reading it.
Abangan vs. Abangan - One must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the testators will,
must be disregarded.
Gil vs. Murciano (Jugo, Tuason)
Facts
o Carlos Gils will is in Spanish. It was presented to the CFI Manila in
1943. Roberto Toledo who was the decedents nephew, and Pilar
Murciano who was the decedents sister, opposed the will.
Toledos right to intervene was questioned by the
propontents of the will, and as a result (umabot sa SC)
Toledo was eliminated from the case.
During the pendency of Toledos appeal, sometime in 1945,
the records of the case were destroyed it had to be
reconstituted after liberation.
In the probate proceedings after liberation, the parties
submitted an agreed statement of the fact in which the will
was reproduced and copied in the record on appeal in
another case.
o TC ruled that the document is a true and correct copy of the will.
 o Pilar appealed, raising only questions of law.
o The probem was that the attestation clause did not allege that the
testator signed the will declaring that it was signed by the
witnesses.
First Decision
o (1) Correctness of the will cannot be disputed Appeal is only on
QOL, the parties already agreed as to its correctness.
o (2) Defect in the attestation clause cannot be overlooked
Not a mere clerical error.
What is missing is one of the most essential
elements of an attestation clause. Without it there
is no attestation at all. Matter of substance, not
form.
Correction cannot be made via inference
Would contravene the clear wording of the statute
which requires, very clearly, such attestation. The
drafter should have read the words of the statute
when he prepared it.
Vs. public policy
Not cured by last paragraph of the will (notes)
His signature cannot attest to itself. It would be
lifting ones self by ones own bootstraps
While statcon applies, this only applies to the body
of the will, and not the attestation clause which the
law requires to follow certain formal matters.
o (3) No reason why we should allow the courts to supply essential
elements to wills. The right to testamentary succession is statutory,
and hence must follow the form prescribed by statutes.
Tuasons dissent / Second decision.
o (1) Decision takes for granted that the will was reconstituted. Counsel
for appellee contends that an important phrase was left out, that it
has been signed by the testator.
Probability of error increases in reconstituted wills.
Increased possibility of error in this case because there was
no contention with regard to form, hence during
reconstitution, it may be the case that they werent careful
about copying it.
See: testator didnt sign first page of the copy
shows that they didnt care about making a
representative copy.
Drafter Atty. Omana knew the law and has shown
familiarity with the rules of grammar. Reading the
will without the missing phrase it has been signed
by the testator makes it lack complete sense.
o (2) Court should supply omitted word/s
Wills are also covered by the laws on statutory construction
and not simply by the laws on succession. In either case,
the court should supply the error anyway.
Case: words may be supplied whenever
necessary to effectuate the testators intention
BUT not where it would alter or defeat such
intention, or change the meaning of the words
which are clear.
Presumption that wills follow the law.
Aldaba vs. Roque testator may prepare the
attestation clause so long as the witnesses sign it
beside the testator.
Abangan same as previous case.
o (3) On Majority decision
Shouldve allowed since no evidence aliunde would be
given anyway. Only an internal probe within the confines of
the will would be allowed so no fear of dire results dapat.
This case: no extraneous proof necessary, none would be
introduced nor taken into consideration.
o (4) bootstraps (last part of the will)
Bad analogy physically impossible vs. possible. a man
can and generally does himself pull the bootstraps to put
the boots on.
No practical reason to give difference between
witnesses attesting testator signed in their
presence and testator saying he signed in their
presence.
no better guaranty to genuineness than testators signature.
Will translated
" 'IN THE NAME OF GOD, AMEN.
"I, Carlos Gil, 66-year-old resident of Porac, Pampanga, IF, finding myself healthy and in full
possession of my intellectual, freely and spontaneously powers, without violence, coercion, fraud
or illegal influence of strange person, grant and he ordered this my last will and testament in
Castilian, a language that I possess and understand, as follows:
"1. I declare that during my marriage to my wife today Herreros Isabel had no children;
"2. I declare that I have properties located in Manila and in the Province of Pampanga;
"3. I and my dear wife adjudge Isabel Herreros all my property as movable and immovable
property located in Manila and Pampanga, under the proviso that when this dies and if remaining
assets have inherited it from me, that these remaining assets they will be awarded to Don Carlos
Worrell.
"4. I appoint as executor of my estate after my allecimiento f Dr. Galicano Colonel whom I have
absolute confidence, with relief bail;
"In witness all of which sign this my will and left margin of each of its two pages useful with the
clause witnessing in the presence of witnesses, who in turn signed each of these pages and
clause witnessing in my presence each with the others, today in Porac, Pampanga, IF, on 27
May in 1939.
"Witnessing:
"CARLOS GLL" Second Page (2)
"We who subscribe, all adults, certify: that the will preceding this written in the Spanish language
who knows the testator, consisting of two pages useful with the clause Witnessing paginated
consecutively in letters and numbers at the top of box and leaves all the same __________, in
our presence and that each of us have witnessed and signed the document and all the leaves
thereof in the presence of the testator and in each of us.
"(Sgd.) ALFREDO T. RIVERA" (Sgd.) RAMON MENDIOLA
"(Sgd.) MARIANO OMAN A
** The dissent thinks it should have been like this: "We, the undersigned all adults, certify that
the will that precedes written in the Spanish language who knows the testator, composed of
useful pages with the clause Witnessing paginated consecutively in letters and numbers at the
top of the box and all the leaves thereof (it has been signed by the testator) in our presence
and that each of us have witnessed and signed the document and all the leaves thereof in the
presence of the testator and in each of us . "
Caneda vs. CA (Regalado)
Facts
o December 5, 1978. Mateo Caballero, a childless widower already in
the twilight years of his life, executed a last will and testament while
in his home in Cebu. HE DIDNT DIE PA.
Witnessed by Labuca, Cabando, and Toregosa.
Caballero was assited by Atty. Lumontad and Notary Atty.
Manigos.
o The will declared that Caballero was leaving by way of devises and
legacies properties to Presentacion Gaviola, Angel Abatayo, Rogelio
Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa
Alcantara (all unrelated to Caballero)
o Half a year later April 1979 Caballero himself filed a petition
seeking for the probate of his last will and testament
Set for hearing but kept on being suspended.
May 29, 1980 Caballero died before his petition was
ever heard.
o Legatee Cabrera sought his appointment as special administrator of
(1) W/N valid attestation clause? NO
the estate (24,000). Appointed.
Petitioner nephews and nieces filed a case
opposing the institution of Cabrera. They said that at
the time the will was executed, Caballero was already
in such poor health that he could not have possibly
executed it.
Legatee Cabrera died probate court appointed William
Cabrera.
o Anyway @ the nephews case, Labuca and Atty. Manigos testified
that the testator executed the will in their presence while he was of
sound mind.
o Probate court dismissed opposition the testimonial evidence of the
oppositors was self-serving and cannot overcome the positive
Gonzales vs. CA (Guerrero)
testimonies of the witnesses.
Facts (Executed April 15, 1961, Died June 7, 1961)
o CA: affirmed.
"we do certify that the testament was read by him and the
attestator, Mateo Caballero, has published unto us the
foregoing will consisting of THREE PAGES, including the
acknowledgment, each page numbered correlatively in
letters of the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page
thereof, on the spaces provided for his signature and on the
left hand margin in the presence of the said testator and in
the presence of each and all of us.
Even though didnt state that witnesses signed in presence
of T and 1 another and that testator signed in presence of
W, substantial compliance!
Discussion
o ATTESTATION CLAUSE
It is a separate memorandum or record of the facts surrounding
the conduct of execution and once signed by the witnesses, it
gives affirmation to the fact that compliance with the essential
formalities required by law has been observed.
It is made for the purpose of preserving in a permanent form a
record of the facts that attended the execution of a particular will,
so that in case of failure of the memory of the attesting
witnesses, or other casualty, such facts may still be proved.
o Under the third paragraph of Article 805, such a clause should state (if any
of these are missing, the will is invalid:
(1) the number of the pages used upon which the will is written;
(2) that the testator signed, or expressly caused another to sign,
the will and every page thereof in the presence of the attesting
witnesses;
(3) that the attesting witnesses witnessed the signing by the
testator of the will and all its pages, and that said witnesses also
signed the will and every page thereof in the presence of the
testator and of one another.
o Purpose of the law in requiring the clause to state the number of pages on
which the will is written is to safeguard against possible interpolation or
omission of one or some of its pages and to prevent any increase or decrease
in the pages; whereas the subscription of the signature of the testator and
the attesting witnesses is made for the purpose of authentication and
identification, and thus indicates that the will is the very same instrument
executed by the testator and attested to by the witnesses.
o Will was three sheets numbered correlatively, left margin signatures
complied with. The testamentary dispositions are in Cebuano-
Visayan dialect, and is signed at the logical end by the T.
o BUT the attestation is in English. Note na W must attest and
subscribe in Ts presence.
o INVALID failure to state the circumstances na in presence of T & 1
another
o 809 FORM and LANGUAGE. BUT This case: total absence of an
element. No way to imply from current attestation clause na signed
in presence of T.
o No substantial compliance bec. Other signs do not signify na signed
in presence of the T.
o PR Lutgarda Santiago and Petitioner Rizalina Gonzales are nieces
of the deceased Isabel Gabriel. PR, with her husband and kids, lived
with Isabel in Isabels residence.
o When Isabel died, PR Santiago filed for the probate of Isabels will.
In the will, Pet. Rizalina was designated as the principal beneficiary
and executrix.
Witnessed by Matilde Orobia, Celso Gimpaya and Maria
Gimpaya,
It gave legacies in specified amounts to her relatives,
among whom was the petitioner.
It gave private respondent Lutgarda Santiago, who was
described in the will by the testatrix as "aking mahal na
pamangkin na aking pinalaki, inalagaan at minahal na
katulad ng isang tunay na anak" all properties and estate,
 real or personal already acquired, or to be acquired, as
universal heir and executor.
o Petitioner-legatee opposed the will on the grounds that the will was
not executed and attested as required by law.
TC: disallowed the will said that the will was false
CA: allowed it it found that the will was the one signed and
executed by Isabel in April 15, 1961, in the presence of the
witnesses who likewise attested to and signed the
document.
o Petitioner argues:
No proof witnesses were credible
Preparation and execution of the will Exhibit "F", was
unexpected and coincidental.
Atty. Paraiso was previously furnished with the names and
residence certificates of the witnesses as to enable him to
type such data into the document Exhibit "F".
Orobia was not physically present when executed.
Misrepresentations / inconsistencies in the testimonies not
explained.
(1) W/N witnesses are credible? YES
o Argument: petitioner says that theres no proof that they are.
Petitioner says that there must be evidence on record that he has
good standing in his community, or that he is honest and upright, or
reputed to be trustworthy and reliable.
Argument: use same meaning as Naturalization Law -
good standing in the community, reputation for
trustworthiness and reliableness, their honesty and
uprightness
o SC: No merit. Law does not provide mandatory requirement that the
witnesses testify as to their good standing, reputation, honesty, and
uprightness.
Naturalization Law is different. The purpose there is that
there are Filipinos who know the applicant to be of good
repute and morally irreproachable. They are character
witnesses
Probate Law, witnesses are not character witnesses. They
attest to due execution, not the character of the testator.
Compliance with NCC 820 is sufficient. That the
soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him,
that his age (18 years or more) is shown from his
appearance, testimony, or competently proved
otherwise, as well as the fact that he is not blind, deaf
or dumb and that he is able to read and write to the
satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code.
Trustworthiness and reliability are presumed, as well as
honesty and uprightness.
o Argument: credible not synonymous with competent witness. 820
refers to competence but not credibility. Hence even after complying
with 820, still needs to prove credibility.
Argument: cited American authorities that competent =/=
credi
o SC: credible in 805 refers to qualifications under 820
may be a witness to the execution xxx 805
Suntay vs. Stuntay = credible = competent and not those
who testify as hearsay
o SC: Competency is determined by statute (i.e. 820). Credibility refers
to the appreciation of his testimony and the belief and conclusion of
the court that the witness is telling the truth.
Credibility, while different from competence, does not
require evidence that the witness is blank blank blank.
(2) W/N discrepancies in the testimonies are fatal? NO.
o Argument: grave contradictions, evasions, misrepresentations
o SC: Description of the typewriter used by Atty. Paraiso, the mistake
in mentioning the name of the photographer to be Cesar Mendoza
when actually it was Benjamin Cifra, Jr are indeed unimportant
details which could have been affected by the lapse of time and the
treachery of human memory such that by themselves would not alter
the probative value of their testimonies on the true execution of the
will
o SC: cannot be expected that all testimonies are identical and
coinciding. Human experience has taught us that contradictions
of witnesses generally occur in the details of certain incidents.
NOTES:
THE WILL: The will submitted for probate, Exhibit "F", which is typewritten and in
Tagalog, appears to have been executed in Manila barely two (2) months prior to
the death of Isabel Gabriel. It consists of five (5) pages. The signatures of the
deceased Isabel Gabriel appear at the end of the will on page four and at the left
margin of all the pages.
The attestation clause, which is found on page four, reads as follows: At the bottom
thereof, under the heading "Pangalan", are written the signatures of Matilde D.
Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the
heading "Tirahan", are their respective places of residence, 961 Highway 54,
Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas.
Their signatures also appear on the left margin of all the other pages. The WW is
paged by typewritten words as follows: "Unang Dahon" and underneath "(Page One)",
"Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each
page.
Whether preparation and execution of the will was unexpected and coincidental
NO.
Petitioner disputes the findings of fact of the respondent court in finding that the
preparation and execution of the will was expected and not coincidental, in
finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data
into the document Exhibit "F", in holding that the fact that the three typewritten
lines under the typewritten words "pangalan" and "tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the
same occasion
SC: FACTUAL

Whether Maria Gimpaya was present during the signing YES.
The evidence, both testimonial and documentary is, according to the respondent
court, overwhelming that Matilde Orobia was physically present when the will was
signed by the testatrix and the other two witnesses. Orobia's admission that
she gave piano lessons to the child of the appellant on Wednesdays and
Saturdays and that April 15, 1961 happened to be a Saturday for which
reason Orobia could not have been present to witness the will on that
day is purely conjectural. Witness Orobia did not admit having given piano
lessons to the appellant's child every Wednesday and Saturday without fail.
The attestation clause and the notarial acknowledgment overwhelmingly
and convincingly prove such fact that Matilde Orobia was present and that
she witnessed the will by signing her name thereon and acknowledged the same
before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which
Matilde Orobia signed is the best evidence as to the date of signing because it
preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which is
made for the purpose of preserving in permanent form a record of the facts
attending the execution of the will, so that in case of failure in the memory of the
subscribing witnesses, or other casualty they may still be proved.
Cruz vs. Judge Villasor (Esguerra)
Facts
o Petition for probate of the late Valente Cruz was filed at CFI-Cebu.
This was opposed by Valentes surviving wife Agapita Cruz.
CFI allowed probate despite opposition. Hence appeal.
o Agapita argues that:
First, the will was executed through fraud, deceit,
misrepresentation, and undue influence.
Second, it was executed without the testator being fully
aware of the contents thereof what properties.
Third, not executed in accordance with law.
o Important! Three witnesses - Deogracias T. Jamaloas Jr., Dr.
Francisco Paares and Atty. Angel H. Teves, Jr.
Atty. Angel Teves Jr., was also the Notary Public before
whom the will was supposed to have been
acknowledged.
o Agapita says that, in effect, there were only two witnesses to the will!
o Proponent of the will PR Manuel Lugay says that there was
substantial compliance anyway
He cited 57 AmJur, p.227: It is said that there are, practical
reasons for upholding a will as against the purely technical
reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature
under oath rather than as attesting the execution of the
instrument.
(1) W/N Valid probate of the will? NO.
o Notary Public cannot be acknowledged as the third instrumental
witness since he cannot acknowledge before himself that he
signed the will in accordance with the law.
Acknowledge means avow, to own as genuine, assent,
admit. Before means in front of or ahead of.
Hence if this were allowed, Teves would avow assent or
admit in front of himself that he signed the will. This cannot
be allowed as his personality would be split into two.
ABSURDITY.
o Function of Notary is to guard against illegal or immoral
arrangements. This would be defeated if the notary were also one of
the attesting instrumental witnesses.
Purpose of minimizing fraud would be thwarted.
o AmJur not binding in the Philippines. Besides the witnesses talked
about in the cited cases were subscribing, attesting witnesses but
were not acknowledging witnesses hence the purpose in their case
wouldnt be defeated.
o Situation not envisioned by 806.
Would have the effect of having only two attesting
witnesses to the will which would be in contravention of the
provisions of Article 805
Roxas vs. De Jesus
Facts
o Sps. Andre and Bibiana Roxas De Jesus died. Simeon Roxas,
brother of the deceased Bibiana, filed a special proceeding where he
was appointed administrator.
Simeon presented a document which he said was the will
of Bibiana.
o Hearing of the probate of the holographic will started.
Simoen said that he found a notebook belonging to Bibiana.
On pages 21 24 thereof contained a letter-will addressed
to her children written and signed in the handwriting of
Bibiana.
It was dated Feb./61 stating this is my will which I want
to be respected although it is not written by a lawyer
 Testimony of Simeon was corroborated by Pedro and
Manuel Roxas de Jesus who testified that
Such is their mothers holo-will
Thats her handwriting
She understood English
Proper date placed
o Respondent Luz, another compulsory heir, filed an opposition to the
probate. She said that
Doesnt follow formal requirements
fraud/intimidation/duress acted by mistake/no intention to
make it her last will.
o Respondent Judge Colayco found the will in accordance with the law.
Luz filed an MR saying that it was not properly dated as per NCC 810
which requires exact date.
MR granted. Colayco disallowed te probate since the word
dated generally includes the day.
(1) W/N Feb./61 is a valid date? YES
o Argument-P: The old code and the Spanish code require the testator
to state the ao, mes, y dia. New code just says it should be date! Also,
liberal construction should prevail
o Argument-PR: void for non-compliance with 810 which was patterned
after California Code and Louisiana Code where it was consistently held
that exact date is needed. Liberal construction doesnt apply in formal req.
o SC: discussion.
Discussion on liberal trend
o Purpose prevent intestacy and give testator more freedom in
expressing his wishes BUT with sufficient safeguards and restrictions
to avoid fraud.
Capistrano in Heirs of Castro vs. Bustos: law has a tender
regard for the will of the testator because it is assumed to
be better than that which the law can make.
o Substantial Compliance if a will has been executed in s.c. of the Kalaw vs. Relova
formalities such that bad faith and fraud is obviated, said will should Facts
be admitted to probate! o PR Gregorio Kalaw claims to be the sole heir of the deceased
For dates complete date for same-month wills and Natividad Kalaw (PRs sister). He filed a petition before CFI-
insanity determination. Batangas for probate of her Holo
But in this case, such contingency isnt present As first written, the Holo named Rosa Kalaw, another
theres no allegation of there being another will sister, as sole heir. Hence when she opposed the probate.
executed in the same month so as to raise the question Rosa alleged that the will as submitted was full of
of which is valid alterations, corrections, and insertions without
o No evidence of bad faith or fraud in execution nor substitutions. authentication NCC 814.
