WILLS AND SUCCESSION

Pre-Bar Review Notes

By: Atty. Lielanie C. Yangyang-Espejo

SUCCESSION

I. General Provisions (Arts. 774-780)

A. Definition/What is transmitted – Arts. 774, 776, 781

WHAT IS THE MEANING OF SUCCESSION?

Art. 774. Succession is a mode of acquisition by virtue of which the property,

rights and obligations to the extent of the value of the inheritance, of a person are
transmitted through his death to another or others either by his will or by operation
of law.

General Conclusions:
a. It is a mode of acquisition
b. The subject matters are properties, rights and obligations
c. Transmission happens at death
d. Disposition may be governed by will (testamentary) or by operation of law
(legal or intestate)

SUCCESSION AS A MODE OF ACQUISITION

Is succession an original mode or a derivative mode of acquisition?

It is a derivative mode of acquisition based on Art. 712 of the New Civil Code

ARTICLE 712. Ownership is acquired by occupation and by intellectual

creation.

Ownership and other real rights over property are acquired and transmitted
by law, by donation, by testate and intestate succession, and in consequence of certain
contracts, by tradition.

They may also be acquired by means of prescription.

THE SUBJECT MATTERS ARE PROPERTIES, RIGHTS AND OBLIGATIONS

Art. 776. The inheritance includes all the property, rights and obligations of a
person which are not extinguished by his death.

A. PROPERTY - may refer to real or personal, tangible or intangible property

(See Articles 414-416, Civil Code for definitions). However, it is subject to the
universal requirement that the object of any act or contract must be LICIT.
Property is considered licit if it is:

1. not outside the commerce of men;

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 2. not contrary to law, morals, good customs, public order or public
policy;
3. intransmissible;
4. not impossible.

 Property is within the commerce of man if it can be lawfully made subject

to jus disponendi or the right to dispose. It must not be res nullius or res
communes. It must not be an object that is prohibited by law.

CAN THE HUMAN BODY/ORGAN BE DISPOSED OF IN THE WILL?

Human corpse is not property, and it cannot be disposed by virtue of will. But
human organs can be donated or be disposed of in a will as governed by R.A. 7170
(Organ Donation Act of 1991)

 Under R.A. 7170, however, the recipients and the purposes for the legacy
are limited. Sec. 6 provides:

Section 6. Persons Who May Become Legatees or Donees. - The following persons
may become legatees or donees of human bodies or parts thereof for any of the
purposes stated hereunder:

(a) Any hospital, physician or surgeon - For medical or dental education, research,
advancement of medical or dental science, therapy or transplantation;

(b) Any accredited medical or dental school, college or university - For education,
research, advancement of medical or dental science, or therapy;

(c) Any organ bank storage facility - For medical or dental education, research,
therapy, or transplantation; and

(d) Any specified individual - For therapy or transplantation needed by him.

 Under R.A. 7170, prior probate of the will is not required for the legacy of
the organ to be given effect. If the will is not probated, or if declared
invalid, the legacy, to the extent that it was executed in good faith, is
nevertheless valid and effective.

WHAT IS THE CONCEPT OF “AFTER ACQUIRED PROPERTIES” IN

SUCCESSION?

- Under Article 781, after the death of the decedent, the heir acquires the
inherited property including all accessories and accessions accruing
thereto from the moment of death. These accessions or income from
the properties accruing after death actually belong to the heir not as an
heir but as an owner as incidents of ownership.

- On the other hand, with respect to properties acquired by the testator

after the execution of the will up to the moment before death, Article
793 provides as a general rule that only those properties owned and
possessed at the time the will is made are included. Properties
acquired after the making of the will shall not be included in the legacy
or devise. Exceptions: When the testator expressly provides in his will

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 that properties acquired after the will is made shall be included in the
inheritance. Other exceptions are Art. 836 and 930 of the New Civil
Code.

Art. 836. The execution of a codicil referring to a previous will has the effect of
republishing the will as modified by the codicil.

Art. 930. The legacy or devise of a thing belonging to another person is void,
if the testator erroneously believed that the thing pertained to him. But if the
thing bequeathed, though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall take effect.

B. RIGHTS – refer to transmissible rights. Purely personal rights generally

cannot be transmitted because they are extinguished by death. As a general
rule, patrimonial rights are transmissible.

GREAT PACIFIC LIFE ASSURANCE CORP. vs. CA, [G.R. No. 113899.
October 13, 1999.]

FACTS: A contract of group life insurance was executed between Grepalife

and DBP. Grepalife agreed to insure the lives of eligible housing loan
mortgagors of DBP. Dr. Wilfredo Leuterio, a housing debtor of DBP, applied
for membership in the group life insurance plan. Subsequently, Dr. Leuterio
died due to massive cerebral hemorrhage. The wife of Dr. Leuterio filed a
case against Grepalife for recovery of insurance proceeds.

HELD: A policy of insurance upon life or health may pass by transfer, will or
succession to any person, whether he has an insurable interest or not, and
such person may recover it whatever the insured might have recovered, the
widow of the decedent Dr. Leuterio may file the suit against the insurer,
Grepalife.

 However, by way of exception, there are also patrimonial rights that are
extinguished by death such as:

1. When provided in the contract that the right is extinguished by death;

2. Usufruct as a general rule because it is extinguished by death under
Article 603 of NCC;
3. Agency because the contract is extinguished by death under Article
1919 NCC;
4. Right to become a partner in partnership (Article 1830);
5. Right to annuity (Art. 2027);

Art. 2027. No annuity shall be claimed without first proving the

existence of the person upon whose life the annuity is constituted.
(1808)

6. Right to revoke donation by reason of ingratitude;

7. Commodatum is purely personal in character. Consequently, the death
of either the bailor or the bailee extinguishes the contract (Art. 1939);
and

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 8. A deposit is extinguished, in case of a gratuitous deposit, upon the
death of either the depositor or the depositary (Art. 1995).

C. OBLIGATIONS – As a general rule, obligations are transmissible.

INOCENCIO vs. HOSPICIO DE SAN JOSE (G.R. No. 201787, September 25, 2013)

The Supreme Court has previously ruled that lease contracts, by their nature, are not
personal. The general rule, therefore, is lease contracts survive the death of the
parties and continue to bind the heirs except if the contract states otherwise. In Sui
Man Hui Chan v. Court of Appeals, we held that: “A lease contract is not essentially
personal in character. Thus, the rights and obligations therein are transmissible to
the heirs. The general rule, therefore, is that heirs are bound by contracts entered
into by their predecessors-in-interest except when the rights and obligations arising
therefrom are not transmissible by (1) their nature, (2) stipulation or (3) provision of
law.

In the subject Contract of Lease, not only were there no stipulations prohibiting any
transmission of rights, but its very terms and conditions explicitly provided for the
transmission of the rights of the lessor and of the lessee to their respective heirs and
successors. The contract is the law between the parties. The death of a party does not
excuse nonperformance of a contract, which involves a property right, and the rights
and obligations thereunder pass to the successors or representatives of the deceased.
Similarly, nonperformance is not excused by the death of the party when the other
party has a property interest in the subject matter of the contract.” Section 6 of the
lease contract provides that “[t]his contract is nontransferable unless prior consent of
the lessor is obtained in writing.” Section 6 refers to transfers inter vivos and not
transmissions mortis causa. What Section 6 seeks to avoid is for the lessee to
substitute a third party in place of the lessee without the lessor’s consent.

LIU vs. LOY (G.R. No. 145982, September 13, 2004)

A prior contract to sell made by the decedent during his lifetime prevails over a
subsequent contract of sale made by the administrator without probate court
approval. It is immaterial if the prior contract is a mere contract to sell and does not
immediately convey ownership. Frank Liu’s contract to sell became valid and
effective upon its execution and bound the estate to convey the property upon full
payment of the consideration.

ALVAREZ vs. IAC (G.R. No. 68053, May 7, 1990)

Teodora Yanes and the children of her brother Rufino, namely, Estelita, Iluminado
and Jesus, filed a complaint against Fortunato Santiago, Arsenia Vda. de
Fuentebella, Alvarez and the Register of Deeds of Negros Occidental for the "return"
of the ownership and possession of Lots 773 and 823. They also prayed that an
accounting of the produce of the land and that the share or money equivalent due
the plaintiffs be delivered to them, and that defendants be ordered to pay plaintiffs
P500.00 as damages in the form of attorney's fees. During the pendency in court of
said case or on November 13, 1961, Alvarez sold Lots 773-A, 773-B to Dr. Rodolfo
Siason. Alvarez died but he was adjudged to pay the monetary value of the
properties to Teodora Yanes and the children of her brother Rufino, namely, Estelita,
Iluminado and Jesus. The heirs of Alvarez complained that the liability arising from

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the sale of Lots No. 773-A and 773-B made by Rosendo Alvarez to Dr. Rodolfo
Siason should be the sole liability of the late Rosendo Alvarez or of his estate, after
his death.

HELD: The doctrine obtaining in this jurisdiction is on the general transmissibility of

the rights and obligations of the deceased to his legitimate children and heirs. The
binding effect of contracts upon the heirs of the deceased party is not altered by the
provision of our Rules of Court that money debts of a deceased must be liquidated
and paid from his estate before the residue is distributed among said heirs (Rule 89).
The reason is that whatever payment is thus made from the state is ultimately a
payment by the heirs or distributees, since the amount of the paid claim in fact
diminishes or reduces the shares that the heirs would have been entitled to receive.
Under our law, therefore, the general rule is that a party's contractual rights and
obligations are transmissible to the successors. The rule is a consequence of the
progressive 'depersonalization' of patrimonial rights and duties that, has
characterized the history of these institutions. From the Roman concept of a relation
from person to person, the obligation has evolved into a relation from patrimony to
patrimony, with the persons occupying only a representative position, barring those
rare cases where the obligation is strictly personal. Petitioners being the heirs of the
late Rosendo Alvarez, they cannot escape the legal consequences of their father's
transaction, which gave rise to the present claim for damages. That petitioners did
not inherit the property involved herein is of no moment because by legal fiction,
the monetary equivalent thereof devolved into the mass of their father's hereditary
estate, and we have ruled that the hereditary assets are always liable in their totality
for the payment of the debts of the estate. It must, however, be made clear that
petitioners are liable only to the extent of the value of their inheritance.

 Exceptions to the general rule that obligations are transmissible are:

1. Purely personal obligations (Eg. Marital obligations);

2. Obligations made intransmissible by contract between the parties;
3. The obligation to pay taxes. Note that tax liability is properly a claim
against the estate;
4. Criminal liability;
5. When a piece of work has been entrusted to a person by reason of his
personal qualifications, the contract is rescinded upon his death. In this
case, the proprietor shall pay the heirs of the contractor in proportion
to the price agreed upon, the value of the part of the work done, and of
the materials prepared, provided the latter yield him some benefit
(Art. 1726);
6. Support.

TRANSMISSION HAPPENS AT DEATH

WHAT TRIGGERS THE LAW ON SUCCESSION?

 Death opens succession. There can be no transmission of properties, rights, and

obligations by way of succession without death.

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 Prior to death, the heirs only have an inchoate right or an expectancy.

FELIPE versus HEIRS OF ALDON (February 16, 1983)

Gimena, the wife, sold lands belonging to the conjugal partnership without the
consent of the husband. The voidable contract of Gimena was subject to
annulment by her husband only during the marriage because he was the victim
who had an interest in the contract. Gimena, who was the party responsible for
the defect, could not ask for its annulment. Their children could not likewise seek
the annulment of the contract while the marriage subsisted because they merely
had an inchoate right to the lands sold.

The termination of the marriage and the dissolution of the conjugal partnership
by the death of Maximo Aldon did not improve the situation of Gimena. What
she could not do during the marriage, she could not do thereafter.

The case of Sofia and Salvador Aldon is different. After the death of Maximo
they acquired the right to question the defective contract insofar as it deprived
them of their hereditary rights in their father's share in the lands. The father's
share is one-half (1/2) of the lands and their share is two-thirds (2/3) thereof,
one-third (1/3) pertaining to the widow.

The petitioners have been in possession of the lands since 1951. It was only in
1976 when the respondents filed action to recover the lands. In the meantime,
Maximo Aldon died.

Two questions come to mind, namely: (1) Have the petitioners acquired the lands
by acquisitive prescription? (2) Is the right of action of Sofia and Salvador Aldon
barred by the statute of limitations?

As to the second question, the children's cause of action accrued from the death
of their father in 1959 and they had thirty (30) years to institute it (Art. 1141, Civil
Code.) They filed action in 1976 which is well within the period.

 Upon the death of the decedent, the rights of the heirs become vested.

Emnace vs. CA (370 SCRA 431, November 23, 2001)

Emnace, Tabanao and Divinagracia were partners in a business concern known

as Ma. Nelma Fishing Industry. Sometime in January of 1986, they decided to
dissolve their partnership and executed an agreement of partition and
distribution of the partnership properties among them, consequent to
Divinagracia's withdrawal from the partnership. Throughout the existence of the
partnership, and even after Tabanao's demise, Emnace petitioner failed to submit
to Tabanao's heirs any statement of assets and liabilities of the partnership, and
to render an accounting of the partnership's finances, and also reneged on his
promise to turn over to Tabanao's heirs the deceased's share in the total assets of
the partnership. Thus, the heirs of Tabanao sued Emnace. Emnace contended
that the surviving spouse of Vicente Tabanao has no legal capacity to sue since
she was never appointed as administratrix or executrix of his estate.

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 Held: The surviving spouse does not need to be appointed as executrix or
administratrix of the estate before she can file the action. She and her children are
complainants in their own right as successors of Vicente Tabanao. From the very
moment of Vicente Tabanao' s death, his rights insofar as the partnership was
concerned were transmitted to his heirs, for rights to the succession are
transmitted from the moment of death of the decedent. Whatever claims and
rights Vicente Tabanao had against the partnership and petitioner were
transmitted to respondents by operation of law, more particularly by succession,
which is a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of the inheritance of a person are
transmitted.

WHEN IS A PERSON CONSIDERED DEAD FOR THE PURPOSE OF

SUCCESSION?

Death may either be:

1) Actual death

2) Presumed death
a. Ordinary presumption - after 10 years or 5 years if the person disappeared
after the age of 75 years old (Article 390, NCC)

b. Qualified or extraordinary presumption – after 4 years if the

disappearance was under danger of death (Article 391, NCC)

 When is the moment of death counted?

(a) Ordinary presumption – after 5 or 10 years

(b) Extraordinary presumption – from the date of disappearance

 However, the rule on presumptions should yield to the rule on preponderance of

evidence. If there is evidence pointing to the fact that the person is alive, then he
cannot be presumed dead despite the fact that he has not been heard of. Or if
there is evidence that the person is really dead, then there is no need to wait for
the periods under Articles 390 and 391 to lapse before a person may be declared
dead.

EASTERN vs. LUCERO (124 SCRA 326)

Lucero, Jr. was appointed by Eastern Shipping Lines, Inc., as master/captain to
its vessel. While the vessel was enroute from Hongkong to Manila where it was
expected to arrive on February 18, 1980, Capt. Lucero sent 3 messages to the
Company's Manila office, first, that they encountered boisterous weather with
strong northeasterly winds causing the vessel to roll and pitch violently; second,
that the vessel was laboring violently and that they had to jettison cargoes; third,
that they needed immediate assistance because seawater was entering inside the
hatch and they were preparing to abandon anytime. Subsequently, the insurer of
the M/V Eastern Minicon confirmed the loss of the vessel. The Company paid
the corresponding death benefits to the heirs of the crew members, except Mrs.
Lucero, who refused to accept the same. Mrs. Lucero filed a complaint for
payment of her accrued monthly allotment of P3,183.00, which the Company had
stopped since March 1980 and for continued payment of said allotments until the

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 M/V Minicon shall have returned to the port of Manila. She contended that the
contract of employment entered into by her husband with the Company was on
a voyage-to-voyage basis, and that the same was to terminate only upon the
vessel's arrival in Manila.

HELD: It is undisputed that the Company received 3 radio messages from Capt.
Lucero. There is thus enough evidence to show the circumstances attending the
loss and disappearance of the M/V Eastern Minicon and its crew. The foregoing
facts are sufficient to lead to a moral certainty that the vessel had sunk and that
the persons aboard had perished with it. Upon this premise, the rule on
presumption of death under Article 391 (1) of the Civil Code must yield to the
rule of preponderance of evidence. Where there are facts, known or knowable,
from which a rational conclusion can be made, the presumption does not step in,
and the rule of preponderance of evidence controls. Thus, the complaint of Mrs.
Lucero was dismissed and instead, she should receive the death benefits.

IS THERE A KIND OF SUCCESSION THAT TAKES EFFECT DURING THE

LIFETIME OF THE DECEDENT?

Freak Succession – this is a case of succession which takes place without the
triggering effect of death. This contemplates the delivery of presumptive
legitime prior to the death of the person who is supposed to pay such, on the
occasion of annulment of marriage and declaration of nullity of marriage.

DISTINGUISH SUCCESSION INTER VIVOS FROM SUCCESSION MORTIS

CAUSA?

1) Succession Inter Vivos – transfer of ownership takes effect during the lifetime
of the giver; governed by the law on donations.
2) Succession Mortis Causa – transfer of ownership takes effect upon or after the
death of the giver; governed by the law on succession.

WHAT RULE SHALL APPLY IF A DONATION IS TO TAKE EFFECT UPON

THE DEATH OF THE DONOR?

ARTICLE 728. Donations which are to take effect upon the death of the donor
partake of the nature of testamentary provisions, and shall be governed by the
rules established in the Title on Succession.

Cases:

GANUELAS vs. CAWED (401 SCRA 447, April 24, 2003)

“That, for and in consideration of the love and affection which the DONOR has for the
DONEE, and of the faithful services the latter has rendered in the past to the former, the said
DONOR does by these presents transfer and convey, by way of DONATION, unto the
DONEE the property above, described, to become effective upon the death of the DONOR;
but in the event that the DONEE should die before the DONOR, the present donation shall
be deemed rescinded and of no further force and effect.”

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HELD: The above disposition is in the nature of a donation mortis causa. The
distinction between a transfer inter vivos and mortis causa is important as the
validity or revocation of the donation depends upon its nature. If the donation is
inter vivos, it must be executed and accepted with the formalities prescribed by
Articles 748 and 749 of the Civil Code, except when it is onerous in which case the
rules on contracts will apply. If it is mortis causa, the donation must be in the form
of a will, with all the formalities for the validity of wills, otherwise it is void and
cannot transfer ownership. The distinguishing characteristics of a donation mortis
causa are the following:

1. It conveys no title or ownership to the transferee before the death of the

transferor; or, what amounts to the same thing, that the transferor should
retain the ownership (full or naked) and control of the property while alive;

2. That before his death, the transfer should be revocable by the transferor at
will, ad nutum; but revocability may be provided for indirectly by means of a
reserved power in the donor to dispose of the properties conveyed;

3. That the transfer should be void if the transferor should survive the
transferee.

The phrase “to become effective upon the death of the DONOR” admits of no
other interpretation but that Celestina intended to transfer the ownership of
the properties to Ursulina on her death, not during her lifetime. More
importantly, the provision in the deed stating that if the donee should die
before the donor, the donation shall be deemed rescinded and of no further
force and effect shows that the donation is a postmortem disposition.
Furthermore, the deed contains an attestation clause expressly confirming the
donation as mortis causa.

To classify the donation as inter vivos simply because it is founded on

considerations of love and affection is erroneous. That the donation was
prompted by the affection of the donor for the donee and the services
rendered by the latter is of no particular significance in determining whether
the deed constitutes a transfer inter vivos or not, because a legacy may have
an identical motivation. In other words, love and affection may also underline
transfers mortis causa.

VILLANUEVA vs. SPOUSES BRANOCO (G.R. No. 172804, January 24, 2011)
Petitioner Gonzalo Villanueva (petitioner), here represented by his heirs, sued
respondents, spouses Froilan and Leonila Branoco (respondents) to recover a 3,492
square-meter parcel of land in Amambajag, Culaba, Leyte (Property). Petitioner
claimed ownership over the Property through purchase in July 1971 from Casimiro
Vere (Vere), who, in turn, bought the Property from Alvegia Rodrigo (Rodrigo) in
August 1970. Petitioner declared the Property in his name for tax purposes soon
after acquiring it. In their Answer, respondents similarly claimed ownership over
the Property through purchase in July 1983 from Eufracia Rodriguez (Rodriguez) to
whom Rodrigo donated the Property in May 1965. The two-page deed of donation
(Deed), signed at the bottom by the parties and two witnesses, reads in full:

KNOW ALL MEN BY THESE PRESENTS:

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 That I, ALVEGIA RODRIGO, Filipino, of legal age, widow of
the late Juan Arcillas, a resident of Barrio Bool, municipality of Culaba,
subprovince of Biliran, Leyte del Norte, Philippines, hereby depose
and say:
That as we live[d] together as husband and wife with Juan
Arcillas, we begot children, namely: LUCIO, VICENTA, SEGUNDINA,
and ADELAIDA, all surnamed ARCILLAS, and by reason of poverty
which I suffered while our children were still young; and because my
husband Juan Arcillas aware as he was with our destitution separated
us [sic] and left for Cebu; and from then on never cared what
happened to his family; and because of that one EUFRACIA
RODRIGUEZ, one of my nieces who also suffered with our poverty,
obedient as she was to all the works in our house, and because of the
love and affection which I feel [for] her, I have one parcel of land
located at Sitio Amambajag, Culaba, Leyte bearing Tax Decl. No. 1878
declared in the name of Alvegia Rodrigo, I give (devise) said land in
favor of EUFRACIA RODRIGUEZ, her heirs, successors, and assigns
together with all the improvements existing thereon, which parcel of
land is more or less described and bounded as follows:
1. Bounded North by Amambajag River; East, Benito Picao;
South, Teofilo Uyvico; and West, by Public land; 2. It has
an area of 3,492 square meters more or less; 3. It is
planted to coconuts now bearing fruits; 4. Having an
assessed value of P240.00; 5. It is now in the possession of
EUFRACIA RODRIGUEZ since May 21, 1962 in the
concept of an owner, but the Deed of Donation or that
ownership be vested on her upon my demise.
That I FURTHER DECLARE, and I reiterate that the land above
described, I already devise in favor of EUFRACIA RODRIGUEZ since
May 21, 1962, her heirs, assigns, and that if the herein Donee
predeceases me, the same land will not be reverted to the Donor, but
will be inherited by the heirs of EUFRACIA RODRIGUEZ;

That I EUFRACIA RODRIGUEZ, hereby accept the land above

described from Inay Alvegia Rodrigo and I am much grateful to her
and praying further for a longer life; however, I will give one half (1/2)
of the produce of the land to Apoy Alve during her lifetime.4
Respondents entered the Property in 1983 and paid taxes afterwards.
ISSUE:
The threshold question is whether petitioner’s title over the Property is superior to
respondents’. The resolution of this issue rests, in turn, on whether the contract
between the parties’ predecessors-in-interest, Rodrigo and Rodriguez, was a
donation or a devise. If the former, respondents hold superior title, having bought
the Property from Rodriguez. If the latter, petitioner prevails, having obtained title
from Rodrigo under a deed of sale the execution of which impliedly revoked the
earlier devise to Rodriguez.
RULING:

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We examine the juridical nature of the Deed – whether it passed title to Rodriguez
upon its execution or is effective only upon Rodrigo’s death – using principles
distilled from relevant jurisprudence. Post-mortem dispositions typically –
(1) Convey no title or ownership to the transferee before the
death of the transferor; or, what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control of
the property while alive;
(2) That before the [donor’s] death, the transfer should be
revocable by the transferor at will, ad nutum; but revocability may be
provided for indirectly by means of a reserved power in the donor to
dispose of the properties conveyed;
(3) That the transfer should be void if the transferor should
survive the transferee.

Further –
[4] [T]he specification in a deed of the causes whereby the act
may be revoked by the donor indicates that the donation is inter
vivos, rather than a disposition mortis causa[;]
[5] That the designation of the donation as mortis causa, or a
provision in the deed to the effect that the donation is “to take effect
at the death of the donor” are not controlling criteria; such
statements are to be construed together with the rest of the
instrument, in order to give effect to the real intent of the
transferor[;] [and]
(6) That in case of doubt, the conveyance should be deemed
donation inter vivos rather than mortis causa, in order to avoid
uncertainty as to the ownership of the property subject of the deed.

It is immediately apparent that Rodrigo passed naked title to Rodriguez

under a perfected donation inter vivos. First. Rodrigo stipulated that “if the herein
Donee predeceases me, the [Property] will not be reverted to the Donor, but will be
inherited by the heirs of x x x Rodriguez,” signaling the irrevocability of the passage
of title to Rodriguez’s estate, waiving Rodrigo’s right to reclaim title. This transfer of
title was perfected the moment Rodrigo learned of Rodriguez’s acceptance of the
disposition. Rodrigo’s acceptance of the transfer underscores its essence as a gift in
presenti, not in futuro, as only donations inter vivos need acceptance by the recipient.
Indeed, had Rodrigo wished to retain full title over the Property, she could have
easily stipulated, as the testator did in another case, that “the donor, may transfer,
sell, or encumber to any person or entity the properties here donated x x x” or used
words to that effect. Instead, Rodrigo expressly waived title over the Property in case
Rodriguez predeceases her.

In a bid to diffuse the non-reversion stipulation’s damning effect on his case,

petitioner tries to profit from it, contending it is a fideicommissary substitution
clause. Petitioner assumes the fact he is laboring to prove. The question of the Deed’s
juridical nature, whether it is a will or a donation, is the crux of the present
controversy. By treating the clause in question as mandating fideicommissary
substitution, a mode of testamentary disposition by which the first heir instituted is
entrusted with the obligation to preserve and to transmit to a second heir the whole

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or part of the inheritance, petitioner assumes that the Deed is a will. Neither the
Deed’s text nor the import of the contested clause supports petitioner’s theory.
Second. What Rodrigo reserved for herself was only the beneficial title to the
Property, evident from Rodriguez’s undertaking to “give one [half] x x x of the
produce of the land to Apoy Alve during her lifetime.” Thus, the Deed’s stipulation
that “the ownership shall be vested on [Rodriguez] upon my demise,” taking into
account the non-reversion clause, could only refer to Rodrigo’s beneficial title.
forementioned parcels”] the donor meant nothing else than that
she reserved of herself the possession and usufruct of said two parcels
of land until her death, at which time the donee would be able to
dispose of them freely. (Emphasis supplied)

Indeed, if Rodrigo still retained full ownership over the Property, it was
unnecessary for her to reserve partial usufructuary right over it.
Third. The existence of consideration other than the donor’s death, such as the
donor’s love and affection to the donee and the services the latter rendered, while
also true of devises, nevertheless “corroborates the express irrevocability of x x x
[inter vivos] transfers.” Thus, the CA committed no error in giving weight to
Rodrigo’s statement of “love and affection” for Rodriguez, her niece, as
consideration for the gift, to underscore its finding.
In no less than seven cases featuring deeds of donations styled as “mortis causa”
dispositions, the Court, after going over the deeds, eventually considered the
transfers inter vivos, consistent with the principle that “the designation of the
donation as mortis causa, or a provision in the deed to the effect that the donation is
‘to take effect at the death of the donor’ are not controlling criteria [but] x x x are to
be construed together with the rest of the instrument, in order to give effect to the
real intent of the transferor.” Indeed, doubts on the nature of dispositions are
resolved to favor inter vivos transfers “to avoid uncertainty as to the ownership of
the property subject of the deed.”
Nor can petitioner capitalize on Rodrigo’s post-donation transfer of the Property to
Vere as proof of her retention of ownership. If such were the barometer in
interpreting deeds of donation, not only will great legal uncertainty be visited on
gratuitous dispositions, this will give license to rogue property owners to set at
naught perfected transfers of titles, which, while founded on liberality, is a valid
mode of passing ownership. The interest of settled property dispositions counsels
against licensing such practice.

DISPOSITION MAY BE GOVERNED BY WILL (TESTAMENTARY) OR BY

OPERATION OF LAW (LEGAL OR INTESTATE)

Art. 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed.

Testamentary Succession - is that which results from the designation of an heir,

made in a will executed in the form prescribed by law (Art. 779).

Intestate Succession -
ARTICLE 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which has
subsequently lost its validity;

12
(2) When the will does not institute an heir to, or dispose of all the property
belonging to the testator. In such case, legal succession shall take place only
with respect to the property of which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir does not
happen or is not fulfilled, or if the heir dies before the testator, or repudiates the
inheritance, there being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided in
this Code.

Mixed Succession – Is that effected partly by will and partly by operation of law
(Art. 780).

WHAT ARE HEIRS, LEGATEES AND DEVISEES?

 Heirs may be compulsory or forced (like children, wife, who cannot be deprived
of their inheritance unless for causes provided by law. They are entitled to
legitime.
 Even if there is no will, they will still inherit by operation of law, in which case,
they are called legal or intestate heirs).
 Voluntary, testamentary or testate (like friends, strangers, who are not related to
the decedent. Can inherit only if named or designated in the will. Without a
will, they will not inherit). Or those who receive property by way of devise or
legacy (even if relative).
 Legatees succeed to particular or specific personal property; Devisees succeed to
particular or specific real property

Distinctions

Heirs Legatees and Devisees

1. Succeed by general right
universal title (to all or a fraction
or aliquot part);
2. The term Heir exists both in
testamentary succession and
intestate succession;
3. The heir, if compulsory,
succeeds to the inheritance
regardless of the will of the
decedent;
4. Quantity cannot be determined
until after liquidation of
properties of the estate;
5. heir represents the juridical
personality of the deceased
acquiring his property, rights
and obligations;
6. Heir succeeds to the remainder
of the estate after all the debts,
devises, and legacies have been
paid.
1. Succeed by special or particular
title;
2. The term legatees and devisees
exist only in testamentary
succession;
3. Legatees and devisees succeed
only by reason of testator’s will;
4. Quantity can easily be
determined;
5. Do not represent the juridical
personality coz acquires only
properties;
6. Succeed only to the determinate
thing or amount given.

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WHAT IS THE IMPORTANCE OF THE DISTINCTIONS BETWEEN HEIRS ON
ONE HAND AND LEGATEES AND DEVISEES ON THE OTHER HAND?

1. In preterition under Article 854, instituted voluntary heir gets nothing;

legatees and devisees still get the property given as long as the
legitime is not impaired.

