[No. L-8437. November 28, 1956] Claro M. Recto for appellee.
ESTATE OF K.H. HEMADY, deceased,vs. LUZON SURETY CO., INC., claimant and
appellant.
1. 1.CONTRACTS; BlNDING EFFECT OF CONTRACTS UPON HEIRS OF
DECEASED PARTY.—The binding effect of contracts upon the heirs of the
deceased party is not altered by the provision in the 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 estate is ultimately a payment by the heirs and distributees, since the
amount of the paid claim in fact diminishes or reduces the shares that the heirs would
have been entitled to receive. The general rule, therefore, is that a party’s contractual
rights and obligations are transmissible to the successors.
1. 2.ID.; SURETYSHIP; NATURE OF OBLIGATION OF SURETY.—Thenature of the
obligation of the surety or guarantor does not warrant the conclusion that his peculiar
individual qualities are contemplated as a principal inducement for the contract. The
creditor expects of the surety nothing but the reimbursement of the moneys that said
creditor might have to disburse on account of the obligations of the principal debtors.
This reimbursement is a payment of a sum of money, resulting from an obligation to
give; and to the creditor, it was indifferent that the reimbursement should be made by
the surety himself or by some one else in his behalf, so long as the money was paid to
it.
1. 3.ID.; ID.; QUALIFICATION OF GUARANTOR; SUPERVENING INCAPACITY
OF GUARANTOR, EFFECT ON CONTRACT.—The qualification of integrity in
the guarantor or surety is required to be present only at the time of the perfection of
the contract of guaranty. Once the contract of guaranty has become perfected and
binding, the supervening dishonesty of the guarantor (that is to say, the disappearance
of his integrity after he has become bound) does not terminate the contract but merely
entitles the creditor to demand a replacement of the guarantor. But the step
remainsoptional in the creditor: it is his right, not his duty, he may waive it if he
chooses, and hold the guarantor to his bargain.
APPEAL from an order of the Court of First Instance of Rizal. Caluag, J.
The facts are stated in the opinion of the Court.
Tolentino & Garcia and D.R. Cruz for appellant.
REYES, J.B. L., J.:
Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance of Rizal, presided
by Judge Hermogenes Caluag, dismissing its claim against the Estate of K.H. Hemady (Special
Proceeding No. Q-293) for failure to state a cause of action.
The Luzon Surety Co. had filed a claim against the Estate based on twenty different
indemnity agreements, or counter bonds, each subscribed by a distinct principal and by the
deceased K.H. Hemady, a surety solidary guarantor) in all of them, in consideration of the Luzon
Surety Co.'s of having guaranteed, the various principals in favor of different creditors. The
twenty counterbonds, or indemnity agreements, all contained the following stipulations:
“Premiums.—As consideration for this suretyship, the undersigned jointly and severally, agree
to pay the COMPANY the sum of ________________________ (P__________) pesos,
Philippines Currency, in advance as premium there of for every ___________ months or
fractions thereof, this ________ or any renewal or substitution thereof is in effect.
Indemnity.—The undersigned, jointly and severally, agree at all times to indemnify the
COMPANY and keep it indemnified and hold and save it harmless from and against any and all
damages, losses, costs, stamps, taxes, penalties, charges, and expenses of Whatsoever kind and
nature which the COMPANY shall or may, at any time sustain or incur in consequence of having
become surety upon this bond or any extension, renewal, substitution or alteration thereof made
at the instance of the undersigned or any of them or any order executed on behalf of the
undersigned or any of them; and to pay, reimburse and make good to the COMPANY, its
successors and assigns, all sums and amount of money which it or its representatives shall pay or
cause to be paid, or become liable to pay, on account of the undersigned or any of them, of
whatsoever kind and nature, including 15% of the amount involved in the litigation or other
matters growing out of or connected therewith for counsel or attorney’s fees, but in no case less
than P25. It is hereby further agreed that in case of extension or renewal of this we equally bind
ourselves for the payment thereof under the same terms and conditions as above mentioned
without the necessity of executing another indemnity agreement for the purpose and that we
hereby equally waive our right to be notified of any renewal or extension of this which may be
granted under this indemnity agreement.
Interest on amount paid by the Company.—Any and all sums of money so paid by the
company shall bear interest at the rate of 12%per annum which interest, if not paid, will be
accummulated and added to the capital quarterly order to earn the same interests as the capital and finds support in Article 2046 of the new Civil Code. It should be noted that a new
and the total sum thereof, the capital and interest, shall be paid to the COMPANY as soon as the requirement has been added for a person to qualify as a guarantor, that is: integrity. As correctly
COMPANY shall have become liable therefore, whether it shall have paid out such sums of pointed out by the Administratrix, integrity is something purely personal and is not transmissible.
money or any part thereof or not. Upon the death of Hemady, his integrity was not transmitted to his estate or successors.