There is no question that the holo-will was W/D/S entirely by the o Rosas position is that the Holo as first written should be given
testator in a language known to her. There is no question as to effect due to the infirmity of the one presented by Greogorio.
genuineness and due execution o CFI Judge Relova denied probate
All the kids agree Relova didnt agree with Gregorio who said that Rosa is
Sir: exact date didnt matter because there was no showing of fraud or bad estopped from denying its validity when they agreed to
faith. Hence they became lax na. submit the document to the NBI for examinations. Relova
o Misplaced in quoting Abangan vs. Abangan said this doesnt mean that Rosa estopped.
814 not followed. Hence void.
 o Gregorio moved for reconsideration on the ground that it was the
testatrix who made the alterations hence her right to a testamentary
succession would be denied. Denied.
o Rosa filed a petition before the SC (???) on the sole question w/c
version is in effect?
(1) W/N the original unaltered text should be probated or not? NO.
o Ordinarily, erasures and corrections which are unauthenticated do
not invalidate the rest of the will (Velasco vs. Lopez)
o However, such as in this case, the Holo in dispute had only one
substantial provision which was altered by substituting the original
heir with another but was left unauthenticated the effect must be
that the entire will is void for the simple reason that nothing
remains in the will.
To admit the first version would be disregarding the
seeming change of mind the testatrix had.
To admit the second would be disregarding the
required authentication via full signature as required by
law.
o Court said that the Velasco case should be limited to inclusions and
cancellations which affect only the efficacy of altered words but not
the essence and validity of the will itself.
As it is right now, because of the alterations, her real
intention cannot be determined with certitude.
Notes
o Rosas name was crossed out, and her brother Gregs name
inserted. sole executrix not deleted.
Teehankee, concurring
o Educated yet made such a crude mistake instead of getting a lawyer.
o Note that two sets of crossing out (cause 2 beses minention name ni
Rosa). Teehankee noticed that the first crossing out wasnt even
initialed by the decedent, only the second.
Sps. Ajero vs. CA
Facts
o Spouses Roberto and Thelma Ajero are devisees in a Holo by Annie
Sand. They instituted a case for allowance of the Holo. This was
opposed by PR Clemente Sand.
Clemente said that the Holo wasnt in Annies
handwriting, and that it contained alterations w/c were
left unauthenticated + improper pressure.
Jose Ajero likewise opposed the disposition of a lot in
Agusan Del Norte, saying that Annie was a mere co-owner
and could not convey title to the entire property.
o TC admitted the will to probate.
Question is identity of the will, due execution, and
Annies capacity. Hence improper to disallow based on
failure to follow formalities.
No evidence to show that this wasnt the will Annie
made.
Holo was shown to be entirely WDS by Annie. Three
witnesses (not sa will ah) testified that it was in fact her
handwriting.
Re: capacity Clemente himself said that Annie was of
sound mind when she was in her bday celebration in 1981,
around the same time the will was executed.
She even wrote a nursing book containing law and
jurisprudence on wills and succession lmao what.
No proof of influence
o CA reversed the probate.
The will doesnt comply with 813 and 814. There were
dispositions that were either unsigned and undated, or
signed but undated. Also there were alterations that were
unauthenticated.
(1) W/N probate should be allowed? YES
o Cited ROC 76.9 and NCC 839.
These lists are exclusive and no other ground can be used
to disallow. In a petition to admit a Holo, the only issues
to be resolved are:
(a) W the instrument is indeed the decedents will?
(b) W executed in compliance with formal
requirements of law.
(c) W the testator had testamentary capacity @
execution
(d) W execution and signing was done voluntarily
o In a Holo, the only thing w/c assures authenticity is the
requirement of WDS in his own hand. Failure to strictly observe
OTHER formalities will not lead to disallowance.
A holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of
Article 814.
Kalaw vs. Relova was the exception. It itself said that
ordinarily, when a number of xxx the will is not invalidated
as a whole
o Unless the unauthenticated writings were made on the date of the
will / signature itself, their presence does not invalidate the will;
the lack of authentication will only result in disallowance of
such changes.
o The provisions on authentication of changes as well as signing and
dating dispositions below the original signature of the testator (i.e.
813 and 814) are separate from the provisions which state the
necessary conditions for the validity of the holographic will (810)
Hence, only the requirements of Article 810 of the New Civil
Code, and not those found in Articles 813 and 814 of the
same Code, are essential to the probate of a holographic
will.
Hence to the Hence, non-observance of 813 and 814 leads
to the invalidity of such clauses only but not of the entire
will.

Discussion
Issue #1 W/N missing holographic wills should be probated? NO
Gan vs. Yap
Facts
Felicidad Yap died of heart failure (Nov. 20, 1951) in the UST Hospital, leaving
properties in Bulacan and Metro Manila. Fausto Gan initated proceedings (March 17,
1952) for the probate of Felys holo-will (Nov 5, 1951)
Oppositor widower Ildefonso Yap said that his wife never executed any will.
Testimonials of the proponents show that:
o 1950, during her last trip abroad, Fely mentioned to her cousin Vicente
Esguerra that she wanted to make a will. She said, however, that it would be
useless if Ildefonso came to know about it.
o Cousin Vicente consulted with Fausto Gan, who was then prepping for the
bar examinations. Gan said that it can be executed without any witnesses
provided that it be done in her handwriting, signed, and dated.
o Fely wrote one while in her residence in Manila.
Was read to her by niece Felina Esguerra and a distant relative
who visited the house, Primitivo Reyes to whom Felina read it.
o 9 days later, more visitors! Cousin Olarte, Niece Rosario Gan Jimenez to
whom Felina read it for a third time.
o When she was confined, she gave the will in her purse to Felina. Ildefonso
then asked for the purse, Felina gave it out of fear returned same day
Ilde asked for it the day after but Feli first went into the bathroom and read
it for the fourth time.
Testimonials of the oppositors show that:
o Fely went to the US with Ildy to have her heart disease treated. Back in
Manila, she relapsed and was confined to her bed after suffering an
attack on Nov. 5.
o Doctors had to be called and a physician arrived as well as her husband, and
personal attendant. All three testify that Fely made no will and couldnt have
had on that day.
RTC: no probate. If she had in fact executed one, why would she do so in the
presence of others after being informed na no need for witnesses. Hard to believe
Felina would be made to read it THAT many times since no proof na confidant.
Why would she let others read eh secret nga. Why would she bring it in her purse na
mas makikita ni Ildy. Why didnt Ildy destroy the will after asking for the purse the first
time.
Holographic wills do not have the same guaranties of truth and veracity as notarial wills
do. The law regards the holo will itself to be material proof of authenticity. Cited
811.
811 the witnesses presented need not have seen the execution of the will. If there is
contradictory testimonies between witnesses of the oppositors and of the proponents,
the court may use its own visual sence and decide in the face of the document.
However, this means of making sure that its authentic does not apply when the will is
NOT submitted, otherwise, pano? AKA MUST BE PRESENTED.
o Bawal dapat. Oppositor cannot prove that it wasnt the handwriting, his
witnesses would be useless, and his experts would have nothing to examine.
o Although the proponent may be truthful, he may also have been shown
a fake, or he might actually be a brave perjurer.
o Court and oppositors would practically be at the mercy of such witness/es
not only as to execution but also as to contents.
1940 ROC 77 cannot be used for holographic wills because such was passed during
the effectivity of the OCC where holo wills were prohibited. The provisions of the OCC
(689, 691, and 693) imply presentation of the will itself (examination and subscription
as to identity)
o Undoubtedly, the purpose of these is to give relatives the choice of complying
with the will if they see it as authentic, or not if they see it as fake.
Spanish JD mutilated holo wills arent allowed. Invalid because of non-confirmation
The rule is not the same for notary wills
o In notarial wills you can actually prove it by means other than by
showing the authenticity of hand-writing such as the subscribing
witnesses. In holo wills, losing the will losing the only medium
through which it can be proven.
o In Notarial wills, its difficult to convince three witnesses and a notary to lie. If
they do, their lies can be contradicted by other evidence such as
whereabouts, likelihood that they would be called as testator, intimacy with
the testator, and if they were friends or enemies.
Also they cannot receive anything on account of the will.
If we made oral evidence admissible for Holo
o A single man can engineer fraud make a passable imitation of handwriting
and signature, let others read it, tapos sasadyaing walain after ma-recognize
nung others.
Disbelief
o Why would she show it to non-heirs? Socorro Olarte and Primitivo Reyes.
These could pester her into amending her will to give them a share,
or threaten to reveal its execution to her husband Ildefonso Yap.
o Why not entrust to beneficiaries instead of purse?
Notes
o Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay
aking ipinamamana sa aking mga kamag-anakang sumusunod:
 Vicente Esguerra, Sr. .............................................5 Bahagi
Fausto E. Gan .........................................................2 Bahagi
Rosario E. Gan .........................................................2 Bahagi
Filomena Alto ..........................................................1 Bahagi
Beatriz Alto ..............................................................1 Bahagi
o At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking
ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y
magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin
sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking
pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay
bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.
Rodelas vs. Arranza; In Re: Bonilla
Facts
o Death: May 13, 1976; Exec: January 25, 1962
o Marcela Rodelas filed an application for the probate of the holo-will of Ricardo
Bonilla and the issuance of letters testamentary in her favor.
Used a copy of the holographic will!
o This was opposed by Amparo Aranza Bonilla, among others, on the grounds
that
Estopped for failing to produce will within 20 days of death as per
75.2 ROC
Copy of will did not contain disposition of property after death,
and was not mortis causa, hence it isnt a will. Also, wheres
the original?
o Oppositors moved to consolidate this with another case granted. After
consolidation, they then moved to dismiss the petition, arguing that:
Not a will but instructions to manage property, schools, and
colleges
Lost or destroyed holo wills cannot be proven by secondary
evidence unlike ordinary wills
o Motion to dismiss denied. Oppositors filed a Mo. Re. Probate court then
dismissed the case.
Court said that the copy of the holographic will cannot stand in lieu
of the original. It cited Gan vs. Yap that the document itself is the
material proof of authenticity of said wills.
Court doubted w/n Ricardo would still remember it because of the
passage of time between execution and death. Sketchy na walang
original plus this
Issue W/N a holo which is lost can be proven by means of a a copy? YES
o 811 - The probate may be uncontested or not.
Uncontested, at least one Identifying witness is required and, if no
witness is available, experts may be resorted to.
Contested, at least three Identifying witnesses are required.
o [Gan case] However, if the holographic will has been lost or destroyed and
no other copy is available, the will can not be probated because the best and
only evidence is the handwriting of the testator in said will.
Ratio: examination and comparison of handwriting essential
o BUT, a photostatic copy or xerox copy of the holographic will may be
allowed because comparison can be made with the standard writings of
the testator.
o On Gan vs. Yap - the Court ruled that "the execution and the contents of a
lost or destroyed holographic will may not be proved by the bare testimony
of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity."
BUT footnote 8 - Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by
other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before
the probate court,"
Azaola vs. Singson JBL Reyes
Facts
o Fortunata Yance Death: Sep. 9, 1957; Execution:
o Francisco Azaola submitted for probate her holographic will where Maria
Milagros Azaola was made the sole heir (against the nephew of the deceased
Cesario Singson)
Azaola testified that he saw the holographic will one month or
less before Yance died, because Yance handed it to Azaola
and his wife.
Azaola testified that he identified the handwriting of the testatrix
reinforcing this by presenting mortgages, SPOAs, and
GPOAs executed by the testatrix to show her signatures,
as well as deeds of sales and resident certificates.
o Some problems during trial transcript shows that in page 11, when counsel
asked Azaola of the will was Yances, he answered apparently it mustve
been written by her, but on page 16, when he was asked if he was familiar
with the penmanship and handwriting of Yance, he said I would definitely
say it is hers
o Oppositors
Not a serious will no intention to use it as such
Execution was procured through undue and improper pressure.
 o Probate denied for failure to comply with 811 proponents mustve presented
three witnesses who could declare that the will and the signature are in
Yances writing.
Issues W/N compliance with the first part of 811 is mandatory? NO.
o First, it doesnt even apply in this case since the genuiness of the will is not
being questioned. The contest made by the oppositors refer to whether it was
made freely and if it was intended to actually be a will, not w/n it really is the
testators handwriting
o Second, even if the genuiness were considered, the court agrees with Azaola
that the first part of 811 requiring at least three witnesses is directory, not
mandatory for the simple fact that for Holo, it may be impossible to present
three people who have such knowledge to declare it to be the testators
handwriting.
Existence of such witnesses is a matter beyond the powers of
proponents.
This is the reason why there is a second part resort to expert
witnesses.
o Third, this rule is derived from rules pertaining to ordinary/notarial wills, kaya
nga tatlo eh. It is only mandatory for ordinary testaments, where the presence
of three witnesses is essential to validity
When holographic, no witness need be present.
o IF the court deems it necessary
Court should deem it necessary such as when no competent
witness is available or none of those presented is convincing.
And because the law leaves it to the trial court if experts are still
needed, no unfavourable inference can be drawn from a party's
failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Codoy (oppo) vs. Calugay (prop)
Facts
Death: January 16, 1990; Execution: August 30, 1978
Evangeline Calugay, Josephine Salcedo, and Eufemia Patigas are devisees and
legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal.
o The devisees petitioned for the probate of the will. They said that there was
no fraud, undue influence, and duress yada yada. Will was worth 400,000
pesos.
Oppositors Codoy and Ramonal filed their opposition. They argued that it was a forgery
and that it is illegible. They allege that it was made by another person.
o They said that the repeated mention of dates makes it sketchy. If Matilde
made it, it wouldve followed normal procedure signatures appear at
the bottom.
The proponents presented 6 witnesses and various documentary evidence. The
oppositors filed a demurrer to evidence, claiming that the proponents failed to establish
factual and legal basis for probate.
TC probate denied. On appeal, they reiterated the 6 witnesses.
o Neri Clerk of Court CFI Misamis Oriental where specpro for probate was
filed. Documents presented bear signature of the deceased. Specimens
showing signature were offered
o Senon Election Registrar produce and identify voters affidavit of the
decedent. However not shown because already destroyed.
o Matilde Ramonal Binanay Niece lived with her for 11 years of close
association. Familiarized with handwriting because she used to accompany
her in doing business and signing receipts for tenants of her buildings; she
left a holo will
o Rodolfo Waga Fiscal handled pleadings and documens of deceased in
connection with her husbands estate hence familiar with her handwriting.
o Vedad employee of DENR where she accepts permits and applications of
decedent
o Calugay Adoptive child after a long life became familiar with her signature
CA allowed probate citing Azaola vs. Singson where rule requiring three witnesses
is merely permissive/directory instead of mandatory lest absurd results come out.
Issues
(1) W/N 811 is mandatory or permissive? Mandatory
o shall connotes a mandatory order. Such commonly denotes an obligation
and is inconsistent with discretion. Goal of the law is to decrease chances
of fraud, hence to determine the true intent of the deceased, an exhaustive
and objective consideration of all the evidence is imperative.
Note that not everyone testified expressly that they are acquainted with the decedents
signature.
o Neri merely identified records of the special proceedings before this case
o Senon document not even available anymore.
o Matilde Binanay am familiar but she never saw a non pre-prepared receipts
and letters. She always just sees prepared ones already; in possession of the
will from her mom; didnt inform petitioners the legally adopted children
of the deceased;
o Calugay WDS by handwriting of testator; accompanied to church, market,
and transactions, paid taxes, bank, go to lawyer, personal driver.
BUT only reason she could give was because she lived with her
since birth. Never really saw her sign anything.
o Waga not sure that it is hers because he said that he only supposes such
since it is similar to the signature of the project of partition which waga made.
Two competing interests not to restrain testamentary right vs. eliminate possibility of
false documents. Since we cannot eliminate the latter, the law requires three witnesses
to declare that the will was in the handwriting of the deceased.
Sketchy na in Nieces possession five years before death.
No opportunity for an expert to identify.
o nly chance at comparison was during the cross-examination of Ms. Binanay
when the lawyer of petitioners asked Ms. Binanay to compare the documents
which contained the signature of the deceased with that of the holographic
will and she is not a handwriting expert. Even the former lawyer of the
deceased expressed doubts as to the authenticity of the signature in the
holographic will.
Courts visual examination strokes are different, signature is not readable,
TRACES and erasures
Make sure na witness knows and observes.
Unson vs. Abella (Villamor)
Facts
Died: January 6, 1921; Executed: July 19, 1918
Pedro Unson is the executor appointed in Dona Josefa Zalamea Y Abellas will. He filed
an application for probate of the will and the issuance of letters of administration in his
favor.
o Opposition was made by Antonio, Ignacia, and Avicencia all surnamed
Abella, and Santiago Vito. They say that the execution was legally infirm (not
numbered in letters, no attestation clause, not signed by testatrix, not
witnessed in the presence of each other)
Probate Court granted the probate, not believing the allegations of the opposition
Issues
1st Argument: Not executed with proper form
o Witness Zalamea not credible: This is based on the fact that Zalamea lost a
criminal case against his nephew and so is not impartial. SC said this is of
 little importance because his testimony is corroborated by Gonzalo and Luis Pronouncement is made on an erroneous assumption that the probate of the carbon
Abaya anyway copy was being applied for
Gonzalo and Luis prepared the will o It was not attached to be probated. It was attached to corroborate the
o Actually signed in presence: SC just said na no reason to overturn factual alleged existence of the original.
finding of lower court that they DID sign each and every page in the presence o Not meant to show compliance with the formal requirements of wills.
of one another. Apparent naman na what is sought to be admitted is the original, which they alleged to
o Signed by the testatrix and witnesses on day of execution: This is based on have been destroyed while in the possession of a third person other than the
oppositor-witness Palileos testimony that Abaya told him that one of the testatrix.
pages was left unsigned by everyone. However, SC said that this testimony o Act No. 190 Section 623 Ifa will is shown to have been torn by some
is directly rebutted by the testimony of Abaya himself. other person without the express direction of the testator, it may be admitted
2nd Argument: didnt explain kung bakit one of the attesting witnesses is not to probate, if its contents, due execution, and its unauthorized destructin are
present established by satisfactory evidence.
o Possible explanation: no opposition was made until the date set for hearing. HENCE Eliodora was entitled to a hearing to prove underlined.