2. Under Article 793 on after-acquired properties, legatees and devisees

as a general rule get only the property devised or bequeathed existing
at the time of the execution of the will. Heirs are not covered by
Article 793 because their inheritance is residual.

II. Testamentary Succession

A. Wills

Art. 783. A will is an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of this estate, to
take effect after his death.

WHAT ARE THE ESSENTIAL ELEMENTS AND CHARACTERISTICS OF A

WILL?
ACRONYM (PASS U C FRIDM) “Pass you see freedom”

1. Personal – will making is the act of the testator, and testamentary power cannot
be delegated. A will is supposed to be confidential, hence, wills are not
considered as public documents even if notarized.

Principle:

Art. 784. The making of a will is a strictly personal act; it cannot be left in
whole or in part of the discretion of a third person, or accomplished
through the instrumentality of an agent or attorney.

- However, the mere mechanical act of drafting or drawing a will may

be done by a third person for it does not involve a delegation of the testator’s
will or dispositions contained in the will. The fact that the will was
typewritten in the office of the testator’s lawyer is of no consequence -
Castañeda vs. Alemany (3 Phil 426)

Art. 785. The duration or efficacy of the designation of heirs, devisees or

legatees, or the determination of the portions which they are to take, when
referred to by name, cannot be left to the discretion of a third person.

Art. 787. The testator may not make a testamentary disposition in such
manner that another person has to determine whether or not it is to be
operative.

EXCEPTION:

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 Art. 786. The testator may entrust to a third person the distribution of
specific property or sums of money that he may leave in general to
specified classes or causes, and also the designation of the persons,
institutions or establishments to which such property or sums are to be
given or applied.

Art. 785 Art. 768

heirs, devisees or legatees are heirs, devisees or legatees are
referred to by name in not named
the will The class or cause is specified
There is no class or cause c. The determination of the
specified persons, institutions, or
The determination of the establishments,
portion only

Example: I leave all my properties to the top 5 of the 2011 bar exam and X will
determine how much will be the share of each – valid

What if I leave all my properties to A, B, C, D, and E, the top 5 of the 2011 bar
exam and X will determine how much will be the share of each – void
because there is naming. The top 5 of the 2011 bar exam is mere a
qualifier

What if I hereby leave such sum of money as Z shall determine to support the
top 5 of the 2011 bar exam? – void because no specific property or sum
of money has been designated by the testator. The determination of
the amount cannot be delegated.

What if I hereby leave P1M to support the top 5 of the 2011 bar exam to be
apportioned to the topnotchers in such amount as Z shall determine? –
valid because what is delegated to Z is merely the manner of
distribution or apportionment of the amount previously specified by
the testator.

2. Animus Testandi – there must be intent to make a will and the testator should
know that the purpose of the will is to dispose of his properties mortis causa.
Persons with unsound mind cannot execute wills because they do not know the
character of the testamentary act.

3. Statutory – will-making is merely a privilege, not an inherent right. The law can
withhold testamentary power. Hence, will must be subordinated to law and
public policy (Herreros vs. Gil [88 Phil 260])

4. Solemn – the formalities required by law must be complied with.

5. Unilateral – the testator cannot condition the making of the will upon the consent
or act of another. Hence bilateral dispositions, like a disposicion captatoria, are
prohibited.

6. Capacity – the testator must have testamentary capacity (of sound mind and at
least 18 years old)

15
7. Freedom from Vitiated Consent – the presence of vitiated consent is a cause for
the disallowance of a will.

8. Revocable – testator can revoke his will anytime during his lifetime, even if
already probated. A will is essentially ambulatory.

9. Individual – a will must be the act of only one person. Hence, joint wills are not
allowed.

10. Disposition of Property – a will must contain a disposition of property. It may be

direct disposition or indirect disposition, like a will containing only a
disinheritance of an heir (Merza vs. Porras [93 Phil 142]); Reiterated in SEANGIO
versus REYES, G.R. No. 149753, November 27, 2006.

11. Mortis Causa – a will becomes effective only upon death of the testator.

Vitug vs. CA (183 SCRA 755)

The Survivorship Agreement executed between husband and wife over their joint
savings account stipulates that when either of them dies, the balance of the savings
account shall belong to the one who survives.
Held: The will must purport to deliver ones separate properties in favor of another.
Hence, if husband and wife have a joint savings account and they merely agree in an
instrument that when either of them dies, the balance of the savings account shall
belong to the one who survives, this is not a will because the account is their joint
holding.

WHAT ARE THE RULES FOR CONSTRUCTION IN SUCCESSION?

 TESTACY IS FAVORED OVER INTESTACY

RODRIGUEZ vs. BORJA (17 SCRA 41)

On March 4, 1963, a purported last will and testament of Fr. Rodriguez was
delivered to the Clerk of Court of Bulacan by Apolonia Pangilinan and Adelaida
Jacalan; that on March 8, 1963, Maria Rodriguez and Angela Rodriguez filed a
petition for leave of court to allow them to examine the alleged will; that on
March 11, 1963 before the Court could act on the petition, the same was
withdrawn; that on March 12, 1963, Maria Rodriguez and Angela Rodriguez filed
before the Court of First Instance of Rizal a petition for the settlement of the
intestate estate of Fr. Rodriguez alleging, among other things, that Fr. Rodriguez
died without leaving a will; and that on March 12, 1963 Apolonia Pangilinan and
Adelaida Jacalan filed a petition for the probation of the will delivered by them
on March 4, 1963.

The movants contend that since the intestate proceedings in the Court of First
Instance of Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for
probate was filed in the Court of First Instance of Bulacan at 11:00 A.M. on the
same date, the latter Court has no jurisdiction to entertain the petition for
probate.

HELD: The jurisdiction of the Court of First Instance of Bulacan became vested
upon the delivery thereto of the will of the late Father Rodriguez on March 4,
1963, even if no petition for its allowance was filed until later, because upon the

16
 will being deposited the court could, motu proprio, have taken steps to fix the time
and place for proving the will, and issued the corresponding notices conformably
to what is prescribed by section 3, Rule 76, of the Revised Rules of Court.

The use of the disjunctive in the words "when a will is delivered to OR a petition
for the allowance of a will is filed" plainly indicates that the court may act upon
the mere deposit therein of a decedent's testament, even if no petition for its
allowance is as yet filed. Where the petition for probate is made after the deposit
of the will, the petition is deemed to relate back to the time when the will was
delivered. Since the testament of Fr. Rodriguez was submitted and delivered to
the Court of Bulacan on March 4, while petitioners initiated intestate proceedings
in the Court of First Instance of Rizal only on March 12, eight days later, the
precedence and exclusive jurisdiction of the Bulacan court is incontestable.

The other reason is that, in our system of civil law, intestate succession is only
subsidiary or subordinate to the testate, since intestacy only takes place in the
absence of a valid operative will. Therefore, as ruled in Castro, et al. versus
Martinez, 10 Phil. 307, "only after final decision as to the nullity of testate
succession could an intestate succession be instituted in the form of pre-
established action". The institution of intestacy proceedings in Rizal may not thus
proceed while the probate of the purported will of Father Rodriguez is pending.

 THE WILL MUST BE LIBERALLY CONSTRUED IN FAVOR OF ITS VALIDITY.

HENCE, BETWEEN 2 DISPOSITIONS, ONE WILL MAKE THE WILL INVALID
WHILE THE OTHER WILL MAKE THE WILL VALID, THAT INTERPRETATION
BY WHICH THE WILL IS VALID SHOULD BE PREFERRED.

BALANAY, JR. vs. MARTINEZ (64 SCRA 452, G.R. No. L-39247 June 27, 1975)
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for
the probate of his mother's notarial will dated September 5, 1970 which is written
in English. In that will Leodegaria Julian declared (a) that she was the owner of
the "southern half of nine conjugal lots (par. II); (b) that she was the absolute
owner of two parcels of land which she inherited from her father (par. III), and
(c) that it was her desire that her properties should not be divided among her
heirs during her husband's lifetime and that their legitimes should be satisfied
out of the fruits of her properties (Par. IV). Then, in paragraph V of the will she
stated that after her husband's death (he was eighty-two years old in 1973) her
paraphernal lands and all the conjugal lands (which she described as "my
properties") should be divided and distributed in the manner set forth in that
part of her will. She devised and partitioned the conjugal lands as if they were all
owned by her. She disposed of in the will her husband's one half share of the
conjugal assets. Felix Balanay, Sr. opposed the probate of the will on the grounds
of lack of testamentary capacity, undue influence, preterition of the husband and
alleged improper partition of the conjugal estate. The oppositors claimed that
Felix Balanay, Jr. should collate certain properties which he had received from
the testatrix.

HELD: The probate court erred in declaring that the will was void and in
converting the testate proceeding into an intestate proceeding notwithstanding
the fact that in its order of June 18, 1973, it gave effect to the surviving husband's
conformity to the will and to his renunciation of his hereditary rights which
presumably included his one-half share of the conjugal estate. The rule is that
"the invalidity of one of several dispositions contained in a will does not result in

17
 the invalidity of the other dispositions, unless it is to be presumed that the
testator would not have made such other dispositions if the first invalid
disposition had not been made" (Art. 792, Civil Code). "Where some of the
provisions of a will are valid and others invalid, the valid parts will be upheld if
they can be separated from the invalid without defeating the intention of the
testator or interfering with the general testamentary scheme, or doing injustice to
the beneficiaries" (95 C.J.S. 873). The statement of the testatrix that she owned
the "southern half of the conjugal lands is contrary to law because, although she
was a co-owner thereof, her share was inchoate and proindiviso. But that illegal
declaration does not nullify the entire will. It may be disregarded.

The provision of the will that the properties of the testatrix should not be divided
among her heirs during her husband's lifetime but should be kept intact and that
the legitimes should be paid in cash is contrary to article 1080 of the Civil Code.
The testatrix in her will made a partition of the entire conjugal estate among her
six children (her husband had renounced his hereditary rights and his one-half
conjugal share). She did not assign the whole estate to one or more children as
envisaged in article 1080. Hence, she had no right to require that the legitimes be
paid in cash. On the other hand, her estate may remain undivided only for a
period of twenty years. So, the provision that the estate should not be divided
during her husband's lifetime would at most be effective only for twenty years
from the date of her death unless there are compelling reasons for terminating
the co-ownership.

In the instant case there is no doubt that the testatrix and her husband intended
to partition the conjugal estate in the manner set forth in paragraph V of her will.
It is true that she could dispose of by will only her half of the conjugal estate (Art.
170, Civil Code) but since the husband, after the dissolution of the conjugal
partnership, had assented to her testamentary partition of the conjugal estate,
such partition has become valid, assuming that the will may be probated. In the
instant case, the preterited heir was the surviving spouse. His preterition did not
produce intestacy. Moreover, he signified his conformity to his wife's will and
renounced his hereditary rights. Save in an extreme case where the will on its
face is intrinsically void, it is the probate court's duty to pass first upon the
formal validity of the will. Generally, the probate of the will is mandatory. To
give effect to the intention and wishes of the testatrix is the first and principal
law in the matter of testaments. Testacy is preferable to intestacy. An
interpretation that will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of the will.

Testacy is favored. Doubts are resolved in favor of testacy especially where the
will evinces an intention on the part of the testator to dispose of practically his
whole estate. So compelling is the principle that intestacy should be avoided and
that the wishes of the testator should prevail that sometimes the language of the
will can be varied for the purpose of giving it effect.

 THE TESTATOR’S WISHES CONSTITUTE THE FIRST AND PRINCIPAL LAW IN

THE MATTER OF TESTAMENTS

VDA. DE VILLANUEVA vs. JUICO (4 SCRA 550)

In the will of the testator he bequeathed in favor of his wife 1/2 of certain
properties for her “use and possession while alive and she does not contract a

18
 second marriage otherwise, the properties shall pass to the testator’s
grandniece.” It was contended that the title to the properties became absolutely
vested in the estate of the widow upon her death, on account of the fact that she
never remarried.

HELD: The grandniece is entitled to the properties for the plain intent of the
testator was to invest his widow only with a lifetime usufruct subject to the
condition that if she remarried, her rights would thereupon cease even during
her lifetime. It would have been different, had he given her full ownership
because not having remarried, the grandniece could not inherit from her. This is
in contrast with the remainder of the estate in which she was instituted universal
heir together with the testator’s brother. If the testator had intended to impose as
sole condition the non-remarriage of his widow, the words “use and possession
while alive” would have been unnecessary, since she could only remarry during
her own lifetime.

 THE WORDS OF A WILL ARE TO RECEIVE AN INTERPRETATION WHICH

WILL GIVE TO EVERY EXPRESSION SOME EFFECT, RATHER THAN ONE
WHICH WILL RENDER ANY OF THE EXPRESSIONS INOPERATIVE; AND OF
TWO MODES OF INTERPRETING A WILL, THAT IS TO BE PREFERRED
WHICH WILL PREVENT INTESTACY.

YAMBAO vs. GONZALES (1 SCRA 1157)

Appellant filed an action against appelles that the latter employ the former as
tenant during his lifetime on parcels of land bequeathed to the appellees. The
lower court ruled that the provisions of the will relied upon by the appellant
merely amount to a suggestion to appelles, who, though morally bound, are not
legally compelled to follow said suggestion because the word pahintulutan
employed with reference to the working of appellant on the lands only means to
permit or to allow but not to direct appellees to appoint appellant as tenant.

HELD: Lower court is wrong. The real import of the wish of the testatrix for her
will contains a clear directive to employ appellant as may be seen from the
words preceding the word pahintulutan which say: Dapat din naman malaman
ng dalawa kong tagapagmana … na sila ay may dapat tungkulin o gampanan gaya
ng sumusunod…” The words tungkulin o gampanan mean to do or to carry out as
a mandate or directive, and having reference to the word pahintulutan, can
convey no other meaning than to impose a duty upon the appellees.

HOW ARE AMBIGUITIES IN THE WILL TREATED?

 Two (2) kinds of ambiguities

1. Latent or Intrinsic ambiguity- an ambiguity or defect that does not appear in
the face of the will. You only discover them when you go beyond the will, when
you look for the persons or properties. This consists of:
B. Imperfect description of the heir, legatee or devisee.
C. Imperfect description of the property given.
D. When 2 or more persons meet the description.
E. When 2 or more things meet the description.

19
 2. Patent or Extrinsic ambiguity – an ambiguity that is apparent on the face of
the will itself. You discover this by merely looking at the will. Example: I
hereby bequeath all my money to some of my students. Hence, from the will
itself, it is not clear how many students are intended.

 How to cure the ambiguities.

The same for both:
(a) By intrinsic evidence. That is, by looking at the context of the will, examining
how the words are used.
(b) By extrinsic evidence, that is going outside the will.

CAN ORAL OR PAROL EVIDENCE BE RESORTED TO IN ORDER TO CURE

AN AMBIGUITY?

Yes, except oral evidence or parol evidence pertaining to the supposed oral
declarations of the testator. This would not be allowed because this may open
the door to fraud. Anybody may claim that he/she heard the testator said
something. But other oral evidence may be allowed as an exception to the Parol
Evidence Rule under Rule 130, Section 9 of the Rules of Court.

WHAT LAWS GOVERN THE VALIDITY OF WILLS?

 Two kinds of validity:

A. Formal or extrinsic validity – refers to the forms and solemnities that must be
complied with in order to make the will valid. Forms such as the type of
instrument (depending whether notarial or holographic will), capacity of the
testator, qualifications of witnesses. Extrinsic Validity may be seen from 2
viewpoints. Time and Place (country)

B. Intrinsic validity – refers to the legality of the provisions in an instrument,

contract or will. EG. Whether or not there was preterition, whether or not
there is invalid disinheritance, whether or not there is impairment of legitime.
May be seen also from 2 viewpoints: Time and Place (country)

 Extrinsic Validity from the Viewpoint of Time

- extrinsic validity of will depends upon the observance of the law in force at
the time the will is made. The extrinsic validity of will is measured against
the law in force at the time of will making, not at time of death, not at time of
probate.
- Reason: The testator cannot possibly know, and is not expected to know the
laws that will govern in the future. Hence, it is sufficient that he follows the
laws in force at the time that he makes his will.

ENRIQUEZ vs. ABADIA (95 Phil 627)

On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu,
executed a document purporting to be his Last Will and Testament. He died
on January 14, 1943. The will was a holographic will; that it was in the
handwriting of the testator and that although at the time it was executed and
at the time of the testator's death, holographic wills were not permitted by

20
 law still, because at the time of the hearing and when the case was to be
decided the new Civil Code was already in force, which Code permitted the
execution of holographic wills, under a liberal view, and to carry out the
intention of the testator which according to the trial court is the controlling
factor and may override any defect in form, said trial court by order dated
January 24, 1952, admitted to probate the Last Will and Testament of Father
Sancho Abadia.
HELD: The formal validity of a will depends upon the observance of the law
in force at the time it is made, not by the law in force at the time of the
testator’s death, or at the time the supposed will is presented in court for
probate, or when the petition is decided by the court. Consequently, the
validity of a will is not affected by the subsequent amendment of the law with
respect to formalities after the execution of the will, whether before or after
the death of the testator. Where a will was void for failure to observe certain
formalities under the law then in force, a subsequent law lessening or
dispensing with said formalities cannot be applied so as to validate the void
will. Thus, the fact that the New Civil Code allows a holographic will does
not validate one made before its effectivity and void under the prevailing
law.

TESTATE ESTATE OF THE LATE ALIPIO ABADA vs. ABAJA (G.R. NO.
147145, JANUARY 31, 2005)

Abada executed his notarial will on 4 June 1932 but he died when the New
Civil Code took effect. The will was not acknowledged before a notary
public. Is the will valid?
HELD: YES. The laws in force at that time are the Civil Code of 1889 or the
Old Civil Code, and Act No. 190 or the Code of Civil Procedure which
governed the execution of wills before the enactment of the New Civil Code.
The Code of Civil Procedure repealed Article 685 of the Old Civil Code.
Under the Code of Civil Procedure, the intervention of a notary is not
necessary in the execution of any will. Therefore, Abada’s will does not
require acknowledgment before a notary public.

 Extrinsic Validity from the Viewpoint of Place (Country)

A. Testator is a Filipino who executes will in the Philippines: Observe

Philippine Laws (NCC) – Art. 17

B. Testator is a Filipino who executes will abroad before the diplomatic or

consular officials of the Republic of the Philippines in a foreign country:
Observe Philippine Laws (NCC) – Art. 17

C. Testator is a Filipino who executes will abroad: Observe

1. law of the place where he may be – art. 815
2. law of the place where he executes the will – art. 17 (essentially same with
815 because law of place where he executes the will is the law of the place
where he may be)
3. law of the Philippines (because art. 815 merely says “is authorized”
meaning, he principally has to follow Philippine law but is [permitted or
authorized to follow the law of the place where he may be)

21
 D. Testator is an alien who executes will abroad: Observe
1. law of the place of his residence or domicile – art. 816
2. law of his own country or nationality – art. 816
3. Philippine Law (NCC) – art. 816
4. law of the place where will is executed – art. 17
Example: T an American citizen who has his residence in Japan and who executes
a will in Germany

E. Testator is an alien who executes a will in the Philippines: Observe

1. law of his country or nationality – Art. 817
2. law of the place where will is executed (Philippines) – Art. 17
Example: X a Japanese who executes will in the Philippines may observe Japanese
law or Phil. law.

 Intrinsic Validity from the Viewpoint of Time

- The law at the time of the death of the testator or when the succession opens
because it is at that time when the rights are transmitted to the heirs, devisees
or legatees. Clear in the transitory provision of the Civil Code in Art. 2263
and under Art. 774

 Intrinsic Validity from the Viewpoint of Place or Country

- Law applicable is the national law of the decedent under Article 16 of the
New Civil Code.

BELLIS vs. BELLIS (June 8, 1967)

In the present case, it is not disputed that the decedent was both a national of
Texas and a domicile thereof at the time of his death. So that even assuming
Texas has a conflict of law rule providing that the domiciliary system (law of
the domicile) should govern, the same would not result in a reference back
(renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if
Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for
the application of the law of the place where the properties are situated,
renvoi would arise, since the properties here involved are found in the
Philippines. In the absence, however, of proof as to the conflict of law rule of
Texas, it should not be presumed different from ours. Appellants' position is
therefore not rested on the doctrine of renvoi. As stated, they never invoked
nor even mentioned it in their arguments. Rather, they argue that their case
falls under the circumstances mentioned in the third paragraph of Article 17
in relation to Article 16 of the Civil Code.
Where the decedent was a citizen of a foreign country and under the laws of
said country there are no forced heirs, the system of legitimes in Philippine
law cannot be applied to the succession to the decedent’s estate because the
intrinsic validity of the provisions of the decedent’s will and the amount of
successional rights are to be determined by the law of such country. A
provision in the foreigner’s will that his properties should be distributed in
accordance with Philippine law and not in accordance with his national law is
void being contrary to Article 16.
It is therefore evident that whatever public policy or good customs may be
involved in our System of legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has specifically chosen to

22
leave, inter alia, the amount of successional rights, to the decedent's national
law. Specific provisions must prevail over general ones.

PCIB vs. ESCOLIN (56 SCRA 266)

The question of what is the foreign law governing the matter in issue is one of
fact and not of law. Foreign laws may not be taken judicial notice of and has
to be proven like any other fact in dispute between the parties in any
proceeding except when the said laws are already within the actual
knowledge of the court such as when they are well and generally known, or
they have been actually ruled upon in other cases before it and none of the
parties concerned do not claim otherwise.

MICIANO vs. BRIMO (50 PHIL 867, G.R. NO. L-22595, NOVEMBER 1, 1927)
With respect to foreign law on the formalities of wills: In the absence of proof
to the contrary, it is presumed that foreign laws on the formalities of wills are
the same as those prescribed under Philippine Laws. This is the Doctrine of
Processual Presumption.
The appellant's opposition is based on the fact that the partition in question
puts into effect the provisions of Joseph G. Brimo's will which are not in
accordance with the laws of his Turkish nationality, for which reason they are
void as being in violation or article 10 of the Civil Code which, among other
things, provides the following:

Nevertheless, legal and testamentary successions, in respect to the order of

succession as well as to the 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.

But the fact is that the oppositor did not prove that said testamentary
dispositions are not in accordance with the Turkish laws, inasmuch as he did
not present any evidence showing what the Turkish laws are on the matter,
and in the absence of evidence on such laws, they are presumed to be the
same as those of the Philippines.

ALONZO Q. ANCHETA vs. CANDELARIA GUERSEY-DALAYGON (G.R.

No. 139868, June 8, 2006)

Spouses Audrey and Richard were American citizens who have resided in the
Philippines for 30 years. They have an adopted daughter, Kyle. On July 29,
1979, Audrey died, leaving a will. In it, she bequeathed her entire estate to
Richard, who was also designated as executor. The will was admitted to
probate before the Orphan’s Court of Baltimore, Maryland, U.S.A, which
named James N. Phillips as executor due to Richard’s renunciation of his
appointment. The court also named Atty. Alonzo Q. Ancheta of the Quasha
Asperilla Ancheta Pena & Nolasco Law Offices as ancillary administrator.

In 1981, Richard married Candelaria with whom he has two children. On

October 12, 1982, Audrey’s will was also admitted to probate by the then
Court of First Instance of Rizal. On July 20, 1984, Richard died, leaving a will,
wherein he bequeathed his entire estate to Candelaria, save for his rights and
interests over the A/G Interiors, Inc. shares, which he left to Kyle. The will

23
was also admitted to probate by the Orphan’s Court of Ann Arundel,
Maryland, U.S.A, and James N. Phillips was likewise appointed as executor,
who in turn, designated Atty. William Quasha or any member of the Quasha
Asperilla Ancheta Pena & Nolasco Law Offices, as ancillary administrator.
Richard’s will was then submitted for probate before the Regional Trial Court
of Makati. Atty. Quasha was appointed as ancillary administrator. Atty.
Ancheta filed a project of partition of Audrey’s estate, with Richard being
apportioned the ¾ undivided interest in the Makati property, 48.333 shares in
A/G Interiors, Inc., and P9,313.48 from the Citibank current account; and
Kyle, the ¼ undivided interest in the Makati property, 16,111 shares in A/G
Interiors, Inc., and P3,104.49 in cash. The project of partition was granted and
approved by the trial court. Meanwhile, the ancillary administrator in the
second petition also filed a project of partition wherein 2/5 of Richard’s ¾
undivided interest in the Makati property was allocated to respondent, while
3/5 thereof were allocated to Richard’s three children. This was opposed by

Candelaria on the ground that under the law of the State of Maryland, "a
legacy passes to the legatee the entire interest of the testator in the property
subject of the legacy." Since Richard left his entire estate to Candelaria, except
for his rights and interests over the A/G Interiors, Inc, shares, then his entire
¾ undivided interest in the Makati property should be given to Candelaria.

Atty. Ancheta contends that that he acted in good faith in performing his
duties as an ancillary administrator. He maintains that at the time of the filing
of the project of partition, he was not aware of the relevant laws of the State of
Maryland, such that the partition was made in accordance with Philippine
laws. Atty. Ancheta also imputes knowledge on the part of Candelaria with
regard to the terms of Aubrey’s will, stating that as early as 1984, he already
apprised Candelaria of the contents of the will and how the estate will be
divided. Candelaria argues that Atty. Ancheta’s breach of his fiduciary duty
as ancillary administrator of Aubrey’s estate amounted to extrinsic fraud.
According to Candelaria, Atty. Ancheta was duty-bound to follow the
express terms of Aubrey’s will, and his denial of knowledge of the laws of
Maryland cannot stand because Atty. Ancheta is a senior partner in a
prestigious law firm and it was his duty to know the relevant laws.

HELD: Atty. Ancheta’s failure to proficiently manage the distribution of

Audrey’s estate according to the terms of her will and as dictated by the
applicable law amounted to extrinsic fraud. Hence the CA Decision annulling
the RTC Orders dated February 12, 1988 and April 7, 1988, must be upheld. It
is undisputed that Audrey Guersey was an American citizen domiciled in
Maryland, U.S.A. During the reprobate of her will in Special Proceeding No.
9625, it was shown, among others, that at the time of Audrey’s death, she was
residing in the Philippines but is domiciled in Maryland, U.S.A.; her Last Will
and Testament dated August 18, 1972 was executed and probated before the
Orphan’s Court in Baltimore, Maryland, U.S.A., which was duly
authenticated and certified by the Register of Wills of Baltimore City and
attested by the Chief Judge of said court; the will was admitted by the
Orphan’s Court of Baltimore City on September 7, 1979; and the will was
authenticated by the Secretary of State of Maryland and the Vice Consul of
the Philippine Embassy. Being a foreign national, the intrinsic validity of
Audrey’s will, especially with regard as to who are her heirs, is governed by
her national law, i.e., the law of the State of Maryland, as provided in Article
16 of the Civil Code. While foreign laws do not prove themselves in our

24
 jurisdiction and our courts are not authorized to take judicial notice of them;
however, Atty. Ancheta, as ancillary administrator of Audrey’s estate, was
duty-bound to introduce in evidence the pertinent law of the State of
Maryland. Atty. Ancheta admitted that he failed to introduce in evidence the
law of the State of Maryland on Estates and Trusts, and merely relied on the
presumption that such law is the same as the Philippine law on wills and
succession. Thus, the trial court peremptorily applied Philippine laws and
totally disregarded the terms of Audrey’s will. The obvious result was that
there was no fair submission of the case before the trial court or a judicious
appreciation of the evidence presented.

Atty. Ancheta insists that his application of Philippine laws was made in
good faith. The Court cannot accept his protestation. How can Atty. Ancheta
honestly presume that Philippine laws apply when as early as the reprobate
of Audrey’s will before the trial court in 1982, it was already brought to fore
that Audrey was a U.S. citizen, domiciled in the State of Maryland. Atty.
Ancheta is a senior partner in a prestigious law firm, with a "big legal staff
and a large library." He had all the legal resources to determine the applicable
law. It was incumbent upon him to exercise his functions as ancillary
administrator with reasonable diligence, and to discharge the trust reposed
on him faithfully. Unfortunately, he failed to perform his fiduciary duties.

TESTATE ESTATE OF SUNTAY vs. SUNTAY (July 31, 1964)

With respect to foreign law governing procedure in probate matters in case of
reprobate in the Philippines, there is no presumption that such laws are the
same as that prescribed under Philippine Law. The will should be denied
probate in the absence of such proof.

TESTATE ESTATE OF CHRISTENSEN vs. GARCIA (January 31, 1963)

If the conflicts rules under the national law of the deceased refer the matter to
the law of the domicile and the foreigner was domiciled in the Philippines at
the moment of death, Philippine courts will have to apply the Philippine
internal law on succession. This is the Doctrine of Renvoi which is the
referring back to the forum of the problem.

WHAT ARE THE INSTANCES WHEN PHILIPPINE LAWS MAY STILL APPLY
INSOFAR AS THE INTRINSIC VALIDITY OF THE WILL OF A FOREIGN
NATIONAL IS CONCERNED?

1. Application of the Doctrine of Renvoi

2. Application of the Doctrine of Processual Presumption

4th Year 07/12/2017

WHO CAN EXECUTE WILLS?

1. Persons of either sex at least eighteen years of age;

2. Persons of sound mind at the time of the execution of the will.

 Hence:

25
1. one suffering under civil interdiction is allowed to make a will because civil
interdiction only prohibits disposition of property inter vivos.
2. spendthrifts or prodigals under guardianship are not disqualified provided at
least 18 years and of sound mind.

 Soundness of mind must exist at the time of execution of will, not required to be
of sound mind before or after execution of will – Dorotheo vs. CA (320 SCRA 12,
[1999]) - Under the Civil Code, due execution includes a determination of whether the
testator was of sound and disposing mind at the time of its execution, that he had freely
executed the will and was not acting under duress, fraud, menace or undue influence and
that the will is genuine and not a forgery, that he was of the proper testamentary age and
that he is a person not expressly prohibited by law from making a will.

WHAT ARE THE REQUISITES OF A SOUND MIND?

A. Testator must know the nature of the estate to be disposed of – must have a
sufficient recollection of his properties and comprehend their kind, character,
and quality in general.
B. Testator must know the proper objects of his bounty – must be aware of those
persons who would naturally be supposed to have claim upon him;
C. Testator must know the character of the testamentary act – must understand that
he is executing an instrument which will dispose of his property upon his death
and which he may revoke anytime.