Whatever loss therefore, may occur after Hemady’s death, are not chargeable to his estate
* * * * * * * because upon his death he ceased to be a guarantor.
Another clear and strong indication that the surety company has exclusively relied on the
Waiver.—It is hereby agreed upon by and between the undersigned that any question which
personality, character, honesty and integrity of the now deceased K.H. Hemady, was the fact that
may arise between them by reason of this document and which has to be submitted for decision
in the printed form of the indemnity agreement there is a paragraph entitled ‘Security by way of
to Courts of Justice shall be brought before the Court of competent jurisdiction in the City of
first mortgage, which was expressly waived and renounced by the security company. The
Manila, waiving for this purpose any other venue. Our right to be notified of the acceptance and
security company has not demanded from K.H. Hemady to comply with this requirement of
approval of this indemnity agreement is hereby likewise waived.
giving security by way of first mortgage. In the supporting papers of the claim presented by
Luzon Surety Company, no real property was mentioned in the list of properties mortgaged
* * * * * * *
which appears at the back of the indemnity agreement.” (Rec. App., pp. 407–408).

Our Liability Hereunder.—It shall not be necessary for the COMPANY to bring suit against
We find this reasoning untenable. Under the present Civil Code (Article 1311), as well as under
the principal upon his default, or to exhaust the property of the principal, but the liability
the Civil Code of 1889 (Article 1257), the rule is that—
hereunder of the undersigned indemnitor shall be jointly and severally, a primary one, the same
“Contracts take effect only as between the parties, their assigns and heirs, except in the case
as that of the principal, and shall be exigible immediately upon the occurrence of such default.”
where the rights and obligations arising from the contract are not transmissible by their nature, or
(Rec. App. pp. 98–102.)
by stipulation or by provision of law.”

The Luzon Surety Co., prayed for allowance, as a contingent claim, of the value of the twenty
While in our successional system the responsibility of the heirs for the debts of their decedent
bonds it had executed in consideration of the counterbonds, and further asked for judgment for
cannot exceed the value of the inheritance they receive from him, the principle remains intact
the unpaid premiums and documentary stamps affixed to the bonds, with 12 per cent interest
that these heirs succeed not only to the rights of the deceased but also to his obligations. Articles
thereon.
774 and 776 of the New Civil Code (and Articles 659 and 661 of the preceding one) expressely
Before answer was filed, and upon motion of the administratrix of Hemady’s estate, the
so provide, thereby confirming Article 1311 already qouted.
lower court, by order of September 23, 1953, dismissed the claims of Luzon Surety Co., on two
“ART. 774.—Succession is a mode of acquisition by virtue of which the property, rights and
grounds: (1) that the premiums due and cost of documentary stamps were not contemplated
obligations to the extent of the value of the inheritance, of a person are transmitted through his
under the indemnity agreements to be a part of the undertaking of the guarantor (Hemady), since
death to another or others either by his will or by operation of law.”
they were not liabilities incurred after the execution of the counterbonds; and (2) that “whatever
“ART. 776,—The inheritance includes all the property, rights and obligations of a person
losses may occur after Hemady’s death, are not chargeable to his estate, because upon his death
which are not extinguished by his death.”
he ceased to be guarantor.”
Taking up the latter point first, since it is the one more far reaching in effects, the reasoning In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled:
of the court below ran as follows: “Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the
“The administratrix further contends that upon the death of Hemady, his liability as a guarantor rights and obligations of the deceased (Article 661) and can not be regarded as third parties with
terminated, and therefore, in the absence of a showing that a loss or damage was suffered, the respect to a contract to which the deceased was a party, touching the estate of the deceased
claim cannot be considered contingent. This Court believes that there is merit in this contention (Barrios vs. Dolor, 2 Phil. 44).
 * * * * * * * The second exception of Article 1311, p. 1, is intransmissibility by stipulation of the parties.
“The principle on which these decisions rest is not affected by the provisions of the new
Code of Civil Procedure, and, in accordance with that principle, the heirs of a deceased person
cannot be held to be “third persons” in relation to any contracts touching the real estate of their
decedent which comes in to their hands by right of inheritance; they take such property subject to
all the obligations resting thereon in the hands of him from whom they derive their rights.”
(See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman vs.Salak, 91 Phil.,
265).
The binding effect of contracts upon the heirs of the deceased party is not altered by the
provision in 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 estate is ultimately a payment by the heirs and
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, as observed by Victorio Polacco, 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, i.e., is contracted intuitu personae, in consideration of its performance by a
specific person and by no other. The transition is marked by the disappearance of the
imprisonment for debt.