Hence nagkaron lang ng 3-witness requirement the day of the hearing. Others
Counsel didnt move for postponement for some reason. W/N Certiorari proper? YES
Accounted for by Proponent-Counsel Attesting witness Pedro De o Act 190 provisions that it is only allowed when no PSA remedy has exceptions
Jesus was hostile as he didnt wanna meet with the proponents and such as when the order is a nullity by virtue of its recitals, as in the instant
had been talking to opposition for some time. case where no hearing was made.
o SC said that this is valid grounds sana BUT it wasnt raised in the lower court Atty. Fortunato is warned for having made statements derogatory to the good name of
(hearing or MoNT). Such cannot be raised for the first time with the SC. petitioners attorney.
Bawal cause eliminates judicial criterion of the CFI and makes SC
the CFI
Permits attorneys to trifle with judicial proceedings by concealing
points
o NB: not raised in trial but in the memorandum of the attorney of the oppositors,
they said that it could not be admitted since 1 witness was not adduced which
creates a presumption against the proponents.
SC: General Rule: if opposition made, attesting witnesses must be
produced
SC: Exception: dead, hostile to the cause of the proponent.
Puwedeng di i-sama if the other proofs adduced is satisfactory
which the TC was in this case (Gonzalo Abaya, Eugenio Zalamea)
and attorney Luis Abaya
This case, hostile si Pedro De Jesus!
3rd Argument: no inventory, paging is in Arabic numerals.
o In view of the fact that the inventory is referred to in the will as an integral part
of it, we find that the foregoing attestation clause is in compliance with section
1 of Act No. 2645, which requires this solemnity for the validity of a will, and
makes unnecessary any other attestation clause at the end of the inventory.
o Aldabe vs. Roque Arabic numerals is still in compliance with the spirit of the
law. Also, may guarantee naman na genuine each page since every page is
signed.
o The principal object is to give the correlation of the pages, we hold that his
object may be attained by writing one, two, three, etc., as well as by writing Gago vs. Mamuyac
A, B, C, etc. Facts
Death: Jan 2, 1922; Execution: Jul. 27, 1918
Lipana (Eliodora) vs. Lipana (Natividad) Within the same month as Miguel Mamuyacs death, Francisco Gago filed for probate
Facts with CFI LU. This was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana
Eliodora Lipana filed in CFI-Cavite, an application for the probate of a will executed by Bauzon, and Catalina Mamuyac.
Manuela Lipana, a carbon copy of which was attached to the application. o CFI-LU denied the probate will replaced by a new one excuted April 16,
o Natividad Lipana filed her opposition 1919.
Carbon copy itself shows non-compliance with the law. Gago then filed for probate of the 1919 will. This was contested by the same persons
Instead of inspecting the carbon copy, the CFI-Cavite outright dismissed the case o Copy of the 2nd will, cancelled during Mamuyacs lifetime, and so is not
saying that such carbon copy cannot be probated, not having been signed by actually the will of the deceased.
Manuela and the attesting witnesses at the end thereof and at the left margin of o So CFI again denied probate on the found that the same had already been
each page cancelled and revoked in 1920
Discussion Mere carbon copy, original still with the deceased
No doubt that CFI was in excess of jurisdiction by rendering judgment without hearing.
 BUYERS - Deceased revoked it before his death as per testimony
of witness Jose Fenoy, who typed the will of the testator on April
16, 1919, and Carlos Bejar, who saw on December 30, 1920, the
original Exhibit A (will of 1919) actually cancelled by the testator
Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he
had sold him a house and the land where the house was built,
he had to cancel it (the will of 1919)
A THIRD WILL. The opponents have successfully established the
fact that father Miguel Mamuyac had executed in 1920 another will.
The same Narcisa Gago, the sister of the deceased, who was living
in the house with him, when cross-examined by attorney for the
opponents, testified that the original Exhibit A could not be found.
Discussion
There is positive proof not denied by the proponents that the 1919 will was cancelled
in 1920.
Law does not require evidence of cancellation or revocation of a will, hence it is difficult
to prove. The fact of revocation may either remain unproven or inferred from
evidence shown after due search of the original cannot be found.
o When cannot be found while in testators possession, or has ready
access to it, presumed that it was destroyed.
o The force of the presumption of cancellation or revocation by the testator,
while varying greatly, being weak or strong according to the circumstances,
is never conclusive, but may be overcome by proof that the will was not
destroyed by the testator with intent to revoke it.
Instant Case: Cant be found while it was in his possession before he died!!!!
o Since the original of the 1919 will cannot be found after Miguels death, and
in light of the positive proof that it had been cancelled, we agree with the lower
court that the evidence shows that it had been cancelled.
fully persuaded that the will had been cancelled in 1920
In a proceeding to probate a will the burden of proofs is upon the proponent clearly
to establish not only its execution but its existence.
o Having proved its execution by the proponents, the burden is on the
contestant to show that it has been revoked.
o In a great majority of instances in which wills are destroyed for the purpose
of revoking them there is no witness to the act of cancellation or destruction
and all evidence of its cancellation perishes with the testator. Copies of wills
should be admitted by the courts with great caution. When it is proven,
however, by proper testimony that a will was executed in duplicate and each
copy was executed with all the formalities and requirements of the law, then
the duplicate may be admitted in evidence when it is made to appear that the
original has been lost and was not cancelled or destroyed by the testator.
Maloto vs. CA
Facts
Died October 20, 1962; executed Jan 3, 1940
Adriana Maloto died leaving petitioner nieces (Aldina and Costancia) and respondent
nephews (Panfilo and Felino).
o They thought that Adriana didnt leave a will. Hence they instituted intestate
proceedings for the settlement of their aunts estate. CFI Iloilo.
While the intestate proceedings were ongoing, the four heirs decided to make an
extrajudicial settlement agreement for the courts approval.
Three years later, Atty. Palma, a former associate of Adrinas counsel the late Atty.
Hervas, discovered a document entitled Katapusan Nga Pagbubulat-an (testament)
allegedly while going through the deceased-Hervass cabinet.
o Submitted it to the Office Clerk of Court of CFI Iloilo.
o In the Katapusan, while the nephews are still instituted as heirs, the nieces
receive much larger portions than what they received by virtue of the
agreement. The will also bequethes other properties to other devisees and
legacies i.e. Asilo de Molo, Roman Catholic Church of Molo, Purificacion
Miraflor.
Nephews and the new devisees and legatees filed a Motion for Reconsideration in the
special proceeding for the intestate shizznit.
o Denied Certiorari and Mandamus to the SC
o SC dismissed and ordered separate proceeding for probate of alleged will
CA: While the fact of Adrianas househelp burning the will upon her orders was doubtful,
there is nevertheless animus revocandi in this case. CA found such animus in Adriana
going to Hervas to retrieve a copy of the will left in Hevass possession, and seeking
Atty. Palmas help in having a new one drawn up.
o SC: Insufficient bases.
Discussion
Burning is not per se an effective revocation unless coupled with animus
revocandi. It is not necessary that the burning be done by the testator himself, it
may be performed by another person under his EXPRESS DIRECTION AND IN
THE PRESENCE OF THE TESTATOR.
Animus Revocandi, by itself, is insufficient. It is only one of the necessary elements of
revocation
o There must be an overt physical act (i.e. burning, tearing, obliterating)
In this case, there was no overt act.
o Burning by housemaid Guadalope not established. Much less that it was
the will that was burned
The two maids are illiterates and could not be positive that it was
the will that they burned. Guadalope said Adriana told her so.
Eladio said Guadalope told her so. Double hearsay!!
o Guadalope and Eladio stated that they were the only ones present at the
burning sa stove, hence in the presence of the testator is unemt.
Others
No Res Judicata - (1) the presence of a final former judgment; (2) the former judgment
was rendered by a court having jurisdiction over the subject matter and the parties; (3)
the former judgment is a judgment on the merits; and (4) there is, between the first and
the second action, Identity of parties, of subject matter, and of cause of action.
o No final judgment since previous matter is intestate settlement without
relation to will
o No judgment on the merits since agreement nalang; No identity between
COAs.
One last note. The private respondents point out that revocation could be inferred from
the fact that "(a) major and substantial bulk of the properties mentioned in the will had
been disposed of: Suffice it to state here that as these additional matters raised by
the private respondents are extraneous to this special proceeding, they could
only be appropriately taken up after the will has been duly probated and a
certificate of its allowance issued.
Molo vs. Molo
Facts [D: Jan 24, 1941; two wills]
Mariano Molo died without leaving any forced heirs in either the descending or
ascending line. He was survived by his wife (petitioner Juana) and by nieces and
nephews (the oppositors who were children of her brother Candido)
o Proponent Juana and Oppositors Luz, Gliceria, and Cornelio Molo
The June 30, 1939 will was probated by Juana. Court probated it since no opposition.
However, this probate was set-aside by the court upon petition from the oppositors.
o After the second hearing where both parties presented evidence, the court
DENIED the probate saying that they failed to prove that it was executed in
accordance with the law.
Juana then filed for the probate of the August 17, 1918 will which was docketed as
spec.pro 56.
o Same oppositors opposed saying that she is estopped from claiming
the validity of the 1939 will, and that it was not executed with due form, and
that even if it were, it was revoked by the later one.
 o Before it could be heard battle for liberation destroyed had to be depends, is equivalent to the non-fulfillment of a suspensive
reconstituted reconstitution impossible because neither party has a copy. conditions, and hence prevents the revocation of the original will.
Juana filed another petition similar to the one destroyed. Oppositors raised same But a mere intent to make at some time a will in the place of that
grounds. destroyed will not render the destruction conditional. It must
o Trial admitted into probate. appear that the revocation is dependent upon the valid execution
o Oppositor Nieces and Nephews appeal frustrated the 1939 document, of a new will. (1 Alexander, p. 751; Gardner, p. 253.)
estoppel and unclean hands, formal deficiencies, revoked Hence EVEN IF WE PRESUME he destroyed it, the destruction cannot defeat the old
Bad Faith/Fraud will.
o Oppositors say that Juana deliberately lost in the 1939 probate because of
her knowledge that it was defective, the only disposition therein being the everyone listen and write this down
disposition captatoria a subsequent will (1939), containing a clause revoking a previous will (1918), having been
o Proponents say that such case was entirely distinct from the present one and disallowed for the reason that it was not executed in conformity with law. Cannot produce the
that it is improper to impute BF here. effect of annulling the previous will (1918), inasmuch as said recovatory clause is void
SC
No Bad Faith
o No showing of anything which would be reason to think that there was BF.
The only thing which the oppositors argue is that Juana shouldnt have
allowed Canuto Perez to testify after saying that he went out of the room to
go to the bathroom when one of the witnesses signed.
Explained by Juana that she couldnt find any witnesses to impeach
him.
o She had it probated and successful sana if di biglang sumupot yung
oppositors. How could she have known that the oppositors would suddenly
oppose out of the blue?
o Moreover, if she wanted to suppress it, sana tinago or sinira nalang if she
wanted.
Revocatory Clause (Oppositors say such clause in the 1939 was is valid anyway)
o SC agrees with proponents counsel in citing Samson vs. Naraval - A
subsequent will, containing a clause revoking a previous will, having been
disallowed, for the reason that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure as to the making of
wills, cannot produce the effect of annulling the previous will, inasmuch
as said revocatory clause is void.
o Oppositors then say its archaic and should be abandoned. US has
abandoned it and so should we since our Civpro comes from the US.
Conflicting US jurisprudence on Revocatory Clause is explained away by differences in
the statutes of different states.
Testator didnt deliberately destroy the old will just cause of the new will. If he had
intended to destroy such will, then he wouldve destroyed the duplicate copy in
possession of Juana. Also the fact that the original cannot be found may be proof of
misplacement instead of destruction after 21 years of being in Juanas possession Guevarra vs. Guevarra
Facts (Will: August 26, 1931; Death: Sep. 26, 1933)
Topic Victorino Guevara executed a will with all the formalities of the law,
Can we not say that the destruction of the earlier will was but the necessary o Bequests: Stepdaughter Candida (earring 150 gold chain 40); son Ernesto
consequence of the testator's belief that the revocatory clause contained in the (gold ring 180, all furnishing found in his house in Pangasinan); Mi Hija
subsequent will was valid and the latter would be given effect? If such is the case, then Rosario (earrings 120); stepson Pio (ring 120) wife by 2nd marriage Angustia
it is our opinion that the earlier will can still be admitted to probate under the principle Posadas (various jewelry 1020)
of "dependent relative revocation" o Devises: Rosaria and Ernesto, Vivencio, Eduviges, Dionisia, Candida, Pio
o The rule is established that where the act of destruction is connected with (residential lot in pangasinan); Wife Angustia (confirmed donation propter
the making of another will so as fairly to raise the inference that the testator nuptias of a portion of 24 hectares of a 259-odd hectares described in PSU
meant the revocation of the old to depend upon the efficacy of a new 666-18)
disposition intended to be substituted, the revocation will be conditional Wife was also devised 5 more hectraes by settlement of her
and dependent upon the efficacy of the new disposition; and if, for any usufructuary right
reason, the new will intended to be made as a substitute is inoperative, the Pangasinan lot was 960 sqm and assessed at 540 pesos.
revocation fails and the original will remains in full force. (Gardner, pp. 232, Victorino set aside 100 hectares of the 259-hectare lot to be disposed by either him or
233.) by his attorney in fact Ernesto M. Guevara (his son) to pay all the pending debts and
o This is the doctrine of dependent relative revocation. The failure of a degray his expenses and those of his family.
new testamentary disposition upon whose validity the revocation o Remainder of the lot to be disposed as follows:
 Again, yung wifes share of around 24+5
Remaining portion is left to the heirs as follows
Ernesto 108 hectares. 8 meters and 54 centimeters
towards the part bordereing the west of the 100 hectares
he reserved for himself
o Extended by 42 hectares and 23 meters for
improvements
Rosario 21 hectares and 61 meters, which is the
remaining part.
Victorino appointed his son Ernesto as an executor and to distribute it his property in
accordance with the provisions of the will.
Out of the blue, Victorino sold the southern half of the 259-hectare lot for 1 pesos as
well as for the payment of his debts not below 16,500. The northern half, he said that it
now belong entirely to Ernesto, having purchased the lands from Mr. Rafael Puzon.
Ernesto Guevara initiated registration proceedings. Since he was the only party left, the
title was issued in his name alone.
Death of Victorino
o His last will and testament were never presented to the court for
probate, nor has any admin proceeding ever been instituted for the
settlement of his estate.
Records do not show that the will was followed or that they even
knew of the will. This is shown by the fact that Ernesto solely
possessed the large lot.
Apparently, the will was in the possession of Rosario. She never presented it until four
years later where she claimed that in that will, she was recognized as a natural child of
Victorino. Note however, that as a natural child, she does not claim rights from the will
to succeed but rather, that she claims rights as a legal heir
o She argues that since the will was never probated, Victorino is deemed to
have died intestate!
SC #1 We cannot sanction the scheme of Rosario. It is an attempt to circumvent and disregard
the last will and testament of the decedent.
It can be readily seen from the quoted provisions of law (Rule 76) that the presentation
of a will to the court for probate is mandatory and its allowance is essential to its
efficacy. This is why the law goes as far as to provide a sanction.
Even the CA knew this but it decided in favor of Rosario because it said that dismissing
the case would cause injustice, inconvenience, delay, and much expense to the parties,
and that therefore, it is preferable to leave them in the very status which they themselves
have chosen.
SC: Look at Rule 74 Section 1 w/c is a modification of Code of Civpro 596 "no will
shall pass either real or personal estate unless it is proved and allowed in the
proper court";
o The omission of the word intestate and the use of the word legatees in
section 1
The section merely authorizes extrajudicial or judicial partition
without securing letters of administration. It does not say that
in case the decedent left a will the heirs and legatees may divide
the estate among themselves without need to present the will.
Petition to probate and petition to give letters of admin are two
different things. One can have a will probated without necessarily
securing letters testamentary or of admin.
74-1 they still have to present the will. They cannot disregard the
provisions of a will unless it is contrary to law. Suppression of a
will is contrary to law and public policy
Otherwise, right of deceased to dispose of property
impinged
o Even if we give retroactive effect to section 1 of Rule 74 and apply it here, as
the Court of Appeals did, we do not believe it sanctions the nonpresentation
of a will for probate and much less the nullification of such will thru the failure
of its custodian to present it to the court for probate; for such a result is
precisely what Rule 76 sedulously provides against.
Note that the CivPro provi talks about intestate hence
excludes Rosarios cause
o No showing that the other legatees other than present litigants had received
their respective legacies or that they had knowledge and existence of the
provisions of the will.
NB Ernesto the executor did not take steps to present it thinking it is superseded by the
deed of sale of the land from Victorino to Ernesto.
Supreme Court #2 Who owns it then?
Sale of Victorino of the southern half to Ernesto for the latters assumption of his debts
is a valid sale. He had to alienate considerable portions of the above-mentioned land.
And we cannot brand such alienation as anomalous unless it is proven that they have
exceeded the value of what he has acquired by virtue of the deed.
Re: northern half: CA said it wasnt proven that the money to pay Puzon was from
Ernesto. In fact the money came from a debtor of his father Victorino.
o Note that Rosario withdrew her opposition of its registration only because
Ernesto promised her that after payment of Victorinos debts, Ernesto would
deliver to Rosario and the widow their shares.
o From these facts, it results that the interested parties consented to the
registration of the land in question in the name of Ernesto M. Guevara alone
subject to the implied trust on account of which he is under obligation to
deliver and convey to them their corresponding shares after all the debts of
the original owner of said land had been paid.
Hence south Ernesto; north still part of the estate.
De Borja vs. De Borja
Facts
Oct. 25, 1940, Francisco De Borja (pet) filed a petition for the probate of his deceased
wifes (Josefa Tangco) will. It was probated and Francisco the widower was named the
executor thereof.
o One of the heirs appealed this to the CA but it was dismissed upon a motion
for dismissal.
Records were lost during the Pacific War but were reconstituted in 1946. On that same
year, Widower Francisco again qualified as executor / administrator.
o Due to the physical incapability of Francisco de Borja to fully administer the
estate as he was quite weak and was uable to see
o Crisanto de Borja, an heir, was instituted as co-admin upon petition of
Matilde de Borja, another heir.
Respondent Jose de Borja was then appointed as co-administrator without petition or
notice. The already-admin filed a motion for reconsideration but this was indirectly
denied.
o The judge then removed Crisanto by virtue of an ex-parte petition by the heirs
including Crinsato himself.
o The judge ordered Jose to comment on the amended account filed by
Francisco de Borja
Francisco, Matilde, and Crisanto appealed the appointment of Jose and the denial
of their MR
o Judge denied it since the order of appointment was interlocutory from which
no appeal can be had.
 Mandamus petition at SC to compel Judge Tan to approve the record on appeal and
due course
An order appointing a regular administrator is appealable. On the other hand, according to Rule
105, section 1 (e) an order appointing a special administrator is not appealable.
Respondents contend that a co-administrator is not a regular or general administrator, and
his duties and functions rather partake those of a special administrator; consequently, his
appointment is not subject to appeal.