BALTAZAR vs. LAXA (G.R. No. 174489, April 11, 2012)

Petitioners filed an Amended Opposition asking the RTC to deny the probate of Paciencia’s
Will on the following grounds: the Will was not executed and attested to in accordance
with the requirements of the law; that Paciencia was mentally incapable to make a Will at
the time of its execution; that she was forced to execute the Will under duress or influence
of fear or threats; that the execution of the Will had been procured by undue and improper
pressure and influence by Lorenzo or by some other persons for his benefit; that the
signature of Paciencia on the Will was forged; that assuming the signature to be genuine, it
was obtained through fraud or trickery; and, that Paciencia did not intend the document to
be her Will.

RULING:

A careful examination of the face of the Will shows faithful compliance with the formalities
laid down by law. The signatures of the testatrix, Paciencia, her instrumental witnesses and
the notary public, are all present and evident on the Will. Further, the attestation clause
explicitly states the critical requirement that the testatrix and her instrumental witnesses
signed the Will in the presence of one another and that the witnesses attested and
subscribed to the Will in the presence of the testator and of one another. In fact, even the
petitioners acceded that the signature of Paciencia in the Will may be authentic although
they question her state of mind when she signed the same as well as the voluntary nature
of said act. Petitioners, through their witness Rosie, claim that Paciencia was “magulyan” or
forgetful so much so that it effectively stripped her of testamentary capacity. They likewise
claimed in their Motion for Reconsideration filed with the CA that Paciencia was not only
“magulyan” but was actually suffering from paranoia. We agree with the position of the
CA that the state of being forgetful does not necessarily make a person mentally unsound
so as to render him unfit to execute a Will. Forgetfulness is not equivalent to being of

26
unsound mind. In this case, apart from the testimony of Rosie pertaining to Paciencia’s
forgetfulness, there is no substantial evidence, medical or otherwise, that would show that
Paciencia was of unsound mind at the time of the execution of the Will. On the other hand,
we find more worthy of credence Dra. Limpin’s testimony as to the soundness of mind of
Paciencia when the latter went to Judge Limpin’s house and voluntarily executed the Will.
“The testimony of subscribing witnesses to a Will concerning the testator’s mental
condition is entitled to great weight where they are truthful and intelligent.” More
importantly, a testator is presumed to be of sound mind at the time of the execution of the
Will and the burden to prove otherwise lies on the oppositor. Furthermore, we are
convinced that Paciencia was aware of the nature of her estate to be disposed of, the proper
objects of her bounty and the character of the testamentary act. As aptly pointed out by the
CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the
nature of the document she executed. She specially requested that the
customs of her faith be observed upon her death. She was well aware of how
she acquired the properties from her parents and the properties she is
bequeathing to LORENZO, to his wife CORAZON and to his two (2)
children. A third child was born after the execution of the will and was not
included therein as devisee.

CITE INSTANCES WHEN THE TESTATOR WAS NOT CONSIDERED OF

UNSOUND MIND?

- Senility, Senile Dementia, only complete senile dementia will result to

testamentary incapacity: Torres vs. Lopez de Bueno (48 Phil 772)
- Senile debility, deafness, poor memory: Sancho vs. Abella, (58 Phil 728)
- Weakness of mind or partial imbecility from disease of body or from age: Alsua-
Betts vs. CA (July 30, 1979)
- Blindness: Avelino vs. Dela Cruz (21 Phil 521)
- Failure of memory: Bagtas vs. Paguio, Jocson vs. Jocson (46 Phil 701), Cuyugan
vs. Baron
- Epilepsy: existense will not affect. Only when seizure occurs while engaged in
testamentary act
- Insomnia: Caguioa vs. Calderon (20 Phil 400)
- Tuberculosis: Yap Tua vs. Yap Ca Kuan (27 Phil 579)
- Diabetes: Samson vs. Corrales Tan Quintin (44 Phil 573)
- Cholera: Galvez vs. Galvez (26 Phil. 243)
- Paralysis and loss of speech: Bagtas vs. Paguio
- Cerebral Hemorrhage with hemiplegia: Carillio vs. Jaojoco (46 Phil 957)
- Old age: Hernaez vs. Hernaez (1 Phil 683)
- Delirium: ordinarily not. Only when beclouds the mind so as not to understand
the nature of act, extent o property, objects of bounty
- Ill health: even if hand is guided in signing will, lying down and unable to move
or stand up unassisted - Neyra vs. Neyra (76 Phil 333)
- Sleeping Sickness (Addison’s disease): Neyra vs. Neyra
- Eccentricities
- Violent temperament
- Passions and prejudices: only when borders on delusion
- Drunkenness or drug addiction: only when excessive
- Religious belief: unless unless assumes chronic condition of delusion
- Asthma: Bugnao vs. Ubag (14 Phil 163)

27
CITE INSTANCES WHEN THE TESTATOR WAS CONSIDERED OF
UNSOUND MIND?
- Lack of memory and understanding and pre-senile dementia: Albornoz vs.
Albornoz (71 Phil 414)
- State of unconsciousness
- Excitement or stress: if cannot recall intelligently extent of his property, etc.
- Partial insanity; insane delusions: hallucination; belief in things which do not
exist
- Religious delusion
- Drunkennes or drug addiction
- Idiocy – congenital intellectual deficiency
- Comatose stage
- State of delirium

WHAT ARE THE PRESUMPTIONS AS TO SOUNDNESS OF MIND?

A. General Presumption: testator is of sound mind. Burden of proving otherwise

rests upon those who oppose the probate of will. To discharge burden: clear and
convincing evidence is required

B. When testator is presumed of unsound mind:

1. Publicly known to be insane one month or less before making of will
2. Judicially declared insane before making a will: In Torres vs. Lopez (48 Phil 772),
the Supreme Court ruled that the fact that the testator was judicially placed
under guardianship does not ipso facto mean that the testator was of unsound
mind
3. Insanity of a general or permanent nature shown to have existed at one time is
presumed to have continued.
 Burden of proving otherwise rests upon the proponent of the will

WHAT WILLS ARE RECOGNIZED IN THE PHILIPPINES?

A. Ordinary or notarial will – requires among other things, an attestation clause, an

acknowledgment before a notary public
B. Holograph or holographic will – written entirely, dated, and signed, in the
handwriting of the testator. No attestation clause or acknowledgement required.

WHAT ARE THE FORMALITIES OF NOTARIAL WILLS?

1. Must be in writing;
2. Must be in a language or dialect known to the testator;
3. 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;
4. Attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another;
5. Must be signed on the left margin by the testator or the person requested by him
to write his name, and by the instrumental witnesses on each and every page
thereof, except the last;
6. All the pages shall be numbered correlatively in letters placed on the upper part
of each page;
7. There must be an attestation clause;
8. The will must be acknowledged before a notary public.

28
 Nuncupative wills – wills orally made by the testator in contemplation of death
and before competent witnesses; NOT RECOGNIZED.

LANGUAGE
- Testator need not be proficient in the language used. It is sufficient that he can
make known his testamentary act through the language used.
- Presumption: knew the language in which the will is written unless the contrary
is proven.
- Hence:
1. No statutory requirement that the will should allege that the language used
therein is understood by the testator (Lopez vs. Liboro, 81 Phil 429)
2. No need to state in the attestation clause that the will is written in the language
known to the testator
3. That the will is in the language known to the testator can be proved by
EXTRINSIC EVIDENCE or even by oral evidence
4. If executed in the language of the locality where testator lives, there is a
presumption that testator knows it.

ABANGAN vs. ABANGAN (40 Phil 476)

The circumstance appearing in the will itself that same was executed in the
city of Cebu and in the dialect of this locality where the testatrix was a
neighbor is enough, in the absence of any proof to the contrary, to presume
that she knew this dialect in which her will is written.

REYES vs. VIDAL (91 Phil. 127)

The failure of the petitioner's witnesses to testify that the testatrix knew and
spoke Spanish does not in itself alone suffice to conclude that this important
requirement of the law has not been complied with when there is enough
evidence of record which supplies this technical omission. The fact that the
testatrix was a mestiza española, was married to a Spaniard, made several
trips to Spain and some of her letters submitted as evidence by the oppositor
were written in Spanish by the testatrix in her own writing give rise to the
presumption that the testatrix knew the language in which the testament has
been written, which presumption should stand unless the contrary is proven.

TESTATE ESTATE OF THE LATE ALIPIO ABADA vs. ABAJA (G.R. NO.
147145, January 31, 2005)
Abada died sometime in May 1940. His widow Paula Toray (“Toray”) died
sometime in September 1943. Both died without legitimate children. On 13
September 1968, Alipio filed a petition for the probate of the last will and
testament of Abada. Abada allegedly named as his testamentary heirs his
natural children Eulogio and Rosario Cordova. Alipio is the son of Eulogio.
Caponong, as well as the nephews, nieces and grandchildren of Abada and
Toray opposed the petition.
Issues:
1. Whether Caponong-Noble is precluded from raising the issue of whether
the will of Abada is written in a language known to Abada;
2. Whether evidence aliunde may be resorted to in the probate of the will of
Abada.
HELD: Caponong-Noble points out that nowhere in the will can one
discern that Abada knew the Spanish language. She alleges that such

29
 defect is fatal and must result in the disallowance of the will. On this
issue, the Court of Appeals held that the matter was not raised in the
motion to dismiss, and that it is now too late to raise the issue on appeal.
We agree with Caponong-Noble that the doctrine of estoppel does not
apply in probate proceedings. Nevertheless, Caponong-Noble’s
contention must still fail. There is no statutory requirement to state in the
will itself that the testator knew the language or dialect used in the will.
This is a matter that a party may establish by proof aliunde. Caponong-
Noble further argues that Alipio, in his testimony, has failed, among
others, to show that Abada knew or understood the contents of the will
and the Spanish language used in the will. However, Alipio testified that
Abada used to gather Spanish-speaking people in their place. In these
gatherings, Abada and his companions would talk in the Spanish
language. This sufficiently proves that Abada speaks the Spanish
language.
TESTATE ESTATE OF JAVELLANA vs. JAVELLANA (106 Phil 1973)
Where there is want of expression in the body of the will itself or in the
attestation clause that the testator knew the language in which the will was
written, proof thereof may be established by evidence aliunde. Although lack
of such evidence may be cured by presumption of knowledge of the language
or dialect used in the will, no such presumption can arise where, as in the
case at bar, the will was executed in Spanish, while the testator was a Visayan
residing in San Juan, Rizal at the time of his death.

ACOP vs. PIRASO, 52 Phil 660

Nor can the presumption in favor of a will established by this court in
Abangan vs. Abangan (40 Phil., 476), to the effect that the testator is
presumed to know the dialect of the locality where he resides, unless there is
proof to the contrary, even be invoked in support of the probate of will,
because, in the instant case, not only is it not proven that English is the
language of the City of Baguio where the deceased Piraso lived and where the
will was drawn, but that the record contains positive proof that said Piraso
knew no other language than the Igorrote dialect, with a smattering of
Ilocano; that is, he did not know the English language in which the will is
written. So that even if such a presumption could have been raised in this
case it would have been wholly contradicted and destroyed.

SUROZA vs. HONRADO (110 SCRA 32)

Testator must know or at least understand the language. This lack of
knowledge cannot be cured by interpretation or explanation of the contents to
the testator.

- With respect to attesting witnesses, they need not know the language used in the
body of the will, only in the attestation clause. If do not know the language in
the attestation clause, may be cured by explanation or interpretation.

- Testator need not also know the language in the attestation clause.

IS THE DATE IMPORTANT IN WILLS?

30
1. Not an essential requirement for a notarial will. Will not vitiate the will.
Necessary to know only when there are more than 1 will to determine which is
the last will. Date may be established by extrinsic evidence.
2. Required in holographic wills

WHAT IS MEANT BY SUBSCRIPTION?

 Subscribed means signed.
- Who will sign?
a. The testator himself
b. Some other person provided it is under the express direction and in the
presence of the testator.

Some other person: Anybody may sign for the testator, even one of the subscribing
witnesses (Barut vs. Cagacungan, 21 Phil 461) – as long as there are more than 3 as
implied in the case of In Re Will of Tan Duico (45 Phil 807) when it said: “that the
testator or the person acting in his stead as well as the 3 witnesses sign on the left
margin on each page or sheet. Note: In the case of Barut there were 4 witnesses.
In the presence: it is not necessary that testator actually sees the signing as long as he
can do so if he wants to without any physical obstruction. Or if the testator is blind,
it is enough that he could have felt it.
Under the express direction: Must be expressly authorized. The testator shall, by
word of mouth or action (nodding of head), clearly indicate to the proxy a desire to
have his name signed to the instrument. The testator’s mere knowledge or consent
that his name was being signed for him, or his acquiescence in such an act, or a mere
implied assent to the signing by another person is not sufficient to meet the
requirement of express direction. Approval must precede, not succeed the act of
signing.

WHAT IS BEING SIGNED OR AFFIXED?

 Customary Signature of the testator or any mark actually intended as a
signature, even if not the customary signature.

LEANO vs. LEANO (30 Phil 612)

The evidence of record satisfactorily discloses that Cristina Valdes, deceased, placed
her cross against her name attached by some other person to the instrument offered
for probate which purports to be her last will and testament, in the presence of the
three witnesses whose names are attached to the attesting clause, and that they
attested and subscribed the instrument in her presence and in the presence of each
other.

- But cross was not sufficient in:

GARCIA vs. LACUESTA (90 Phil 489)

Because the cross was not the customary signature of the testator, there should have
been a statement in the attestation clause that the will was signed by some other
person in behalf of the testator. The absence of this statement invalidated the will.

HOW ABOUT ELECTRONIC/DIGITAL SIGNATURE UNDER THE

ELECTRONIC COMMERCE ACT?
- Not allowed because an e-signature is supposed to be attached to or logically
associated with the e-data message or e-document or any methodology or
procedures employed or adopted by a person and executed or adopted by such a
person with the intention of authenticating or approving an e-message

31
 (information) or e-document. E-signatures are affixed pursuant to transactions
and contracts. E-signature is not a handwritten signature that is scanned or
graphically imprinted on the e-document

WHERE SHOULD THE SIGNATURE BE LOCATED?

- At the logical end of the will, not necessarily the physical end. Immediately after
the last dispositive provision, before the attestation clause.
- Purpose: to prevent insertion of unauthorized provisions.
- Additional clauses or provisions after the signature in a NOTARIAL WILL
invalidate the entire will itself.

WHAT IS THE MEANING OF “TO ATTEST”?

- The act of witnessing the testator and the witnesses sign the will.

DISTINGUISH ATTESTATION FROM SUBSCRIPTION?

Attestation Subscription

1. Consists in witnessing the testator’s 1. The signing of the witnesses’ names

execution of the will in order to see and upon the same paper for the sole
take note mentally that those things are purpose of identification of such
done which the statute requires for the paper as the will which was
execution of a will and that the executed by the testator;
signature of the testator exists as a fact.
It is the act of the witnesses not that of
the testator although it necessarily
involves the act of the testator in
executing the will and requesting the .
witnesses to act as such.

2. Mental act, act of the senses;

3. Purpose is to render available proof 2. Mechanical act, act of the hand;

of the authenticity of the will and its
due execution; 3. Purpose is identification, and thus,
indicates that the will is the very
instrument executed by the testator
and attested to by the witnesses and
therefore implies that the due
execution of the will as embodied in
4. To attest a will is to know that it was the attestation has been performed;
published as such, and to certify the
facts required to constitute an actual 4. To subscribe a paper published as a
and legal publication. will is only to write on the same paper
the names of the witnesses, for the sole
purpose of identification

WHO ARE THE CREDIBLE WITNESSES IN THE WILL?

Credible witnesses: have all the qualifications imposed by law. Must be able or
competent to testify. They are the attesting or subscribing witnesses.

32
GONZALES vs. CA (90 SCRA 183)
"Credible witnesses" mean competent witnesses and not those who testify to facts
from or upon hearsay. In the strict sense, the competency of a person to be an
instrumental witness to a will is determined by the statute, that is Art. 820 and 821,
Civil Code, whereas his credibility depends on the appreciation of his testimony and
arises from the belief and conclusion of the court that said witness is telling the
truth. It is not necessary to introduce prior and independent proof of the fact that the
witnesses are "credible witnesses", that is, that they have a good standing in the
community and reputed to be trustworthy and reliable.
c. Subscribing and attesting witnesses are called instrumental witnesses because
they take part in the execution of an instrument or writing.
d. Attesting witnesses must be the same marginal witnesses, otherwise, will is void.
e. Purpose of marginal signature is for identification of the pages used and thus
prevent fraud. Purpose is served if signed on the right, top, left, bottom margins:
Nayve vs. Mojal, (47 Phil 152)

WHAT ARE THE QUALIFICATIONS OF WITNESSES TO WILLS?

 Qualifications of witnesses:
1. of sound mind;
2. age of eighteen years or more;
3. not blind, deaf or dumb;
4. able to read and write
5. domiciled in the Philippines;
6. has not been convicted (by final judgment) of falsification of document, perjury
or false testimony.
 Unlike in Election Law. In the Civil Code, there is difference between Domicile
and Residence. Residence is a material fact, referring to the physical presence of a
person in a place. Acquired by living in a place. A person can have 2 or more
residences. Domicile can exist without actually living in the place as long as once
residence has been established in one place, there be an intention to stay there
permanently, even if residence is also established in some other place.
 Effect of Pardon: (for those convicted of falsification of document, perjury or
false testimony.
- if by reason of innocence, can already be a witness because no untrustworthiness
or dishonesty.
- If act of executive grace or clemency, disqualification subsists because does not
change the fact of dishonesty
 Notary public also disqualified to be a witness because he cannot acknowledge
the will before himself (Cruz vs. Villasor [54 SCRA 31])
 Witnesses must be competent at the time of attesting. Reason: there is nothing
left to be done by the witnesses in order to comply with the requirements of the
law regarding attestation.
 If there are only three attesting witnesses: if the attesting witness is a recipient of
a legacy or device in the will he is attesting, or the spouse, parent, or child of
such attesting witness is the recipient, the legacy to the attesting witness, his
spouse, parent, child, or anyone claiming under the attesting witness, his spouse,
parent, or child, is void. But the qualification of the person to attest the will is not
affected and the rest of the will remain valid.
 If there are more than three witnesses. The legacy or devise is valid. Reason: the
invalidity of legacy or device stems from his being an attesting witness. If more

33
 than 3 witnesses, it is as if he is no longer counted as an attesting witness because
his presence as a witness is already a surplusage.
 Compulsory heir who is also an attesting witness: Can still get the legitime.
Disqualified only with respect to the free portion given in excess of their legitime.

WHAT IS THE MEANING OF “IN THE PRESENCE”?

 In the presence with respect to the witnesses does not necessarily require actually
seeing, but possibility of seeing or sensing without any physical obstruction.
 Generally Accepted Tests of Presence (Jaboneta vs. Gustillo, 55 Phil 541) :
2.Test of Vision
3.Test of Position
4.Test of Mental Apprehension
5.Test of Available Senses

JABONETA vs. GUSTILO (5 Phil 41)

Testator had his back turned. Signing was done in his presence since he could have
cast his eyes in the proper direction.

NERA vs. RIMANDO (18 Phil 450

There was a curtain separating the testator and some witnesses from other
witnesses. Not in the presence so will not valid

MARAVILLA vs. MARAVILLA (37 SCRA 672)

It was but natural that witness Mansueto should be positive about his own
signature, since he was familiar with it. He had to be less positive about Digna
Maravilla's (testator) signature since he could not be closely acquainted with the
same: for aught the record shows, the signing of the will was the only occasion he
saw her sign; he had no opportunity to study her signature before or after the
execution of the will. Furthermore, he witnessed Digna's signing not less than
fourteen years previously. To demand that in identifying Digna's signature
Mansueto should display a positiveness equal to the certainty shown by him in
recognizing his own, exceeds the bounds of the reasonable. That Mansueto, Hernaez
and Buenaflor, together with the testatrix and the lawyer, sat next to one another
around one table when the will was signed is clearly established by the
uncontradicted testimony of both attorney Villanueva and Herminio Maravilla; and
that detail proves beyond doubt that each one of the parties concerned did sign in
the presence of all the others. It should be remembered, in this connection, that the
test is not whether a witness did see the signing of the will but whether he was in a
position to see if he chose to do so. If testator is blind, enough that signing or action
is within the range of the other senses like hearing, touch, etc., as long as testator
realizes what is being done (TEST OF AVAILABLE SENSES)

- Does not matter that witnesses signed ahead of or after the testator as long as
signing is sufficiently contemporaneous and made on one occasion (same time
and place) and as part of one single transaction (Gabriel vs. Mateo, 51 Phil 216).
- Purpose of requiring presence: to avoid fraudulent substitution of the will; and
to make it more difficult the invention of false testimony by the witnesses since
they may be the witnesses of one another.

WHAT ARE MARGINAL SIGNATURES?

34
- the signatures of the testator and the witnesses on each and every page of the
will at the left margin

a. If no marginal signature on the first page:

- If will has only one page, no marginal signatures are needed because logically,
the page will already contain signatures of the testator and witnesses: Abangan
vs. Abangan, (40 Phil 476)
- But if there is more than one page, first page, as well as all the other pages, must
be signed: Estate of Tampoy vs. Alberastine, (Feb. 25, 1960)
- What is important is that each and every page bears the signatures of the testator
and the witnesses (Nayve vs. Mojal, 47 Phil 152)
- Absence of marginal signature, if no signature appears on a page, is a FATAL
DEFECT. Will is extrinsically invalid hence, cannot be admitted to probate.
- But see the case of:

ICASIANO vs. ICASIANO (11 SCRA 720)

The original of the will consisted of 5 pages but while signed at the end of each
and every page, it did not contain the signature of one of the attesting witnesses
on page 3 thereof, due to the simultaneous lifting of two pages in the course of
the signing although the duplicate copy was signed by the testatrix and the
attesting witnesses in each and every page.
HELD: The law should not be so strictly and literally interpreted as to penalize
the testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law is to guarantee the
identity of the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on record attests to
the full observance of the statutory requisites.

HOW SHOULD THE PAGES OF THE WILL BE NUMBERED?

 Numbered correlatively in letters (One, Two, Three, etc.) but use of Arabic
numerals (Unson vs. Abella, 43 Phil 494), or letters ABC (Aldaba vs. Roque, 43 Phil
378), or numbers 123 (Nayve vs. Mojal), will not invalidate the will
 Law says on the upper part but in case of Fernandez vs. de Dios, (46 Phil 922)
paging may be placed at the top, bottom or even at the left or right margin, or even
in the text itself.
 Document has 4 pages, first 3 pages contain the dispositions, 4th page contains
attestation clause. If only the first 3 contain the pages but attestation clause says, this
will consists of 3 pages excluding this attestation clause, it is evident that the page
containing the attestation clause is the 4th page (Fernandez vs. Vergel de Dios)
 If sole page is unnumbered. Will is valid because the reason for requirement no
longer applies. Loss or removal of the sheet cannot be hidden - Abangan vs.
Abangan (40 Phil 476)

WHAT IS THE PURPOSE OF NUMBERING?

 Purpose of numbering:
1. To guard against fraud;
2. To forestall any attempt to suppress or substitute any of the pages;
3. To prevent any increase or decrease in the pages;
4. To afford means of detecting the loss of any of its pages.

35
WHAT IS AN ATTESTATION CLAUSE?
- That clause of an ordinary or notarial will wherein the witnesses certify that the
instrument has been executed before them, and the manner of the execution of
the same. 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.

 Nature: Attestation clause is a declaration made by the witnesses, not by the

testator (Tenafrancia vs. Abaja, 87 Phil 139) hence, only signatures of witnesses
are required in the attestation clause. Witnesses must know the recitals of the
clause but need not need to know the content of the will itself.
 Strictly speaking not part of the will because does not contain dispositions.
b. Purpose: To preserve in permanent form, a record of the facts attending the
execution of the will, so that in case of death, absence or failure of the memory of
the subscribing witnesses, or other casualty, the due execution may still be
proved (Leynez vs. Leynez, 68 Phil 745)
c. Subscribing witnesses attest to:
1. The genuineness of the signature of the testator;
2. The due execution of the will as embodied in the attestation clause (capacity of
the testator, absence of undue influence, etc.);

WHAT MATTERS SHOULD BE STATED IN THE ATTESTATION CLAUSE?

1. THE NUMBER OF PAGES USED UPON WHICH THE WILL IS WRITTEN;

AZUELA vs. CA (G.R. NO. 122880, April 12, 2006)

The Petitioner argues that the requirement under Article 805 of the Civil Code
that “the number of pages used in a notarial will be stated in the attestation
clause” is merely directory, rather than mandatory, and thus susceptible to what
he termed as “the substantial compliance rule.” As admitted by petitioner
himself, the attestation clause fails to state the number of pages of the will. There
was an incomplete attempt to comply with this requisite, a space having been
allotted for the insertion of the number of pages in the attestation clause. Yet the
blank was never filled in; hence, the requisite was left uncomplied with.
HELD: The failure of the attestation clause to state the number of pages on which
the will was written remains a fatal flaw, despite Article 809 (substantial
compliance). The purpose of the law in requiring the clause to state the number
of pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent any increase
or decrease in the pages. The failure to state the number of pages equates with
the absence of an averment on the part of the instrumental witnesses as to how
many pages consisted the will, the execution of which they had ostensibly just
witnessed and subscribed to. Following Caneda, there is substantial compliance
with this requirement if the will states elsewhere in it how many pages it is
comprised of, as was the situation in Singson and Taboada. However, in this case,
there could have been no substantial compliance with the requirements under
Article 805 since there is no statement in the attestation clause or anywhere in the
will itself as to the number of pages which comprise the will.

MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND
TESTAMENT OF ENRIQUE S. LOPEZ RICHARD B. LOPEZ (G.R. No. 189984,
November 12, 2012)

36
While the acknowledgment portion stated that the will consists of 7 pages including
the page on which the ratification and acknowledgment are written, it was observed
that the will has 8 pages including the acknowledgment portion.

RULING:

The law is clear that the attestation must state the number of pages used upon which
the will is written. The purpose of the law is to safeguard against possible
interpolation or omission of one or some of its pages and prevent any increase or
decrease in the pages. While Article 809 allows substantial compliance for defects in
the form of the attestation clause, Richard likewise failed in this respect. The
statement in the Acknowledgment portion of the subject last will and testament that
it "consists of 7 pages including the page on which the ratification and
acknowledgment are written" cannot be deemed substantial compliance. The will
actually consists of 8 pages including its acknowledgment which discrepancy cannot
be explained by mere examination of the will itself but through the presentation of
evidence '. On this score is the comment of Justice J.B.L. Reyes regarding the
application of Article 809, to wit: x x x The rule must be limited to disregarding
those defects that can be supplied by an examination of the will itself: whether all
the pages are consecutively numbered; whether the signatures appear in each and
every page; whether the subscribing witnesses are three or the will was notarized.
All these are facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely disregarded. But the total
number and whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the only check
against perjury in the probate proceedings.

TABOADA vs. ROSAL (118 SCRA 195, G.R. NO. L-36033, November 5, 1982)
The attestation clause failed to state the number of pages used in writing the will.
This would have been a fatal defect were it not for the fact that, in this case, it is
discernible from the entire will that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier
stated, the first page which contains the entirety of the testamentary dispositions
is signed by the testatrix at the end or at the bottom while the instrumental
witnesses signed at the left margin. The other page which is marked as "Pagina
dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two
pages including this page."

TESTATE ESTATE OF THE LATE ALIPIO ABADA vs. ABAJA (G.R. NO. 147145,
January 31, 2005)
Caponong-Noble proceeds to point out several defects in the attestation clause.
Caponong-Noble alleges that the attestation clause fails to state the number of
pages on which the will is written. The allegation has no merit. The phrase
which means “in the left margin of each and every one of the two pages
consisting of the same” shows that the will consists of two pages. The pages are
numbered correlatively with the letters “ONE” and “TWO” as can be gleaned
from the phrase “las cuales estan paginadas correlativamente con las letras “UNO” y
“DOS.”

37
2. THE FACT THAT THE TESTATOR SIGNED THE WILL AND EVERY PAGE
THEREOF, OR CAUSED SOME OTHER PERSON TO WRITE HIS NAME, UNDER
HIS EXPRESS DIRECTION (ONLY);

- Garcia vs. Lacuesta (90 Phil 489): A lawyer wrote the name of testator Antero
Mercado. Testator placed a cross after his name. Because the cross was not the
customary signature of testator, the will is deemed to have been signed by the
lawyer for the testator. Hence, attestation must state that will is signed by
another under express direction of testator.
- Payad vs. Tolentino (62 Phil 848): not required to state that another person was
requested by testator to sign for him because will is thumbmarked by testator
- Need not state that the person caused by the testator to sign signed in the
testator’s presence (Jallores vs. Interino, L-42463)

3. THE SIGNING BY THE TESTATOR OR BY THE PERSON REQUESTED BY HIM,

WAS IN THE PRESENCE OF THE INSTRUMENTAL WITNESSES;

4. THAT THE INSTRUMENTAL WITNESSES WITNESSED AND SIGNED THE

WILL AND ALL THE PAGES THEREOF IN THE PRESENCE OF THE TESTATOR
AND OF ONE ANOTHER.

TESTATE ESTATE OF THE LATE ALIPIO ABADA vs. ABAJA (G.R. NO. 147145,
January 31, 2005)
1. Caponong-Noble further alleges that the attestation clause fails to state
expressly that the testator signed the will and its every page in the presence of
three witnesses. The English translation of the first sentence of the attestation
clause reads: “Subscribed and professed by the testator Alipio Abada as his last
will and testament in our presence, the testator having also signed it in our
presence on the left margin of each and every one of the pages of the same.”
The attestation clause clearly states that Abada signed the will and its every page
in the presence of the witnesses.

2. However, Caponong-Noble is correct in saying that the attestation clause

does not indicate the number of witnesses. On this point, the Court agrees with
the appellate court in applying the rule on substantial compliance in determining
the number of witnesses. While the attestation clause does not state the number
of witnesses, a close inspection of the will shows that three witnesses signed it.
We rule to apply the liberal construction in the probate of Abada’s will. Abada’s
will clearly shows four signatures: that of Abada and of three other persons. It is
reasonable to conclude that there are three witnesses to the will. The question on
the number of the witnesses is answered by an examination of the will itself and
without the need for presentation of evidence aliunde. The Court explained the
extent and limits of the rule on liberal construction, thus: [T]he so-called liberal
rule does not offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop; they draw the
dividing line with precision. They do not allow evidence aliunde to fill a void in
any part of the document or supply missing details that should appear in the
will itself. They only permit a probe into the will, an exploration within its
confines, to ascertain its meaning or to determine the existence or absence of the
requisite formalities of law. This clear, sharp limitation eliminates uncertainty and
ought to banish any fear of dire results.