Of the three exceptions fixed by Article 1311, the nature of the obligationof the surety or
guarantor does not warrant the conclusion that his peculiar individual qualities are contemplated
as a principal inducement for the contract. What did the creditor Luzon Surety Co. expect of
K.H. Hemady when it accepted the latter as surety in the counterbonds? Nothing but the
reimbursement of the moneys that the Luzon Surety Co. might have to disburse on account of the
obligations of the principal debtors. This reimbursement is a payment of a sum of money,
resulting from an obligation to give; and to the Luzon Surety Co., it was indifferent that the
reimbursement should be made by Hemady himself or by some one else in his behalf, so long as
the money was paid to it.
Being exceptional and contrary to the general rule, this intransmissibility should not be easily
implied, but must be expressly established, or at the very least, clearly inferable from the
provisions of the contract itself, and the text of the agreements sued upon nowhere indicate that
they are non-transferable.
"(b) Intransmisibilidad por pacto.—Lo general es la transmisibilidad de darechos vs
obligaciones; le excepcion, la intransmisibilidad. Mientras nada se diga en contrario impera el
principio de la transmision, como elemento natural a toda relación juridica, salvo las
personalísimas. Asi, para la no transmisión, es menester el pacto expreso, porque si no, lo
convenido entre partes trasciende a sus herederos.
Siendo estos los continuadores de la personalidad del causante, sobre ellos recaen los efectos
de los vinculos juridicos creados por sus antecesores, vs para evitarló, si asi se quiere, es
indespensable convension terminante en tal sentido.
Por su esencia, el derecho vs la obligación tienden a ir más allá de las personas que les
dieron vida, vs a ejercer presión sobre los sucesores de esa persona; cuando no se quiera esto, se
impone una estipulacion limitativa expresamente de la transmisibilidad of de cuyos
tírminos claramente se deduzca la concresión del concreto a las mismas personas que lo
otorgon.” (Scaevola, Codigo Civil, Tomo XX, p. 541–542) (Italics supplied.)
Because under the law (Article 1311), a person who enters into a contract is deemed to have
contracted for himself and his heirs and assigns, it is unnecessary for him to expressly stipulate
to that effect; hence, his failure to do so is no sign that he intended his bargain to terminate upon
his death. Similarly, that the Luzon Surety Co., did not require bondsman Hemady to execute a
mortgage indicates nothing more than the company’s faith and confidence in the financial
stability of the surety, but not that his obligation was strictly personal.
The third exception to the transmissibility of obligations under Article 1311 exists when they
are “not transmissible by operation of law”. The provision makes reference to those cases where
the law expresses that the rights or obligations are extinguished by death, as is the case in legal
support (Article 300), parental authority (Article 327), usufruct (Article 603), contracts for a
piece of work (Article 1726), partnership (Article 1830 and agency (Article 1919). By contract,
the articles of the Civil Code that regulate guaranty or suretyship (Articles 2047 to 2084) contain
no provision that the guaranty is extinguished upon the death of the guarantor or the surety.
The lower court sought to infer such a limitation from Art. 2056, to the effect that “one who
is obliged to furnish a guarantor must present a person who possesses integrity, capacity to bind
himself, and sufficient property to answer for the obligation which he guarantees”. It will be
noted, however, that the law requires these qualities to be present only at the time of the
perfection of the contract of guaranty. It is self-evident that once the contract has become For defendant administratrix it is averred that the above doctrine refers to a case where the surety
perfected and binding, the supervening incapacity of the guarantor would not operate to files claims against the estate of the principal debtor; and it is urged that the rule does not apply
exonerate him of the eventual liability he has contracted; and if that be true of his capacity to to the case before us, where the late Hemady was a surety, not a principal debtor. The argument
bind himself, it should also be true of hisintegrity, which is a quality mentioned in the article evinces a superficial view of the relations between parties. If under the Gaskell ruling, the Luzon
alongside the capacity. Surety Co., as guarantor, could file a contingent claim against the estate of the principal debtors
The foregoing concept is confirmed by the next Article 2057, that runs as follows: if the latter should die, there is absolutely no reason why it could not file such a claim against the
“ART. 2057.—If the guarantor should be convicted in first instance of a crime involving estate of Hemady, since Hemady is a solidary co-debtor of his principals. What the Luzon Surety
dishonesty or should become insolvent, the creditor may demand another who has all the Co. may claim from the estate of a principal debtor it may equally claim from the estate of
qualifications required in the preceding article. The case is excepted where the creditor has Hemady, since, in view of the existing solidarity, the latter does not even enjoy the benefit of
required and stipulated that a specified person should be guarantor.” exhaustion of the assets of the principal debtor.