We cannot share this view. The powers and functions of a special administrator are quite limited.
Under Rule 81, section 1, a special administrator is appointed only when there is a delay
in granting letters testamentary or of administration occasioned by an appeal from
allowance or disallowance of a will or from any other cause, and such special
administrator is authorized to collect and take charge of the estate until the questions
causing the delay are decided and an executor or administrator thereon appointed.
Under Rule 87 section 8, a special administrator is also appointed when the regular
executor or administrator has a claim against the estate he represents and said special
administrator shall have the same power and subject to the same liability as a regular
executor or administrator.
In other words, a special administrator is appointed only for a limited time and for a specific
purpose.
Naturally, because of the temporary and special character of his appointment, it was deemed by
the law not advisable for any party to appeal from said temporary appointment.
On the other hand, a co-administrator performs all the functions and duties and exercises all the
powers of a regular administrator, only that he is not alone in the administration. Further taking
into consideration the circumstances obtaining in this case, that petitioner Francisco de Borja
though originally designated administrator, is and has for several years been one only in name
due to his physical and mental disability, as a result of which respondent Jose de Borja is now
practically the sole administrator there is no question that for all practical and legal purposes the
appointment of Jose de Borja as co-administrator is equivalent to and has the same effect as a
sole regular or general administrator.
De la Cerna vs. Potot
Facts
May 9, 1939, Spouses Bernabe and Gervasia Rebaca executed a joint last will and
testament in the local dialect whereby they willed our 2 parcels of land acquired during
our marriage together with all improvements thereon shall be given to Manuela Rebaca,
our niece, whom we have nurtured since childhood, Manuela being married to Nicolas
o While alive will still enjoy the fruits of the lands in Borbon, Cebu.
Mr. Rebaca died on August 30, 1939 and the aforesaid will was submitted to probate by
Gervasia and Manuela before the CFI Cebu
o Probated by the CFI. Instituted Rebaca as universal heir.
Gervacia died trial court refused to probate for being executed contrary to the
prohibition on joint wills under OCC 669 (NCC 818)
CA reversed saying that the CFI-Cebus earlier ruling on the husband is conclusive on
the due execution of the testament. Further,
o While the law prohibits joint wills this form has long been sanctioned by use
and has been continued to be used. When it is made, there is no alternate
than to give effect to the provisions thereof that are not contrary to law
Legal heirs appealed
SC
Correct in saying that the earlier decision has a conclusive effect as to his last will
and testament despite the OCC/NCC providing invalidity of joint wills.
The error thus committed by the probate court was an error of law, that should have
been corrected by appeal, but which did not affect the jurisdiction of the probate court,
nor the conclusive effect of its final decision, however erroneous.
A final judgment rendered on a petition for the probate of a will is binding upon the whole
world and public policy and sound practice demand that at the risk of occasional
errors judgment of courts should become final at some definite date fixed by law.
Interest rei publicae ut finis set litium
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are
concluded by the 1939 decree admitting his will to probate. The contention that
being void the will cannot be validated, overlooks that the ultimate decision on Whether
an act is valid or void rests with the courts, and here they have spoken with finality
when the will was probated in 1939.
But husbands decree in 1939 could only affect the share of the deceased husband. It
could not include the disposition of the share of the wife
o Wife over whose interest in the conjugal properties the probate court acquired
no jurisdiction, precisely because her estate could not then be in issue.
(before ncc bawal lifetime probate)
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a joint
will is considered a separate will of each testator.
o Thus regarded, the holding of the court of First Instance of Cebu that the joint
will is one prohibited by law was correct as to the participation of the deceased
Gervasia Rebaca
o HENCE Mrs. Rebaca is INTESTATE
Usage doesnt matter. Law only repealed by law, not by non-usage
Gallanosa vs. Arcangel
Facts (D: May 26, 1939; W: June 19 1938)
Florentino Hitosis executed a will (Bicol Dialect) when he was 80 y.o. He died about a
year later in Sorsogon. As he was childless and a widower, he was survived only by his
brother Leon Hitosis. All other siblings are dead.
1939 Petition for probate initially filed in CFI-Sorsogon where he died. Notice of hearing
duly published.
o Under the will, in case he is predeceased by his second wife, his share in the
CPG should go to his second wifes child who grew up in Florentinos care
and whom he treated as his own [GALLANOSA AND WIFE]
o Floretino likewise bequeathed his separate properties (3 parcels of land and
riceland) to his protg, Fortajada, a minor.
Brother, nieces, and nephews all opposed the probate of the will. Since they had no
evidence, the will was probated by the CFI anyway. Judge found that he executed
the will in good health, with no threat nor violence
1941 The heirs submitted a project of partition covering the 61 parcels of land left, cattle,
and personal property. The heirs assumed the obligations of estate equally. Project was
approved. The legal heirs did not appeal from the decree of probate ordering the
partition.
1951 action - Brother Hitosis instituted an action saying that they had been in
continuous possession of those lands in the concept of an owner and that
Gallanosa entered the lands recently only.
o M2D on the ground for lack of cause of action.
o Judge dismissed the case on the ground that there was res judicata
the probate proceedings, had they won, wouldve entitled them as legal
 heirs to own the lots. However, since they lost, the matter had already
been adjudicated with finality.
No appeal from dismissal made BUT
o 28 YEARS from the probate they filed another action action for the
annulment of the will of Hitosis and for the recovery of the 61 parcels of land.
They allege fraud.
o In the new case despite saying before the 1951 lang pinossess ng mga
Gallanosa. It then said tha since 1939, asa kanila na.
1967 (super late) case dismissed upon motion of the defendants. It was then reversed
upon an MR from the plaintiff-nephews. The petitioner-defendants now argue that
the trial court had no authority to set-aside such case and that by doing so, it acted with
GAOD.
SC: yes, theirs GAOD
Barred by res judicata, a double-barrelled defense, by prescription (acquisitive
extinctive) or by what are known in the jus civile the jus gentium as usucapio, longi
temporis possesio and praescriptio
o Double-Barelled defense because of the (a) the probate and plan case and
(b) 1951 action
1939 is conclusive as to the due execution and formal validity. This
means that the soundness of mind and the fact that he wasnt under
force or duress and that the will was not a forgery was established
since then.
o Effect of Judgments under Rule 39 (probate of a will or the administration of
the estate) the judgment or order is conclusive upon the will
After the finality of the allowance of a will, the issue as to the
voluntariness of its execution cannot be raised anymore (Santos
vs. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).
Our law doesnt allow the annulment of a will. Law requires that it be probated
(mandatory)
o After the time allowed for an appeal has expired, when no appeal is taken Maninang vs. CA
from an order probating a will, the heirs can not, in subsequent litigation in the Facts (D: May 21, 1977)
same proceedings, raise questions relating to its due execution Clemencia Aseneta, single, died at the Manila Sanitarium Hospital at the age
o Also barred by 1951 case bar by former judgment of 81. She left a holographic will.
o They didnt even try to appeal the judgments! A month after her death, petitioner Soledad Maninang filed a petition for probate of the
Interest rei publicae ut finis sit litum. "The very object for which the courts were will with CFI-QC.
constituted was to put an end to controversies. o About a month after probate was initiated, the adopted son of Clemencia,
o FJ can only be set aside by lack of jurisdiction or lack of due process of law Bernardo Asenta, initiated intestate proceedings with CFI-Pasig.
or that the judgment was made through extrinsic or collateral fraud. The cases were consolidated before the Pasig CFI.
Latter within 4 years dapat! The adopted son filed a motion to dismiss the testate case on the ground that the holo
o To hurdle over the obstacle of prescription, the trial court, naively adopting was null and void and that intestacy should reign. Soledad contested this motion to
the theory of plaintiffs' counsel, held that the action for the recovery of the dismiss saying that the probate is limited to an examination of the extrinsic validity.
lands had not prescribed because the rule in article 1410 of the Civil Code, CFI-Pasig dismissed the testate case for reasons stated in the motion to dismiss (pre-
that "the action or defense for the declaration of the inexistence of a contract terition)
does not prescribe", applies to wills. o MR denied for lack of merit. It appointed Bernardo Asenta as the administrator
o That ruling is a glaring error. Article 1410 cannot possibly apply to last wills of the estate considering that he is a forced heir and Soledad is not
trial testaments. The trial court trial plaintiffs' counsel relied upon the case of Petitioners Soledad Maninang appealed to the CA saying that the CFI acted in excess
Dingle vs. Guillermo, 48 0. G. 4410, allegedly decided by this Court, which of its jurisdiction when it ordered the dismissal of the testate case and denied the MR.
cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot o CA denied the appeal saying that the CFI-Pasig decision was final, having
give efficacy to void contracts, a ruling elevated to the category of a codal disposed of the case properly. Appeal was the proper remedy which
provision in article 1410. The Dingle case was decided by the Court of petitioners failed to avail of.
Appeals. Even the trial court did not take pains to verify the misrepresentation SC
of plaintiffs' counsel that the Dingle case was decided by this Court. An CFI-Pasig acted in grave abuse of discretion in dismissing the probate case. As a
elementary knowledge of civil law could have alerted the trial court to general rule, the probate of a will is mandatory under NCC 838.
the egregious error of plaintiffs' counsel in arguing that article 1410 o Required by both law and public policy because unless the will is probated
applies to wills. and notice thereof given to the whole world, the right of a person to dispose
of his property by will may be rendered nugatory.
o Normally, the probate does not look into intrinsic validity.
 decides no other question than such as touch upon the capacity
of the testator and the compliance with those requisites or
solemnities which the law prescribed for the validit of wills.
Opposition to intrinsic validity or legality of the provisions of the will
cannot be entertained in probate proceedings because its only
purpose is to determine if the will was executed in accordance with
the requirements of the law.
Respondent Bernardo cited Nuguid vs. Nuguid where practical considerations
demand that the intrinsic validity of the will be passed upon, even before it is probated,
the Court should meet that issue.
o SC said same rule in Balanay vs. Hon. Martinez the rulings in these cases
are the exception rather than the rule, which may only be taken up in case of
practical considerations
o In Nuguid, the intrinsic validity was the meat of the case the crucial issue
being preterition. In that case the it is preterition and disinheritance which was
discussed.
Because of the dismissal, the controversial issue has not been thoroughly considered.
TC concluded preterition, but the extrinsic aspects of the will do not show this
conclusively.
o Certiorari is a proper remedy. An act done by a Probate Court in excess of its
jurisdiction may be corrected by Certiorari. 13 And even assuming the
existence of the remedy of appeal, we harken to the rule that in the broader
interests of justice, a petition for certiorari may be entertained, particularly
where appeal would not afford speedy and adequate relief.
Sir: Preterition is implied, disinheritance is express. Both have the effect of Disinheritance, but
preterition causes the void of the entire will. Disinheritance lets the other shit remain.
Pastor vs. CA
Facts
Alvaro Pastor is a Spanish citizen who died in Cebu on June 5, 1966. He was survived
by his wife Sofia Bossio and their two children Alvaro Pastor Jr. and Sofia Pastor de
Midgely, and an illegimiate child named (Quemada) who is a Philippine Citizen,
naturalized in 1936.
o Sofia is a Spanish subject. Quemada is a Filipino by virtue of her mother /
kabit ni Alvaro Pastor.
On November 1970, Quemada filed a petition for probate and the allowance of an
alleged holographic will of Pastor, SR. with the CFI Cebu
o The alleged will had only one testamentary disposition a legacy in the
favor of Quemada of shares of Pastor in the operation of Atlas consolidated
mining in Cebu.
Quemada, upon petition, was appointed as the special administrator of the entire estate
of Pastor, Sr. W/N covered or affected by the holo will. Quamada paid a bond of 5,000.
Quemada then instituted an action against Spouses Alvaro Junior and Maria Elena
who claim ownership over the stocks in their own rights and not bu inheritance.
o Will was admitted to probate. Umabot sa SC. Remanded to court pero
admitted daw talaga sabi ng SC.
For 2 years since the SC remanded the case to the probate court, parties filed plenty of
petitions for the seizure of properties. All pleadings remained unacted upon by the
probate court.
Court told the parties to submit their respective position papers on how much
Quemada was entitled to. According to:
o Pastors position paper - the determination of what Quemada is entitled to is
still premature,
o Quemada - sworn statement of the royalties paid to the Pastors ever
since Pastor Sr. died.
o Spouses 55% of the claims total. Quemada 5% of the claims total.
While the reconveyance suit was being litigated, the probate court resolved the question
on ownership of the royalties payable by ATLAS. It ruled, in effect, that the legacy to
Quemada was not inofficious.
o ATLAS was directed to remit directly to Quemada the 42% royalties due to
decedents estate, of which Quemada was authorized to retain 75% for
himself as legatee.Further, the 33% share of Pastor Jr. and/or his assignees
was ordered garnished to answer for the accumulated legacy of Quemada.
Querada was able to obtain a Writ of Execution and Garnishment
Sps. sought reconsideration. In the meantime, the probate court ordered suspension of
payment of all royalties until after the motion is decided upon.
Before the recon in the probate court was decided, Sps. Pastor appealed the decision
to the CA. It was denied probate court upheld.
Arguments
While the spouses do not assail the Probate Order itself (affirmed by the SC), what they
assail is the validity of the Order of Execution and Garnishment as well as the orders
subsequently issued allegedly to implement the probate order.
o Order which declares that the probate order resolves the issue of ownership
and intriic validity of the will. Order which reduces the amount payable to
Quemada.
Spouses- Basically, before the provisions of the holographic win can be implemented
(before the assailed orders can be issued), the questions of ownership of the mining
properties and the intrinsic validity of the holographic will must first be resolved with
finality.
Quemada: probate order attained finality bec. its final and executory.
Issue
W/N the Probate Order resolved with finality the questionof ownership and intrinsic
validity, which would make it within the power of the court to issue the orders re:
implementation
Ownership
In a specpro for the probate of a will, the issue is restricted to the extrinsic validity of
the will, whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law
o Q of ownership is an extraneous matter w/c the probate court cannot
resolve with finality
o For the purpose of determining whether a certain property should or should
not be included in the inventory of estate properties, the Probate Court may
pass upon the title thereto, but such determination is provisional, not
conclusive, and is subject to the final decision in a separate action to resolve
title.
The Order sought to be executed by the assailed Order of execution is the Probate
Order allegedly resolved the question of ownership of the disputed mining
properties.
o However, nowhere in the dispositive portion is there a declaration of
ownership of specific properties. On the contrary, it is manifested therein that
ownership was not resolved. For it confined itself to the question of
extrinsic validity of the will, and the need for and propriety of appointing
a special administrator. Thus it allowed and approved the holographic will
with respect to its extrinsic validity, the same having been duly authenticated
pursuant to the requisites or solemnities prescribed by law. It declared that
the intestate estate administration aspect must proceed subject to
theoutcome of the suit for reconveyance of ownership and possession of real
and personal properties.
o three aspects in these proceedings: probate of holo, intestate estate, and
administration proceedings for the estate)
 o Dispositive portion: hereby allows probate appointment of special admin
justified bec. of delay in granting letters of administration.
The Probate Court did not resolve the question of ownership of the properties listed in
the estate inventory, considering that theissue of ownership was the very subject of
controversy in the reconveyance suit that was still pending. It was, therefore, error for
the assailed implementing Orders to conclude that the Probate Order adjudged
with finality the question of ownership of themining properties and royalties, and
that, premised on this conclusion, the dispositive portion of the said Probate Order
directedspecial administrator to pay the legacy in dispute
o Rule for Orders of exec: execution of a judgment must conform to that
decreed in the dispositive part of the decision
SC: tama lang that they didnt, considering the issue of ownership is the subject of the
reconveyance.

Roberts vs. Leonidas

Facts (D: November 27, 77)
Edward Grimm, an American resident of Manila, died at the age of 78 in Makati Med.
Grimm is survived by his second wife, Maxine Tate Grimm and their 2 kids Edward and
Linda.
o Also succeeded by children from the first marriage Ethel and Juanita.
He executed two wills on the same day January 23, 1959, both in SF, California.
o One of the wills disposed of his Philippine estate which he described as
conjugal property of himself and his second wife.
o The second will disposed of his property outside the Philippines
In both wills, in favor of the 2nd marriage kids. The first marriage kids were only
provided for in the will meant to dispose of the properties in the PH.
o The outside of the PH will says that Grimm purposefully didnt provide for his
two kids from the first marriage saying that they are covered by the will to
take effect disposing of PH property.
Second-wife Maxine tate Grimm and son Edward Tate presented the two wills and a
codicil for probate IN UTAH. The children from the first marriage were notified of the
probate proceedings abroad.
Wife Maxine admitted that she received notice of an intestate proceeding initiated by
Ethel in Manila BEFORE the testate proceedings abroad (January vs. March 1978)
o Maxine filed an opposition and motion to dismiss the intestate proceeding on
the gound of the pendency of the Utah proceedings (filed after initiating Utah
proceedings)
Anywaaaayyy. Utah court probated it!
o Two weeks later, first marriage and second marriage entered into a
compromise agreement in Utah regarding the estate. Lawyers of the parties
signed the compromise reached.
Compromise
o Second Marriage (Maxine and kids) designated as personal representatives
of Grimms Philippine estate, that the second wifes conjugal share should
be reserved for her and would not be less than $1.5 million PLUS Utah and
Manila homes.
Net distributable estate
 o All kids shall share equally in the net distributable estate and that first
marriage should receive at least 12.5% of the NDE each.
Maxine withdrew her opposition of the proceedings in the Philippines as per the
compromise agreement. At the behest of Second Marriage, the court appointed them
as joint administrators.
o The Second Marriage administrators then submitted an inventory with the
authority and approval of the court, they sold the Palawan Pearl Project, a
business owned by the deceased for 75,000 pesos.
The buyer of the project was incorporated by Ethel and her
husband Rex Roberts and by lawyer Limqueco.
o They also sold testators shares of the RFM corporation for 1.5 million
Court Adjudication
o 4/8 to Maxine; 1/8 to each child (at least 12.5%) No mention at all was made
of the will in the court order.
Second marrige changed lawyers! They replaced Atty. Limqueco with Octavio del Callar
as their lawyer who on August 9, moved to defer approval of the project of partition.
The court said that it was moot since the court already approved the declaration of the
heirs and the project of partition.
Atty. Limqueco wrote Maxine that he was no longer connected with the Makiling
Management Co when it bought the Palawan Pearl Project, and that it was Maxines
son who negotiated the sale with Rex Roberts
o And that Limqueco will be suing her.
Ethel from the first marriage submitted a certification from the Assistant CIR
commissioner that Maxine paid the taxes on the estate and that no contest was made
by the commissioner thereon.