38
 3. Finally, Caponong-Noble alleges that the attestation clause does not expressly
state the circumstances that the witnesses witnessed and signed the will and all
its pages in the presence of the testator and of each other. This Court has ruled:
Precision of language in the drafting of an attestation clause is desirable. However, it is
not imperative that a parrot-like copy of the words of the statute be made. It is sufficient
if from the language employed it can reasonably be deduced that the attestation clause
fulfills what the law expects of it. The last part of the attestation clause states “en
testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del
testador.” In English, this means “in its witness, every one of us also signed in
our presence and of the testator.” This clearly shows that the attesting witnesses
witnessed the signing of the will of the testator, and that each witness signed the
will in the presence of one another and of the testator.

DISTINGUISH MARGINAL SIGNATURE FROM ATTESTING SIGNATURE?

AZUELA vs. CA (G.R. NO. 122880, April 12, 2006)

The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation clause. Is
the will valid?
HELD: No. While the signatures of the instrumental witnesses appear on the left-
hand margin of the will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary public. Cagro v. Cagro is
material on this point. As in this case, “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.” While three
(3) Justices considered the signature requirement had been substantially complied
with, a majority of six (6), speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering the will fatally defective.

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.

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.

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.

39
 The Court today reiterates the continued efficacy of Cagro. Article 805
particularly segregates the requirement that the instrumental witnesses sign each
page of the will, from the requisite that the will be “attested and subscribed by [the
instrumental witnesses].” The respective intents behind these two classes of
signature are distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to the attestation
clause establish that the witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is separate and apart from the
disposition of the will. An unsigned attestation clause results in an unattested will.
Even if the instrumental witnesses signed the left-hand margin of the page
containing the unsigned attestation clause, such signatures cannot demonstrate
these witnesses’ undertakings in the clause, since the signatures that do appear on
the page were directed towards a wholly different avowal.

The Court may be more charitably disposed had the witnesses in this case
signed the attestation clause itself, but not the left-hand margin of the page
containing such clause. Without diminishing the value of the instrumental
witnesses’ signatures on each and every page, the fact must be noted that it is the
attestation clause which contains the utterances reduced into writing of the
testamentary witnesses themselves. It is the witnesses, and not the testator, who are
required under Article 805 to state the number of pages used upon which the will is
written; the fact that the testator had signed the will and every page thereof; and
that they witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another. The only proof in the will that the witnesses have
stated these elemental facts would be their signatures on the attestation clause.

WHAT LANGUAGE IS USED IN THE ATTESTATION CLAUSE?

1. Preferably, language or dialect known to the witnesses
2. Language or dialect not known to the witness – can also be used but must be
interpreted to the witness.

WHAT IS AN ACKNOWLEDGMENT BEFORE A NOTARY PUBLIC?

 A statement made by the notary public that the testator and the witnesses have
personally come before him, that they voluntarily executed the will and that they
understood its contents.

 Meaning of to acknowledge: to own as genuine, to avow or admit.

AZUELA vs. CA (G.R. NO. 122880, April 12, 2006)

Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that “every will must be
acknowledged before a notary public by the testator and the witnesses” has also
not been complied with. The importance of this requirement is highlighted by
the fact that it had been segregated from the other requirements under Article
805 and entrusted into a separate provision, Article 806. The non-observance of
Article 806 in this case is equally as critical as the other cited flaws in compliance
with Article 805, and should be treated as of equivalent import.

In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote

“Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng

40
 Maynila.” By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed
in going before some competent officer or court and declaring it to be his act or
deed. It involves an extra step undertaken whereby the signor actually declares
to the notary that the executor of a document has attested to the notary that the
same is his/her own free act and deed.

It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to
by the executor. Ordinarily, the language of the jurat should avow that the
document was subscribed and sworn before the notary public, while in this case,
the notary public averred that he himself “signed and notarized” the document.
Possibly though, the word “ninotario” or “notarized” encompasses the signing of
and swearing in of the executors of the document, which in this case would
involve the decedent and the instrumental witnesses.

Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is
that the will be “acknowledged”, and not merely subscribed and sworn to. The
will does not present any textual proof, much less one under oath, that the
decedent and the instrumental witnesses executed or signed the will as their own
free act or deed. The acknowledgment made in a will provides for another all-
important legal safeguard against spurious wills or those made beyond the free
consent of the testator. An acknowledgement is not an empty meaningless act.
The acknowledgment coerces the testator and the instrumental witnesses to
declare before an officer of the law that they had executed and subscribed to the
will as their own free act or deed. Such declaration is under oath and under pain
of perjury, thus allowing for the criminal prosecution of persons who participate
in the execution of spurious wills, or those executed without the free consent of
the testator. It also provides a further degree of assurance that the testator is of
certain mindset in making the testamentary dispositions to those persons he/she
had designated in the will. It may not have been said before, but we can assert
the rule, self-evident as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the witnesses is fatally
defective, even if it is subscribed and sworn to before a notary public.

ECHAVEZ vs. DOZEN CONSTRUCTION AND DEVELOPMENT

CORPORATION and THE REGISTER OF DEEDS OF CEBU CITY (G.R. No.
192916, October 11, 2010)

Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City, which
includes Lot No. 1956-A and Lot No. 1959 (subject lots). On September 7, 1985,
Vicente donated the subject lots to petitioner Manuel Echavez (Manuel) through a
Deed of Donation Mortis Causa. Manuel accepted the donation. In March 1986,
Vicente executed a Contract to Sell over the same lots in favor of Dozen
Construction and Development Corporation (Dozen Corporation). In October 1986,
they executed two Deeds of Absolute Sale over the same properties covered by the
previous Contract to Sell. On November 6, 1986, Vicente died. Emiliano Cabanig,
Vicente’s nephew, filed a petition for the settlement of Vicente’s intestate estate. On
the other hand, Manuel filed a petition to approve Vicente’s donation mortis causa

41
in his favor and an action to annul the contracts of sale Vicente executed in favor of
Dozen Corporation. These cases were jointly heard.
RULING:

A donation mortis causa must comply with the formalities prescribed by law for the
validity of wills, “otherwise, the donation is void and would produce no effect.”
Articles 805 and 806 of the Civil Code should have been applied. The purported
attestation clause embodied in the Acknowledgment portion does not contain the
number of pages on which the deed was written. Even granting that the
Acknowledgment embodies what the attestation clause requires, we are not
prepared to hold that an attestation clause and an acknowledgment can be merged
in one statement. That the requirements of attestation and acknowledgment are
embodied in two separate provisions of the Civil Code (Articles 805 and 806,
respectively) indicates that the law contemplates two distinct acts that serve
different purposes. An acknowledgment is made by one executing a deed, declaring
before a competent officer or court that the deed or act is his own. On the other
hand, the attestation of a will refers to the act of the instrumental witnesses
themselves who certify to the execution of the instrument before them and to the
manner of its execution. Although the witnesses in the present case acknowledged
the execution of the Deed of Donation Mortis Causa before the notary public, this is
not the avowal the law requires from the instrumental witnesses to the execution of
a decedent’s will. An attestation must state all the details the third paragraph of
Article 805 requires. In the absence of the required avowal by the witnesses
themselves, no attestation clause can be deemed embodied in the Acknowledgement
of the Deed of Donation Mortis Causa.

CAN THE NOTARY PUBLIC BE ONE OF THE INSTRUMENTAL WITNESSES?

No. Because:
6. He cannot acknowledge document before himself. He cannot split his
personality into 2. Case: Cruz vs. Villasor (November 26, 1973)
7. Function of notary public is to guard against any illegal or immoral
arrangements. Function would be defeated if he were one of the attesting
witnesses because by then he would be interested in sustaining the validity of
the will as it directly involves himself and the validity of his own act.

IS THE NOTARY PUBLIC REQUIRED TO KNOW THE CONTENTS OF THE

WILL?
 As a general rule, notary public is not required to read the will or know the
contents thereof.
 Exception: if the testator is blind because the will has to be read once by a
subscribing witness and again by the notary public before whom the will is
acknowledged.

IS FAILURE TO AFFIX A DOCUMENTARY STAMP IN AN ACKNOWLEDGED

WILL A FATAL DEFECT?
 Failure to affix documentary stamp in the acknowledgment of the will. Not a
fatal defect. Just require the parties to affix the documentary stamp. Case:
Gabucan vs. Judge Manta (21 SCRA 1056, January 28, 1980)

SPECIAL RULES FOR HANDICAPPED TESTATORS

42
ARTICLE 807. If the testator be deaf, or a deaf-mute, he must personally read
the will, if able to do so; otherwise, he shall designate two persons to read it and
communicate to him, in some practicable manner, the contents thereof.

ARTICLE 808. If the testator is blind, the will shall be read to him twice; once,
by one of the subscribing witnesses, and again, by the notary public before whom
the will is acknowledged.

WHAT ARE THE ADDITIONAL REQUISITES FOR A BLIND TESTATOR?

- Reading is twice.
1. Once by one of the subscribing witnesses
2. Once by the notary public
- Even if testator is blind, no requirement that notary public should be present
during execution of will.
- If testator is deaf-mute and also blind, generally cannot execute a will unless the
contents of the will may be communicated to him in accordance with law.
- Article 808 applies also to persons who are incapable of reading wills like
illiterate.

ALVARADO vs. GAVIOLA (226 SCRA 317)

The testatrix was suffering from glaucoma by virtue of which, her vision on both
eyes was only capable of counting fingers at three (3) feet. She designated a
lawyer to draft her notarial will. After the final draft was completed, the lawyer
distributed copies of the will to the three instrumental witnesses and to the
notary public before whom the will was to be acknowledged. The lawyer who
drafted the will read the will aloud in the presence of the testarixt, the three
instrumental witnesses, and the notary public. The latter four just silently
followed the reading with their own respective copies previously furnished
them. Upon being asked, the testatrix affirmed that the contents as read
corresponded with her instructions. The signing and acknowledgment then took
place. The probate was contested on the ground that the reading requirement
under Article 808 of the New Civil Code was not complied with.
HELD: Article 808 applies not only to blind testators but also to those who, for
one reason or another, are incapable of reading their wills. Hence, the will
should have been read by the notary public and an instrumental witness.
However, the spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial requirements of
the law in order to insure the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its purpose and which, when
taken into account, may only defeat the testator’s will.

GARCIA vs. VASQUEZ (32 SCRA 490)

The declarations in court of the opthalmologist as to the condition of the
testatrix's eyesight fully establish the fact that her vision remained mainly for
viewing distant objects and not for reading print; that she was, at the time of the
execution of the second will on December 29, 1960, incapable of reading and
could not have read the provisions of the will supposedly signed by her. Upon
its face, the testamentary provisions, the attestation clause and acknowledgment
were crammed together into a single sheet of paper, apparently to save on space.
Plainly, the testament was not prepared with any regard for the defective vision
of Dña. Gliceria, the typographical errors remained uncorrected thereby
indicating that the execution thereof must have been characterized by haste. It is

43
 difficult to understand that so important a document containing the final
disposition of one's worldly possessions should be embodied in an informal and
untidy written instrument; or that the glaring spelling errors should have
escaped her notice if she had actually retained the ability to read the purported
will and had done so. The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will himself is to make the
provisions thereof known to him, so that he may be able to object if they are not
in accordance with his wishes. Where as in the 1960 will there is nothing in the
record to show that the requisites of Art. 808 of the Civil Code of the Philippines
that "if the testator is blind, the will shall be read to him twice," have not been
complied with, the said 1960 will suffer from infirmity that affects its due
execution.

HOW SHOULD THE FORMALITIES BE CONSTRUED?

1. Generally formalities in the execution of wills are strictly construed: Abangan vs.
Abangan (40 Phil 476)
2. Purpose: To close doors against fraud, bad faith, to avoid substitution, to
guarantee authenticity of wills.
3. Compare with Article 788 on liberal interpretation. Art. 788 talks about liberal
interpretation of doubts in the dispositions. Interpretation of body or contents of
will should not extend to the manner of execution or formalities.
4. But will should not be so literally interpreted as to penalize the testator who was
without fault where the purpose of the law is sufficiently attained

ICASIANO vs. ICASIANO (11 SCRA 720)

The original of the will consisted of 5 pages but while signed at the end of each
and every page, it did not contain the signature of one of the attesting witnesses
on page 3 thereof, due to the simultaneous lifting of two pages in the course of
the signing although the duplicate copy was signed by the testatrix and the
attesting witnesses in each and every page.
HELD: The law should not be so strictly and literally interpreted as to penalize
the testatrix on account of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the law is to guarantee the
identity of the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on record attests to
the full observance of the statutory requisites.

WHAT IS THE PRINCIPLE OF SUBSTANTIAL COMPLIANCE?

 As long as purpose of attestation is served, the will should be given effect. Case:
Alvarado vs. Gaviola (226 SCRA 317)
 Substantial Compliance – when there has been an honest attempt t comply with
all the requirements of the law but the compliance is only substantial not literal
and the purpose sought to be attained by the law is accomplished though not
strictly followed.
 Purpose: designed to attain the main objective in the liberalization of the manner
of executing wills. Policy is to require satisfaction of legal requirements to guard
against fraud and bad faith but without undue or unnecessary curtailment of
testamentary privilege.
 Justice J.B.L. Reyes observed that if the rule is so broad that no matter how
imperfect the attestation clause happens to be, the same could be cured by
evidence aliunde or extrinsic evidence,the attestation would be of no value in

44
 protecting against fraud or really defective execution. Also discussed in Caneda
vs. CA (222 SCRA 781)
 Hence, the rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: Eg. Whether the pages are
consecutively numbered, whether the signatures appear in each and every page,
whether there are 3 subscribing witnesses, etc.

TESTATE ESTATE OF THE LATE ALIPIO ABADA vs. ABAJA (G.R. NO. 147145,
JANUARY 31, 2005)
[T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it
open the door to serious consequences. The later decisions do tell us when and
where to stop; they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply missing
details that should appear in the will itself. They only permit a probe into the
will, an exploration within its confines, to ascertain its meaning or to
determine the existence or absence of the requisite formalities of law. This
clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire
results.
Taboada vs. Rosal

Caneda vs. CA (222 SCRA 784) – Actually talks “3 pages 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.” Void. Omits the statement that witnesses signed each and
every page in the presence of each other. Article 809 can be applied where the
defect can be cured and supplied by the text of the will or a consideration of
matters apparent therefrom.

 NOTE: IN BOTH DEFECTS OF FORM AND SUBSTANCE, LIBERAL

INTERPRETATION APPLIES ONLY WHEN THE DEFECT CAN BE CURED BY
INTRINSIC EVIDENCE

WHAT ARE THE REQUISITES FOR HOLOGRAPHIC WILLS?

1. Must be written in a language or dialect known to the testator (Art 804);
2. Entirely written by the testator;
3. Must be dated by him;
4. Must be signed by him;
5. Must be made with animus testandi;

Entirely written
 Must be wholly autographic or handwritten by testator himself
 Purpose: efficient guaranty against all falsifications or alterations in the will.
Easier to forge the signature of testator than forge the whole text of will.
 Mechanical drafting cannot be entrusted to third person. But a third person may
draft a will and the testator may just copy the draft made by the third person.
 Will partly or wholly printed, typewritten, computerized is void. Even if only
the date is typewritten, will is void.
 What if not handwritten? If testator has no hands, he can write by mouth or foot
as long as the writing is done by testator himself
 No attestation required. If there is any, a mere surplusage. If attestation is
typewritten, still surplusage because attestation is strictly not part of will.

45
Date of Will
 Purpose: (1) to provide against contingencies as that of 2 competing wills
executed on same day or different dates – the will executed on the later date is
considered as truly expressing last will; (2) to determine whether or not testator
became insane on the day when will is made; (3) to determine if will is valid
because there is a point in history wherein holographic wills are not allowed.
 Gen. Rule: should include the day, month and year
 What if date is indicated by implication? Eg. Christmas day of 2003. Case: Roxas
vs. De Jesus, Jr. (Jan. 28, 1985) – will was allowed even if Feb 1961 because the
contingencies guarded against are not present.
 Where should date appear? Anywhere. Eg. Top, bottom, body, signature, etc.
Case: Labrador vs. CA (180 SCRA 120)

Signature
 Law says Full signature. Ideally, full first name and family name
 But if the customary signature is a pseudonym or initial of first/lastname name
and full first name/surname, also allowed as long as it is the full customary
signature
 But all initials are not allowed.
 Thumbmark not allowed because it is not the handwriting of testator.
 Time of signing: Signing may be done on a date subsequent to the execution of
will
 Location of signature: at the end of will as evident in Art. 812
 Can be made by a blind testator as long as qualified

CAN THE TESTATOR ADD DISPOSITIONS AFTER HIS SIGNATURE IN A

HOLOGRAPHIC WILL?
 Yes. The additional dispositions must be dated and signed by the testator.
When a number of dispositions appearing in a holographic will are signed
without being dated, and the last disposition has a signature and a date, such
date validates the dispositions preceding it, whatever be the time of prior
dispositions.

WHAT IF THE ADDITIONAL DISPOSITION IS WRITTEN BY A THIRD

PERSON?
1. If disposition is also signed and dated by the third person, with or without
testator’s consent, disposition is void. It is independent of the will because it
does not have the participation of the testator in the form of his signature.
Will not affect the validity of the will itself. Consider as not written.
2. If signed and dated by the testator, whole will is void because by affixing the
testator’s signature and date, the additional dispositions become part of the
will, not independent anymore. In this case, there are portions of the will not
written by the testator. A holographic will must be entirely written, dated
and signed in the hand of the testator. Relate to Article 810.

CAN THE TESTATOR MAKE INSERTIONS, CANCELLATIONS, ERASURES

OR ALTERATIONS IN A HOLOGRAPHIC WILL?
- Insertion, cancellation, erasure or alteration in a holographic will is not
prohibited as long as authenticated by full signature of testator.

46
- Reason: To prevent fraud. The execution of will is a personal act of the testator so
it is but natural and logical that he alone can authenticate whatever correction
may be found in the will.
- Without authentication: Gen. Rule: Will is valid. Insertions, etc. considered as not
made. Exception: where insertions, etc. affect the essence of the will as when
there is intent to revoke, then whole will is invalidated. Examples:

1. Kalaw vs. Relova (132 SCRA 237) – there was only one substantial provision
which was altered by substituting the original heir with another heir. The
alteration had no full signature. Held: whole will void because nothing
remains in the will after the alteration invalidated.

2. Ajero vs. CA (236 SCRA 488, 1994) – effect of unauthorized alterations,

cancellations, or insertions (insertions not authenticated by full signature of
testator). If made on the date, or signature in a holographic will, entire will is
void.

WHAT IS A JOINT WILL?

 It is one where the same testamentary instrument is made the will of two or more
persons and is jointly executed and signed by them. It is not necessarily mutual.
 Mutual or reciprocal wills – the separate wills of two persons which are
reciprocal in their provisions, giving the separate property of each testator to the
other. They are executed with a common intention on the part of the testators
irrespective of whether there is a contract between them, although the
contractual element is often involved. Also called twin will in American law.
 Mutual or reciprocal wills or twin wills may be embodied in separate
instruments or in the same instrument. If in separate instruments, allowed. Give
Example: If in the same instrument, they become joint wills and are thus
prohibited. In this case, they are called joint and mutual wills.
 Joint will is subject to attack wherever and whenever offered as an instrument.
- Reasons:
(1) destroys character of will as strictly personal act;
(2) tends to convert a will into a contract;
(3) runs counter to the idea that wills are essentially revocable (cannot burn,
tear, etc.);
(4) may subject one to undue influence and may induce parricide if
reciprocal;
(5) makes probate much more difficult in case of death of testators at different
times.
 Exceptional circumstance when joint will was given effect. Case: Dela Cerna vs.
Potot (12 SCRA 576) – a joint will was executed by husband and wife in favor of
niece. Husband died first, will was erroneously probated in 1939. Judgment
became final because no appeal was made. Upon the subsequent death of wife,
another petition for probate was made as far as the estate of wife is concerned.
Lower Court declared will null and void but reversed by the CA on the ground
that the decree of probate in 1939 was conclusive on the due execution of will.
 Held: The decision in 1939 which became final has conclusive effect as the last
will and testament of husband. Although erroneous because joint wills are not
supposed to be allowed, it could no longer be corrected by reason of its finality.
However, that erroneous allowance should only apply with respect to the estate
of the husband. The finality of the 1939 decree should not extend to the estate of
the wife which was then the one under consideration considering that a joint will

47
 is a separate will of each testator. Upon the wife’s death, the joint will presented
for probate must be examined and adjudicated de novo (anew).
 Even if the laws of other countries (Argentina, Brazil, France, Mexico) allow joint
wills and the will is executed in these countries, still, if it is a Filipino who
executes the same, will is still void.

 If foreigner executes joint wills:

1. Abroad - if allowed in the law of place where he resides, or in the place of his
nationality, (art. 816) or in the place of execution (art. 17) then will is
considered valid in the Philippines. If one spouse is a Filipino, void as to
Filipino, valid as to foreigner.

2. In the Philippines – valid under art. 817 if executed according to the law of
their country which allows joint wills. But may be argued that void by reason
of public policy that should prevail over Art. 817.

WHAT IS A CODICIL?

A codicil is supplement or addition to a will, made after the execution of a

will and annexed to be taken as a part thereof, by which disposition made in
the original will is explained, added to, or altered (Art. 825)

What are the formalities required of codicils?

- In order that a codicil may be effective, it shall be executed as in the case of a will
(Art. 826)
- A notarial codicil may be supplemented by a holographic codicil and vice versa
- In case of conflict between the will and the codicil, the codicil prevails because it
expresses the latest desires of the testator

WHAT IS THE CONCEPT OF INCORPORATION BY REFERENCE?

ARTICLE 827. If a will, executed as required by this Code, incorporates into

itself by reference any document or paper, such document or paper shall not be
considered a part of the will unless the following requisites are present:

(1) The document or paper referred to in the will must be in existence at the time
of the execution of the will;

(2) The will must clearly describe and identify the same, stating among other
things the number of pages thereof;

(3) It must be identified by clear and satisfactory proof as the document or paper
referred to therein; and

(4) It must be signed by the testator and the witnesses on each and every page,
except in case of voluminous books of account or inventories.

 Incorporation by reference is an exception to the general rule that only

documents executed in the form of wills may be admitted to probate

WHAT LAWS GOVERN THE REVOCATION OF WILLS?

1) If made in the Philippines

48
 - follow Philippine laws regardless of domicile or nationality of the testator.

2) If made outside the Philippines:

(c) By a non-resident (Filipino or alien)
i. law of the place where the will was made;
ii. law of the place of domicile
(d) By a resident (Filipino or alien)
i. law of the place of revocation
ii. law of the place of domicile (Philippines)
 National law has no applicability in cases of revocation
 The testator must have testamentary capacity at the time of revocation

HOW IS REVOCATION EFFECTED?

1. By implication of law (Revocation by Operation of Law)
2. By some will, codicil, or other writing executed as provided in case of wills
(Revocation by a Subsequent Instrument)
- Here, the new instrument must be admitted to probate before it can revoke
the old will
Express revocation – when the subsequent instrument has a revocatory clause
revoking the previous will
Implied revocation – the new will or codicil is completely inconsistent with the
old will
3. By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence, and
by his express direction (Revocation by Overt Acts)
– intent must concur with overt acts
– overt acts may not be limited to burning, tearing, cancelling, or obliterating
because in the case of Roxas vs. Roxas, 48 O.G. 2177, the court impliedly
allowed crumpling as one of the overt acts provided there is animo revocandi.

WHAT IS THE DOCTRINE OF ABSOLUTE REVOCATION?

- A probated new will, although valid, may become inoperative or ineffective due
to the incapacity of the heirs, devisees or legatees. This fact notwithstanding, the
revocation of the previous will remains effective. The reason is that the revoking
will is valid except that it was rendered inoperative.

WHAT IS THE DOCTRINE OF DEPENDENT RELATIVE REVOCATION?

- Where the act or destruction is connected to the making of a will so as to
squarely raise the inference that the testator meant the revocation of the old
would depend upon the efficacy of the new disposition and if for any reason the
new will intended to be made as a substitute is inoperative, the revocation fails
and the original will is in full force and effect.

WHAT IS THE PRINCIPLE OF INSTANTER?

- If a valid will is expressly revoked by a second will and the second will is itself
revoked, the first will is not revived. Reason: revocation takes effect immediately
because it is not testamentary in character.

WHAT IS REPUBLICATION OF WILLS?

- the re-establishment by the testator of a previously revoked will or one invalid
for want of proper execution as to form or for other reasons, so as to give validity
to said will.

49
  If a will is void as to form due to non-observance of formalities, the only way
to revive the will is by express republication or republication by re-
execution. Meaning, the will must be executed anew, this time, complying
with the formalities.
 If a will is void but not as to form, such as when the testator had no
testamentary capacity at the time it was executed, or the will was revoked,
republication can be effected by re-execution or also by implied
republication or republication by reference. Here, there is no need to copy
the entire provisions of the old will. Mere reference made in the new will or
codicil to the existence of the old will, suffices.

WHAT IS REVIVAL OF WILLS?

- the re-establishment to validity by operation of law of a previously revoked will.
Examples:
– When a valid will is impliedly revoked by a second will, and the second
will is itself revoked, the first will is revived (application of the doctrine of
dependent relative revocation);

– Preterition annuls the institution of heirs. But if the preterited heir dies
ahead of the testator, the institution is revived without prejudice to the right
of representation.

WHAT IS “ PROBATE”?
“Probate” is a special proceeding to establish the validity of a will.

WHAT ARE THE BASIC PRINCIPLES IN PROBATE?

1. PROBATE IS MANDATORY

MANINANG vs. CA (114 SCRA 478) – because public policy requires it for
unless the will is probated and notice thereof given to the whole world, the right
of a person to dispose of his property by will may be rendered nugatory.

VDA. DE KILAYKO vs. JUDGE TENGCO [G.R. NO. L-45425. MARCH 27,
1992.]
Until probated, a will cannot be used or given in evidence as the foundation of a
right or title to real or personal property. Thus, the rule is that there can be no
valid partition among the heirs till after the will has been probated, but this rule
presupposes that the properties to be partitioned are the same properties
embraced in the will.

HEIRS OF ROSENDO LASAM vs. UMENGAN (G.R. No. 168156, December 6,

2006)
Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay by
her second husband) filed with the MTCC a complaint for unlawful detainer against
Vicenta Umengan, who was then occupying the subject lot. In their complaint, the
heirs of Rosendo Lasam alleged that they are the owners of the subject lot, having
inherited it from their father. Rosendo Lasam was allegedly the sole heir of the
deceased Pedro Cuntapay through Isabel Cuntapay. During his lifetime, Rosendo
Lasam allegedly temporarily allowed Vicenta Umengan to occupy the subject lot
sometime in 1955. The latter and her husband allegedly promised that they would

50
vacate the subject lot upon demand. However, despite written notice and demand
by the heirs of Rosendo Lasam, Vicenta Umengan allegedly unlawfully refused to
vacate the subject lot and continued to possess the same. Accordingly, the heirs of
Rosendo Lasam were constrained to institute the action for ejectment. In her
Answer with Counterclaim, Vicenta Umengan specifically denied the material
allegations in the complaint. She countered that when Isabel Cuntapay passed
away, the subject lot was inherited by her six children by her first and second
marriages through intestate succession. Each of the six children allegedly had a pro
indiviso share of 1/6 of the subject lot.
It was further alleged by Vicenta Umengan that her father, Abdon Turingan,
purchased the respective 1/6 shares in the subject lot of his siblings Maria and Sado.
Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan
and her husband. Also on June 14, 1961, Abdon donated his 1/6 share in the subject
lot to her daughter Vicenta Umengan. According to Vicenta Umengan, the children
of Isabel Cuntapay by her second husband (Rosendo and Trinidad Lasam) own only
2/6 portion of the subject lot. She thus prayed that the complaint for ejectment be
dismissed and that the heirs of Rosendo Lasam be ordered to pay her damages.

The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed
the ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence to the
newly discovered last will and testament (entitled Testamento Abierto) purportedly
executed by Isabel Cuntapay where she bequeathed the subject lot to her son,
Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered
on the North by Sr. Elia Canapi; to the South, by Calle Aguinaldo; to
the East, by Calle P. Burgos and the West, by the late Don Luis Alonso;
on the property which is my share stands a house of light materials
where I presently reside; this 1/5th (one-fifth) share of my inheritance
from the Cuntapays I leave to my son Rosendo Lasam and also the
aforementioned house of light material x x x
The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the
subject lot on the last will and testament of Isabel Cuntapay while Vicenta Umengan
hinged hers on intestate succession and legal conveyances. Citing jurisprudence
and Article 1080 of the Civil Code, the MTCC opined that testacy was favored and
that intestacy should be avoided and the wishes of the testator should prevail. It
observed that the last will and testament of Isabel Cuntapay was not yet probated as
required by law; nonetheless, the institution of a probate proceeding was not barred
by prescription. With the finding that the subject lot was already bequeathed by
Isabel Cuntapay to Rosendo Lasam, the MTCC held that the siblings Abdon, Sado,
Rufo and Maria Turingan no longer had any share therein. Consequently, they
could not convey to Vicenta Umengan what they did not own. On the issue then of
who was entitled to possession of the subject lot, the MTCC ruled in favor of the
heirs of Rosendo Lasam as it found that Vicenta Umengan’s possession thereof was
by mere tolerance.

RULING:

In Cañiza v. Court of Appeals, the Court ruled that: “[a] will is essentially
ambulatory; at any time prior to the testator’s death, it may be changed or
revoked; and until admitted to probate, it has no effect whatever and no right can be
claimed thereunder, the law being quite explicit: ‘No will shall pass either real

51
or personal property unless it is proved and allowed in accordance with the
Rules of Court.’”