5 MONTHS NO MOVEMENT IN THE INTESTATE CASE
o THEN Juanita Grimm Morris, through Ethels lawyers, filed a motion for
accounting so that the estate properties can be partitioned among the heirs
and the present intestate estate be closed.
o Atty. Del Callar was notified of that motion
Before the motion for accounting was heard, the Angara Law Firm again filed its
appearance in collab with Del Callar as counsel for SECOND MARRIAGE.
o It should be recalled that the firm had previously appeared to
File a motion to dismiss the intestate proceedings in the Philippines
And was superseded by Limqueco.
Angara law Firm also filed a petition praying for the probate of Grimms two wills
already probated in Utah. (previous case was for intestate succession)
o Said that the partition should be set aside and the letters of administration
revoked, and that Maxine be appointed executrix and that the first marriage
should be ordered to account for the properties received by them and to return
the same to Maxine.
Grimm's second wife and two children alleged that they were defraud due to the
machinations of the Roberts spouses, that the 1978 Utah compromise agreement
was illegal, that the intestate proceeding is void because Grimm died testate and
that the partition was contrary to the decedent's wills.
o Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack
of merit in his order of October 27, 1980. Ethel then filed a petition for certiorari
and prohibition in this Court, praying that the testate proceeding be dismissed,
or. alternatively, that the two proceedings be consolidated and heard in
Branch 20 and that the matter of the annulment of the Utah compromise
agreement be heard prior to the petition for probate (pp. 22-23, Rollo).
SC. We hold that respondent judge did not commit any grave abuse of discretion,
amounting to lack of jurisdiction, in denying Ethel's motion to dismiss.
A testate proceeding is proper in this case because Grimm died with two wills and "no
will shall pass either real or personal property unless it is proved and allowed" (Art. 838,
Civil Code; sec. 1, Rule 75, Rules of Court).
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil.
249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the
estate of a person who died testate should be settled in an intestate proceeding.
Therefore, the intestate case should be consolidated with the testate proceeding and
the judge assigned to the testate proceeding should continue hearing the two cases.
Ethel may file within twenty days from notice of the finality of this judgment an opposition
and answer to the petition unless she considers her motion to dismiss and other
pleadings sufficient for the purpose. Juanita G. Morris, who appeared in the intestate
case, should be served with copies of orders, notices and other papers in the testate
case.
Nepomuceno vs. CA
Facts (Death: July 16, 1974; exec August 15, 1968)
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a will:
o Duly signed by the deceased at the end (page 3) and on the left margin of
pages 1, 2, and 4 in the presence of Alejandro, Cortez, and Leano.
o A, C, L affixed their signatures below the attestation claused and on the left
margin of pages 1, 2, and 4. In the presence of the testator and of each other
and the notary public.
o Will acknowleged before notary Escareal.
The will appoints Sofia Nepomuecno as his sole and only executor. According to the
will, the deceased was married to Rufina Gomez by whom he had 2 legitimte kids
Oscar and Carmelita.
However, since 1952 (22 years from death), he had been estranged from his lawfully
wedded wife, and had been living with petitioner as husband and wife.
o That Jugo and Nepomuceno married in Tarlac before the justice of the
peace.
o Testator devised to his forced heirs his entire estate
o Testator gave the free portion to Nepomuceno
Nepomuceno filed for probate @ CFI-Rizal and for the issuance of letters testamentary
Opposition
Near half a year after the institution of the probate proceedings, legal wife Gomez said
that the execution of the will was procured by undue and improper influence on the part
of the petitioner;
o Jugo was already very sick
o Nepomuceno admitted live-in immoral
Decision of the Courts
The CFI denied the probate of the will testator admitted to cohabiting kasi until the
death of Jugo
CA set aside the CFI decision denying the probate will is valid BUTBUTBUT the
devise in favor of Nepomuceno is null and void for being against Ncc 739 and 1028.
o Mo. Re. denied.
Issue #1 W/N CA acted in GAOD when, after declaring the validity of the will, it went on to pass
upon its intrinsic validity of the provision in favor of herein petitioner.
Sofia argues: the validity of the testamentary provisions in her favor cannot be passed
upon and decided in the probate proceeding bec. the purpose is merely to establish
conclusively as against everyone, that a will was executed with the formalities required
by law and that the testator has capacity to execute the same.
 Sofia also argues that even if 739(1) applies, the declaration can only be made by a
proper court.
Legal Heirs argue that the will and testament itself expressly admits indubitably on
its face the meretricious relationship.
Legal Heirs argue that the will contained an admission (ewww) of the testator re:
common law.
Supreme Court #1 We agree with respondents. CA acted w/in JD.
General Rule: in probate proceedings, the courts area of inquiry is limited to an
examination and resolution of the extrinsic validity of the will.
Exception: rule is not inflexible.
o Nuguid vs. Nuguid (cited by legal) - testator instituted the petitioner as
universal heir and completely preterited her surviving forced heirs. A will of
this nature, no matter how valid it may appear extrinsically, would be null and
void.
o Balanay vs. Martinez - The probate of a will might become an Idle ceremony
if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed upon,
even before it is probated, the court should meet the issue
Issue #2 W/N Respondent Court had JD to declare the testamentary provision in her favor null
and void? YES
Supreme Court #2 To hold that it would have to go back to the probate court would be a waste
of time, effort, expense, energy, and would just add to anxiety practical considerations.
We see no useful purpose that would be served if we remand the nullified provision to
the proper court in a separate action for that purpose simply because, in the probate of
a will, the court does not ordinarily look into the intrinsic validity of its provisions.
Supreme Court #3 discussion on the live-in partner
739. The following donations shall be void: Those made between persons who were
guilty of adultery or concubinage at the time of the donation;
o 1028 The prohibitions mentioned in Article 739, concerning donations inter
vivos shall apply to testamentary provisions.
In the will, executed some 6 years before the testators death, Martin Jugo stated
that Gomez was his legal wife. He also declared that respondents Carmelita Jugo and
Oscar Jugo were his legitimate children. In Article IV, he stated that he had been living
as man and wife with the petitioner since 1952. Testator Jugo declared that the
petitioner was entitled to his love and affection. He stated that Nepomuceno
represented Jugo as her own husband but "in truth and in fact, as well as in the eyes
of the law, I could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage.
It is also an indisputed (admitted pa nga e) fact that Jugo and Nepomuceno contracted
a marriage before the Justice of the Peace of Victoria, Tarlac. 51 man, 48 woman.
SOFIA CONTENDS GOOD FAITH ON HER PART FOR THE LAST 22 YEARS. But!
Not sustained by the records.
o She opened herself up to the question on good faith when she introduced
evidence on such matter.
o Testimony of Sebastian Jugo re: their relationship
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a
donation between persons who are living in adultery or concubinage. It is the donation
which becomes void. The giver cannot give even assuming that the recipient may
receive (is in good faith). The very wordings of the Will invalidate the legacy because
the testator admitted he was disposing the properties to a person with whom he had
been living in concubinage.
Notes
1. Will admits indubitably the meretricious relationship between testator and petitioner.
2. Sofia herself instituted proceedings on the will
Mercado vs. Santos
[May 28, 1931] Petitioner Antilano Mercado filed a petition for the probate of the will of his deceased
wife, Ines Basa, with the Pampanga CFI.
[June 31, 1931] The will was admitted to probate.
[October 27, 1932] Intervenor Rosario Basa de Leon filed with the justice of the peace court of San
Fernando, Pampanga, a complaint against Mercado for falsification/forgery of the will
probated. Mercado was arrested (1st arrest). The complaint was subsequently dismissed at the
instance of de Leon herself.
[March 2, 1933] Same intervenor charged Mercado with the same offense, this time in the justice of
the peace court of Mexico, Pampanga. Mercado was arrested (2nd Arrest) again. The complaint
was likewise dismissed, again at de Leons instance.
[February 2, 1934] Same banana as on March 2, 1933. Upon due investigation, the case was dismissed
on the ground that the will alleged to have been falsified has already been probated (Third
Arrest) and that there was no evidence that Mercado had forged the signature of the testatrix
but that, on the contrary, satisfactory evidence was presented that established the authenticity
of said signature.
[April 11, 1934] Rosario Basa de Leon and other intervenors moved ex parte to reopen the probate
proceedings, alleging lack of jurisdiction to probate the will and to close the proceedings. This
motion was denied, having been filed ex parte.
[May 9, 1934] The provincial fiscal moved for reinvestigation of the criminal case for forgery before
the Pampanga CFI (4th Arrest). The motion was granted, and for the fourth time, Mercado was
arrested. The reinvestigation dragged on for almost a year
[May 24, 1934] A second motion to reopen and close probate proceedings was filed, this time with
notice to the adverse party. Same was denied.
[February 18, 1935] until the CFI ordered the forgery case to be tried on the merits.
[July 26, 1935] Intervenors motion was appealed to the Supreme Court, which affirmed the probate
courts order of denial.
[c. 1936~37] Mercado moved to dismiss the case, claiming again that the will alleged to have been
forged had already been probated and, further, that the order probating the will is conclusive
as to the authenticity and due execution thereof. The CFI overruled the motion. Mercado thus
filed a petition for certiorari with preliminary injunction with the Court of Appeals, which
promptly denied same.
 HENCE, THIS PETITION.
Issue #1 W/N the probate of Ines Basas will is a bar to Mercados criminal prosecution for the alleged
forgery of said will.
Applicable law: Code of Civil Procedure (then governing the law on wills)
Sec. 306 provides, as re: the effect of judgments: in case of a judgment/order in respect to the
probate of a will, such judgment/order is conclusive upon the the will.
Sec. 333 establishes an incontrovertible presumption in favor of judgments declared by the
Code to be conclusive.
Sec. 625 provides, as re: conclusiveness of the due execution of a probate will: the allowance
by the court of a will of real and personal estate shall be conclusive as to its due execution.
Basis for PH law on wills (particularly Sec. 625 of the Code of Civil Procedure) Statutes of [the US state
of] Vermont.
Decisions of the Supreme Court of Vermont re: effect of probate of a will are of persuasive
authority in PH.
Says the Vermont SC in Missionary Society vs. Eells: The probate of a will by the probate court
having jurisdiction thereof, upon the due notice, is conclusive as to its due execution against
the whole world.
In view of the provisions of Secs. 306, 333 and 625 of the Code of Civil Procedure, a criminal action will not
lie against the forger of a will which had been duly admitted to probate by a court of competent
jurisdiction.
Notes
SEC. 306. Effect of judgment. The effect of a judgment or final order in an action or special proceeding
before a court or judge of the Philippine Islands or of the United States, or of any State or Territory of the
United States, having jurisdiction to pronounce the judgment or order, may be as follows.
1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or
the administration of the estate of a deceased person, or in respect to the personal, political,
or legal condition or relation of a particular person, the judgment or order is conclusive upon
the title of the thing, the will or administration, or the condition or relation of the person
Provided, That the probate of a will or granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate.
SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the real or
personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme
Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its
due execution. (Emphasis ours.)
SEC. 333. Conclusive Presumptions. The following presumptions or deductions, which the law
expressly directs to be made from particular facts, are deemed conclusive.
1. The judgment or order of a court, when declared by this code to be conclusive.
Pascual vs. De La Cruz
Doctrine
Facts
Catalina de la cruz died single and without any surviving descendands or ascendants. She died
in the age of 89 at her house in Navotas Rizal. Her named executor and sole heir, Andres
Pascual, filed for probate.
o Pedro De La Cruz as well as 26 other nephews and nieces contested the validity of
the will formal requirements not met, testatrix mentally incapable of disposing,
undue influence, signature of Catalina was obtained through fraud.
o Probate court allowed probate. Andres was appointed as executor and
administrator of the estate.
Oppositors appealed to the SC because the properties were more than 30,000 pesos. The only
issue being the due execution of the will
o Oppositors argue on the basis of inconsistencies, contradictions, and the fact tht it
wasnt signed by all the witnesses in the presence of one another.
o Probate court kasi said that the inconsistencies were immaterial signed in 1954
and testified 1962. 8 year-lapse justifies the inconsistencies. What is essential is the
identity of testimony re: signature of the testatrix and witnesses, the notary public,
and that they were all present at the time it was signed.
Issue #1 W/N inconsistencies such as this are sufficient to disallow probate of the will?
In this jurisdiction, it is the observed rule that, where a will is contested, the subscribing with
are generally regarded as the best qualified to testify on its due execution.
o However, it is similarly recognized that for the testimony of such witnesses to be
entitled to full credit, it must be reasonable and unbiased, and not overcome by
competent evidence, direct or circumstantial. For it must be remembered that the
law does not simply require the presence of three instrumental witnesses; it
demands that the witnesses be credible.
Contradictions and inconsistencies relate only to unimportant details of the witnessess
impressions and would not alter the probative value of their testimonies.
o In this case, inconsistencies referred to weather condition, sequence of signing,
length of time it took to sign, are unimportant details which are affected by the lapse
of time and humanity of the parties.
o Will not alter probative value on the due execution.
o Estate of Javellana vs. Javellana accurate and detailed account not necessary. It
is sufficient that they have ssen or at least were so situated at the moment that they
couldve seen the signing.
Neither do we believe that allegation that Andres was well-known to the witnesses and hence
 is helping him.
o Deceased was already 84 years old when he made the will. He was weak. Hence its
not impossible that the deceased asked Andres to look for witnesses instead of the
deceased himself dealing with such burden.
o JP: friendly relations between the witnesses with the testator or beneficiaries do not
affect the credibility of the witnesses.
Issue #2 W/N tape recording should be given credence? NO. (main evidence of oppositors)
Oppositors mainly rely on the alleged tape recording of a convo between the instrumental
witness Jiongco and Oppositor Cruz at Cruz house (taken without the witnesss knowledge)
wherein Jiongco said that when he signed the will, the other witnesss signature were already
affixed, and were then not present (not in the presence of one another)
SC: no adequate evidence that Jiongco was the one in the convo. He denies that was his. TC:
sure na nandun siya sa bahay but not that the conversation was his.
SC: since Jiongco didnt appear before the SC na, and since walang corroborating evidence re:
that that was him, we uphold TC finding na hindi siya yun.
Topic Issue: W/N the execution of the will was tainted with fraud and undue influence? NO
Mere fact that a will was made in favor of a stranger is not in itself proof that the same was
obtained thru fraud and undue pressure or influence. We have seen in many instances
testators preferring strangers over blood relatives.
o Besides, Andres Pascual was definitely not a stranger (tho not a blood relative) for
she considered him as her own son.
o Catalina and her sisters loved Andres so much that they made him their sole heirs
without objection between and amongst the sisters.
Requirements of undue pressure and influence:
o That which overpowers and subjugates the mind of the testator as to destroy his
free agency and make him express the will of another. It cannot be sustained on
mere suspicion or conjecture.
o Supported by substantial evidence, burden on the person challenging the will
(oppositors)
o General or reasonable influence is not sufficient to invalidate a will, nor is moderate
and reasonable solication and omission of relatives, not forced heirs, show undue
influence.
Instant case
o No proof. Oppositors mainly relied on the assertion of the testatrix as testified by
Andres that he did not like to sign anything unless I (andres) knew it) but this isnt
proof of influence.
o Also, Oppositors kwento na nagpagawa ng building with title to Andres but named
after Catalina, defeats oppositors cause because kung kailangan lokohin via
painting Catalinas name, edi di nga siya easily influenced or deceived.
That andres was the one who invited Dr. Sanchez to be a witness is justified by the fact that the testator
was suffering from rheumatism.
Fact that hindi nagresort to family is explained by the fact na syempre ayaw malaman ng hindi
mag su-succeed!
Oppositors invoked presumption of undue influence held to exist by American authorities where the
beneficiary participates in the drafting of execution of the will favoring him
Since the will was prepared by Atty. Pascual, although nephew of the proponent, we do not
think the presumption applies; for in the normal course of events, said attorney would follow
the instructions of the testatrix; and a member of the bar in good standing may not be convicted
of unprofessional conduct, or of having conspired to falsify a statement, except upon clear
proof.
Reyes vs. Barreto-Datu
Facts
Bibiano Barretto was married to Maria Gerardo. They acquired a vast estate consisting of real
properties in Manila, Pampanga, and Bulacan. When Bibiano died (Feb 18, 1936), he left his
share of properties in a will to Salud Barretto (mother of petitioners) and to Lucia Barretto
(respondent)
Maria Gerardo was appointed as administratrix. Project of Partition by Maria -> Approved.
Estate distribution followed and shares delivered.
o Maria died. She had two wills. First one instituted both Salud and Lucia as heirs. In
the second one, only Lucia is an heir (because Maria found out that Salud was not
in fact her daughter).
o Issue on w/n anak si Salud reached the SC which affirmed the trial court in that case
that Salud wasnt the child of the husband-wife.
Trial Court found that Project of Partition was null and void bec. di pala anak!
Salud lost the right to a share in the estate of Maria as a legitimate daughter. Salud now claims,
as an heir of bibiano, the fishpond which was Bibianos originally (Maria granted just a usufruct)
Trial Court also said that Lucia was the only true heir of Bibiano, and hence Lucia is entitled to
recover from Salud and from Saluds children (petitioner) all the properties Salud received from
Bibianos estate
o Basis: NCC 1456 where property received by mistake creates an implied trust.
Supreme Court #1 Project of Partition is not void ab initio. Trial Court misapplied OCC 1081.
1081 doesnt speak of children or of descendants but of heirs (without distinction as to kind).
The fact that Salud happened to not be an heir does not preclude her being one of the heirs
expressly named in his testament for Bibiano was free to name anyone in the free portion of
the will yet he still chose Salud.
Salud was instituted as an heir together with Lucia. Hence the partition between the two was
not null and void. Salud is still an heir!
o While the share given to Salud impinged on the legitime of Lucia, Salud is still an
heir of Bibiano.
o No preterition Lucia was given a share rin naman. Not completely omitted.
Supreme Court #2 Project of Partition not void ab initio as a compromise on the civil status of Salud
violating OCC 1814.
Compromise presupposes of the settlement of a controversy through mutual concessions.
Saluds condition as a daughter was never disputed during the settlement (i.e. when the project
 was made)
o While a compromise over civil status is prohibited. There is no prohibition re:
settlement on claims over an estate.
Project of Partition is merely a proposal which the court may accept or reject. It is the court
which makes the distribution and determines the persons entitled thererto and the parts to
which each is entitled. It is that judicial decree of distribution, that vests title
o Questioning its correctness may therefore be made via an appeal. Once judicial
approval is final, the title vests in the distributeess.
Lucias argument that Bibiano wouldnt have made Salud an heir if he knew about her status
would be plausible if its shown that the sole reason for the distribution is the project of
partition. However, in this case, even without the project, such distribution would stand.
Fact na Lucia was a minor at the time doesnt divest probate court from approving the partition.
No evidence that when the estate of Bibiano Barretto was judicially settled and distributed,
petitioners predecessor, Salud, knew that she was not Bibianos child: so that if fraud was
committed, it was the widow, Maria Gerardo, who was solely responsible, and neither Salud
nor her minor children, petitioner herein, can be held liable therefor.