Dr. Tolentino, an eminent authority on civil law, also explained that

“[b]efore any will can have force or validity it must be probated. To probate
a will means to prove before some officer or tribunal, vested by law
with authority for that purpose, that the instrument offered to be
proved is the last will and testament of the deceased person whose
testamentary act it is alleged to be, and that it has been executed,
attested and published as required by law, and that the testator was
of sound and disposing mind. It is a proceeding to establish the
validity of the will.” Moreover, the presentation of the will for
probate is mandatory and is a matter of public policy. The MTCC and
RTC, therefore, erroneously ruled that petitioners have a better right
to possess the subject lot on the basis of the purported last will and
testament of Isabel Cuntapay, which, to date, has not been probated.
Stated in another manner, Isabel Cuntapay’s last will and testament,
which has not been probated, has no effect whatever and petitioners
cannot claim any right thereunder.

Contrary to the claim of petitioners, the dismissal of respondent’s

action for partition in Civil Case No. 4917 before the RTC (Branch 3)
of Tuguegarao City does not constitute res judicata on the matter of
the validity of the said conveyances or even as to the issue of the
ownership of the subject lot. Further, it is not quite correct for
petitioners to contend that the children of Isabel Cuntapay by her first
marriage could not have conveyed portions of the subject lot to
respondent, as she had claimed, because until the present, it is still
covered by OCT Nos. 196 and 1032 under the names of Pedro and
Leona Cuntapay. To recall, it was already agreed by the heirs of the
said spouses in a Partition Agreement dated December 28, 1979 that
the subject lot would belong to Isabel Cuntapay. The latter died
leaving her six children by both marriages as heirs. Considering that
her purported last will and testament has, as yet, no force and effect
for not having been probated, her six children are deemed to be co-
owners of the subject lot having their respective pro indiviso shares.
The conveyances made by the children of Isabel Cuntapay by her first
marriage of their respective pro indiviso shares in the subject lot to
respondent are valid because the law recognizes the substantive right
of heirs to dispose of their ideal share in the co-heirship and/co-
ownership among the heirs. Contrary to the assertion of petitioners,
therefore, the conveyances made by the children of Isabel Cuntapay by
her first marriage to respondent are valid insofar as their pro indiviso
shares are concerned. Moreover, the CA justifiably held that these
conveyances, as evidenced by the deed of donation and deed of sale
presented by respondent, coupled with the fact that she has been in
possession of the subject lot since 1955, establish that respondent has
a better right to possess the same as against petitioners whose claim
is largely based on Isabel Cuntapay’s last will and testament which,
to date, has not been probated; hence, has no force and effect and under
which no right can be claimed by petitioners. Likewise, it is therefore
in this context that the CA’s finding on the validity of Isabel
Cuntapay’s last will and testament must be considered. Such is

52
 merely a provisional ruling thereon for the sole purpose of determining
who is entitled to possession de facto.

2. ESTOPPEL AND PRESCRIPTION WILL NOT APPLY IN PROBATE

ALSUA-BETTS VS. CA (July 30, 1979) – principle of estoppel is not applicable in

probate proceedings.

IN RE ESTATE OF PILAPIL (72 Phil 545) – the right to ask probate does not
prescribe.

3. PROBATE IS LIMITED TO THE EXTRINSIC VALIDITY OF THE WILL

Matters resolved in probate (Dorotheo vs. Court of Appeals)

1. Whether the instrument offered for probate is the last will and testament of
the decedent – a question of identity;
2. Whether the will was executed according to the formalities required by law –
a question of due execution;
3. Whether the testator had testamentary capacity at the time of execution – a
question of testamentary capacity.

 Hence, probate court no power to pass upon intrinsic validity or legality

of provisions in the will, such as:
a. legacy is void;
b. invalid disinheritance;
c. a certain person has no right to inheritance;
d. impairment of legitime;
e. filiation;
f. title to property.

 Exceptions:

MORALES vs. OLONDRIZ, ET. AL. (G.R. No. 198994; February 3, 2016)
Preterition consists in the omission of a compulsory heir from the will, either
because he is not named or, although he is named as a father, son, etc., he is neither
instituted as an heir nor assigned any part of the estate without expressly being
disinherited - tacitly depriving the heir of his legitime. Preterition requires that the
omission is total, meaning the heir did not also receive any legacies, devises, or
advances on his legitime.

In other words, preterition is the complete and total omission of a compulsory heir
from the testator's inheritance without the heir's express disinheritance.

Under the Civil Code, the preterition of a compulsory heir in the direct line shall
annul the institution of heirs, but the devises and legacies shall remain valid insofar
as the legitimes are not impaired. Consequently, if a will does not institute any
devisees or legatees, the preterition of a compulsory heir in the direct line will result
in total intestacy.

In the present case, the decedent's will evidently omitted Francisco Olondriz as an

53
heir, legatee, or devisee. As the decedent's illegitimate son, Francisco is a
compulsory heir in the direct line. Unless Morales could show otherwise, Francisco's
omission from the will leads to the conclusion of his preterition.

During the proceedings in the RTC, Morales had the opportunity to present
evidence that Francisco received donations inter vivos and advances on his legitime
from the decedent. However, Morales did not appear during the hearing dates,
effectively waiving her right to present evidence on the issue. We cannot fault the
RTC for reaching the reasonable conclusion that there was preterition.

The remaining question is whether it was proper for the RTC to (1) pass upon the
intrinsic validity of the will during probate proceedings and (2) order the case to
proceed intestate because of preterition.

The general rule is that in probate proceedings, the scope of the court's inquiry is
limited to questions on the extrinsic validity of the will; the probate court will only
determine the will's formal validity and due execution. However, this rule is not
inflexible and absolute. It is not beyond the probate court's jurisdiction to pass upon
the intrinsic validity of the will when so warranted by exceptional circumstances.
When practical considerations demand that the intrinsic validity of the will be
passed upon even before it is probated, the probate court should meet the issue.

The decedent's will does not contain specific legacies or devices and Francisco's
preterition annulled the institution of heirs. The annulment effectively caused the
total abrogation of the will, resulting in total intestacy of the inheritance. The
decedent's will, no matter how valid it may appear extrinsically, is null and void.
The conduct of separate proceedings to determine the intrinsic validity of its
testamentary provisions would be superfluous. Thus, we cannot attribute error -
much less grave abuse of discretion - on the RTC for ordering the case to proceed
intestate.

ARANAS vs. MERCADO, ET AL. (G.R. No. 156407, January 15, 2014)

The probate court is authorized to determine the issue of ownership of properties

for purposes of their inclusion or exclusion from the inventory to be submitted by
the administrator, but its determination shall only be provisional unless the
interested parties are all heirs of the decedent, or the question is one of collation or
advancement, or the parties consent to the assumption of jurisdiction by the probate
court and the rights of third parties are not impaired. Its jurisdiction extends to
matters incidental or collateral to the settlement and distribution of the estate, such
as the determination of the status of each heir and whether property included in the
inventory is the conjugal or exclusive property of the deceased spouse.

CAMAYA vs. PATULANDONG (G.R. No. 144915, February 23, 2004)

On November 17, 1972, Rufina Reyes executed a notarized will wherein she devised,
among others, Lot No. 288-A to her grandson Anselmo Mangulabnan
(Mangulabnan). The testatrix’s son Bernardo Patulandong (Patulandong) was in the
will appointed as the executor. During her lifetime, the testatrix herself filed a
petition for the probate of her will before the then Court of First Instance (CFI) of
Nueva Ecija where it was docketed as Sp. Pro. No. 128. By Order of January 11,
1973, the CFI admitted the will to probate.

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On June 27, 1973, the testatrix executed a codicil modifying the devise in her will in
this wise:

“UNA. - Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz,

Gapan, Nueva Ecija, magsukat 36,384 metro cuadrados, at nagtataglay
ng TCT No. NT-47089, na aking ipinamana sa aking apong si
ANSELMO P. MANGULABNAN, sangayon sa Pangkat IKA-LIMA,
pp. 5-6, ng aking HULING HABILIN (Testamento), ay ipinasiya kong
ipagkaloob at ipamana sa aking mga anak na sina BERNARDO,
SIMPLICIA, GUILLERMA at JUAN nagaapellidong
PATULANDONG, at sa aking apong si ANSELMO P.
MANGULABNAN, sa magkakaparehong bahagi na tig-ikalimang
bahagi bawat isa sa kanila.

IKALAWA. - Na maliban sa pagbabagong ito, ang lahat ng mga

tadhana ng aking HULING HABILIN ay aking pinagtitibay na muli.”

Mangulabnan later sought the delivery to him by executor Patulandong of the title
to Lot 288-A. Patulandong refused to heed the request, however, in view of the
codicil which modified the testator’s will. Mangulabnan thus filed an “action for
partition” against Patulandong with the Regional Trial Court of Gapan, Nueva Ecija
(the partition case). The trial court rendered a decision in the partition case ordering
the partitioning of the properties and the defendant to deliver the copy of the
Transfer Certificate of Title No. NT-47089 and holding further that in view of the
case cited by the plaintiff himself, the partition is without prejudice to the probate of
the codicil in accordance with the Rules of Court.

On July 17, 1989 Patulandong filed before the Regional Trial Court of Nueva Ecija a
petition for probate of the codicil of the testatrix (Sp. Proc. No. 218). On February 7,
1991, by virtue of the decision in the partition case, Mangulabnan caused the
cancellation of the title of the testatrix over Lot No. 288-A and TCT No. NT-215750
was issued in his name. Mangulabnan later sold to herein the Camayas Lot No. 288-
A by a Deed of Sale dated February 19, 1991. TCT No. NT-215750 was thus
cancelled and TCT No. NT-216446 was issued in the name of the Camayas.

On January 16, 1996, the trial rendered a decision in Sp. Proc. No. 218 admitting the
codicil to probate and disposing as follows:

“WHEREFORE, in view of all the foregoing, judgment is hereby

rendered in the following manner:

1. Declaring Transfer Certificate of Title No. NT-215750 issued by

the Register of Deeds of Nueva Ecija in the name of Anselmo
Mangulabnan dated February 7, 1991 and the Deed of Absolute Sale
executed by him in favor of the intervenors Carolina, Ferdinand and
Edgardo, all surnamed Camaya on February 19, 1991 and Transfer
Certificate of Title No. NT-216446 under date March 18, 1991 issued in
the names of the above-named intervenors as NULL and VOID and of
no force and effect; and,

2. Ordering the Register of Deeds of Nueva Ecija to cancel

Transfer of Certificate of Title Nos. NT-215750 and NT-216446 and
reissue the corresponding Certificate of Titles to Bernardo R.
Patulandong, Filipino, married to Gorgonia Mariano residing at San
Vicente, Gapan, Nueva Ecija, Juan R. Patulandong, Filipino, widower

55
 and residing at San Lorenzo, Gapan, Nueva Ecija; Guillerma R.
Patulandong Linsangan of legal age, Filipino, widow and residing at
San Vicente, Gapan, Nueva Ecija, Simplicia R. Patulandong
Mangulabnan, of legal age, widow, and residing at San Lorenzo,
Gapan, Nueva Ecija and her grandson, Anselmo Mangulabnan with
full personal circumstances stated herein to the extent of one fifth (1/5)
each pursuant to the approved codicil (will) of Rufina Reyes dated
June 27, 1973.

ISSUES:

1. Whether the probate court exceeded its jurisdiction when it declared null and
void and ordered the cancellation of the TCTs of petitioners and the deed of sale;
and

2. Whether the final judgment in Civil Case No. 552 bars the allowance of the
codicil.

RULING:

In Cuizon v. Ramolete, this Court elucidated on the limited jurisdiction of a probate

court, to wit:

It is well-settled rule that a probate court or one in charge of proceedings whether

testate or intestate cannot adjudicate or determine title to properties claimed to be
a part of the estate and which are equally claimed to belong to outside parties. All
that said court could do as regards said properties is to determine whether they
should or should not be included in the inventory or list of properties to be
administered by the administrator. If there is no dispute, well and good; but if
there is, then the parties, the administrator, and the opposing parties have to
resort to an ordinary action for a final determination of the conflicting claims of
title because the probate court cannot do so.

xxx

Having been apprised of the fact that the property in question was in the possession
of third parties and more important, covered by a transfer certificate of title issued in
the name of such third parties, the respondent court should have denied the motion
of the respondent administrator and excluded the property in question from the
inventory of the property of the estate. It had no authority to deprive such third
persons of their possession and ownership of the property. x x x (Emphasis and
underscoring supplied)

Following Cuizon, the probate court exceeded its jurisdiction when it further
declared the deed of sale and the titles of petitioners null and void, it having had the
effect of depriving them possession and ownership of the property.

Moreover, following Section 48 of the Property Registry Decree which reads:

SECTION 48. Certificate not subject to collateral attack. - A certificate of title shall not be
subject to collateral attack. It cannot be altered, modified, or cancelled except in a
direct proceeding in accordance with law,

petitioners’ titles cannot, under probate proceedings, be declared null and void.

As to the second issue, petitioners argue that by allowing the codicil to probate, it in
effect amended the final judgment in the partition case which is not allowed by law;

56
and that petitioner Camayas are innocent purchasers for value and enjoy the legal
presumption that the transfer was lawful.

Petitioners’ first argument does not persuade.

Though the judgment in the partition case had become final and executory as it was
not appealed, it specifically provided in its dispositive portion that the decision was
“without prejudice [to] ... the probate of the codicil.” The rights of the prevailing
parties in said case were thus subject to the outcome of the probate of the codicil.

The probate court being bereft of authority to rule upon the validity of petitioners’
titles, there is no longer any necessity to dwell on the merits of petitioners Camayas’
claim that they are innocent purchasers for value and enjoy the legal presumption
that the transfer was lawful.

VDE LEON vs. COURT OF APPEALS (G.R. NO. 128781, August 6, 2002)

A probate court, whether in a testate or intestate proceeding, can only pass upon
questions of title provisionally. The rationale therefor and the proper recourse of the
aggrieved party are expounded in Jimenez v. Court of Appeals:

“The patent reason is the probate court’s limited jurisdiction and the
principle that questions of title or ownership, which result in inclusion or
exclusion from the inventory of the property, can only be settled in a
separate action.

“All that the said court could do as regards said properties is determine
whether they should or should not be included in the inventory or list of
properties to be administered by the administrator. If there is a dispute as
to the ownership, then the opposing parties and the administrator have to
resort to an ordinary action for a final determination of the conflicting
claims of title because the probate court cannot do so.”i[24]

Further, In Sanchez v. Court of Appeals, we held:

“[A] probate court or one in charge of proceedings whether testate or

intestate cannot adjudicate or determine title to properties claimed to be a
part of the estate and which are claimed to belong to outside parties. All
that the said court could do as regards said properties is to determine
whether they should or should not be included in the inventory or list of
properties to be administered by the administrator. If there is no dispute,
well and good, but if there is, then the parties, the administrator, and the
opposing parties have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate court
cannot do so.”

Guided by the above jurisprudence, it is clear that the Court of Appeals

committed an error in considering the assailed Order dated November 11, 1994 as
final or binding upon the heirs or third persons who dispute the inclusion of certain
properties in the intestate estate of the deceased Rafael Nicolas. Under the foregoing
rulings of the Court, any aggrieved party, or a third person for that matter, may
bring an ordinary action for a final determination of the conflicting claims. For all

57
intents and purposes, said Order is a mere order including the subject properties in
the inventory of the estate of the decedent.

The Court held in Valero Vda. de Rodriguez v. Court of Appeals that the order of
exclusion (or inclusion) is not a final order; that it is interlocutory in the sense that it
did not settle once and for all the title to the subject lots; that the prevailing rule is
that for the purpose of determining whether a certain property should or should not
be included in the inventory, the probate court may pass upon the title thereto but
such determination is not conclusive and is subject to the final decision in a separate
action regarding ownership which may be instituted by the parties.

In the Rodriguez case, the Court distinguished between an order of collation

and an order of exclusion from or inclusion in the estate’s inventory, thus:

“We hold further that the dictum of the Court of Appeals and the
probate court that the two disputed lots are not subject to collation was a
supererogation and was not necessary to the disposition of the case which
merely involved the issue of inclusion in, or exclusion from, the inventory of
the testator’s estate. The issue of collation was not yet justiciable at that
early stage of the testate proceeding. It is not necessary to mention in the
order of exclusion the controversial matter of collation.

“Whether collation may exist with respect to the two lots and whether
Mrs. Rustia’s Torrens titles thereto are indefeasible are matters that may be
raised later or may not be raised at all. How those issues should be
resolved, if and when they are raised, need not be touched upon in the
adjudication of this appeal.

ROMERO vs. COURT OF APPEALS (G.R. No. 188921, April 18, 2012)

Petitioners assert that the jurisdiction of the RTC sitting as a probate or intestate
court relates only to matters having to do with the settlement of the estate of
deceased persons or the appointment of executors, but does not extend to the
determination of questions of ownership that arise during the proceedings.

While it is true that a probate courts determination of ownership over properties

which may form part of the estate is not final or ultimate in nature, this rule is
applicable only as between the representatives of the estate and strangers thereto.
Indeed, as early as Bacquial v. Amihan, the court stated thus:

xxx The rulings of this court have always been to the effect that
in the special proceeding for the settlement of the estate of a deceased
person, persons not heirs, intervening therein to protect their interests
are allowed to do so protect the same, but not for a decision on their
action. In the case of In re Estate of the deceased Paulina Vasquez Vda.
de Garcia, Teresa Garcia vs. Luisa Garcia, et al., 67 Phil., 353, this court
held:

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 A court which takes cognizance of testate or
intestate proceedings has power and jurisdiction to
determine whether or not the properties included therein
or excluded therefrom belong prima facie to the deceased,
although such a determination is not final or ultimate in
nature, and without prejudice to the right of interested
parties, in a proper action, to raise the question on the
ownership or existence of the right or credit.

To this same effect are rulings in various states of the United

States.

* * * That the probate court is without jurisdiction

to try the title to property as between the representatives
of an estate and strangers thereto is too well established
by the authorities to require argument.

There is also authority abroad that where the court is without

jurisdiction to determine questions of title, as for example, as between
the estate and persons claiming adversely, its orders and judgments
relating to the sale do not render the issue of title res judicata.

In any case, there is no merit to petitioners claim that the issues raised in the
case at bar pertain to title and ownership and therefore need to be ventilated in a
separate civil action. The issue before the court is not really one of title or ownership,
but the determination of which particular properties should be included in the
inventory of the estate. In Civil Case No. 18757, the RTC has listed the properties
alleged by petitioners to have been conjugal properties of their parents and,
therefore, part of the estate that was illegally sold to the respondent. Some of these
real properties identified seem to be the same real properties that form part of the
inventory of the estate in the intestate proceedings.

Not only do petitioners assert their legal interest as compulsory heirs, they
also seek to be the owners, pro indiviso, of the said properties. To anchor their claim,
they argue that the properties are conjugal in nature and hence form part of their
inheritance. For his defense, Vittorio contends that the lots are the paraphernal
properties of Aurora that she had mortgaged, and that Vittorio subsequently
redeemed.

In Bernardo v. Court of Appeals, the Supreme Court declared that the

determination of whether a property is conjugal or paraphernal for purposes of
inclusion in the inventory of the estate rests with the probate court:

xxx (T)he jurisdiction to try controversies between heirs of a

deceased person regarding the ownership of properties alleged to
belong to his estate, has been recognized to be vested in probate courts.
This is so because the purpose of an administration proceeding is the
liquidation of the estate and distribution of the residue among the
heirs and legatees. Liquidation means determination of all the assets of
the estate and payment of all the debts and expenses. Thereafter,

59
 distribution is made of the decedent's liquidated estate among the
persons entitled to succeed him. The proceeding is in the nature of an
action of partition, in which each party is required to bring into the
mass whatever community property he has in his possession. To this
end, and as a necessary corollary, the interested parties may introduce
proofs relative to the ownership of the properties in dispute. All the
heirs who take part in the distribution of the decedent's estate are
before the court, and subject to the jurisdiction thereof, in all matters
and incidents necessary to the complete settlement of such estate, so
long as no interests of third parties are affected.

In the case now before us, the matter in controversy is the

question of ownership of certain of the properties involved whether
they belong to the conjugal partnership or to the husband
exclusively. This is a matter properly within the jurisdiction of the
probate court which necessarily has to liquidate the conjugal
partnership in order to determine the estate of the decedent which is
to be distributed among his heirs who are all parties to the
proceedings.

In the present case, petitioners assume that the properties subject of the
allegedly illegal sale are conjugal and constitute part of their share in the estate. To
date, there has been no final inventory of the estate or final order adjudicating the
shares of the heirs. Thus, only the probate court can competently rule on whether
the properties are conjugal and form part of the estate. It is only the probate court
that can liquidate the conjugal partnership and distribute the same to the heirs,
after the debts of the estate have been paid.

RAMON S. CHING AND PO WING PROPERTIES, INC. vs. RODRIGUEZ (G.R.

No. 192828, November 28, 2011)

The Complaint, is captioned as one for "Disinheritance, Declaration of Nullity of

Agreement and Waiver, Affidavit of Extra-Judicial Settlement, Deed of Absolute Sale,
Transfer Certificates of Title with Prayer for [the] Issuance of [a] Temporary Restraining
Order and [a] Writ of Preliminary Injunction". In the Complaint, the respondents
alleged, among others, that that Ramon misrepresented himself as Antonio's
(decedent) and Lucina's son when in truth and in fact, he was adopted and his birth
certificate was merely simulated. The decedent died of a stab wound and police
investigators identified Ramon as the prime suspect and he now stands as the lone
accused in a criminal case for murder filed against him. Warrants of arrest issued
against him have remained unserved as he is at large. From the foregoing
circumstances and upon the authority of Article 919 of the New Civil Code (NCC),
the respondents concluded that Ramon can be legally disinherited, hence, prohibited
from receiving any share from the estate of Antonio.

The petitioners argue that only a probate court has the authority to determine (a)
who are the heirs of a decedent; (b) the validity of a waiver of hereditary rights; (c)
the status of each heir; and (d) whether the property in the inventory is conjugal or
the exclusive property of the deceased spouse. Further, the extent of Antonio's
estate, the status of the contending parties and the respondents' alleged entitlement
as heirs to receive the proceeds of Antonio's CPPA now in Metrobank's custody are
matters which are more appropriately the subjects of a special proceeding and not of
an ordinary civil action.

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RULING:

An action for reconveyance and annulment of title with damages is a civil action,
whereas matters relating to settlement of the estate of a deceased person such as
advancement of property made by the decedent, partake of the nature of a special
proceeding, which concomitantly requires the application of specific rules as
provided for in the Rules of Court. A special proceeding is a remedy by which a
party seeks to establish a status, a right, or a particular fact. It is distinguished from
an ordinary civil action where a party sues another for the enforcement or protection
of a right, or the prevention or redress of a wrong. To initiate a special proceeding, a
petition and not a complaint should be filed.

Under Article 916 of the NCC, disinheritance can be effected only through a will
wherein the legal cause therefor shall be specified. This Court agrees with the RTC
and the CA that while the respondents in their Complaint and Amended Complaint
sought the disinheritance of Ramon, no will or any instrument supposedly effecting
the disposition of Antonio's estate was ever mentioned. Hence, despite the prayer
for Ramon's disinheritance, Civil Case No. 02-105251 does not partake of the nature
of a special proceeding and does not call for the probate court's exercise of its limited
jurisdiction.

1. PROBATE IS A PROCEEDING IN REM

ATILANO MERCADO VS. SANTOS (66 Phil 216) – probate proceeding is a

proceeding in rem. The judgment of the court is binding upon everybody even
against the State.

2. PROBATE IS CONCLUSIVE AS TO THE DUE EXECUTION OF WILLS

 Due execution of will and testamentary capacity of testator acquire the

character of res judicata

ATILANO MERCADO vs. SANTOS (66 Phil 216) - After final judgment on
the probate, proponent was prosecuted for allegedly having presented a
forged will. The case for forgery could not prosper because judgment on
probate was conclusive as to the due execution of the will.

WHO MAY INTERVENE IN PROBATE PROCEEDINGS?

- in order that a person may be allowed to intervene in a probate proceeding, he

must have an interest in the estate or in the will, or in the property to be affected
by it. Must be an interested party or one who would be benefited by the estate
such as an heir or one who has a claim against the estate like a creditor, and
whose interest is material and direct not merely incidental or contingent.

LEVISTE VS. COURT OF APPEALS (G.R. NO. L-29184 JANUARY 30, 1989)

The petitioner, a practicing attorney, entered into a written agreement with Rosa
del Rosario to appear as her counsel in a petition for probate of the holographic
will of the late Maxima C. Reselva. Under the will, a piece of real property was
bequeathed to Del Rosario. It was agreed that petitioner's contingent fee would

61
 be thirty-five per cent (35%) of the property that Rosa may receive upon the
probate of the will. On August 20, 1965, Leviste received a letter from Ms. Del
Rosario, informing him that she was terminating his services as her counsel due
to "conflicting interest.” On September 20, 1965, petitioner filed a "Motion to
Intervene to Protect His Rights to Fees for Professional Services."

On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-
legatee, filed a "Motion To Withdraw Petition for Probate" alleging that Del
Rosario waived her rights to the devise in her favor and agreed that the De
Guzman brothers and sisters who opposed her petition for probate, shall inherit
all the properties left by the decedent. Nonetheless, on August 28, 1967, the
court disallowed the will, holding that the legal requirements for its validity
were not satisfied as only two witnesses testified that the will and the testatrix's
signature were in the handwriting of Maxima Reselva. The petitioner appealed
contending that by virtue of his contract of services with Del Rosario, he is a
creditor of the latter, and that under Article 1052 of the Civil Code he has a right
to accept for his client Del Rosario to the extent of 35% thereof the devise in her
favor (which she in effect repudiated) to protect his contigent attorney's fees.

The argument is devoid of merit. Article 1052 of the Civil Code does not apply to
this case. That legal provision protects the creditor of a repudiating heir.
Petitioner is not a creditor of Rosa del Rosario. The payment of his fees is
contingent and dependent upon the successful probate of the holographic will.
Since the petition for probate was dismissed by the lower court, the contingency
did not occur. Attorney Leviste is not entitled to his fee. Furthermore, Article
1052 presupposes that the obligor is an heir. Rosa del Rosario is not a legal heir of
the late Maxima C. Reselva. Upon the dismissal of her petition for probate of the
decedent's will, she lost her right to inherit any part of the latter's estate. There is
nothing for the petitioner to accept in her name. Petitioner was not a party to the
probate proceeding in the lower court. He had no direct interest in the probate of
the will. His only interest in the estate is an indirect interest as former counsel for
a prospective heir. In Paras vs. Narciso, 35 Phil. 244, One who is only indirectly
interested in a will may not interfere in its probate. Thus:

“... the reason for the rule excluding strangers from contesting the will, is not that
thereby the court maybe prevented from learning facts which would justify or necessitate
a denial of probate, but rather that the courts and the litigants should not be molested by
the intervention in the proceedings of persons with no interest in the estate which would
entitle them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244, 246.)”

WHO WILL TESTIFY DURING PROBATE?

- Rule 76, Rules of Court

NOTARIAL WILL HOLOGRAPHIC WILL

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Uncontested
- testimony of one subscribing - testimony of one witness who
witness knows the signature and
handwriting of testator
- expert testimony may be resorted
to.

Contested
- all the subscribing witnesses and - at least 3 who knows signature and
the notary public must testify handwriting
- if insane, dead, absent in the Phils., - expert testimony
testify against due execution, do
not remember having attested, or
of doubtful credibility, testimony of
other witnesses may be allowed

IS IT MANDATORY TO PRESENT THE 3 WITNESSES MENTIONED IF THE

HOLOGRAPHIC WILL IS CONTESTED?

- In the case of Azaola vs. Singson, not mandatory because no witnesses are
required during execution of holographic wills, hence, it is obvious that the
existence of witnesses possessing the requisite qualification is a matter beyond
the control of the proponent of will. Mandatory only in notarial wills because at
least 3 witnesses are required during the execution of will.

- BUT in the case of Codoy vs. Calugay (312 SCRA 333 [1999]), 3 witnesses are
mandatory in contested holographic wills. Reasons:
A. word “shall” connotes an imperative obligation and is inconsistent with the
idea of discretion
B. To prevent the possibility that unscrupulous individuals who, for their
benefit, will employ means to defeat the wishes of the testator. Since the
possibility of a false document being adjudged as the will cannot be
eliminated, if the will is contested, at least 3 of the required witnesses should
declare that the holographic will is in the handwriting and signature of
testator.

CAN THE WILL BE PROBATED IN THE ABSENCE OF A COPY PRESENTED

IN COURT?

In case of notarial wills: YES. Even if there is no copy of the will, the will may still be
probated if its contents are clearly and distinctly proved by at least 2 credible
witnesses.

In case of holographic wills: NO. In holographic wills, there is no guaranty of the truth
and veracity of the will from the mere testimony of witnesses because these
witnesses are not present during the execution of the will. The law regards the
document itself as material proof of authenticity, and as its own safeguard, since,
from the document itself, it could be demonstrated whether or not it is in the hands
of the testator himself. Witnesses may be mistaken in their opinion as to the
handwriting of the testator or they may deliberately lie. Oppositors may present

63
contradictory evidence, such as testimonies of other expert witnesses or other
witnesses who know the handwriting and signature of the testator, or writings or
letters in the handwriting and signature of the testator. In view of such
contradictory evidence, the court may use its own visual sense and decide in the face
of the document, whether is has indeed been written by the testator.

Thus, if the will is holographic, there must at least be a copy. Otherwise, the will
cannot be admitted to probate.

RODELAS VS. ARANZA (119 SCRA 16)

Photostatic copy of holographic will may be probated. Carbon copy also allowed.

IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

RUPERTA PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF
SPECIAL ADMINISTRATOR (G.R. No. 169144, January 26, 2011)

This case is about the probate before Philippine court of a will executed abroad by a
foreigner although it has not been probated in its place of execution. Petitioners
Manuel and Benjamin maintain that wills executed by foreigners abroad must first
be probated and allowed in the country of its execution before it can be probated
here. This, they claim, ensures prior compliance with the legal formalities of the
country of its execution. They insist that local courts can only allow probate of such
wills if the proponent proves that: (a) the testator has been admitted for probate in
such foreign country, (b) the will has been admitted to probate there under its laws,
(c) the probate court has jurisdiction over the proceedings, (d) the law on probate
procedure in that foreign country and proof of compliance with the same, and (e)
the legal requirements for the valid execution of a will.

RULING:

Our laws do not prohibit the probate of wills executed by foreigners abroad
although the same have not as yet been probated and allowed in the countries of
their execution. A foreign will can be given legal effects in our jurisdiction. Article
816 of the Civil Code states that the will of an alien who is abroad produces effect in
the Philippines if made in accordance with the formalities prescribed by the law of
the place where he resides, or according to the formalities observed in his country.
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides
that if the decedent is an inhabitant of a foreign country, the RTC of the province
where he has an estate may take cognizance of the settlement of such estate.
Sections 1 and 2 of Rule 76 further state that the executor, devisee, or legatee named
in the will, or any other person interested in the estate, may, at any time after the
death of the testator, petition the court having jurisdiction to have the will allowed,
whether the same be in his possession or not, or is lost or destroyed. Our rules
require merely that the petition for the allowance of a will must show, so far as
known to the petitioner: (a) the jurisdictional facts; (b) the names, ages, and
residences of the heirs, legatees, and devisees of the testator or decedent; (c) the
probable value and character of the property of the estate; (d) the name of the person
for whom letters are prayed; and (e) if the will has not been delivered to the court,
the name of the person having custody of it. Jurisdictional facts refer to the fact of
death of the decedent, his residence at the time of his death in the province where
the probate court is sitting, or if he is an inhabitant of a foreign country, the estate he

64
left in such province. The rules do not require proof that the foreign will has already
been allowed and probated in the country of its execution.

In insisting that Ruperta’s will should have been first probated and allowed by the
court of California, petitioners Manuel and Benjamin obviously have in mind the
procedure for the reprobate of will before admitting it here. But, reprobate or re-
authentication of a will already probated and allowed in a foreign country is
different from that probate where the will is presented for the first time before a
competent court. Reprobate is specifically governed by Rule 77 of the Rules of
Court. Contrary to petitioners’ stance, since this latter rule applies only to reprobate
of a will, it cannot be made to apply to the present case. In reprobate, the local court
acknowledges as binding the findings of the foreign probate court provided its
jurisdiction over the matter can be established. Besides, petitioners’ stand is fraught
with impractically. If the instituted heirs do not have the means to go abroad for the
probate of the will, it is as good as depriving them outright of their inheritance, since
our law requires that no will shall pass either real or personal property unless the
will has been proved and allowed by the proper court.

WHAT ARE THE GROUNDS FOR DISALLOWANCE OF WILLS?

ARTICLE 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with (Arts. 804-
809);
(2) If the testator was insane, or otherwise mentally incapable of making a will, at
the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or
threats (Arts. 1334 and 1335);
(4) If it was procured by undue and improper pressure and influence, on the part
of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud (must refer to the nature
of the instrument or its contents);
(6) If the testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto. (n)
* Add: If the will was expressly revoked.
- the grounds are exclusive. No other grounds can serve to disallow will

ORTEGA vs. VALMONTE (G.R. NO. 157451, DECEMBER 16, 2005)

In 1980, Placido finally came home to stay in the Philippines, and he lived in the
house and lot which he owned in common with his sister Ciriaca Valmonte and
titled in their names in TCT 123468. Two years after his arrival from the United
States and at the age of 80 he wed Josefina who was then 28 years old, in a ceremony
solemnized by Judge Perfecto Laguio, Jr. on February 5, 1982. Placido executed a
notarial last will and testament written in English and consisting of two (2) pages,
and dated June 15, 1983 but acknowledged only on August 9, 1983. The first page
contains the entire testamentary dispositions and a part of the attestation clause, and
was signed at the end or bottom of that page by the testator and on the left hand
margin by the three instrumental witnesses. The second page contains the
continuation of the attestation clause and the acknowledgment, and was signed by
the witnesses at the end of the attestation clause and again on the left hand margin.
It provides in the body that: 2. I give, devise and bequeath unto my loving wife,
JOSEFINA C. VALMONTE, one half (1/2) portion of the follow-described properties, which
belongs to me as [co-owner]: 3. All the rest, residue and remainder of my real and

65
personal properties, including my savings account bank book in USA which is in the
possession of my nephew, and all others whatsoever and wherever found, I give, devise and
bequeath to my said wife, Josefina C. Valmonte; 4. I hereby appoint my wife, Josefina C.
Valmonte as sole executrix of my last will and testament, and it is my will that said
executrix be exempt from filing a bond;

The allowance to probate of this will was opposed by Leticia on the grounds that:
1. Petitioner failed to allege all assets of the testator, especially those found in the
USA; 2. Petitioner failed to state the names, ages, and residences of the heirs of the
testator; or to give them proper notice pursuant to law; 3. Will was not executed
and attested as required by law and legal solemnities and formalities were not
complied with; 4. Testator was mentally incapable to make a will at the time of the
alleged execution he being in an advance sate of senility; 5. Will was executed
under duress, or the influence of fear or threats; 6. Will was procured by undue
and improper influence and pressure on the part of the petitioner and/or her agents
and/or assistants; and/or 7. Signature of testator was procured by fraud, or trick,
and he did not intend that the instrument should be his will at the time of affixing
his signature thereto;’

HELD: Petitioner does not dispute the due observance of the formalities in the
execution of the will, but maintains that the circumstances surrounding it are
indicative of the existence of fraud. Particularly, she alleges that respondent, who is
the testator’s wife and sole beneficiary, conspired with the notary public and the
three attesting witnesses in deceiving Placido to sign it. Deception is allegedly
reflected in the varying dates of the execution and the attestation of the will.
Petitioner contends that it was “highly dubious for a woman at the prime of her
young life [to] almost immediately plunge into marriage with a man who [was]
thrice her age x x x and who happened to be [a] Fil-American pensionado,” thus
casting doubt on the intention of respondent in seeking the probate of the will.
Moreover, it supposedly “defies human reason, logic and common experience” for
an old man with a severe psychological condition to have willingly signed a last will
and testament.
We are not convinced. Fraud “is a trick, secret device, false statement, or pretense,
by which the subject of it is cheated. It may be of such character that the testator is
misled or deceived as to the nature or contents of the document which he executes,
or it may relate to some extrinsic fact, in consequence of the deception regarding
which the testator is led to make a certain will which, but for the fraud, he would
not have made.
We stress that the party challenging the will bears the burden of proving the
existence of fraud at the time of its execution. The burden to show otherwise shifts
to the proponent of the will only upon a showing of credible evidence of fraud.
Unfortunately in this case, other than the self-serving allegations of petitioner, no
evidence of fraud was ever presented.
It is a settled doctrine that the omission of some relatives does not affect the due
execution of a will. That the testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who was more than fifty years
his junior, as the sole beneficiary; and disregarded petitioner and her family, who
were the ones who had taken “the cudgels of taking care of [the testator] in his
twilight years.”
Moreover, as correctly ruled by the appellate court, the conflict between the dates
appearing on the will does not invalidate the document, “because the law does not
even require that a [notarial] will x x x be executed and acknowledged on the same
occasion.” More important, the will must be subscribed by the testator, as well as by

66
three or more credible witnesses who must also attest to it in the presence of the
testator and of one another. Furthermore, the testator and the witnesses must
acknowledge the will before a notary public. In any event, we agree with the CA
that “the variance in the dates of the will as to its supposed execution and attestation
was satisfactorily and persuasively explained by the notary public and the
instrumental witnesses.”
Notably, petitioner failed to substantiate her claim of a “grand conspiracy” in the
commission of a fraud. There was no showing that the witnesses of the proponent
stood to receive any benefit from the allowance of the will. The testimonies of the
three subscribing witnesses and the notary are credible evidence of its due
execution. Their testimony favoring it and the finding that it was executed in
accordance with the formalities required by law should be affirmed, absent any
showing of ill motives.

WHAT IS “INSTITUTION OF HEIR”?

- It is an act by virtue of which a testator designates in his will the person or persons
who are to succeed him in his property and transmissible rights and obligations.

WHAT ARE THE CHARACTERISTICS OF AN INSTITUTED HEIR?

1. Testamentary heir as distinguished from legal or intestate heir. Different from
devisee or legatee
2. Continues the personality of testator but only in relation to inheritance without
being personally liable for the debts of the testator;
3. A natural person even if only a conceived child (as long as conditions under
Art. 40 and 41 are present). But dispositions may be made in favor of juridical
persons;
4. Acquires rights limited to the disposable portion and cannot impair the
legitime – institution being a voluntary act, cannot be allowed to affect the
legitime.
5. Presumed to have been instituted equally with the others unless a contrary
intention appears.

WHAT IS THE PRINCIPLE OF INDIVIDUALITY?

- It is when the testator institutes some heirs individually and others collectively as
when he says, "I designate as my heirs A and B, and the children of C," those
collectively designated shall be considered as individually instituted, unless it
clearly appears that the intention of the testator was otherwise.

WHAT IS PRETERITION?
- It is the omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the
testator, which, as a consequence, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious.

WHO CAN BE PRETERITED?

- Compulsory heirs who are in the direct line, specifically ascendants and
descendants, ad infinitum, and adopted children. The spouse cannot claim
preterition because she is not a relative in the direct line (Acain vs. IAC [155 SCRA
100]).

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WHAT IS THE OMISSION THAT RESULTS IN PRETERITION?

1. The person is not an heir, not a devisee, not a legatee, thus, receives nothing
by will (Aznar vs. Duncan [17 SCRA 590]);

2. No donation inter vivos was given to him

3. There is nothing which could be inherited by intestacy because the whole

estate was distributed by will;

4. There is no prior delivery of presumptive legitime.

Note: The omission may be intentional or unintentional

WHAT IS THE EFFECT OF PRETERITION?

- the institution of heirs is annulled. Hence, distribute the estate in accordance with
the rules on legal succession. But the devises and legacies shall be valid insofar as
they are not inofficious. If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without prejudice to the right of
representation.

WHAT ARE THE TYPES OF SUBSTITUTION OF HEIRS?

 Types of Substitution
A. Simple substitution (direct substitution), which may be:
1. Vulgar - 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.
2. Brief - two or more persons may be substituted for one
3. Compendious - one substitute for two or more heirs.
4. Reciprocal – the instituted heirs are also the substitutes of each other.

B. Fideicommissary (indirect substitution) - 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 the 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 the
time of the death of the testator.

WHAT ARE THE KINDS OF INSTITUTION OF HEIRS?

1. Simple or pure – not subject to any condition, term or
burden
2. Conditional – (Arts. 871-877, 883-884)
3. With a term – (Arts. 878, 880-881)
4. Modal – (Arts. 882-883)

WHAT IS THE RULE WITH RESPECT TO IMPOSSIBLE CONDITIONS?

- the impossibility may be relative or absolute and either will result in the deletion
of the condition

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- Effect if impossible condition is attached to an obligation or contract: Both the
condition and the obligation/contract are void (Art. 1183 NCC)
- Reason: In Succession, condition is merely a mere accessory, not a consideration
because the real consideration is the generosity or liberality of testator. In
obligations, the consideration is no longer liberality. The condition becomes part
of the consideration thus, the impossibility of the condition goes into the
consideration of the contract.

WHAT IS A MODAL INSTITUTION?

- this is an institution with a statement on:

1. object of the institution
2. application of the property
3. imposition of charge

COMPARE AND CONTRAST MODE AND CONDITION?

* Similarities: In both modes and condition (negative potestative),
1. there is a security requirement;
2. there is a forfeiture provision, a return of principal and fruits
* Differences:
1. Mode does not suspend the efficacy of the rights to the succession while a
condition suspends such efficacy;
2. Mode is obligatory except when it is for the exclusive benefit of the person
concerned, while a condition is never obligatory;
3. The demandability or extinction of a rigt depends on the fulfillment of the
condition, whereas in a mode, the right given is immediately demandable
although subordinate to the subsequent fulfillment of the obligation expressed in
the testamentary disposition

* Rules of interpretation:
1. When there is doubt if it is a mode or condition: construed as modal following
the principle that testamentary dispositions are acts of liberality
2. When there is doubt as to the existence of a modal institution: not considered as a
mode but merely as a suggestion or discussion which the heir may or may not
follow, in keeping with the nature of testamentary dispositions as acts of
liberality. For a statement to be considered as a mode, it must have coercive or
obligatory force

RABADILLA vs. CA (JUNE 29, 2000)

In the Codicil of testatrix, Dr. Rabadilla was instituted as a devisee of Lot No. 1392
contained the following provisions, among others:
1. Rabadilla shall have the obligation until he dies, every year to give to
Belleza 100 piculs of sugar until Belleza dies;
2. Should Rabadilla die, his heir to whom he shall give Lot No. 1392 shall have
the obligation to still give yearly, the sugar as specified to Belleza.
3. In the event that the lot is sold, leased, or mortgaged, the buyer, lessee,
mortgagee, shall have also the obligation to respect and deliver yearly sugar
to Belleza. Should the command be not respected Belleza shall immediately
seize the lot and turn it over to the testarix’ near descendants.

HELD:
Not a case of simple substitution. In simple substitutions, the second heir takes the
inheritance in default of the first heir by reason of incapacity, predecease or

69
renunciation. The Codicil do not provide that should Dr. Rabadilla default due to
predecease, incapacity or renunciation, the testatrix's near descendants would
substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his
heirs not fulfill the conditions imposed in the Codicil, the property referred to shall
be seized and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution. In a fideicommissary substitution,

the first heir is strictly mandated to preserve the property and to transmit the same
later to the second heir. Here, the instituted heir is in fact allowed under the Codicil
to alienate the property provided the negotiation is with the near descendants or the
sister of the testatrix. Thus, a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing upon the first heir the
preservation of the property and its transmission to the second heir. Also, the near
descendants' right to inherit from the testatrix is not definite. The property will only
pass to them should Dr. Rabadilla or his heirs not fulfill the obligation to deliver part
of the usufruct to private respondent. Moreover, a fideicommissary substitution is
void if the first heir is not related by first degree to the second heir. In the case under
scrutiny, the near descendants are not at all related to the instituted heir, Dr.
Rabadilla.

Not a conditional institution. It is clear that the testatrix intended that the lot be
inherited by Dr. Rabadilla. It is likewise clearly worded that the testatrix imposed an
obligation on the said instituted heir and his successors-in-interest to deliver sugar
to Belleza, during the lifetime of the latter. However, the testatrix did not make Dr.
Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent
on the performance of the said obligation. It is clear, though, that should the
obligation be not complied with, the property shall be turned over to the testatrix's
near descendants. Since testamentary dispositions are generally acts of liberality, an
obligation imposed upon the heir should not be considered a condition unless it
clearly appears from the Will itself that such was the intention of the testator. In case
of doubt, the institution should be considered as modal and not conditional.

The manner of institution of Dr. Rabadilla is modal in nature because it imposes a

charge upon the instituted heir without, however, affecting the efficacy of such
institution. A "mode" imposes an obligation upon the heir or legatee but it does not
affect the efficacy of his rights to the succession. On the other hand, in a conditional
testamentary disposition, the condition must happen or be fulfilled in order for the
heir to be entitled to succeed the testator. The condition suspends but does not
obligate; and the mode obligates but does not suspend. To some extent, it is similar
to a resolutory condition.

WHAT IS “LEGITIME”?
 Legitime is that part of the testator's property which he cannot dispose of
because the law has reserved it for certain heirs who are, therefore, called
compulsory heirs.

WHO ARE THE COMPULSORY HEIRS?

(1) Legitimate children and descendants, with respect to their legitimate parents
and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;
(3) The widow or widower;
(4) Illegitimate children

70
In all cases of illegitimate children, their filiation must be duly proved.

ILANO vs. CA(G.R. No. 104376, February 23, 1994)

In this regard, Article 287 of the Civil Code provides that illegitimate children other
than natural in accordance with Article 269 and other than natural children by legal
fiction are entitled to support and such successional rights as are granted in the Civil
Code. The Civil Code has given these rights to them because the transgressions of
social conventions committed by the parents should not be visited upon them. They
were born with a social handicap and the law should help them to surmount the
disadvantages facing them through the misdeeds of their parents. However, before
Article 287 can be availed of, there must first be a recognition of paternity either
voluntarily or by court action. This arises from the legal principle that an
unrecognized spurious child like a natural child has no rights from his parents or to
their estate because his rights spring not from the filiation or blood relationship but
from his acknowledgement by the parent. In other words, the rights of an
illegitimate child arose not because he was the true or real child of his parents but
because under the law, he had been recognized or acknowledged as such a child.

UYGUANGCO versus COURT OF APPEALS (G.R. No. 76873, October 26, 1989)

"The issue before the Court is not the status of the private
respondent, who has been excluded from the family and
inheritance of the petitioners. What we are asked to decide is
whether he should be allowed to prove that he is an illegitimate
child of his claimed father, who is already dead, in the absence
of the documentary evidence required by the Civil Code.

Xxx

Under the Family Code, it is provided that:

Art. 175. Illegitimate children may establish their illegitimate

filiation in the same way and on the same evidence as legitimate
children.

The following provision is therefore also available to the private

respondent in proving his illegitimate filiation:

Art. 172. The filiation of legitimate children is established by

any of the following:

(1) The record of birth appearing in the civil register or a final

judgment; or

(2) An admission of legitimate filiation in a public document or

a private handwritten instrument and signed by the parent
concerned.

71
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:

(1) The open and continuous possession of the status of a

legitimate child; or

(2) Any other means allowed by the Rules of Court and special
laws.

While the private respondent has admitted that he has none of

the documents mentioned in the first paragraph (which are
practically the same documents mentioned in Article 278 of the
Civil Code except for the "private handwritten instrument
signed by the parent himself'''), he insists that he has
nevertheless been "in open and continuous possession of the
status of an illegitimate child," which is now also admissible as
evidence of filiation.

Thus, he claims that he lived with his father from 1967 until
1973, receiving support from him during that time; that he has
been using the surname Uyguangco without objection from his
father and the petitioners as shown in his high school diploma,
a special power of attorney executed in his favor by Dorotea
Uyguangco, and another one by Sulpicio Uyguangco; that he
has shared in the profits of the copra business of the
Uyguangcos, which is a strictly family business; that he was a
director, together with the petitioners, of the Alu and Sons
Development Corporation, a family corporation; and that in the
addendum to the original extrajudicial settlement concluded by
the petitioners he was given a share in his deceased father's
estate.

It must be added that the illegitimate child is now also allowed

to establish his claimed filiation by "any other means allowed by
the Rules of Court and special laws," like his baptismal
certificate, a judicial admission, a family Bible in which his
name has been entered, common reputation respecting his
pedigree, admission by silence, the testimonies of witnesses,
and other kinds of proof admissible under Rule 130 of the Rules
of Court.

The problem of the private respondent, however, is that, since

he seeks to prove his filiation under the second paragraph of
Article 172 of the Family Code, his action is now barred because
of his alleged father's death in 1975. The second paragraph of
this Article 175 reads as follows:

72
 The action must be brought within the same period specified in
Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent. (Italics
supplied.)

It is clear that the private respondent can no longer be allowed

at this time to introduce evidence of his open and continuous
possession of the status of an illegitimate child or prove his
alleged filiation through any of the means allowed by the
Rules of Court or special laws. The simple reason is that
Apolinario Uyguangco is already dead and can no longer be
heard on the claim of his alleged son's illegitimate filiation.

WHAT ARE THE LEGITIMES OF THE COMPULSORY HEIRS?

WHAT IS RESERVA TRONCAL?

- The process by which an ascendant who inherits by operation of law from his
descendant which the latter may have acquired by gratuitous title from
another ascendant or a brother or sister, is obliged by law to reserve such
property for the benefit of third degree relatives who belong to the line from
which the property came from;
- Purpose: to prevent the accidental transfer of property/wealth from one line
to another line.

WHO ARE THE PARTIES IN RESERVA TRONCAL?

1. Origin
- The person from whom the reservable property comes from.
- Either an ascendant or (half) brother or sister of the prepositus

2. Prepositus
- Person to whom the origin transfers the property gratuitously
- The arbiter of the reserva because the prepositus may alienate or destroy the
property and thus prevent the existence of the reserve

3. Reservor (Reservatario)
- Ascendant of the prepositus
- The transfer to the reservoir must be by operation of law, either as legitime or
by intestacy
- The absolute owner of the property subject to the resolutory condition of
existence of the 3rd degree relatives of the prepositus upon the reservor’s death.
`
4. Reservees (Reservista)
- Belonging to the same line of the family as that of the origin
- Related to the prepositus in the 1st, 2nd, and 3rd degree.

SIENES vs. ESPARCIA (1 SCRA 750)

The Supreme Court upheld the validity of the simultaneous sales made by both the
reservor and the reservees to two different buyers. The reservor may alienate the

73
reservable property subject to as resolutory condition - his death – by virtue of
which, the property shall be transferred to relatives of the prepositus within the
third degree (reservees). In effect, there is a double resolutory condition – (1) death
of the reservoir; and (2) the survival of the reservees upon the death of the reservor.

MENDOZA, ET. AL. vs. DELOS SANTOS (G.R. No. 176422, March 20, 2013)

Petitioners are grandchildren of Placido Mendoza (Placido) and Dominga Mendoza

(Dominga). Placido and Dominga had four children: Antonio, Exequiel, married to
Leonor, Apolonio and Valentin. Petitioners Maria, Deogracias, Dionisia, Adoracion,
Marcela and Ricardo are the children of Antonio. Petitioners Juliana, Fely, Mercedes,
Elvira and Fortunato, on the other hand, are Valentin’s children. Petitioners alleged
that the properties were part of Placido and Dominga’s properties that were subject
of an oral partition and subsequently adjudicated to Exequiel. After Exequiel’s
death, it passed on to his spouse Leonor and only daughter, Gregoria. After
Leonor’s death, her share went to Gregoria. In 1992, Gregoria died intestate and
without issue. They claimed that after Gregoria’s death, respondent, who is Leonor’s
sister, adjudicated unto herself all these properties as the sole surviving heir of
Leonor and Gregoria. Hence, petitioners claim that the properties should have been
reserved by respondent in their behalf and must now revert back to them, applying
Article 891 of the Civil Code on reserva troncal.

RULING:

Based on the circumstances of the present case, Article 891 on reserva troncal is not
applicable.

The fallacy in the CA’s resolution is that it proceeded from the erroneous premise
that Placido is the ascendant contemplated in Article 891 of the Civil Code. From
thence, it sought to trace the origin of the subject properties back to Placido and
Dominga, determine whether Exequiel predeceased Placido and whether Gregoria
predeceased Exequiel.

It should be pointed out that the ownership of the properties should be reckoned
only from Exequiel’s as he is the ascendant from where the first transmission
occurred, or from whom Gregoria inherited the properties in dispute. The law does
not go farther than such ascendant/brother/sister in determining the lineal
character of the property. What is pertinent is that Exequiel owned the properties

74
and he is the ascendant from whom the properties in dispute originally came.
Gregoria, on the other hand, is the descendant who received the properties from
Exequiel by gratuitous title.

Article 891 provides that the person obliged to reserve the property should be an
ascendant (also known as the reservor/reservista) of the descendant/prepositus.
Julia, however, is not Gregoria’s ascendant; rather, she is Gregoria’s collateral
relative. Gregoria’s ascendants are her parents, Exequiel and Leonor, her
grandparents, great-grandparents and so on. On the other hand, Gregoria’s
descendants, if she had one, would be her children, grandchildren and great-
grandchildren. Not being Gregoria’s ascendants, both petitioners and Julia,
therefore, are her collateral relatives.

Moreover, petitioners cannot be considered reservees/reservatarios as they are not

relatives within the third degree of Gregoria from whom the properties came. The
person from whom the degree should be reckoned is the
descendant/prepositus―the one at the end of the line from which the property came
and upon whom the property last revolved by descent. It is Gregoria in this case.
Petitioners are Gregoria’s fourth degree relatives, being her first cousins. First
cousins of the prepositus are fourth degree relatives and are not reservees or
reservatarios.

They cannot even claim representation of their predecessors Antonio and Valentin
as Article 891 grants a personal right of reservation only to the relatives up to the
third degree from whom the reservable properties came. The only recognized
exemption is in the case of nephews and nieces of the prepositus, who have the right
to represent their ascendants (fathers and mothers) who are the brothers/sisters of
the prepositus and relatives within the third degree.

If at all, what should apply in the distribution of Gregoria’s estate are Articles 1003
and 1009 of the Civil Code, which provide:

Art. 1003. If there are no descendants, ascendants, illegitimate children, or a

surviving spouse, the collateral relatives shall succeed to the entire estate of the
deceased in accordance with the following articles.

Art. 1009. Should there be neither brothers nor sisters, nor children of brothers or
sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood.

WHAT IS THE DELAYED INTESTACY THEORY?

– When the resolutory condition of the reserva is fulfilled, the properties are
distributed to the reservees as if they are inheriting from the prepositus at the time
of fulfillment of the condition. Since there is no will, then the reserves inherit by
virtue of intestate succession, the decedent being the prepositus; thus the name
Delayed Intestacy.

WHAT IS DISINHERITANCE?
- The manner by which a compulsory heir is deprived of his legitime, for causes
expressly stated by law.

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WHAT ARE THE REQUISITES FOR A VALID DISINHERITANCE?
1. It should be embodied in a VALID WILL;
2. It must be made EXPRESSLY;
3. It should be for a LEGAL CAUSE;
4. It should be for a TRUE CAUSE;
5. It should be for an EXISTING CAUSE;
6. It should be TOTAL OR COMPLETE;
7. It should be STATED IN THE WILL;
8. The heir should be IDENTIFIED;
9. The will must not have been REVOKED.

Grounds: Arts. 919 (child or descendant), 920 (parent or ascendant) , 921 (spouse)

MANINANG vs. CA (G.R. NO. L-57848 JUNE 19, 1982)

Preterition and disinheritance are two diverse concepts.
... Preterition "consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited.
Disinheritance, in turn, "is a testamentary disposition depriving any compulsory
heirs of his share in the legitimate for a cause authorized by law. Disinheritance
is always "voluntary", preterition upon the other hand, is presumed to be
"involuntary"

The effects of preterition and disinheritance are also totally different.

.... Pretention under Article 854 of the New Civil Code shall annul the institution
of heir. This annulment is in toto, unless in the wail there are, in addition,
testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also
"annul the institution of heirs", but only "insofar as it may prejudice the person
disinherited", which last phrase was omitted in the case of preterition. Better
stated yet, in disinheritance the nullity is limited to that portion of the estate of
which the disinherited heirs have been illegally deprived.

WHAT IS THE EFFECT OF RECONCILIATION IN DISINHERITANCE?

- A subsequent reconciliation between the offender and the offended person
deprives the latter of the right to disinherit, and renders ineffectual any
disinheritance that may have been made

WHAT IS THE EFFECT OF INVALID DISINHERITANCE?

- The institution of heirs shall be annulled insofar as it may prejudice the person
disinherited; but the devises and legacies and other testamentary dispositions shall
be valid to such extent as will not impair the legitime.

WHAT IS THE RULE WITH RESPECT TO LEGACIES AND DEVISES?

- Gen. Rule: Must be within the commerce of men
- Effect of ownership as to the validity of the legacy or devise:
a. If the testator, heir, or legatee owns only a part of, or an interest in the
thing bequeathed - the legacy or devise shall be understood limited to

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 such part or interest, unless the testator expressly declares that he
gives the thing in its entirety.
b. If the testator does not own the thing devised or bequeathed but the
testator erroneously believed that the thing pertained to him - the
legacy or devise is void, but subsequent acquisition of the thing by the
testator makes the legacy or devise effective.
c. If the testator does not own the thing devised or bequeathed and the
testator knew that he did not own the thing – legacy or devise is valid.
d. The thing devised or bequeathed belonged to the legatee or devisee at
the time of the execution of the will – legacy or devise is void.
e. The thing devised or bequeathed was acquired by the legatee or
devisee after the execution of the will - if the legatee or devisee
acquired it gratuitously, he can claim nothing by virtue of the legacy or
devise; but if it has been acquired by onerous title he can demand
reimbursement from the heir or the estate.

WHAT ARE THE INSTANCES WHEN A LEGACY OR DEVISE IS

CONSIDERED REVOKED BY OPERATION OF LAW?
a. The legacy of credit or remission shall lapse if the testator, after having
made it, should bring an action against the debtor for the payment of his
debt;
b. If the testator transforms the thing bequeathed in such a manner that it
does not retain either the form or the denomination it had;
c. If the testator by any title or for any cause voluntarily alienates the thing
bequeathed or any part thereof, it being understood that in the latter
case the legacy or devise shall be without effect only with respect to the
part thus alienated. If after the alienation the thing should again belong
to the testator, even if it be by reason of nullity of the contract, the legacy
or devise shall not thereafter be valid, unless the reacquisition shall have
been effected by virtue of the exercise of the right of repurchase;
d. If the thing bequeathed is totally lost during the lifetime of the testator,
or after his death without the heir's fault.

WHEN SHALL LEGAL OR INTESTATE SUCCESSION TAKE PLACE?

Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which has
subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all the property
belonging to the testator. In such case, legal succession shall take place only with
respect to the property of which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir does not happen
or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance,
there being no substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided
under the Civil Code.

WHO ARE THE LEGAL HEIRS?

1. Legitimate children and descendants;
2. In the absence of legitimate children and descendants,
legitimate parents and ascendants;
3. Surviving spouse;
4. Illegitimate children;
5. Brothers and sisters;

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 6. Collateral relatives up to the 5th degree of consanguinity;
7. State

IF THERE IS ONLY PARTIAL INTESTACY, HOW SHOULD THE ESTATE BE

DISTRIBUTED?

Eg. Legacy of 20,000 estate is 100,000

 Charge legacies, etc.to the intestate shares of those given by law on intestacv
more than their respective legitimes, without however imparing said legitimes.
 The remainder after legacy and legitime of illegitimate is given, is again given to
the illegitimate because the intent of the law on intestacy is to give as much as
possible equal sharing with legit ascendants

WHAT IS THE IRON BAR RULE?

- In legal succession, there is absolute separation between legitimate family and
illegitimate family
- ARTICLE 992. An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother; nor shall such children
or relatives inherit in the same manner from the illegitimate child.
 Illustration

 Under Art. 992, I and J cannot represent F

 Under Art. 990, G and H can represent E
 Hence, an illegitimate can be represented by his children. legitimate or
illegitimate, but a legitimate child cannot be represented by his illegitimate
children
 E cannot inherit from B and A
 D cannot inherit from C and vice versa (reciprocal prohibition)

IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA AGUINALDO-

SUNTAY; EMILIO A.M. SUNTAY III vs. ISABEL COJUANGCO-SUNTAY (G.R. No.
183053, June 16, 2010)

On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr.