Austria vs. Reyes.
Facts
July 1956 Basilia Austria filed a petition for probate ante-mortem, of HER last will and
testament. It was opposed by herein petitioners Ruben, Consuelo, Lauro, and others who are
also the nieces and nephews of Basilia.
o Probate ante-mortem was allowed.
o Bulk of the estate to pass to Perfecto, Benita, Isagani, Alberto, Luz (all surnamed
Cruz) all of whom had been assumed and declared by Basilia as her own legally
adopted children.
April 1959 2 years later, Basilia Austria died.
o Respondent Perfecto Cruz (adopted kid) was appointed executor without bond by
the same court as per the will of Basilia.
o In the same proceedings, the petitioners (oppositor-pamangkins) filed a petition for
intervention for partition
Oppositors-Pamangkins are saying na wala naman talagang legal
adoption mere strangers to Basilia
Lower Court validity of invalidity of the adoption is immaterial to the institution of heirs.
Basilia had capacity and her last will was executed voluntarily and freely. In other words, even
tho the adoption is spurious, they will adopt as testamentary heirs and not as compulsory ones
o LC delimited the intervention of the oppositor-pamangkins to the properties of the
deceased which werent disposed of in the will.
o 2 MoRes denied.
Arguments
Oppositor-Pamangkins are questioning the authenticity of the adoption papers presented by
the respondent/adopted children. They say that proof of its falsity would cause a nullity of the
institution of heirs and the opening of intestacy.
o They cite the language used by Basilia, wherein it seems that she only made them
heirs thinking that she is obliged to do so as their mother.
o nullity sa kanila lahat bec. closest of kin.
o Basis: NCC 850: statement of false cause (i.e., that they were her kids)
Lower Court: Testmentary naman not compulsory anyway One who has no compulsory
heirs may dispose of by will all his estate or any part of it in favor of any person having
capacity to succeed.
W/N the Institution of Heirs is valid? YES
Annullment under NCC 850: Three requisites
o 1. Cause for the institution must be stated in the will
o 2. Cause is shown to be false.
o 3. Must show on the face of the will that the testator wouldnt have instituted such
heirs if he had known the falsity of the cause
Opp-Pam wants us to annul based on the terms sapiliting tagapagmana and sapilitang mana
BUT the fact remains that there is no specific or unequivocal statement of the cause for the
institution of the adopted kids
Cannot annul the same on the basis of guesswork and uncertain implications. Even if the will
did state the cause for their institution, 850 tells us to ignore the same unless requisite #3 is
shown that the institution wouldnt have been made if they had known the false cause.
o This case: no showing na di sila maiinstitute kung false man.
o Sapilitan were borrowed from te language of the law on succession. Merely to
describe the classification of heirs
Free Portion largely favored thet adopted kids, showing an inclination to give them more than
what she thought she was sapilit-ed to do. As compared to small devise of land to blood
relatives i.e. Opp-Pamangkins.
o Clearly, against her wishes yung Malaki mapunta sa blood relatives.
Testacy favored. Rule on interpretation na give every expression some effect. CANT ASSAIL
ADOPTION LEGALITY IN A COLLATERAL ATTACK
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of
the Testate Estate of Charles Newton Hodges v. THE HONORABLE
VENICIO ESCOLIN and AVELINA A. MAGNO;
TESTATE ESTATE OF THE LATE LINNIE JANE HODGES. TESTATE
ESTATE OF THE LATE CHARLES NEWTON HODGES. PHILIPPINE
COMMERCIAL AND INDUSTRIAL BANK v. LORENZO CARLES, et al.,
and AVELINA A. MAGNO, WESTERN INSTITUTE OF TECHNOLOGY,
INC.
March 29, 1974| Barredo, J. |Fideicommissary - Elements
Digester: Roa, Annamhel Monique
SUMMARY: The Spouses Hodges are citizens of the USA who have
properties in both their home country and the Philippines. The wife, Linnie
Jane, died 5 years before the husband, Charles, did. In her will, she
bequeathed all her properties to Charles and gave him the discretion to
dispose of and convey them as he pleases, with the exception of the
properties found in the State of Texas, USA. She also provided in her will
that her siblings shall succeed to the rest of her estate not disposed of by
Charles. Charles made a number of dispositions and conveyances prior to
his death. Magno was appointed administrator of Linnie Janes estate.
Petitioner PCIB, after a number of substitutions, was appointed administrator
of Charless. From the records of the cases in the lower courts, the two
administrators used to work together, obtaining each others signatures prior
to making any acts of administration. However, later on it is not clear why
both administrators began to act independently of the other in a very
adversarial manner, hiring handsomely-paid lawyers, until a point was
reached where Magno, who was considerably more knowledgeable about
the business of the spouses, made it too difficult for PCIB to do its job.
Funnily, the lower court approved all these acts of both administrators. PCIB
went to the lower court seeking to order Magno to render an accounting of
the estate of Linnie Jane and to stop interfering with its acts of administration
over Charless estate. PCIB would also file a Motion for an Official
Declaration of Heirs. Among the central points of controversy is whether or
not it is Philippine or Texas law which should apply, for on that matter
depends the determination of whether or not Charles is an heir to Linnie
Janes half of the conjugal estate, as PCIB contends. Magno argues that
under Texas law, there is no concept of legitime with regard to the wifes half
of the conjugal estate; therefore, Charles owns only his half thereof, while the
other half rightfully belongs to Linnie Janes siblings. In support of its position,
PCIB contends that the substitution of heirs provided for by Linnie Jane in
her will her siblings as substitute of her husband was invalid and without
effect for lack of the complete elements of a valid substitution, either
simple/vulgar or fideicommissary. The Court ruled that although PCIB was
correct in arguing that no valid substitution had been made, the dispositions
of Linnie Jane in favor of her siblings still have effect. The disposition was not
a substitution as defined by law, but merely an institution of heirs subject to a
resolutory condition on the part of Charles, and a suspensive condition on
the part of Linnie Janes siblings.
DOCTRINE: In a fideicommissary substitution (Art. 863), there is imposed an
obligation on the part of the first heir designated, to preserve the properties
for the substitute heirs. In the absence thereof, no fideicommissary
substitution could be said to have been made.
FACTS:
(Messy affair. Supreme Court displayed a brand of defensiveness re: length:
We are taking pains to quote wholly or... extensively the pleadings and
orders for a more comprehensive and clearer view of the important and
decisive issues and a more accurate appraisal of [the parties] respective
positions. Maam said to focus on fideicommissary alone.)
Settled is that Sps. Hodges are citizens of the USA who have acquired
and accumulated considerable assets and properties in the Philippines
and in the States of Texas and Oklahoma, USA. The properties
constituted their conjugal estate. The lower court also conclusively found
that although Texas was the domicile of origin of the spouses, they had
lived and worked for more than 50 years in Iloilo City and acquired a
domicile of choice therein, which they have retained till their deaths.
May 23, 1957 - Linnie Jane Hodges (LJ) died in Iloilo City, leaving a will
executed on November 22, 1952. Among the provisions of the will:
o Giving, devising, bequeathing all of her estate, both personal
and real properties, wherever situated, or located, to her
beloved husband, Charles Newton Hodges (Charles), to
have and to hold unto him
o Giving Charles the right to manage, control, use and enjoy
the estate and freedom to dispose of the properties -
EXCEPT those in Texas - as he sees fit
o Giving, devising and bequeathing all of the rest of her estate
to be equally divided among her siblings (the Higdon family)
with the proviso that if they were to die before Charles, her
siblings heirs will inherit the share
o Nominating Charles as the executor of the will
NOTE: This makes Charles owner of half of the conjugal property, and an
heir to the other half that belongs to LJ. This would be a matter of dispute
later on.
The will was probated and Charles was appointed Executor and later on,
Special Administrator.
Charles did a number of acts as Special Administrator - moved to be
allowed to continue the business he had been engaged in prior to the
death of LJ (buying and selling property), moved to have his
conveyances of property approved by the probate court, submitted
statements of account as examined by a certified public accountant. The
probate court approved all these motions/acts in a number of orders.
Prior to his death, Charles made official and sworn
statements/manifestations indicating that as far as he was concerned, no
property interests passed to him except for purposes of administering
the estate, paying debts, taxes and other legal charges, and it was his
intention to distribute the remaining property and interests of LJ to the
devisees and legatees named in the will when the debts, liabilities, taxes
and expenses of administration are finally determined and paid. i.e. He
renounced his inheritance.
December 25, 1962 Charles died.
Spouses died childless.
Charless counsel, Atty. Galleda, filed a motion for the appointment of
Special Administratrix to liquidate and distribute the residue of the estate
to the heirs and legatees of both spouses. Galleda claimed to have
perfect personal knowledge of the existence of the last will and testament
of Charles but that since said last will and testament is kept inside the
vault or iron safe in Charless office, a Special Administratrix needs to be
called, and for that position he recommends Avelina Magno (Magno),
allegedly the spouses most trusted employee.
Magno was appointed administrator.
December 29, 1962 - Magno filed an urgent ex-parte petition to appoint a
certain Davies whod arrived from the USA as Co-Special Administrator
of the estate, only to be replaced on January 22, 1963 by Joe Hodges
(Joe), who, according to the motion is the nephew of Charles arrived
from the USA with instructions from the other heirs of Charles to
administer his estate in the Philippines.
The Court tries to make sense of what it practically described as disorderly
records.
In the words of the Court, the situation that ensued upon the death of
[Charles] became rather unusual xxx We cannot discern clearly from the
record before Us the precise perspective from which the trial court
proceeded in issuing its questioned orders.
 From the two records on appeal filed by PCIB - one with green cover and
the other with a yellow cover (Court felt the need to dub them Green
ROA and Yellow ROA, respectively), the Court gathers that at the outset,
a sort of modus operandi had been agreed upon by the parties under
which the respective administrators of the two estates were supposed to
act conjointly, but they have no way of knowing when exactly such
agreement was entered into and under what specific terms because of
the dearth in the records. A lot of times, the Court just inferred from some
statements in the ROAs.
- Proof of prior agreements between the two administrators -
Green ROA contains
o references to the modus operandi in one of them, a stand-
off between PCIB and Magno was described where Magno
was said to have locked off Charless office building in Iloilo
City (where the PCIB office is located) and refused to allow
PCIB entry to the premises and access to the documents of
Charles
PCIB asked the lower court to direct Magno to allow
them both entry and access, which request the court
granted. At that point in time, the court observed that
the modus operandi was no longer at play, indicating
that the parties had previously observed it
o an order of the lower court requiring that all collections from
the properties in the name of Hodges should be deposited in
a joint account of the two estates
o reference to an order directing both parties to obtain each
others signature when performing acts of administration
o reference to an agreement between the heirs of Charles
(with Joe and one Mirasol acting as the two co-
administrators of the estate) and Magno acting as the
administratrix of the estate of LJ, as well as certain Messrs.
Brown and Young acting for all of the Higdon family (LJs
siblings) who claim to be the sole beneficiaries of the estate
of LJ, and various legal counsel representing the
aforementioned parties, approved by the lower court,
wherein the parties thereto agreed that certain sums of
money were to be paid in settlement of different claims
against the two estates and that the assets of both estates
would be administered jointly by the PCIB as administrator of
the estate of Charles, and Magno as administratrix of the
estate of LJ, subject to a motion wherein the PCIB claimed
exclusive possession and ownership of 100% or 75% of all
assets of the Sps. Hodges situated in the Philippines, which
claim the lower court recognized
o reference to an order authorizing Magno to pay various
attorneys their retainers and legal fees (Attys. Galleda,
Mabanta, Manglapus, Ozaeta, Quimpo)
- End
September 14, 1964 Joe and one Mirasol were replaced by PCIB as
administrator of the estate of Charles.
PCIB then filed an Urgent Motion for an Accounting and Delivery to
Administrators of the Estate of [Charles] of all the Assets of the Conjugal
Partnership with Magno as respondent, asserting that the latter could
take possession of the assets registered in the name of Charles alone
only in her capacity as Special Administratrix of the Estate of [Charles].
With the appointment of Joe and Mirasol as the co-administrators of the
estate, they legally were entitled to take over from Magno the full and
exclusive possession of all of the assets. Hence, with the appointment of
PCIB as the sole administrator of the estate in substitution of Joe Hodges
and Fernando P. Mirasol, the PCIB legally became the only party entitled
to the sole and exclusive possession of all of the assets of the estate of
Charles. They contend that Magno committed illegal acts when she
acted as if she is in exclusive control of all of the assets in the Philippines
of both estates as evidenced in part by her locking the office building and
refusing to reopen same, when she gave access to and turned over
possession of the records and assets of the estate to the attorney-in-fact
of the Higdon Family, and when she refused to execute checks prepared
by the PCIB drawn to pay expenses of the estate of Charles, among
others.
Prayers of PCIB, among others:
o Order Magno to submit inventory and accounting of the
estate of LJ as well as turn over funds, properties and assets
of the estate of Charles to PCIB
o Order Magno and representatives to stop interfering with the
administration of the estate
January 8, 1965 PCIB filed a motion for "Official Declaration of Heirs of
Linnie Jane Hodges Estate.
Digesters Note: So, to summarize thus far, the picture is: Magno and PCIB
used to cooperate, obtaining each others signatures prior to making
important decisions and acts with regard to the administration of the estates
of LJ and Charles, respectively. Somehow, differences arose, and each
began to perform acts independently of the other. PCIB contracted lawyers,
paid them handsomely, and acted as if all the properties appearing in the
name of Charles belonged solely and only to his estate, to the exclusion of
the siblings of LJ, without considering WON those properties corresponded
to the portion of the conjugal partnership pertaining to the estate of LJ. On
the other hand, Magno did the same acts assuming that the properties
actually correspond to the estate of LJ. Quite amusingly, all of these
independent and separate acts of PCIB and Magno were approved by the
trial court. It reached a point where Magno, who was more acquainted with
the businesses and properties of the spouses, made it difficult for PCIB to
perform its functions. A whopping 33 appeals were filed by the parties and
their well-paid lawyers. That brings us to this petition for certiorari and
prohibition (78 errors assigned) and a haphazardly pieced decision with a
Supreme Court throwing shade for days at the lower court.
RULING: Judgment is hereby rendered DISMISSING the petition; the
existence of the Testate Estate of Linnie Jane Hodges, with respondent-
appellee Avelina A. Magno, as administratrix thereof is recognized, and it is
declared that, until final judgment is ultimately rendered regarding (1) the
manner of applying Article 16 of the Civil Code of the Philippines to the
situation obtaining in these cases and (2) the factual and legal issue of
whether or not Charles Newton Hodges had effectively and legally
renounced his inheritance under the will of Linnie Jane Hodges, the said
estate consists of of the community properties of the said spouses, as of
the time of the death of the wife minus whatever the husband had already
gratuitously disposed of in favor of third persons from said date until his
death, provided, first, that with respect to remunerative dispositions, the
proceeds thereof shall continue to be part of the wife's estate, unless
subsequently disposed of gratuitously to third parties by the husband, and
second, that should the purported renunciation be declared legally effective,
no deductions whatsoever are to be made from said estate; [PCIB and
Magno] should act thenceforth always conjointly, never independently from
each other, as administrators xxx
Whether Magno is correct in contending that there is still a residue of
the estate of LJ for the other heirs, that is, LJs siblings YES. There is
still a residue.
PCIBs Arguments, Motion for Official Declaration of Heirs
The Will of LJ, with respect to the order of succession, the amount of
successional rights, and the intrinsic of its testamentary provisions,
should be governed by Philippine laws because: (a) The testatrix
intended so, and (b) Art. 16 of the Civil Code says so.
However, the Conflict of Law of Texas, which is the "national law" of LJ,
provide that the domiciliary law (Philippine law) should govern the
testamentary dispositions and successional rights over movables, and
the law of the situs of the property (also Philippine law since Texas
properties are excluded) with regards immovables. Thus applying the
"Renvoi Doctrine" approved and applied by our Supreme Court in the
case of "In The Matter Of The Testate Estate of Eduard E. Christensen",
Philippine law should apply to the Will of Linnie Jane Hodges and to the
successional rights to her estate insofar as her movable and
immovable assets in the Philippines are concerned.
Under Philippine and Texas law, the conjugal or community estate of
spouses shall, upon dissolution, be divided equally between them. Thus,
upon the death of LJ, of the entirety of the assets of the spouses
constituting their conjugal estate pertained automatically to Charles, not
by way of inheritance, but in his own right as partner in the conjugal
partnership. The other portion of the conjugal estate constituted the
estate of LJ. This is the only portion of the conjugal estate capable of
inheritance by her heirs.
LJs half cannot, under a clear and specific provision of her Will, be
enhanced or increased by income, earnings, rents, or emoluments
accruing after her death. Moreover, by specific provision of the Will, all
rents, emoluments and income must be credited to the half pertaining to
Charles. Clearly, therefore, the estate of LJ, capable of inheritance by
her heirs, consisted exclusively of no more than 1/2 of the conjugal
estate, computed as of the time of her death.
Arts. 900, 995 and 1001 of the NCC provide that the surviving spouse of
a deceased leaving no ascendants or descendants is entitled, as a
matter of right and by way of irrevocable legitime, to at least 1/2 of the
estate of the deceased, and no testamentary disposition by the deceased
can legally and validly affect this right of the surviving spouse. Therefore,
immediately upon the death of LJ, Charles was the owner of at least 3/4
or 75% percent of all of the conjugal assets of the spouses, i.e. 50% by
way of conjugal partnership share and 25% by way of inheritance and
legitime) plus all "rents, emoluments and income" accruing to said
conjugal estate from the moment of LJs death.
In his capacity as sole heir and successor, Charles appropriated to
himself the entirety of her estate performing acts (SEE Facts) in his own
name alone. Upon his death therefore, all said conjugal assets were in
his sole possession and control, and registered in his name alone, not as
executor, but as exclusive owner of all said assets.
(TOPIC, still PCIBs arguments) The siblings have no right under the
proviso of the will bequeathing them the remainder of the properties as
the provision is void and invalid at least as to the Philippine assets.
o In spite of the provision, Charles acquired not merely a
usufructuary right but absolute title and ownership to her
estate.
o Arts. 864, 872 and 886 of the NCC provide that no charge,
condition or substitution whatsoever upon the legitime can
be imposed by a testator. The provision is clearly invalid
insofar as the legitime of Charles was concerned, which
consisted of 1/2 of LJs 1/2 portion of the conjugal estate, or
1/4 of the entire conjugal estate of the deceased.
o There are generally only two kinds of substitution provided
for and authorized by our Civil Code (Articles 857-870),
namely, (1) simple or common substitution, sometimes
referred to as vulgar substitution (Article 859), and (2)
 fideicommissary substitution (Article 863). All other
substitutions are merely variations of these. The substitution
provided for by the contested provision of the Will of LJ is not
fideicommissary substitution, because there is clearly no
obligation on the part of Charles as the first heir designated,
to preserve the properties for the substitute heirs. At most, it
is a vulgar or simple substitution.
o However, in order that a vulgar or simple substitution can be
valid, three alternative conditions must be present, namely,
that the first designated heir (1) should die before the
testator; or (2) should not wish to accept the inheritance; or
(3) should be incapacitated to do so. None of these
conditions apply.
o Manresa: When another heir is designated to inherit upon
the death of a first heir, the second designation can have
effect only in case the first instituted heir dies before the
testator, whether or not that was the true intention of said
testator. Charles did not die before LJ.
o That said, Charless inheritance to the entirety of the LJ
estate is irrevocable and final.
Magnos Arguments, Same Action
Under the provisions of the last will and testament, LJ gave Charles only
a life-estate or a usufruct over all her estate, and a vested remainder-
estate or the naked title over the same estate to her relatives named
therein.
Under the rules of Texas, there is no system of legitime; hence, LJs
estate cannot be less than her share or the full 1/2 of the conjugal
partnership properties. In any event, Charles had as a matter of fact and
of law renounced his inheritance from his wife.
Accordingly, the only heirs left to receive the estate of LJ pursuant to her
last will and testament, are her named brothers and sisters, all of legal
ages, American citizens, with residence at the State of Texas, USA.
Ruling of the Court
The orders of the lower court do not amount to an adjudication to Charles
of the estate of his wife. The Court recognizes the present existence of
the estate of LJ, as consisting of properties, which, while registered in
that name of Charles, do actually correspond to the remainder of her
share in the conjugal partnership, it appearing that pursuant to the
pertinent provisions of her will, any portion of said share still existing and
undisposed of by her husband at the time of his death should go to her
siblings share and share alike.
The tenor of the orders furnish no basis for the conclusion that the lower
court intended a final adjudication; also, at the time said orders were
issued, the proceedings had not yet reached the point when a final
distribution and adjudication could be made. Moreover, the interested
parties were not duly notified that such disposition of the estate would be
done. At best, therefore, said orders merely allowed Charles to dispose
of portions of his inheritance in advance of final adjudication, which is
implicitly permitted under Section 2 of Rule 109, there being no possible
prejudice to third parties, inasmuch as LJ had no creditors and all
pertinent taxes have been paid.
On the basis of circumstances presently extant in the record, and on the
assumption that Charless purported renunciation should not be upheld,
the estate of LJ inherited by her siblings consists of 1/4 of the community
estate of the spouses at the time of her death, minus whatever Charles
had gratuitously disposed of therefrom during the period from LJs death
to Charless death. With regard to remunerative dispositions made by
him during the same period, the proceeds thereof, whether in cash or
property, should be deemed as continuing to be part of his wife's estate,
unless it can be shown that he had subsequently disposed of
them gratuitously.
(Evidence Principle) Re: applicability of Texas law This is a question of
fact, deemed as settled considering the positions of the parties. It is
settled that the free portion of the estate that could possibly descend to
LJs brothers and sisters by virtue of her will may not be less than of
the conjugal estate. The dispute concerns solely the other of the
conjugal (1/2 of of the conjugal estate). PCIB is of the view that under
the laws of Texas, there is such a legitime pertaining to Charles, while
Magno contends there is none. Whatever might ultimately appear, at the
subsequent proceedings, to be actually the laws of Texas on the matter
would no longer be of any consequence, since PCIB would anyway be in
estoppel already to claim that the estate of LJ should be less than as
contended by it now, for admissions by a party related to the effects of
foreign laws, which have to be proven in our courts like any other
controverted fact, create estoppel.
(TOPIC) PCIB is wrong in maintaining that LJs will in favor of her
siblings constitutes ineffective hereditary substitutions. Neither is Magno
correct about it giving Charles only a lifetime usufruct. By the provision,
LJ simultaneously instituted her brothers and sisters as co-heirs with her
husband, with the condition, however, that the latter would have
complete rights of dominion over the whole estate during his lifetime and
what would go to the former would be only the remainder thereof at the
time of Charless death. Legally speaking, LJs will provides neither for a
simple or vulgar substitution under Art. 859 of the Civil Code nor for a
fideicommissary substitution under Art. 863 thereof. There is no vulgar
substitution therein because there is no provision for either (1)
predecease of the testator by the designated heir or (2) refusal or (3)
incapacity of the latter to accept the inheritance, as required by Art. 859;
and neither is there a fideicommissary substitution therein because no
 obligation is imposed thereby upon Charles to preserve the estate or any
part thereof for anyone else.
In other words, whereas the siblings are to inherit only in case of default
of Charles, on the other hand, Charles was not obliged to preserve
anything for them. Clearly then, the essential elements of testamentary
substitution are absent; the provision in question is a simple case of
conditional simultaneous institution of heirs, whereby the institution of
Charles is subject to a partial resolutory condition the operative
contingency of which is coincidental with that of the suspensive condition
of the institution of his brothers and sisters-in-law, which manner of
institution is not prohibited by law.
The estate of LJ inherited by her brothers and sisters could be more than
just stated, but this would depend on: RAMIREZ (testator), PALACIOS (admin) v. Marcelle, Jorge, and Roberto RAMIREZ
(1) whether upon the proper application of the principle of renvoi in February 15, 1982 | Abad Santos, J. | Fideicommissary, elements
relation to Article 16 of the Civil Code and the pertinent laws of Texas, it
will appear that Charles had no legitime as contended by Magno, and SUMMARY: Jose Ramirez a Filipino, died in Spain leaving only his widow Marcelle Ramirez, a
(2) whether or not it can be held that Charles had legally and French. In the project partition, the property was divided into 2 parts: 1st part to the widow,
effectively renounced his inheritance from his wife. and 2nd part to the grandnephews the naked ownership. Furthermore, as to the usufruct of
Court is not in a position to make a final ruling on any of these, and the 2nd part, 1/3 was given to the widow and 2/3 to Wanda de Wrobleski (companion of
remands the case to the lower court. Pending that, the Court says that it Ramirez), an Austrian. The grandnephews (Roberto and Jorge) opposed the project of
is without question that under the terms of the will of LJ, her husband partition on the ground that: (a) the vulgar substitution in favor of Wanda with regard to
could not have anyway legally adjudicated or caused to be adjudicated to widows usufruct and in favor of Juan Pablo Jankowski and Horacio Ramirez, with regard to
himself her whole share of their conjugal partnership, albeit he could Wandas usufruct is invalid because first heirs (Marcelle and Wanda) survived the testator;
have disposed any part thereof during his lifetime. Hence, the resulting (b) the fideicommissary substitutions are invalid because first heirs not related to the second
estate of LJ cannot be less than 1/4 of the conjugal partnership heirs or substitutes within the first degree as provided in Art. 863, CC; and (c) the grant of
properties, as of the time of her death, minus what, as explained earlier, usufruct of real property in favor of an alien, Wanda, violated Art. XIII, Sec. 5 of the
have been gratuitously disposed of therefrom, by Charles in favor of third Constitution (1935). SC upheld the validity of the vulgar substitution but held the
persons since then, for even if it were assumed that, as contended by fideicommissary substitutions as invalid. SC upheld the usufruct in favor of Wanda because a
usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the
PCIB, under Article 16 of the Civil Code and applying renvoi the laws of
vesting of title to land in favor of aliens which is proscribed by the Constitution.
the Philippines are the ones ultimately applicable, such 1/4 share would
be her free disposable portion, taking into account already the legitime of
DOCTRINE: Art. 863, CC validates a fideicommissary substitution provided such substitution
her husband under Article 900 of the Civil Code. does not go beyond one degree from the heir originally instituted.

What is meant by one degree from the first heir is explained by Tolentino: the substitution
shall not go beyond one degree from the heir originally instituted and the second heir must
be related to and be one generation from the first heir. From this, it follows that the
fideicommissary can only be either a child or a parent of the first heir. These are the only
relatives who are one generation or degree from the fiduciary.

Facts
Jose Ramirez is a Fil-Cit who died in Spain (Dec 11, 1964) with only his widow as compulsory
heir. His will was probated in CFI-Manila. Maria Luisa Palacios was appointed as administratrix.
She submitted an inventory and then submitted a project of partition.
o shall go to the widow Marcelle Demoron de Ramirez en pleno dominio (in full
control) in satisfaction of her legitime
o of estate (i.e. the free portion) shall go to Jorge and Roberto Ramirez Nude
ownership who are the grandnephews of the deceased and Marcelle
 Usufruct of 1/3 goes to widow Marcelle Demoron (French living in
France)
Usufruct of 2/3 goes to companion Wanda (Austrian living in Spain)
Grandchildren Roberto and Jorge opposed the partition on the grounds that.
o (a) that the provisions for vulgar substitution in favor of Wanda de Wrobleski with
respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V.
Ramirez, with respect to Wanda's usufruct are invalid because the first heirs
Marcelle and Wanda) survived the testator; (b) that the provisions for
fideicommissary substitutions are also invalid because the first heirs are not related
to the second heirs or substitutes within the first degree, as provided in Article 863
of the Civil Code; (c) that the grant of a usufruct over real property in the Philippines
in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article III of the
Philippine Constitution; and that (d) the proposed partition of the testator's interest
in the Santa Cruz (Escolta) Building between the widow Marcelle and the appellants,
violates the testator's express will to give this property to them
Trial court rejected the contest by the oppositor-grandkids and instead approved the project.
Whether the approval of the court a quo of the usufruct in favor of Marcelle was proper
NO.
The appellants do not question the legality of giving Marcelle of the estate in full
ownership. They argue that the testators dispositions impaired his widows legitime.
o Indeed, under Art. 900, CC If the only survivor is the widow or widower,
she or he shall be entitled to onehalf of the hereditary estate. And since
Marcelle alone survived the deceased, she is entitled to of his estate
over which he could impose no burden, encumbrance, condition or
substitution of any kind whatsoever.
It is the 1/3 usufruct over the free portion which the appellants question and justifiably
so. It appears that the court a quo approved the usufruct in favor of Marcelle because
the testament provides for a usufruct in her favor of 1/3 of the estate.
SC: The court a quo erred for Marcelle who is entitled to 1/2 of the estate en pleno
dominio as her legitime and which is more than what she is given under the will is not
entitled to have any additional share in the estate. To give Marcelle more than her
legitime will run counter to the testators intention for as stated above his dispositions
even impaired her legitime and tended to favor Wanda.
Discussion on Substitution:
Substitution is the appointment of another heir so that he may enter into the
inheritance in default of the heir originally instituted. There are several kinds of
substitutions, namely: simple or common, brief or compendious, reciprocal, and
fideicommissary. According to Tolentino, Although the Code enumerates four classes,
there are really only two principal classes of substitutions: the simple and the
fideicommissary. The others are merely variations of these two.
The simple or vulgar is that provided in Art. 859, CC which reads:
o ART. 859. The testator may designate one or more persons to substitute the heir
or heirs instituted in case such heir or heirs should die before him, or should not
wish, or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall
comprise the three mentioned in the preceding paragraph, unless the testator
has otherwise provided.
The fideicommissary substitution is described in the Civil Code as follows:
o ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first
heir instituted is entrusted with the obligation to preserve and to transmit to a
second heir the whole or part of inheritance, shall be valid and shall take effect,
provided such substitution does not go beyond one degree from the heir
originally instituted, and provided further that the fiduciary or first heir and the
second heir are living at time of the death of the testator.
Whether the vulgar (simple) substitution was valid YES.
The testator provided for a vulgar substitution in respect of the legacies of Roberto and
Jorge. The appellants do not question the legality of the substitution so provided. What
they question is the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de
Wrobleski in connection with the 1/3 usufruct over the estate given to the widow
Marcelle.
o SC: This question has become moot because as it had already ruled that the
widow is not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in connection with
Wandas usufruct over 2/3 of the estate in favor of Juan Pablo Jankowski and Horace V.
Ramirez. They allege that the substitution in its vulgar aspect as void because Wanda
survived the testator or stated differently because she did not predecease the testator.
o SC: Dying before the testator is not the only case for vulgar substitution for it also
includes refusal or incapacity to accept the inheritance as provided in Art. 859 of
the Civil Code. Hence, the vulgar substitution is valid.
[TOPIC]
Whether the fideicommissary substitution was valid NO.
As regards the substitution in its fideicommissary aspect, SC held that the appellants are
correct in their claim that it is void for the following reasons:
o The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to
Wanda, the heir originally instituted
Art. 863, CC validates a fideicommissary substitution provided such
substitution does not go beyond one degree from the heir originally
instituted.
What is meant by one degree from the first heir is explained by
Tolentino as follows:
Scaevola, Maura, and Traviesas construe degree as designation,
substitution, or transmission. The Supreme Court of Spain has
decidedly adopted this construction. From this point of view,
there can be only one transmission or substitution, and the
substitute need not be related to the first heir. Manresa, Morell,
and Sanchez Roman, however, construe the word degree as
generation, and the present Code has obviously followed this
interpretation, by providing that the substitution shall not go
beyond one degree from the heir originally instituted. The Code
thus clearly indicates that the second heir must be related to and
be one generation from the first heir.
From this, it follows that the fideicommissary can only be either
a child or a parent of the first heir. These are the only relatives
who are one generation or degree from the fiduciary.
 o There is no absolute duty imposed on Wanda to transmit the usufruct to the
substitutes as required by Arts. 865 and 867 of the CC
In fact, the appellee admits that the testator contradicts the
establishment of a fideicommissary substitution when he permits the
properties subject of the usufruct to be sold upon mutual agreement of
the usufructuaries and the naked owners.
Whether the usufruct in favor of Wanda was valid YES.
The appellants claim that the usufruct over real properties of the estate in favor of
Wanda is void because it violates the constitutional prohibition against the acquisition of
lands by aliens.
The 1935 Constitution which is controlling provides as follows:
o Art. XIII, SEC. 5. Save in cases of hereditary succession, no private agricultural land
shall be transferred or assigned except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in the
Philippines.
The court a quo upheld the validity of the usufruct given to Wanda on the ground that
the Constitution covers not only succession by operation of law but also testamentary
succession.
SC: the Constitutional provision which enables aliens to acquire private lands does not
extend to testamentary succession for otherwise the prohibition will be for naught and
meaningless. Any alien would be able to circumvent the prohibition by paying money to
a Philippine landowner in exchange for a devise of a piece of land.
This opinion notwithstanding, SC upheld the usufruct in favor of Wanda because a
usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is
the vesting of title to land in favor of aliens which is proscribed by the Constitution.
DE PEREZ v. GARCHITORENA
SUMMARY: In this case, the Court, by looking at the language of the will, held that a
fideicommissary substitution was instituted despite the will not expressly stating so.
Ana Alcantara instituted her nephews wife, Carmen, as her heir. Her will stipulated
that (1) should Carmen die, the whole estate should pass unimpaired to Carmens
children, (2) the estate should never pass out of the hands of Carmen and her
children as long as this was legally possible, and (3) should Carmen die after Ana
while Carmens children are still minors, the estate would be administered by the
executrix. Carmens will did not expressly mention a fideicommissary substitution.
Garchitorena was the unpaid creditor of Carmens husband. He sought to attach
Anas deposit, which was in Carmens name, in La Urbana Bank to satisfy the sums
owed to him. Garchitorena argued that no fideicommissary substitution was made,
and so, after Carmens death, the property belonged to Carmens estatenot to
Carmens children as substitutes, thus allowing creditors to attach the estate.
Carmens heirs, on the other hand, argued that there was indeed a fideicommissary
substitution, which means the property can no longer be attached since the same
has passed into their ownership. The Court rejected Garchitorenas arguments, and
held that the will instituted a fideicommissary substitution. In holding for the heirs
of Carmen, the Court enumerated the requisites of a fideicommissary substitution
and found that all were present in this case.
(1) Carmen was instituted an heiress, called to the enjoyment of the estate,
according to clause IX of the will. The first and second heirs exist, in the proper
relationship, and were both alive when Carmen died.
(2) The phrase shall pass unimpaired and the phrase should never pass out of the
hands, show an obligation to preserve and transmit.
(3) Carmens children are referred to as second heirs both in clause X and in clause
XI of the will.
DOCTRINE: Requisties of a fideicommissary substitution: (1) there is an heiress
primarily called to enjoy the estate; (2) an obligation clearly imposed upon her to
preserve and transmit the whole of the estate to certain third persons; and (3)
there are secondary heirs.
The heir instituted, or fideicommissioner is entitled to the enjoyment of the estate.
The fideicommissum thus arising from a fideicommissary substitution, which is of
Roman origin, is not exactly equivalent to, and should not be confused with, the
English "trust."
FACTS:
Ana Maria Alcantara had a 21,428.58 deposit in the name of Carmen Alcantara,
her nephews wife, in La Urbana Bank.
Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez
Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to
the writ of execution issued in said judgment, levied an attachment on said
amount deposited with La Urbana.
The heirs of Carmen argue that the deposit belongs to the fideicommissary
heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction
restraining the execution of said judgment on the sum so attached.
Garchitorena, on the other hand, argue that the Carmen is Ana's universal
heiress, and pray for the dissolution of the injunction.
The lower court held that said La Urbana deposit belongs to the Carmen's
children as fideicommissary heirs of Ana Maria Alcantara, and granted a final
writ of injunction.
Aggrieved, Garchitorena appealed.
RULING: Judgment affirmed.
Whether there was a simple substitution.No.
This will certainly provides for a substitution of heirs, and of the three cases
that might give rise to a simple substitution, only the death of the instituted
heiress before the testatrix would in the instant case give place to such
substitution, inasmuch as nothing is said of the waiver of inheritance, or
incapacity to accept it.
As a matter of fact, however, clause XI provides for the administration of the
estate in case the heiress instituted should die after the testatrix and while the
substitute heirs are still under age.
And it is evident that, considering the nature of simple substitution by the heir's
death before the testator, and the fact that by clause XI in connection with
clause X, the substitution is ordered where the heiress instituted dies after the
testatrix, this cannot be a case of simple substitution.
Whether there was a fideicommissary substitution.Yes. (See Notes for the
complete provisions)
The Court gave the requisites of a fideicommissary substitution:
1. there is an heiress primarily called to enjoy the estate;
2. an obligation clearly imposed upon her to preserve and transmit the whole
of the estate to certain third persons; and
3. there are secondary heirs.
First requisite.
Clause IX of the will shows Ana instituted Carmen as her sole and universal
heiress.
Furthermore, the first and second heirs exist, in the proper relationship, and
were both alive when Carmen died.
Second requisite.
The phrase shall pass unimpaired and the phrase should never pass out of
the hands, show an obligation to preserve and transmit.