Federico Suntay (Federico), died intestate. In 1979, their only son, Emilio Aguinaldo
Suntay (Emilio I), predeceased both Cristina and Federico. At the time of her death,
Cristina was survived by her husband, Federico, and several grandchildren,
including herein petitioner Emilio A.M. Suntay III (Emilio III) and respondent Isabel
Cojuangco-Suntay. During his lifetime, Emilio I was married to Isabel Cojuangco,
and they begot three children, namely: herein respondent, Isabel; Margarita; and
Emilio II, all surnamed Cojuangco-Suntay. Emilio I’s marriage to Isabel Cojuangco
was subsequently annulled. Thereafter, Emilio I had two children out of wedlock,
Emilio III and Nenita Suntay Tañedo (Nenita), by two different women, Concepcion

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Mendoza and Isabel Santos, respectively. Despite the illegitimate status of Emilio
III, he was reared ever since he was a mere baby, nine months old, by the spouses
Federico and Cristina and was an acknowledged natural child of Emilio I. Nenita is
an acknowledged natural child of Emilio I and was likewise brought up by the
spouses Federico and Cristina. Upon the death of Cristina, Federico adopted Emilio
III. During the intestate proceeding over Cristina’s estate, Federico sought
appointment as administrator thereof. Later on, he nominated Emilio III to act as
administrator.

The Court of Appeals (CA) zeroed in on Emilio III’s status as an illegitimate child of
Emilio I and, thus, barred from representing his deceased father in the estate of the
latter’s legitimate mother, the decedent. On the whole, the CA pronounced that
Emilio III, who was merely nominated by Federico, and which nomination hinged
upon the latter’s appointment as administrator of the decedent’s estate, cannot be
appointed as the administrator of the decedent’s estate for the following reasons:

1. The appointment of Emilio III was subject to a suspensive condition, i.e.,

Federico’s appointment as administrator of the estate, he being the surviving
spouse of Cristina, the decedent. The death of Federico before his
appointment as administrator of Cristina’s estate rendered his nomination of
Emilio III inoperative;

2. As between the legitimate offspring (respondent) and illegitimate offspring

(Emilio III) of decedent’s son, Emilio I, respondent is preferred, being the
"next of kin" referred to by Section 6, Rule 78 of the Rules of Court, and
entitled to share in the distribution of Cristina’s estate as an heir;

3. Jurisprudence has consistently held that Article 992 of the Civil Code bars
the illegitimate child from inheriting ab intestato from the legitimate children
and relatives of his father or mother. Thus, Emilio III, who is barred from
inheriting from his grandmother, cannot be preferred over respondent in the
administration of the estate of their grandmother, the decedent; and

4. Contrary to the RTC’s finding, respondent is as much competent as Emilio

III to administer and manage the subject estate for she possesses none of the
disqualifications specified in Section 1, Rule 78 of the Rules of Court.

The pivotal issue in this case turns on who, as between Emilio III and respondent, is
better qualified to act as administrator of the decedent’s estate.

HELD: We cannot subscribe to the appellate court’s ruling excluding Emilio III in
the administration of the decedent’s undivided estate. Mistakenly, the CA glosses
over several undisputed facts and circumstances:

1. The underlying philosophy of our law on intestate succession is to give

preference to the wishes and presumed will of the decedent, absent a valid
and effective will;

2. The basis for Article 992 of the Civil Code, referred to as the iron curtain
bar rule, is quite the opposite scenario in the facts obtaining herein for the
actual relationship between Federico and Cristina, on one hand, and Emilio
III, on the other, was akin to the normal relationship of legitimate relatives;

3. Emilio III was reared from infancy by the decedent, Cristina, and her
husband, Federico, who both acknowledged him as their grandchild;

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 4. Federico claimed half of the properties included in the estate of the
decedent, Cristina, as forming part of their conjugal partnership of gains
during the subsistence of their marriage;

5. Cristina’s properties forming part of her estate are still commingled with
that of her husband, Federico, because her share in the conjugal partnership,
albeit terminated upon her death, remains undetermined and unliquidated;
and

6. Emilio III is a legally adopted child of Federico, entitled to share in the

distribution of the latter’s estate as a direct heir, one degree from Federico,
not simply representing his deceased illegitimate father, Emilio I.

From the foregoing, it is patently clear that the CA erred in excluding Emilio III from
the administration of the decedent’s estate. As Federico’s adopted son, Emilio III’s
interest in the estate of Cristina is as much apparent to this Court as the interest
therein of respondent, considering that the CA even declared that "under the law,
[Federico], being the surviving spouse, would have the right of succession over a
portion of the exclusive property of the decedent, aside from his share in the
conjugal partnership." Thus, we are puzzled why the CA resorted to a strained legal
reasoning – Emilio III’s nomination was subject to a suspensive condition and
rendered inoperative by reason of Federico’s death – wholly inapplicable to the case
at bar.

Note:
 Legitimate Children exclude parents, brothers and sisters, nephews and
nieces
 Children (legitimate or illegitimate) concur with surviving spouse
 Illegitimate children exclude illegitimate parents, brothers and sisters,
nephews and nieces (Art. 988 and 1003)
 Parents exclude brothers and sisters, nephews and nieces
 Parents concur with surviving spouse
 Surviving spouse concurs with, brothers and sisters, nephews and nieces

Surviving spouse
- must be legitimate (legally married)
- must not be the guilty party in case of legal separation because she becomes
disqualified to inherit (Art. 1002)
- Decree of legal separation is required for the spouse to be disqualified. But if
he/she gave cause for legal separation only, this is a ground for disinheritance
- Reconciliation erases the ground for disinheritance. Also puts aside the effects of
legal separation.
- In testamentary succession, if the spouse is the only survivor, the share varies if
the marriage was celebrated in articulo mortis. In legal succession, the spouse
gets the entire estate whether or not the marriage was celebrated in articulo
mortis.
- If the spouse survives with legitimate parents and adopted child, treat the
adopted child as illegitimate. Reason: The adopted child will not exclude
legitimate parents (Del Rosario vs. Conanan, March 30, 1977)

Collateral Relatives
-nearer excludes the farther

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-Brothers and sisters. Those in full blood inherit in equal shares, those in the half
blood inherit half of that in the full blood.
-In the collateral line, right of representation is only up to nephews and nieces. In
the direct line, no limit
-between aunts/uncles and nephews/nieces, who are preferred? Nephews and
nieces because they come first in the order of succession and are in the descending
line
-Collaterals are only up to the 5th civil degree. In the direct line, no limit

WHAT ARE THE INTESTATE SHARES OF THE LEGAL HEIRS?

Summary:
1. Nearer excludes the farther subject to right of representation (eg. Children vs.
grandchildren)
2. If same degree, direct line is preferred over the collateral line (eg. Grandchildren
vs. brothers/sisters
3. If both in the direct line, descending favored over ascending, except illegitimate
descendants (eg. Parents vs. children)
4. If both in collateral, descending favored over ascending (eg. Aunts/uncles vs.
nephews/nieces

State
-succeeds in default of all heirs in the direct line and collaterals up to 5th civil degree
-Caduciary rights: refer to the right of the estate to claim thru escheat proceedings
the properties of decedents who are not survived by any heirs.
-Escheat Proceedings: Process by which state acquires. Rule 91 of the Rules of Court

WHAT IS ACCRETION?
- is a right by virtue of which, when two or more persons are called to the same
inheritance, devise or legacy, the part assigned to the one who renounces or
cannot receive his share, or who died before the testator, is added or
incorporated to that of his co-heirs, co-devisees, or co-legatees.

- based on presumed will of testator that he prefers to give certain properties to

certain individuals, rather than his own heirs

WHAT ARE THE REQUISITES FOR ACCRETION?

1. unity of object (one inheritance)
2. plurality of subjects (two or more to inherit ordinarily)
3. vacant portion
4. acceptance (of portion accruing- by the person entitled)
- Example: A house and lot to X and Y

 Before there can be accretion, observe the following rule (ISRAI):

1. Institution
2. Substitution
3. Representation
4. Accretion
5. Intestacy
- Accretion occurs both in Testamentary and Legal Succession

WHEN IS THERE UNITY OF OBJECT?

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- Two or more persons called to the same inheritance or same portion, pro-
indiviso. Meaning, undivided
- Words ½ for each, in equal shares, though designate aliquot parts, do not exclude
right of accretion as long as the specific part is not identified as to make each heir
the exclusive owner of a determinate property (art. 1017). Same if ¼ to A ¾ to B.
- Eg. ½ to A and same to B in my lot in ma-a. But if the north to B and south to A,
no accretion
- Money or fungible goods. Share must not be earmarked. Eg. My cash in my
vault, to A, B,and C. But if my cash in Metro bank to A, in UCPB to B, no
accretion

WHEN IS THERE VACANCY?

Testamentary Succession
Vacancy caused by:
1. predecease
2. incapacity
3. repudiation (share always accrues to the others-Art. 1018)
4. if suspensive condition is not fulfilled
5. failure to identify one particular heir (ineffectiveness of institution)

- among compulsory heirs, accretion takes place only in free portion. If part
repudiated is legitime, co-heirs inherit in own right, not by accretion (art. 1021)

Legal Succession
Vacancy caused by:
1. Repudiation (share always accrues to the others-Art. 1018)
2. incapacity (subject to representation)
 Predecease no accretion because there is really no vacant portion and survivors
inherit in their own right or by representation. But effect is the same.
Eg. T died without will but one of his 3 children renounced his inheritance. Share
shall accrue to the 2 children

HOW MUCH SHALL ACCRUE TO THE CO-HEIRS IN ACCRETION?

-In the same proportion that the heirs inherit (Art. 1019)

WHAT IS THE RIGHT OF REPRESENTATION?

 Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented,
and acquires the rights which the latter would have if he were living or if he
could have inherited.
 The right of representation takes place in the direct descending line, but never in
the ascending. In the collateral line, it takes place only in favor of the children of
brothers or sisters (nephews and nieces), whether they be of the full or half
blood.

 When children of one or more brothers or sisters of the deceased survive, they
shall inherit from the latter by representation (per stirpes), if they survive with
their uncles or aunts. But if they alone survive, they shall inherit in equal
portions (per capita).

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 In case of grandchildren of the decedent, they always inherit by right of
representation (per stirpes) even if all the children of the decedent are deceased.

 Heirs who repudiate their share may not be represented.

C repudiates

 Can an adopted child represent? No.

WHAT LAW GOVERNS CAPACITY TO SUCCEED?

 Capacity to succeed is governed by the law of the nation of the decedent. (Art.
1039)
 So in addition to Article 16, the following are governed by the national law of
decedent
1. order of succession
2. amount of successional rights
3. intrinsic validity of testamentary provision
4. capacity to succeed

WHAT ARE THE KINDS OF INCAPACITY?

Absolute – cannot inherit from anybody under any circumstance

2 classes:
1. Art. 1026, last paragraph. “All other corporations or entities may succeed under a
will, unless there is a provision to the contrary in their charter or the laws of their
creation, and always subject to the same.”
2. Art. 1027 (6) Individuals, associations and corporations not permitted by law to
inherit
3. Those who lack juridical personality (abortive infants)

Relative – cannot inherit only from certain persons or certain properties but can
inherit from other persons or certain properties

3 classes of relative incapacity:

1. by reason of possible undue influence (Art. 1027 [1-5])
2. by reason of public policy and morality (Art. 1028)
3. by reason of unworthiness (Art. 1032)

INCAPACITY BY REASON OF POSSIBLE UNDUE INFLUENCE

ARTICLE 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator during his last
illness, or the minister of the gospel who extended spiritual aid to
him during the same period;
(2)

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 Reason: to safeguard the rights of the heirs who may be defrauded by the sinister
and undue influence which may be exercised by some priests or ministers over a
dying man

 Will must be made DURING last illness for it is there that undue influence could
have been exercised. Not BEFORE because undue influence does not yet exist
NOR AFTER because no longer subject to undue influence.
 Will must be made AFTER confession, not BEFORE because before confession,
no undue influence yet.

 Hence, during last illness and after confession. Confession need not be the last.
Eg. Very sick man. Priests may say during confession, you will soon die from
your illness. If you will not give to me, you will go to hell.”
 Last illness is one of which the testator died, OR the one immediately preceding
it (like died of accident)

 Note: if the testator did not die from last illness, but from other causes, the death
must immediately follow the confession during last illness such that testator had
no opportunity to revoke the will. Thus if testator became ill in 1990 and
confessed then made a will in 1990 making priest an heir, then gets well in 1991
and did not become ill since then and subsequently died in an accident in 2003,
there is sufficient opportunity to revoke.

 Nature of last illness, great possibility of death, regardless of whether chronic or

acute, long or short

 Disqualification does not extend to:

1. Legitime (only free portion)
2. Intestacy (no undue influence)
3. Dispositions which do not extend testamentary benefit (eg. Appointment as
executor)
 Priest must hear confession, one who extends spiritual aid is not disqualified
 Minister who extends spiritual aid disqualified

(2) The relatives of such priest or minister of the gospel within the fourth degree,
the church, order, chapter, community, organization, or institution to which such
priest or minister may belong

(3) A guardian with respect to testamentary dispositions given by a ward in his

favor before the final accounts of the guardianship have been approved, even if the
testator should die after the approval thereof; nevertheless, any provision made by
the ward in favor of the guardian when the latter is his ascendant, descendant,
brother, sister, or spouse, shall be valid

 Guardian of person or property

 As long as final account is not yet approved, cannot be made heir, legatee or
devisee even if at time of death of testator, account is already approved.
Illustrate.
 If after approval of final accounts, guardian can already be a voluntary heir,
legatee or devisee

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 Final Accounts – given to the court when guardianship is removed, or when he
resigns, or when no need for guardianship to continue
 If guardian is the spouse, ascendant, descendant, brother or sister, the provision
is valid. Hence, if guardian is first cousin, nephews, nieces, etc. – VOID. Reason:
Affection, not influence is the underlying reason
 Unlike the priest, the relatives of the guardian are not disqualified.

(4) Any attesting witness to the execution of a will, the spouse, parents, or
children, or any one claiming under such witness, spouse, parents, or children

 Related to article 823

 If there are 3 other witnesses, the witness is qualified to inherit (Art. 823)
 Notary public not disqualified to inherit.

(5) Any physician, surgeon, nurse, health officer or druggist who took care of the
testator during his last illness.
 Will must be made during last illness and after care had commenced.
 Took care – continuing or regular, not isolated
 If physician or nurse, etc. relative, still disqualified because the law is silent
unlike case of guardian. BUT can still get their legitime and qualified to inherit
by intestacy.

In Art. 1027, there is CONCLUSIVE PRESUMPTION that there was undue

influence. Cannot prove otherwise.

INCAPACITY BY REASON OF PUBLIC POLICY AND MORALITY

ARTICLE 1028. The prohibitions mentioned in article 739, concerning donations

inter vivos shall apply to testamentary provisions.

Art. 739
1. Testator and recipient guilty of adultery or concubinage – guilt may be proved
by preponderance of evidence. No need for criminal conviction.
2. Between persons found guilty of the same criminal offense, in consideration
thereof

3. Made to public officer or his wife, descendants, ascendants, by reason of his

office

INCAPACITY BY REASON OF UNWORTHINESS (Art. 1032)

ARTICLE 1032. The following are incapable of succeeding by reason of

unworthiness:
(1) Parents who have abandoned their children or induced their daughters to
lead a corrupt or immoral life, or attempted against their virtue
(2) Any person who has been convicted of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants
 If attempted to kill testator’s father after testator’s death, not disqualified because
capacity to succeed is measured at time of decedent’s death (Art. 1034)
(3) Any person who has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless

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 (4) Any heir of full age who, having knowledge of the violent death of the
testator, should fail to report it to an officer of the law within a month, unless the
authorities have already taken action; this prohibition shall not apply to cases
wherein, according to law, there is no obligation to make an accusation
 full age – 21 years old
 knowledge of VIOLENT DEATH – caused by crime
 there is obligation to make accusation: Under Spanish Law page 561 Paras,
certain persons are exempted from making accusations. In Phils, no one is
obliged to make accusations

(5) Any person convicted of adultery or concubinage with the spouse of the
testator
 spouse guilty him/herself is not incapacitated
 but ground for disinheritance (given cause for legal separation)
 if decree of legal separation is granted, guilty spouse becomes disqualified to
inherit

(6) Any person who by fraud, violence, intimidation, or undue influence should
cause the testator to make a will or to change one already made
(7) Any person who by the same means prevents another from making a will, or
from revoking one already made, or who supplants, conceals, or alters the latter's
will;
(8) Any person who falsifies or forges a supposed will of the decedent.

 Art. 1032 applies both to testate and intestate succession

 Compulsory heir who is incapacitated loses all (legitime and free portion)
 But again, can be represented

 Condonation:
1. If the testator already knew the cause of unworthiness at the time of will-making,
the mere fact of institution or giving legacy or devise is an IMPLIED
CONDONATION
- knowledge at time of will making is not enough. Testator must give something in
the will to the disqualified heir in order that there may be condonation
- the will made must be valid or not revoked in order that there may be implied
condonation

2. If knowledge comes only after execution of will, condonation must be in writing

– EXPRESS CONDONATION

- express condonaton is irrevocable unless there is vitiated consent

 What if there is subsequent reconciliation? Under Art. 922, reconciliation renders

disinheritance ineffective. How about the incapacity? Should there still be
condonation in writing? NO. When cause for unworthiness is made the ground
for disinheritance, Art. 922 applies. Reconciliation is enough. When there is no
disinheritance, Art. 1033 applies

 In Testamentary succession, the incapacitated child or descendant can still be
represented with respect to the legitime
 In Legal Succession, the right of representation covers the entire intestate share of
the incapacitated heir

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 like in disinheritance, the excluded person shall not enjoy the usufruct and
administration of the inherited property of his/her children

HOW IS ACCEPTANCE MADE?

(A) Express Acceptance – must be in a public or private document. Cannot be

verbal (art. 1049)

(B) Tacit – results from acts by which the intention to accept is necessarily implied,
or which one would have no right to do except in the capacity of an heir. (art. 1049)

Example of Tacit Acceptance:

ARTICLE 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs,
or to any of them;
(2) If the heir renounces the same, even though gratuitously, for the benefit of
one or more of his co-heirs (not all); - hence, renunciation may be onerous or
gratuitous. An act of disposition because one or more of the co-heirs acquire a
benefit or advantage which would nit have accrued to them in case of true
renunciation.
(3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if
this renunciation should be gratuitous, and the co-heirs in whose favor it is made are
those upon whom the portion renounced should devolve by virtue of accretion, the
inheritance shall not be deemed as accepted. –
“co-heirs” – meaning, in intestacy, substitution or accretion
-if gratuitous, renunciation must not be made in favor of the ones who will inherit
by accretion (or substitution) of the portion renounced.

(C) Presumed – If heir, devisee or legatee does not accept or repudiate within 30
days after the court has issued an order for the distribution of the estate (Art. 1057)

BUT: Acts of mere conservation or provisional administration do not constitute

acceptance (Art. 1049, last paragraph: Acts of mere preservation or provisional
administration do not imply an acceptance of the inheritance if, through such acts,
the title or capacity of an heir has not been assumed.)

HOW IS REPUDIATION MADE? (Art. 1051)

1. public or authentic instrument
*public document – acknowledged before notary public or person authorized to
administer oath
*authentic document – genuine document, not forged or falsified. May be private.
2. by petition presented to the court having jurisdiction over the testamentary or
intestate proceedings.

WHAT ARE THE EFFECTS OF REPUDIATION? (Art. 1055)

1. If both a testamentary heir and intestate heir to the same inheritance, repudiation
as testamentary heir is deemed to include also repudiation as intestate heir.
Reason: Having repudiated the express will, it is understood that he also
repudiates the presumed will;

2. If repudiates as an intestate heir, may still accept as testamentary heir provided

that at time of repudiation, he did not know of his institution as testamentary
heir. Reason: may not want to refuse the express wishes of testator.

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Imperial vs. CA, [G.R. No. 112483. October 8, 1999.
Leoncio sold his land to his natural son, petitioner but it was alleged that the sale
was in fact a donation. 2 years after the donation, Leoncio filed a complaint for
annulment of the said Deed of Absolute Sale on the ground that he was deceived
into signing the said document. The dispute, however, was resolved through a
compromise agreement. Pending execution of the above judgment, Leoncio died,
leaving only two heirs —his natural son, and an adopted son, Victor Imperial. In
1962, Victor was substituted in place of Leoncio in the above-mentioned case, and it
was he who moved for execution of judgment. Fifteen years thereafter, Victor died
single and without issue, survived only by his natural father, Ricardo. Four years
after, Ricardo died, leaving as his only heirs his two children, Cesar and Teresa.
Cesar and Teresa filed a complaint for "Annulment of Documents, Reconveyance
and Recovery of Possession" seeking the nullification of the Deed of Absolute Sale
alleging that the conveyance of said property impaired the legitime of Victor
Imperial, their natural brother and predecessor-in-interest. As argued by petitioner,
when Leoncio died, it was only Victor who was entitled to question the donation.
However, instead of filing an action to contest the donation, Victor asked to be
substituted as plaintiff in Civil Case No. 1177 and even moved for execution of the
compromise judgment therein. Thus, Victor was deemed to have renounced his
legitime.

HELD: No renunciation of legitime may be presumed from the foregoing acts. It

must be remembered that at the time of the substitution, the judgment approving
the compromise agreement has already been rendered. Victor merely participated in
the execution of the compromise judgment. He was not a party to the compromise
agreement. More importantly, our law on succession does not countenance tacit
repudiation of inheritance. Rather, it requires an express act on the part of the heir.
Thus, when Victor substituted Leoncio in Civil Case No. 1177 upon the latter’s
death, his act of moving for execution of the compromise judgment cannot be
considered an act of renunciation of his legitime. He was, therefore, not precluded or
estopped from subsequently seeking the reduction of the donation, under Article
772. Nor are Victor’s heirs, upon his death, precluded from doing so, as their right to
do so is expressly recognized under Article 772, and also in Article 1053:
If the heir should die without having accepted or repudiated the inheritance, his
right shall be transmitted to his heirs.
The ten-year prescriptive period applies to the obligation to reduce inofficious
donations, required under Article 771 of the Civil Code, to the extent that they
impair the legitime of compulsory heirs. The cause of action to enforce a legitime
accrues upon the death of the donor-decedent. Clearly so, since it is only then that
the net estate may be ascertained and on which basis, the legitimes may be
determined.

WHAT IS COLLATION?
 Question of collation arises only if there are donations inter vivos made by the
decedent and there are compulsory heirs surviving.

 3 concepts of Collation:
1. Mathematical Process – the imaginary addition or fictitious reunion of property
donated by the testator inter vivos with the properties left at the time of his death.
2. Imputation – donations inter vivos made to compulsory heirs are considered as
advances to their legitimes;

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3. Actual Reduction or Abatement – actual reduction or bringing back of that
property donated by the testator during his lifetime to the hereditary estate if the
donations are found to be inofficious.

ARELLANO vs. PASCUAL (G.R. No. 189776, December 15, 2010)

Angel N. Pascual Jr. died intestate on January 2, 1999 leaving as heirs his siblings,
namely: petitioner Amelia P. Arellano who is represented by her daughters Agnes
P. Arellano and Nona P. Arellano, and respondents Francisco Pascual and Miguel N.
Pascual. During his lifetime, Angel donated to Amelia a parcel of land (the donated
property) located in Teresa Village, Makati. In a petition for "Judicial Settlement of
Intestate Estate and Issuance of Letters of Administration," filed by respondents on
April 28, 2000, respondents alleged, inter alia, that the donated property located in
Teresa Village, Makati, which was, by Deed of Donation, transferred by the
decedent to petitioner the validity of which donation respondents assailed, "may be
considered as an advance legitime" of petitioner. Provisionally passing, however,
upon the question of title to the donated property only for the purpose of
determining whether it formed part of the decedent's estate, the probate court found
the Deed of Donation valid in light of the presumption of validity of notarized
documents.

RULING:

Collation takes place when there are compulsory heirs, one of its purposes being to
determine the legitime and the free portion. If there is no compulsory heir, there is
no legitime to be safeguarded. The records do not show that the decedent left any
primary, secondary, or concurring compulsory heirs. He was only survived by his
siblings, who are his collateral relatives and, therefore, are not entitled to any
legitime – that part of the testator’s property which he cannot dispose of because the
law has reserved it for compulsory heirs.

The decedent not having left any compulsory heir who is entitled to any legitime, he
was at liberty to donate all his properties, even if nothing was left for his siblings-
collateral relatives to inherit. His donation to petitioner, assuming that it was valid,
is deemed as donation made to a “stranger,” chargeable against the free portion of
the estate. There being no compulsory heir, however, the donated property is not
subject to collation.

On the second issue:

The decedent’s remaining estate should thus be partitioned equally among his
heirs-siblings-collateral relatives, herein petitioner and respondents, pursuant to the
provisions of the Civil Code, viz:
Art. 1003. If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives shall succeed to
the entire estate of the deceased in accordance with the following
articles. (underscoring supplied)

Art. 1004. Should the only survivors be brothers and sisters of

the full blood, they shall inherit in equal shares. (emphasis and
underscoring supplied)

ARE DONATIONS TO STRANGERS SUBJECT TO COLLATION?

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Case:
Vda. De Tupas, vs. RTC of Negros Occidental (October 3, 1986)
Tupas Foundation, Inc. being a stranger and not a compulsory heir, the donation
inter vivos made in its favor was not subject to collation.

HELD: A person's prerogative to make donations is subject to certain limitations,

one of which is that he cannot give by donation more than he can give by will. If he
does, so much of what is donated as exceeds what he can give by will is deemed
inofficious and the donation is reducible to the extent of such excess, though without
prejudice to its taking effect in the donor's lifetime or the donee's appropriating the
fruits of the thing donated. Such a donation is, moreover, collationable, that is, its
value is in imputable into the hereditary estate of the donor at the time of his death
for the purpose of determining the legitime of the forced or compulsory heirs and
the freely disposable portion of the estate. This is true as well of donations to
strangers as of gifts to compulsory heirs, although the language of Article 1061 of the
Civil Code would seem to limit collation to the latter class of donations.
`Collationable gifts' should include gifts made not only in favor of the forced heirs,
but even those made in favor of strangers, so that in computing the legitimes, the
value of the property donated should be considered part of the donor's estate.

The fact that the donated property no longer actually formed part of the estate of the
donor at the time of his death cannot be asserted to prevent its being brought to
collation. Collation contemplates and particularly applies to gifts inter vivos. The
further fact that the lots donated were admittedly capital or separate property of the
donor is of no moment, because a claim of inofficiousness does not assert that the
donor gave what was not his, but that he gave more than what was within his
power to give. In order to find out whether a donation is inofficious or not, the rules
are:
(1) determination of the value of the property which remains at the time of the
testator's death;
(2) determination of the obligations, debts, and charges which have to be paid
out or deducted from the value of the property thus left;
(3) the determination of the difference between the assets and the liabilities,
giving rise to the hereditary estate;
(4) the addition to the net value thus found, of the value, at the time they were
made, of donations subject to collation; and
(5) the determination of the amount of the legitimes by getting from the total
thus found the portion that the law provides as the legitime of each respective
compulsory heir.
Deducting the legitimes from the net value of the hereditary estate leaves the freely
disposable portion by which the donation in question here must be measured. If the
value of the donation at the time it was made does not exceed that difference, then it
must be allowed to stand. But if it does, the donation is inofficious as to the excess
and must be reduced by the amount of said excess. In this case, if any excess be
shown, it shall be returned or reverted to the sole compulsory heir of the deceased
Epifanio R. Tupas.

IS AN IRREVOCABLE DONATION SUBJECT TO COLLATION?

Case:
Buhay De Roma vs. CA (July 23, 1987)
There is nothing in the above provisions expressly prohibiting the collation of the
donated properties. As the said court correctly observed, the phrase "sa
pamamagitan ng pagbibigay na di na mababawing muli" merely described the

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donation as "irrevocable" and should not be construed as an express prohibition
against collation. The fact that a donation is irrevocable does not necessarily exempt
the subject thereof from the collation required under Article 1061. The intention to
exempt from collation should be expressed plainly and unequivocally as an
exception to the general rule announced in Article 1062. The suggestion that there
was an implied prohibition because the properties donated were imputable to the
free portion of the decedent's estate merits little consideration. Imputation is not the
question here, nor is it claimed that the disputed donation is officious. The sole issue
is whether or not there was an express prohibition to collate, and there was none.

WHAT IS PARTITION?
- Partition, in general, is the separation, division and assignment of a thing held in
common among those to whom it may belong. The thing itself may be divided, or its
value.

CAN PARTITION BE MADE DURING THE LIFETIME OF THE DECEDENT?

J.L.T. AGRO, INC. vs. BALANSAG (G.R. No. 141882, March 11, 2005)
The present controversy involves a parcel of land covering 954 square meters,
known as Lot No. 63, which was originally registered in the name of the conjugal
partnership of Don Julian and Antonia under Original Certificate of Title (OCT)
No. 5203. When Antonia died, the land was among the properties involved in an
action for partition and damages docketed as Civil Case No. 3443 entitled "Josefa
Teves Escaño v. Julian Teves, Emilio B. Teves, et al." Milagros Donio, the second
wife of Don Julian, participated as an intervenor. Thereafter, the parties to the
case entered into a Compromise Agreement which embodied the partition of all the
properties of Don Julian. On the basis of the compromise agreement and
approving the same, the Regional Trial Court (RTC) declared a tract of land
known as Hacienda Medalla Milagrosa as property owned in common by Don
Julian and his two (2) children of the first marriage. The property was to remain
undivided during the lifetime of Don Julian. Josefa and Emilio likewise were
given other properties at Bais, including the electric plant, the "movie property,"
the commercial areas, and the house where Don Julian was living. The
remainder of the properties was retained by Don Julian, including Lot No. 63.