An obligation clearly imposed upon the heir to preserve and transmit to a third
person the whole or a part of the estate. Such an obligation is imposed in
clause X which provides that the "whole estate shall pass unimpaired to her
(heiress's) surviving children;" thus, instead of leaving the heiress at liberty to
dispose of the estate by will, or of leaving the law to take its course in case she
dies intestate, said clause not only disposes of the estate in favor of the heiress
instituted, but also provides for the disposition thereof in case she should die
after the testatrix.
Clause IX vests in Carmen only the right to enjoy but not the right to dispose of
the estate. It says, she may enjoy it, but does not say she may dispose of it. This
is an indication of the usufruct inherent in fideicommissary substitution.
Clause X expressly provides for the substitution.
It is true that it does not say whether the death of the heiress herein referred
to is before or after that of the testatrix; but from the whole context it appears
that in making the provisions contained in this clause X, the testatrix had in
mind a fideicommissary substitution, since she limits the transmission of her
estate to the children of the heiress by this provision, "in such wise that my
estate shall never pass out of the hands of my heiress or her children in so far
as it is legally possible."
o Here it clearly appears that the testatrix tried to avoid the possibility
that the substitution might later be legally declared null for
transcending the limits fixed by article 781 of the Civil Code which
prescribed that fideicommissary substitutions shall be valid "provided
they do not go beyond the second degree."
Another clear and outstanding indication of fideicommissary substitution in
clause X is the provision that the whole estate shall pass unimpaired to the
heiress's children, that is to say the heiress is required to preserve the whole
estate, without diminution, in order to pass it on in due time to the
fideicommissary heirs. This provision complies with another of the requisites of
 fideicommissary substitution according to our quotation from Manresa
inserted above.
Third requisite.
The children of the Carmen are referred to as such second heirs both in clause
X and in clause XI of the will.
Notes:
CLAUSE IX: Being single and without any forced heir, to show my gratitude to
my niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin
Perez Alcantara, and living in this same house with me, I institute her as my
sole and universal heiress to the remainder of my estate after the payment of
my debts and legacies, so that upon my death and after probate of this will,
and after the report of the committee on claims and appraisal has been
rendered and approved, she will receive from my executrix and properties
composing my hereditary estate, that she may enjoy them with God's blessing
and my own.
CLAUSE X: Should my heiress Carmen Garchitorena die, I order that my whole
estate shall pass unimpaired to her surviving children; and should any of these
die, his share shall serve to increase the portions of his surviving brothers (and
sisters) by accretion, in such wise that my estate shall never pass out of the
hands of my heiress or her children in so far as it is legally possible.
CLAUSE XI: Should my aforesaid heiress, Carmen Garchitorena, die after me
while her children are still in their minority, I order that my estate be
administered by my executrix, Mrs. Josefa Laplana, and in her default, by
Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the
direction herein given must not be considered as an indication of lack of
confidence in my nephew Joaquin Perez Alcantara, whom I relieve from the
duties of administering my estate, because I recognize that his character is not
adapted to management and administration.
Crisologo vs. Singson
SUMMARY: Spouses Crisologo filed an action for partition against Dr. Singson for a lot in
Vigan, Ilocos Sur, alleging that they were both co-owners pro indiviso of the said lot, which
Consolacion Florentino (wife) and Singson inherited fron Dona Leona Singson. Dr. Singsons
defense was that Consolacion Florentino was a mere usufructuary, and thus had no right to
ask for partition. The main issue in this case is whether or not Clause IX of Dona Leona
Singsons will was a sustitucion vulgar (in which case Consolacion was a co-owner) or a
sustitucion fodeicommissaria (in which case Consolacion was a mere usufructuary). SC ruled
that it was a sustiticion vulgar, therefore Consolacion was a co-owner and had the right to
ask for a partition. Reason for such ruling: testamentary clause under consideration shows
that the substitution of heirs provided for therein is not expressly made of the
fideicommissary kind, nor does it contain a clear statement to the effect that appellee, during
her lifetime, shall only enjoy usufructuary rights over the property bequeathed to her, naked
ownership thereof being vested in the brothers of the testatrix. It merely provides that upon
appellee's deathwhether this happens before or after that of the testatrixher share shall
belong to the brothers of the testatrix. The institution as fideicommissary must be express!
DOCTRINE:
It seems to be of the essence of a fideicommissary substitution that an obligation be clearly
imposed upon the first heir to preserve and transmit to another the whole or part of the
estate bequeathed to him, upon his death or upon the happening of a particular event.
For this reason, Art. 785 of the old Civil Code provides that a fideicommissary substitution
shall have no effect unless it is made expressly (de una manera expresa) either by giving it
such name, or by imposing upon the first heir the absolute obligation (obligacion terminante)
to deliver the inheritance to a substitute or second heir.
FACTS
This case is an action for partition by Spouses Crisologo against Dr. Manuel Singson
regarding a lot located in Vigan, Ilocos Sur
Spouses Consolacion Florentino and Francisco Crisologo alleged that:
o Singson owned one-half pro-indiviso of said property and that Consolacion
Florentino owned the other half by virtue of the provisions of the duly
probated last will of Da. Leona Singson
o Da. Leona Singson, died single on January 13, 1948 executed her last will
which was admitted to probate (will was entirely in Spanish, not translated by
the Court boo -__-)
Spouses Crisologo asked for partition of the property but Dr. Singson refused, hence,
this suit
 The defense of Singson was that Consolacion Florentino was a mere usufructuary of,
and not owner of one-half pro-indiviso of the property in question, and that, therefore,
she was not entitled to demand partition thereof.
TC: ruled in favor of the Crisologos, and adjudged Consolacion Florentino co-owner and
ordered a partition
HELD Decision affirmed. Clause IX is a sustitucion vulgar, not a sustitucion fideicommisaria.
Therefore, Consolacion is a co-owner, not a mere usufructuary, thus entitled to ask for
partition.
W/N Clause IX of Dona Singsons will is a sustitucion vulgar or a sustitucion fideicomisaria.
Clause IX of her last will was not translated into English -__- (See notes for Spanish
text) but is imporatant, because the issue in this case is whether the said testamentary
disposition provided for what is called sustitucion vulgar or for a sustitucion
fideicomisaria.
The particular testamentary clause under consideration provides for a substitution of
the heir named therein in this manner:
o that upon the death of Consolacion Florentinowhether this occurs before or
after that of the testatrixthe property bequeathed to her shall be delivered
("se dara") or shall belong in equal parts to the testatrix's three brothers,
Evaristo, Manuel and Dionisio, or their forced heirs, should anyone of them die
ahead of Consolacion Florentino.
If this clause created what is known as sustitucion vulgar, the necessary result would be
that Consolacion Florentino, upon the death of the testatrix, became the owner of one
undivided half of the property, but if it provided for a sustitution fideicomisaria, she
would have acquired nothing more than usufructuary rights over the same half. In the
former case (simple), she would undoubtedly be entitled to partition, but not in the
latter (fidei)
The pertinent provisions of law are as follows1
o "Art. 774. The testator may designate one or more persons to substitute the
heir or heirs instituted in case such heir or heirs should die before him, or
should not wish or should be unable to accept the inheritance.
"A simple substitution, without a statement of the cases to which it is to apply,
shall include the three mentioned in the next preceeding paragraph, unless
the testator has otherwise provided:"
o "Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged
to preserve and transmit to a third person the whole or part of the inheritance
shall be valid and effective, provided they do not go beyond the second
degree, or that they are made in favor of persons living at the time of the
death of the testator."
o "Art. 785. The following shall be inoperative:
1. Fiduciary substitutions not made expressly, either by giving them
this name or by imposing upon the fiduciary the absolute obligation
of delivering the property to a second heir."
1 2
Governed by the Old Civil Code since testatrix died before effectivity of NCC
Discussion of the provisions
The testator may not only designate the heirs who will succeeed him upon his death,
but also provide for substitutes in the event that said heirs do not accept or are in no
position to accept the inheritance or legacies, or die ahead of him.
The testator may also bequeath his properties to a particular person with the obligation,
on the part of the latter, to deliver the same to another person, totally or partially, upon
the occurrence of a particular event
As Manresa says, if the fiduciary did not acquire full ownership of the property
bequeathed by will, but mere usufructuary rights thereon until the time came for him to
deliver said property to the fideicomisario, it is obvious that the nude ownership over
the property, upon the death of the testatrix, passed to and was acquired by another
person, and the person cannot be other than the fideicomisario
It seems to be of the essence of a fideicommissary substitution that an obligation be
clearly imposed upon the first heir to preserve and transmit to another the whole or
part of the estate bequeathed to him, upon his death or upon the happening of a
particular event.
o For this reason, Art. 785 of the old Civil Code provides that a fideicommissary
substitution shall have no effect unless it is made expressly (de una manera
expresa") either by giving it such name, or by imposing upon the first heir
theabsolute obligation ("obligacion terminante") to deliver the inheritance
to a substitute or second heir.2
As applied
A careful perusal of the testamentary clause under consideration shows that the
substitution of heirs provided for therein is not expressly made of the fideicommissary
kind, nor does it contain a clear statement to the effect that appellee, during her
lifetime, shall only enjoy usufructuary rights over the property bequeathed to her,
naked ownership thereof being vested in the brothers of the testatrix.
o As already stated, it merely provides that upon appellee's deathwhether
this happens before or after that of the testatrixher share shall belong to
the brothers of the testatrix.
^ no delivery or preservation to speak of.
NOTES
(A). La mitad de mi casa de materiales fuertes con techo de hierro galvanizado, incluyendo la
mitad de su solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle Plaridel, actualmente
arrendada por los hermanos Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si falleciere
antes o despues que yo mi citada nieta, esta propiedad se dara por partes iguales entre mis
tres hermanos Evaristo, Manuel y Dionisio, o a sus herederos forzosos en el caso de que
alguno de ellas muriere
After this sentence, Manresa was quoted saying two paragraphs in Spanish which
was again not translated -__-
 VDA. DE KILAYKO v. TENGCO, LIZARES
LIZARES v. TENGCO, VDA. DE KILAYKO
SUMMARY: Maria Lizares executed a Testamento assigning, among others, 1/3 of 1/4 of Hda.
Minuluan to her niece, Eustaquia Lizares. It was provided in the testament that that if
Eustaquia dies single or without legitimate descendants, it will be awarded to her (testators)
brother Antonio Lizares to survive her. After the death of Maria, her estate was subject to
testate estate proceedings and was settled by an agreement of partition and subdivision.
Eustaquia died single without any descendant. Celsa Vda de Kilayko et al. filed a motion to
reopen the testate estate proceedings of Maria Lizares so that they be declared as heirs to
the 1/3 of 1/4 of Hda. Minuluan and 1/6 of Hda. Matab-ang. Intestate heirs of Eustaquia
opposed this arguing that the court has no jurisdiction and that the order of closure had long
been final and executory. SC held that the testate estate proceedings cannot be reopened
because it is already final, barred by res judicata.

DOCTRINE: In testate succession, there can be no valid partition among the heirs until after
the will has been probated. The law enjoins the probate of a will and the public requires it,
because unless a will is probated and notice thereof given to the whole world, the right of a
person to dispose of his property by will may be rendered nugatory. The authentication of a
will decides no other question than such as touch upon the capacity of the testator and the
compliance with those requirements or solemnities which the law prescribes for the validity
of a will.

FACTS:
On November 20, 1962, Maria Lizares y Alunans executed a Testamento wherein she
assigned her part in the Hda. Minuluan and other property not listed to her niece
Eustaquia Lizares, for Eustaquias service and care, provided that if Eustaquia dies single
or without legitimate descendants, it will be awarded to her (testators) brother Antonio
Lizares to survive her. (see notes for exact provisions)
January 28, 1968, Maria Lizares died without any issue and leaving said testament in the
possession and custody of Eustaquia.
Eustaquia filed a petition for the settlement of the testate estate. Probate was granted
and Eustaquia was appointed as executrix.
On July 10, 1968 the project of partition was granted. Court declared the heirs, devisees,
legatees and usufructuaries mentioned in the project of partition as the only heirs,
devisees, legatees and usufructuaries of the estate; adjudicated to them the properties
respectively assigned to each and every one of them.
Eustaquia later filed an urgent motion to reopen the testate proceedings in order that
some properties of Maria Lizares which had been omitted in the partition be
adjudicated to her; granted.
 On November 28, 1972, heirs of Maria Lizares (including petitioners Encarnacion Vda de
Panililio and Remedios Vda de Guinto) executed an agreement of partition and
subdivision, thereby terminating their co-ownership.
On November 23, 1973, Eustaquia died single without any descendant. Rodolfo Lizares
and Amelo Lizares were appointed as joint administrators of her estate.
Because of the testamentary provisions in the will of Maria Lizares (see notes), which
were allegedly in the nature of a simple substitution, Celsa Vda. De Kilayko et al
(petitioners in case 1) filed a motion to reopen the testate estate proceedings of Maria
Lizares so that they be declared as heirs to the 1/3 of 1/4 of Hda. Minuluan and 1/6 of
Hda. Matab-ang.
o Argued on the strength of the allegation that they were simple
substitutes
Two sets of intestate heirs of Eustaquia opposed the motion arguing that the court
had no more jurisdiction to reopen the testate estate proceedings of Maria Lizares as
the order of closure had long been final and that the testamentary provisions sought
to be enforced are null and void.
Trial Court: Motion to reopen the testate proceedings denied. Settlement of an estate is
a proceeding in rem, the judgment therein is binding against the whole world. MFR but
was denied.
Celsa Vda de Kilayko et al. filed a complaint for recovery of ownership and possession of
real property against the joint administrators of the estate of Eustaquia Lizares. They
also availed of theirs rights under Rule 14, Sec 24 RoC by filing a notice of lis pendens.
o Joint administrators filed MTD alleging lack of jurisdiction, cause of action
barred by prior judgment and lack of cause of action.
Trial court: Granted the motion for cancellation of notice of lis pendens. Celsa Vda de
Kilayko et al. filed a MFR; denied.
Joint administrators filed a petition for certiorari and prohibition and/or mandamus on
the ground that the testate estate proceedings decision had become final and
unappealable. Further, Celsa Vda de Kilayko et al. claim was groundless because
provisions in the testamento are not valid because under Art 863 CC, they constitute an
invalid fideicommissary substitution of heirs.
RULING: Case 1 petition for review on certiorari denied. Case 2 petition for certiorari and
prohibition and/or mandamus is granted. TRO made permanent. Costs against petitioners.
WoN the testate estate proceedings of Maria Lizares can be reopened NO.
In testate succession, there can be no valid partition among the heirs until after the
will has been probated. The law enjoins the probate of a will and the public requires it,
because unless a will is probated and notice thereof given to the whole world, the right
of a person to dispose of his property by will may be rendered nugatory. The
authentication of a will decides no other question than such as touch upon the capacity
of the testator and the compliance with those requirements or solemnities which the
law prescribes for the validity of a will.
Sec 1, Rule 90 RoC (see notes for provision), as applied in De Jesus v Daza and Torres v
Encarnacion: the probate court, having the custody and control of the entire estate, is
the most logical authority to effectuate this provision, within the estate proceeding,
said proceeding being the most convenient one in which this power and function of the
court can be exercised and performed without the necessity of requiring the parties to
undergo the inconvenience and litigate an entirely different action
Re jurisdiction to settle claims, the Court ruled in Arroyo v Gerona and Benedicto v
Javellana: any challenge to the validity of a will, any objection to the authentication
thereof, and every demand or claim which any heir, legatee or party interested in a
testate or intestate succession may make, must be acted upon and decided within the
same special proceedings, not in a separate action, and the same judge having
jurisdiction in the administration of the estate shall take cognizance of the question
raised xxx
The probate court, in the exercise of its jurisdiction to distribute the estate, has the
power to determine the proportion or parts to which each distribute is entitled A
project of partition is merely a proposal for the distribution of the hereditary estate
which the court may accept or reject. It is the court that makes the distribution of the
estate and determines the persons entitled thereto.
In accordance with the approved project of partition, Encarnacion Lizares Vda. de
Panlilio, Remedios Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes
Mendoza and Eustaquia Lizares executed an Agreement of Partition and Subdivision.
The Lizares sisters therefor recognized the decree of partition sanction by the probate
court and in fact reaped the fruits thereof. They are now precluded from attacking the
validity of the partition or any part of it in the guise of a complaint for reconveyance.
o A party cannot, in law and in good conscience be allowed to reap the
fruits of a partition, agreement or judgment and repudiate what does not
suit him. Where a piece of land has been included in a partition and
there is no allegation that the inclusion was effected through improper
means or without petitioners knowledge, the partition barred any
further litigation on said title and operated to bring the property under
the control and jurisdiction of the court for its proper disposition
according to the tenor of the partition.
It cannot be denied that when Celsa L. Vda. de Kilayko, et al. moved for the reopening of
the testate estate proceedings of Maria Lizares, the judicial decree of partition and
order of closure of such proceedings was already final and executory, the then
reglementary period of thirty (30) days having elapsed from the time of its issuance,
with no timely appeal having been filed by them. Therefore, they cannot now be
permitted to question the adjudication of the properties left by will of Maria Lizares, by
filing an independent action for the reconveyance of the very same properties subject of
such partition.
A final decree of distribution of the estate of a deceased person vests the title to the
land of the estate in the distributees. If the decree is erroneous, it should be corrected
by opportune appeal, for once it becomes final, its binding effect is like any other
judgment in rem, unless properly set aside for lack of jurisdiction or fraud. Where the
court has validly issued a decree of distribution and the same has become final, the
validity or invalidity of the project of partition becomes irrelevant.
o The only instance where a party interested in a probate proceeding may
have a final liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or inadvertence
not imputable to negligence.
Re res judicata: All the requisites are present. Same parties, same subject matter and
same cause of action. Although the testatrix intended a fideicommissary substitution
in paragraphs 10 and 11 of her will, the substitution can have no effect because the
requisites for it to be valid, had not been satisfied.
o Granting that res judicata has not barred the institution of Civil Case No.
11639, the contention of Celsa L. Vda. de Kilayko, et al. that they are
conditional substitute heirs of Eustaquia in the testate estate of Maria
Lizares is not meritorious. No clear obligation imposed upon Eustaquia to
preserve the estate in favor of Celsa Vda de Kilayko, nor is it to be
considered as providing for a vulgar or simple substitution.
o It should be remembered that when a testator merely names an heir and
provides that if such heir should die a second heir also designated shall
succeed, there is no fideicommissary substitution. The substitution
should then be construed as a vulgar or simple substitution under Art.
859 of the Civil Code but it shall be effective only if the first heir dies
before the testator. But in this case, the instituted heir survived the
testatrix.
Re cancellation of lis pendens: No GAD. Under Sec. 24, Rule 14 of the Rules of
Court, a notice of lis pendens may be cancelled after proper showing that the
notice is for the purpose of molesting the adverse party, or that it is not necessary
to protect the rights of the party who caused it to be recorded. Such notice was
not necessary to protect the rights of Celsa Vda de Kilayko et al.