On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of

Assignment of Assets with Assumption of Liabilities in favor of J.L.T. Agro, Inc. (JLT).
Less than a year later, Don Julian, Josefa and Emilio also executed an instrument
entitled Supplemental to the Deed of Assignment of Assets with the Assumption of
Liabilities (Supplemental Deed) dated 31 July 1973. This instrument which
constitutes a supplement to the earlier deed of assignment transferred ownership
over Lot No. 63, among other properties, in favor of JLT. On 14 April 1974, Don
Julian died intestate. On the strength of the Supplemental Deed in its favor, JLT
caused the registration of the subject lot in its name on 12 November 1979, and
on the same date TCT No. T-375 was issued in the name of JLT. Since then, JLT
has been paying taxes assessed on the subject lot.

Meanwhile, Milagros Donio and her children had immediately taken possession
over the subject lot after the execution of the Compromise Agreement.
Subsequently, Milagros Donio and her children executed a Deed of Extrajudicial

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Partition of Real Estate dated 18 March 1980. In the deed of partition, Lot No. 63
was allotted to Milagros Donio and her two (2) children, Maria Evelyn and Jose
Catalino. Unaware that the subject lot was already registered in the name of JLT
in 1979, spouses Antonio Balansag and Hilaria Cadayday bought Lot No. 63
from Milagros Donio as evidenced by the Deed of Absolute Sale of Real Estate dated
9 November 1983. At the Register of Deeds while trying to register the deed of
absolute sale, spouses Antonio Balansag and Hilaria Cadayday discovered that
the lot was already titled in the name of JLT. Thus, they failed to register the
deed. Consequently, as vendees of Lot No. 63, spouses Antonio Balansag and
Hilaria Cadayday filed a complaint before the RTC, seeking the declaration of
nullity and cancellation of TCT No. T-375 in the name of JLT and the transfer of
the title to Lot No. 63 in their names, plus damages. According to the spouses, in
the Compromise Agreement, the future legitimes were determined, adjudicated and
reserved prior to the death of Don Julian; that Don Julian had no right to dispose
of or assign Lot No. 63 to JLT because he reserved the same for his heirs from the
second marriage pursuant to the Compromise Agreement; and that the Supplemental
Deed was tantamount to a preterition of his heirs from the second marriage.

RULING:
Being the key adjudicative provision, paragraph 13 of the Compromise Agreement has
to be quoted again:

13. That in the event of death of Julian L. Teves, the properties herein adjudicated
to Josefa Teves Escaño and Emilio B. Teves, (excluding the properties comprised as
Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be
understood as including not only their one-half share which they inherited from
their mother but also the legitimes and other successional rights which would
correspond to them of the other half belonging to their father, Julian L.Teves. In
other words, the properties now selected and adjudicated to Julian L. Teves (not
including his share in the Hacienda Medalla Milagrosa) shall exclusively be
adjudicated to the wife in second marriage of Julian L. Teves and his four minor
children, namely, Milagros Donio Teves, his two acknowledged natural children
Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children
Maria Evelyn Donio Teves and Jose Catalino Donio Teves.” (Emphasis supplied)

Petitioner argues that the appellate court erred in holding that future legitime can be
determined, adjudicated and reserved prior to the death of Don Julian. The Court
agrees. Our declaration in Blas v. Santos is relevant, where we defined future
inheritance as any property or right not in existence or capable of determination at
the time of the contract, that a person may in the future acquire by succession.

Well-entrenched is the rule that all things, even future ones, which are not outside
the commerce of man may be the object of a contract. The exception is that no
contract may be entered into with respect to future inheritance, and the exception to
the exception is the partition inter vivos referred to in Article 1080.

For the inheritance to be considered “future,” the succession must not have been
opened at the time of the contract. A contract may be classified as a contract upon
future inheritance, prohibited under the second paragraph of Article 1347, where the
following requisites concur:

(1) That the succession has not yet been opened;

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(2) That the object of the contract forms part of the inheritance; and
(3) That the promissor has, with respect to the object, an expectancy of a right
which is purely hereditary in nature.

The first paragraph of Article 1080, which provides the exception to the exception
and therefore aligns with the general rule on future things, reads:

ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by
will, such partition shall be respected, insofar as it does not prejudice the legitime of
the compulsory heirs.

In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the
partition is made by an act inter vivos, no formalities are prescribed by the Article.
The partition will of course be effective only after death. It does not necessarily
require the formalities of a will for after all it is not the partition that is the mode of
acquiring ownership. Neither will the formalities of a donation be required since
donation will not be the mode of acquiring the ownership here after death; since no
will has been made it follows that the mode will be succession (intestate succession).
Besides, the partition here is merely the physical determination of the part to be
given to each heir.

Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to
partition inter vivos his property, and distribute them among his heirs, and this
partition is neither a donation nor a testament, but an instrument of a special
character, sui generis, which is revocable at any time by the causante during his
lifetime, and does not operate as a conveyance of title until his death. It derives its
binding force on the heirs from the respect due to the will of the owner of the
property, limited only by his creditors and the intangibility of the legitime of the
forced heirs.

The partition inter vivos of the properties of Don Julian is undoubtedly valid
pursuant to Article 1347. However, considering that it would become legally
operative only upon the death of Don Julian, the right of his heirs from the second
marriage to the properties adjudicated to him under the compromise agreement was
but a mere expectancy. It was a bare hope of succession to the property of their
father. Being the prospect of a future acquisition, the interest by its nature was
inchoate. It had no attribute of property, and the interest to which it related was at
the time nonexistent and might never exist.

Evidently, at the time of the execution of the deed of assignment covering Lot No. 63
in favor of petitioner, Don Julian remained the owner of the property since
ownership over the subject lot would only pass to his heirs from the second
marriage at the time of his death. Thus, as the owner of the subject lot, Don Julian
retained the absolute right to dispose of it during his lifetime. His right cannot be
challenged by Milagros Donio and her children on the ground that it had already
been adjudicated to them by virtue of the compromise agreement.

Emerging as the crucial question in this case is whether Don Julian had validly
transferred ownership of the subject lot during his lifetime. The lower court ruled
that he had done so through the Supplemental Deed. The appellate court disagreed,
holding that the Supplemental Deed is not valid, containing as it does a prohibited
preterition of Don Julian’s heirs from the second marriage. Petitioner contends that
the ruling of the Court of Appeals is erroneous. The contention is well-founded.

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Article 854 provides that the preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the execution of the
will or born after the death of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not inofficious. Manresa
defines preterition as the omission of the heir in the will, either by not naming him
at all or, while mentioning him as father, son, etc., by not instituting him as heir
without disinheriting him expressly, nor assigning to him some part of the
properties. It is the total omission of a compulsory heir in the direct line from
inheritance. It consists in the silence of the testator with regard to a compulsory
heir, omitting him in the testament, either by not mentioning him at all, or by not
giving him anything in the hereditary property but without expressly disinheriting
him, even if he is mentioned in the will in the latter case. But there is no preterition
where the testator allotted to a descendant a share less than the legitime, since there
was no total omission of a forced heir.

In the case at bar, Don Julian did not execute a will since what he resorted to was a
partition inter vivos of his properties, as evidenced by the court approved
Compromise Agreement. Thus, it is premature if not irrelevant to speak of preterition
prior to the death of Don Julian in the absence of a will depriving a legal heir of his
legitime. Besides, there are other properties which the heirs from the second
marriage could inherit from Don Julian upon his death. A couple of provisions in
the Compromise Agreement are indicative of Don Julian’s desire along this line.
Hence, the total omission from inheritance of Don Julian’s heirs from the second
marriage, a requirement for preterition to exist, is hardly imaginable as it is
unfounded.

WHAT ARE THE REQUISITES FOR AN EXTRAJUDICIAL PARTITION?

Case:
Heirs of Joaquin Teves vs. CA (316 SCRA 632)
The extrajudicial settlements executed by the heirs of Joaquin Teves and Marcelina
Cimafranca are legally valid and binding. The extrajudicial settlement of a
decedent’s estate is authorized by section 1 of Rule 74 of the Rules of Court. For a
partition pursuant to section 1 of Rule 74 to be valid, the following conditions must
concur: (1) the decedent left no will; (2) the decedent left no debts, or if there were
debts left, all had been paid; (3) the heirs are all of age, or if they are minors, the
latter are represented by their judicial guardian or legal representatives; (4) the
partition was made by means of a public instrument or affidavit duly filed with the
Register of Deeds.
Although Cresenciano, Ricardo’s predecessor-in-interest, was not a signatory to the
extrajudicial settlements, the partition of Lot 769-A among the heirs was made in
accordance with their intestate shares under the law. The extrajudicial settlements
covering Lot 769-A were never registered. However, in the case of Vda. de Reyes vs.
CA, 35 the Court, interpreting section 1 of Rule 74 of the Rules of Court, upheld the
validity of an oral partition of the decedent’s estate and declared that the non-
registration of an extrajudicial settlement does not affect its intrinsic validity when
there are no creditors or the rights of creditors are not affected.

IS AN ORAL PARTITION VALID?

Cases:
Pada-Kilario vs. CA (G.R. No. 134329, January 19, 2000)
The extrajudicial partition of the estate of Jacinto Pada among his heirs made in 1951
is valid, albeit executed in an unregistered private document. No law requires
partition among heirs to be in writing and be registered in order to be valid. The

94
requirement in Sec. 1, Rule 74 of the Revised Rules of Court that a partition be put in
a public document and registered, has for its purpose the protection of creditors and
the heirs themselves against tardy claims. The object of registration is to serve as
constructive notice to others. It follows then that the intrinsic validity of partition not
executed with the prescribed formalities is not undermined when no creditors are
involved. Without creditors to take into consideration, it is competent for the heirs of
an estate to enter into an agreement for distribution thereof in a manner and upon a
plan different from those provided by the rules from which, in the first place,
nothing can be inferred that a writing or other formality is essential for the partition
to be valid. The partition of inherited property need not be embodied in a public
document so as to be effective as regards the heirs that participated therein. The
requirement of Article 1358 of the Civil Code that acts which have for their object the
creation, transmission, modification or extinguishment of real rights over
immovable property, must appear in a public instrument, is only for convenience,
non-compliance with which does not affect the validity or enforceability of the acts
of the parties as among themselves.
And neither does the Statute of Frauds under Article 1403 of the New Civil Code
apply because partition among heirs is not legally deemed a conveyance of real
property, considering that it involves not a transfer of property from one to the other
but rather, a confirmation or ratification of title or right of property that an heir is
renouncing in favor of another heir who accepts and receives the inheritance.

Crucillo vs. IAC (317 SCRA 351)

It can be gleaned unerringly that the heirs of Balbino A. Crucillo agreed to orally
partition subject estate among themselves, as evinced by their possession of the
inherited premises, their construction of improvements thereon, and their having
declared in their names for taxation purposes their respective shares. These are
indications that the heirs of Balbino A. Crucillo agreed to divide subject estate
among themselves, for why should they construct improvements thereon, pay the
taxes therefor, and exercise other acts of ownership, if they did not firmly believe
that the property was theirs. It is certainly foolhardy for petitioners to claim that no
oral partition was made when their acts showed otherwise. Moreover, it is
unbelievable that the possession of the heirs was by mere tolerance, judging from
the introduction of improvements thereon and the length of time that such
improvements have been in existence. Then too, after exercising acts of ownership
over their respective portions of the contested estate, petitioners are stopped from
denying or contesting the existence of an oral partition. The oral agreement for the
partition of the property owned in common is valid, binding and enforceable on the
parties.

WHEN CAN PARTITION BE DEMANDED?

Case:
Santos vs. Santos (October 12, 2000)
Prescription, as a mode of terminating a relation of co-ownership, must have been
preceded by repudiation (of the co-ownership). The act of repudiation, in turn, is
subject to certain conditions: (1) a co-owner repudiates the co-ownership; (2) such an
act of repudiation is clearly made known to the other co-owners; (3) the evidence
thereon is clear and conclusive; and (4) he has been in possession through open,
continuous, exclusive, and notorious possession of the property for the period
required by law."
There was no showing that Eliseo Santos had complied with these requisites. The SC
was not convinced that Eliseo had repudiated the co-ownership, and even if he did,
there was no showing that the same had been clearly made known to Ladislao.

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Under Article 1119 of the New Civil Code, acts of possessory character executed in
virtue of license or tolerance of the owners shall not be available for the purposes of
possession.
Indeed, Filipino family ties being close and well-knit as they are, and considering
that Virgilio Santos was the ward of Isidra Santos ever since when Virgilio Santos
was still an infant, it was but natural that the Appellant did not interpose any
objection to the continued stay of Virgilio Santos and his family on the property and
even acquiesced thereto. Appellant must have assumed too, that his brother, the
Appellee Eliseo Santos, allowed his son to occupy the property and use the same for
the time being. Hence, such possession by Virgilio Santos and Philip Santos of the
property did not constitute a repudiation of the co-ownership by the Appellee Eliseo
Santos and of his privies for that matter. Penultimately, the action for partition is not
barred by laches. An action to demand partition is imprescriptible or cannot be
barred by laches. Each co-owner may demand at any time the partition of the
common property.

BALUS vs. BALUS (G.R. No. 168970, January 15, 2010)

Herein petitioner and respondents are the children of the spouses Rufo and
Sebastiana Balus. Sebastiana died on September 6, 1978, while Rufo died on July 6,
1984. On January 3, 1979, Rufo mortgaged a parcel of land, which he owns, as
security for a loan he obtained from the Rural Bank of Maigo, Lanao del Norte
(Bank). The said property was originally covered by Original Certificate of Title No.
P-439(788). Rufo failed to pay his loan so the mortgaged property was foreclosed
and was subsequently sold to the Bank as the sole bidder at a public auction. On
November 20, 1981, a Certificate of Sale was executed by the sheriff in favor of the
Bank. The property was not redeemed within the period allowed by law. More
than two years after the auction, or on January 25, 1984, the sheriff executed a
Definite Deed of Sale in the Bank's favor. Thereafter, a new title was issued in the
name of the Bank. On October 10, 1989, herein petitioner and respondents executed
an Extrajudicial Settlement of Estate adjudicating to each of them a specific one-third
portion of the subject property consisting of 10,246 square meters. The Extrajudicial
Settlement also contained provisions wherein the parties admitted knowledge of the
fact that their father mortgaged the subject property to the Bank and that they
intended to redeem the same at the soonest possible time. Three years after the
execution of the Extrajudicial Settlement, herein respondents bought the subject
property from the Bank. On October 12, 1992, a Deed of Sale of Registered Land
was executed by the Bank in favor of respondents. Subsequently, Transfer
Certificate of Title (TCT) No. T-39,484 was issued in the name of respondents.
Meanwhile, petitioner continued possession of the subject lot. On June 27, 1995,
respondents filed a Complaint for Recovery of Possession and Damages against
petitioner, contending that they had already informed petitioner of the fact that they
were the new owners of the disputed property, but the petitioner still refused to
surrender possession of the same to them. Petitioner insists that despite
respondents' full knowledge of the fact that the title over the disputed property was
already in the name of the Bank, they still proceeded to execute the subject
Extrajudicial Settlement, having in mind the intention of purchasing back the
property together with petitioner and of continuing their co-ownership thereof.
Petitioner posits that the subject Extrajudicial Settlement is, in and by itself, a
contract between him and respondents, because it contains a provision whereby the
parties agreed to continue their co-ownership of the subject property by
“redeeming” or “repurchasing” the same from the Bank. This agreement, petitioner
contends, is the law between the parties and, as such, binds the respondents. As a

96
result, petitioner asserts that respondents' act of buying the disputed property from
the Bank without notifying him inures to his benefit as to give him the right to claim
his rightful portion of the property, comprising 1/3 thereof, by reimbursing
respondents the equivalent 1/3 of the sum they paid to the Bank.
RULING:
Petitioner and respondents are arguing on the wrong premise that, at the time of the
execution of the Extrajudicial Settlement, the subject property formed part of the
estate of their deceased father to which they may lay claim as his heirs. The rights to
a person's succession are transmitted from the moment of his death. In addition, the
inheritance of a person consists of the property and transmissible rights and
obligations existing at the time of his death, as well as those which have accrued
thereto since the opening of the succession. In the present case, since Rufo lost
ownership of the subject property during his lifetime, it only follows that at the time
of his death, the disputed parcel of land no longer formed part of his estate to which
his heirs may lay claim. Stated differently, petitioner and respondents never
inherited the subject lot from their father.
Petitioner and respondents, therefore, were wrong in assuming that they became co-
owners of the subject lot. Thus, any issue arising from the supposed right of
petitioner as co-owner of the contested parcel of land is negated by the fact that, in
the eyes of the law, the disputed lot did not pass into the hands of petitioner and
respondents as compulsory heirs of Rufo at any given point in time.
On the contrary, a plain reading of the provisions of the Extrajudicial Settlement
would not, in any way, support petitioner's contention that it was his and his
sibling's intention to buy the subject property from the Bank and continue what they
believed to be co-ownership thereof. It is a cardinal rule in the interpretation of
contracts that the intention of the parties shall be accorded primordial consideration.
It is the duty of the courts to place a practical and realistic construction upon it,
giving due consideration to the context in which it is negotiated and the purpose
which it is intended to serve. Such intention is determined from the express terms of
their agreement, as well as their contemporaneous and subsequent acts. Absurd and
illogical interpretations should also be avoided.
For petitioner to claim that the Extrajudicial Settlement is an agreement between him
and his siblings to continue what they thought was their ownership of the subject
property, even after the same had been bought by the Bank, is stretching the
interpretation of the said Extrajudicial Settlement too far.
In the first place, as earlier discussed, there is no co-ownership to talk about and no
property to partition, as the disputed lot never formed part of the estate of their
deceased father. Furthermore, petitioner's contention that he and his siblings
intended to continue their supposed co-ownership of the subject property
contradicts the provisions of the subject Extrajudicial Settlement where they clearly
manifested their intention of having the subject property divided or partitioned by
assigning to each of the petitioner and respondents a specific 1/3 portion of the
same. Partition calls for the segregation and conveyance of a determinate portion of
the property owned in common. It seeks a severance of the individual interests of
each co-owner, vesting in each of them a sole estate in a specific property and giving
each one a right to enjoy his estate without supervision or interference from the
other. In other words, the purpose of partition is to put an end to co-ownership, an
objective which negates petitioner's claims in the present case.

PROHIBITION TO PARTITION (Art. 1083)

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IN RE: PETITION FOR PROBATE OF LAST WILL AND TESTAMENT OF
BASILIO SANTIAGO (G.R. No. 179859, August 9, 2010)

Basilio Santiago (Basilio) contracted three marriages-the first to Bibiana Lopez, the
second to Irene Santiago, and the third to Cecilia Lomotan. Basilio and his first wife
bore two offsprings, Irene and Marta, the mother of herein oppositors Felimon,
Leonila, Consolacion, Ananias, Urbano, and Gertrudes, all surnamed Soco. Basilio
and his second wife had six offsprings, Tomas, Cipriano, Ricardo, respondents Zoilo
and Felicidad, and petitioner Ma. Pilar, all surnamed Santiago. Basilio and his third
wife bore three children, Eugenia herein petitioner Clemente, and Cleotilde, all
surnamed Santiago. After Basilio died testate on September 16, 1973, his daughter
by the second marriage petitioner Ma. Pilar filed a petition for the probate of
Basilio's will. The will was admitted to probate by Branch 10 of the RTC and Ma.
Pilar was appointed executrix.

The will contained the following provisions, among others:

"Xxx

e) Ang lupa't bahay sa Lunsod ng Maynila na nasasaysay sa itaas

na 2(c) na nasailalim ng TCT No. 131044 ay ililipat at ilalagay sa
pangalan nila Ma. Pilar at Clemente hindi bilang pamana ko sa
kanila kundi upang pamahalaan at pangalagaan lamang nila at
nang ang sinoman sa aking mga anak sampu ng apo at
kaapuapuhan ko sa habang panahon ay may tutuluyan kung
magnanais na mag-aral sa Maynila o kalapit na mga lunsod x x x."

After the executrix-petitioner Ma. Pilar filed a "Final Accounting, Partition and
Distribution in Accordance with the Will," the probate court approved the will by
Order of August 14, 1978 and directed the registers of deeds of Bulacan and Manila
to register the certificates of title indicated therein. Accordingly, the titles to Lot
Nos. 786, 837, 7922, 836 and 838 in Malolos, Bulacan and Lot No. 8-C in Manila were
transferred in the name of petitioners Ma. Pilar and Clemente.

On October 17, 2000, respondent-heirs of the second marriage filed before the probate
court a Motion for Termination of Administration, for Accounting, and for Transfer
of Titles in the Names of all the heirs citing that the administration of Ma. Pilar
Santiago and Clemente Santiago over the house and lot in Manila expired on
September 16, 1993. Consequently, Ma. Pilar Santiago and Clemente Santiago
should have ceased as such administrators way back on September 16, 1993 and
they should have transferred the above said titles to all the heirs of the decedent.
Opposing the motion, petitioners Ma. Pilar and Clemente argued that with the
approval of the Final Accounting, Partition and Distribution in Accordance with the
Will, and with the subsequent issuance of certificates of title covering the properties
involved, the case had long since been closed and terminated. The petitioners
objected to the inclusion of the house and lot in Manila, covered by TCT No. 131044,
among those to be transferred to the heirs as it would contravene the testator's intent
that no one is to own the same.

RULING:

98
Petitioners object to the inclusion of the house and lot in Manila, covered by TCT
No. 131044, among those to be transferred to the legatees-heirs as it would
contravene the testator’s intent that no one is to own the same. The Court is not
persuaded. It is clear from Basilio’s will that he intended the house and lot in
Manila to be transferred in petitioners’ names for administration purposes only, and
that the property be owned by the heirs in common. But the condition set by the
decedent on the property’s indivisibility is subject to a statutory limitation. On this
point, the Court agrees with the ruling of the appellate court, viz:

For this Court to sustain without qualification, [petitioners]’s

contention, is to go against the provisions of law, particularly
Articles 494, 870, and 1083 of the Civil Code, which provide that
the prohibition to divide a property in a co-ownership can only
last for twenty (20) years x x x x

xxxx

x x x x Although the Civil Code is silent as to the effect of the

indivision of a property for more than twenty years, it would be
contrary to public policy to sanction co-ownership beyond the
period expressly mandated by the Civil Code x x x x

WHAT IS THE EFFECT OF PRETERITION IN THE PARTITION?

Case:

Non vs. CA (325 SCRA 652)

The exclusion of petitioner Delia Viado, alleged to be a retardate, from the deed of
extrajudicial settlement verily has had the effect of preterition. This kind of
preterition, however, in the absence of proof of fraud and bad faith, does not justify
a collateral attack on Transfer Certificate of Title No. 373646. The relief instead rests
on Article 1104 of the Civil Code to the effect that where the preterition is not
attended by bad faith and fraud, the partition shall not be rescinded but the
preterited heir shall be paid the value of the share pertaining to her. The appellate
court had thus acted properly in ordering the remand of the case for further
proceedings to make the proper valuation of the Isarog property and ascertainment
of the amount due petitioner Delia Viado.

REILLO, ET AL. vs. HEIRS OF QUITERIO SAN JOSE AND ANTONINA

ESPIRITU SANTO (G.R. No. 166393, June 18, 2009)

When petitioners admitted that respondents Galicano, Victoria, Catalina and

Maribeth are the children and grandchild, respectively, of the spouses Quiterio and
Antonina, they impliedly admitted that they are not the sole heirs of Quiterio and
Antonina. Under the rules, no extrajudicial settlement shall be binding upon any
person who has not participated therein or had no notice thereof. The respondents
were not notified since the petitioners misrepresented themselves as legitimate
descendants and sole heirs of the deceased spouses Quiterio and Antonina in the
Deed of Extrajudicial Settlement. As such, it is only proper for the court to annul the
Deed of Extrajudicial Settlement.

WHAT IS THE EFFECT OF INCLUSION OF A NON-HEIR IN THE PARTITION?

99
Case:
Aznar Brothers Realty Company vs. CA (March 7, 2000)
In the instant case, private respondents have set up the defense of ownership and
questioned the title of AZNAR to the subject lot, alleging that the Extrajudicial
Partition with Deed of Absolute Sale upon which petitioner bases its title is null and
void for being simulated and fraudulently made.
First, private respondents claim that not all the known heirs of Crisanta Maloloy-on
participated in the extrajudicial partition, and that two persons who participated
and were made parties thereto were not heirs of Crisanta. This claim, even if true,
would not warrant rescission of the deed. Under Article 1104 of the Civil Code, "[a]
partition made with preterition of any of the compulsory heirs shall not be
rescinded, unless it be proved that there was bad faith or fraud on the part of the
persons interested; but the latter shall be proportionately obliged to pay to the
person omitted the share which belongs to him." In the present case, no evidence of
bad faith or fraud is extant from the records. As to the two parties to the deed who
were allegedly not heirs, Article 1105 is in point; it provides: "A partition which
includes a person believed to be an heir, but who is not, shall be void only with
respect to such person.” In other words, the participation of non-heirs does not
render the partition void in its entirety but only to the extent corresponding to them.
The Extrajudicial Partition with Deed of Absolute Sale is a notarized document. As
such, it has in its favor the presumption of regularity, and it carries the evidentiary
weight conferred upon it with respect to its due execution. It is admissible in
evidence without further proof of authenticity and is entitled to full faith and credit
upon its face. He who denies its due execution has the burden of proving that
contrary to the recital in the Acknowledgment he never appeared before the notary
public and acknowledged the deed to be his voluntary act. Whoever alleges forgery
has the burden of proving the same. Forgery cannot be presumed but should be
proved by clear and convincing evidence. Private respondents failed to discharge
this burden of proof; hence, the presumption in favor of the questioned deed stands.

WHEN CAN A CO-HEIR EXERCISE THE RIGHT OF REDEMPTION IN CASE

HEREDITARY RIGHTS ARE SOLD PRIOR TO PARTITION?
Cases:

Garcia vs. Calaliman, (Apr. 17, 1989)

The Respondents claim that the 30-day period prescribed in Article 1088 of the New
Civil Code for petitioners to exercise the right to legal redemption had already
elapsed at that time and that the requirement of Article 1088 of the New Civil Code
that notice must be in writing is deemed satisfied because written notice would be
superfluous, the purpose of the law having been fully served when petitioner
Francisco Garcia went to the Office of the Register of Deeds and saw for himself,
read and understood the contents of the deeds of sale.

HELD: The issue has been squarely settled in the case of Castillo v. Samonte, where
the SC observed: "Both the letter and spirit of the new Civil Code argue against any
attempt to widen the scope of the notice specified in Article 1088 by including
therein any other kind of notice, such as verbal or by registration. If the intention of
the law had been to include verbal notice or any other means of information as
sufficient to give the effect of this notice, then there would have been no necessity or
reasons to specify in Article 1088 of the New Civil Code that the said notice be made
in writing for, under the old law, a verbal notice or information was sufficient." In
the interpretation of a related provision (Article 1623 of the New Civil Code) written
notice is indispensable, actual knowledge of the sale acquired in some other

100
manners by the redemptioner, notwithstanding. He or she is still entitled to written
notice, as exacted by the Code, to remove all uncertainty as to the sale, its terms and
its validity, and to quiet any doubt that the alienation is not definitive. The law not
having provided for any alternative, the method of notifications remains exclusive,
though the Code does not prescribe any particular form of written notice nor any
distinctive method for written notification of redemption.

Baylon vs. Amador (G.R. No. 160701. February 9, 2004)

The requirement of a written notice is mandatory. This Court has long established
the rule that, notwithstanding actual knowledge of a co-owner, the latter is still
entitled to a written notice from the selling co-owner in order to remove all
uncertainties about the sale, its terms and conditions as well as its efficacy and
status.
Private respondent was never given such written notice. He thus still has the right to
redeem said one-third portion of the subject property. On account of the lack of
written notice of the sale by the other co-heirs, the 30-day period never commenced.

Exception:

Alonzo vs. IAC (159 SCRA 259)

Actual knowledge was considered an equivalent to a written notice of sale because

the right of legal redemption was invoked more than thirteen years after the sales
were concluded.

CABALES vs. COURT OF APPEALS (G.R. No. 162421, August 31, 2007)

However, as likewise established, the sale as to the undivided share of petitioner

Nelson and his mother was not valid such that they were not divested of their
ownership thereto. Necessarily, they may redeem the subject property from
respondents-spouses. But they must do so within thirty days from notice in writing
of the sale by their co-owners vendors.

In the instant case, the right of redemption was invoked not days but years after the
sale was made in 1978. We are not unmindful of the fact that petitioner Nelson was
a minor when the sale was perfected. Nevertheless, the records show that in 1988,
petitioner Nelson, then of majority age, was informed of the sale of subject property.
Moreover, it was noted by the appellate court that petitioner Nelson was likewise
informed thereof in 1993 and he signified his intention to redeem subject property
during a barangay conciliation process. But he only filed the complaint for legal
redemption and damages on January 12, 1995, certainly more than thirty days from
learning about the sale.

In the face of the established facts, petitioner Nelson cannot feign ignorance of the
sale of subject property in 1978. To require strict proof of written notice of the sale
would be to countenance an obvious false claim of lack of knowledge thereof, thus
commending the letter of the law over its purpose, i.e., the notification of
redemptioners.

The Court is satisfied that there was sufficient notice of the sale to petitioner Nelson.
The thirty-day redemption period commenced in 1993, after petitioner Nelson
sought the barangay conciliation process to redeem his property. By January 12,

101
1995, when petitioner Nelson filed a complaint for legal redemption and damages, it
is clear that the thirty-day period had already expired.

Primary Structures Corp. vs. Sps. Valencia (G.R. No. 150060. August 19, 2003)
The thirty-day period of redemption had yet to commence when private respondent
Rosales sought to exercise the right of redemption on 31 March 1987, a day after she
discovered the sale from the Office of the City Treasurer of Butuan City, or when the
case was initiated, on 16 October 1987, before the trial court. The written notice of
sale is mandatory. This Court has long established the rule that notwithstanding
actual knowledge of a co-owner, the latter is still entitled to a written notice from the
selling co-owner in order to remove all uncertainties about the sale, its terms and
conditions, as well as its efficacy and status. Even in Alonzo vs. Intermediate
Appellate Court (150 SCRA 259), relied upon by petitioner in contending that actual
knowledge should be an equivalent to a written notice of sale, the Court made it
clear that it was not reversing the prevailing jurisprudence. The court simply
adopted an exception to the general rule, in view of the peculiar circumstances of
this case. In Alonzo, the right of legal redemption was invoked several years, not
just days or months, after the consummation of the contracts of sale but more than
thirteen years after the sales were concluded.”

i
.

102