The foregoing ruling is of course without prejudice to the remedies of the administratrix
From this article it should be immediately apparent that the supervening dishonesty of the
against the principal debtors under Articles 2071 and 2067 of the New Civil Code.
guarantor (that is to say, the disappearance of his integrity after he has become bound)
Our conclusion is that the solidary guarantor’s liability is not extinguished by his death, and
does not terminate the contract but merely entitles the creditor to demand a replacement of the
that in such event, the Luzon Surety Co., had the right to file against the estate a contingent claim
guarantor. But the step remains optional in the creditor: it is his right, not his duty; he may waive
for reimbursement. It becomes unnecessary now to discuss the estate’s liability for premiums and
it if he chooses, and hold the guarantor to his bargain. Hence Article 2057 of the present Civil
stamp taxes, because irrespective of the solution to this question, the Luzon Surety’s claim did
Code is incompatible with the trial court’s stand that the requirement of integrity in the guarantor
state a cause of action, and its dismissal was erroneous.
or surety makes the latter’s undertaking strictly personal, so linked to his individuality that the
Wherefore, the order appealed from is reversed, and the records are ordered remanded to the
guaranty automatically terminates upon his death.
court of origin, with instructions to proceed in accordance with law. Costs against the
The contracts of suretyship entered into by K.H. Hemady in favor of Luzon Surety Co. not
Administratrix-Appellee. So ordered.
being rendered intransmissible due to the nature of the undertaking, nor by the stipulations of the
Parás, C.J., Bengzon, Padilla,Montemayor, Bautista
contracts themselves, nor by provision of law, his eventual liability thereunder necessarily passed
Angelo, Labrador,Concepcion, Endencia and Felix, JJ.,concur.
upon his death to his heirs. The contracts, therefore, give rise to contingent claims provable
against his estate under section 5, Rule 87 (2 Moran, 1952 ed., p. 437;Gaskell & Co. vs. Tan Order reversed.
Sit, 43 Phil. 810, 814).
“The most common example of the contigent claim is that which arises when a person is bound
as surety or guarantor for a principal who is insolvent or dead. Under the ordinary contract of
suretyship the surety has no claim whatever against his principal until he himself pays something
by way of satisfaction upon the obligation which is secured. When he does this, there instantly
arises in favor of the surety the right to compel the principal to exonerate the surety. But until the
surety has contributed something to the payment of the debt, or has performed the secured
obligation in whole or in part, he has no right of action against anybody—no claim that could be
reduced to judgment. (May vs. Vann, 15 Pla., 553; Gibson vs. Mithell, 16 Pla.,
519; Maxeyvs. Carter, 10 Yarg. [Tenn.], 521 Reeves vs.Pulliam, 7 Baxt. [Tenn.],
119; Ernst vs. Nou, 63 Wis., 134.)"

No. L-23678. June 6, 1967.
TESTATE ESTATE OF AMOS G. BELLIS, deceased. PEOPLE'S BANK & TRUST
COMPANY, executor. MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS,
oppositors-appellants,vs. EDWARD A. BELLIS, ET AL., heirs-appellees.
Wills; Succession; Conflict of laws;Renvoi doctrine.—The doctrine of renvoi is usually
pertinent where the decedent is a national of one country and is domiciled in another. It does not
apply to a case where the decedent was a citizen of Texas and was domiciled therein at the time
of his death. So that, even assuming that Texas has a conflicts rule providing that the domiciliary
law should govern successional rights, the same would not result in a reference back (renvoi) to
Philippine law, but it would still refer to Texas law. Nonetheless, if Texas has a conflicts rule,
adopting the rule of lex rei sitae, which calls for the application of the law of the place where the
properties are situated, renvoiwould arise, where the properties involved are found in the
Philippines.
Same; Foreign laws.—In the absence of proof as to the conflicts rule of Texas, it would be
presumed to be the same as our local conflicts rule.
Same; Applicability of national law to succession; Capacity to succeed—The decedent's
national law governs the order of succession, the amount of successional rights, the intrinsic
validity of the provisions of the will and capacity to succeed.
Same; Third paragraph of article 17 of New Civil Code does not modify article 16.—The
third paragraph of article 17 of the New Civil Code is not an exception to the second paragraph
of article 16. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and
the next preceding article," when it incorporated article 11 of the old Civil Code as article 17,
while reproducing without substantial change the second paragraph of article 10 of the old Civil
Code, as article 16. The legislative intent must have been to make the second paragraph of article
176 a specific provision in itself which must be applied in testate and intestate succession. As a
further indication of this legislative intent, Congress added a new provision, under article 1039,
which decrees that capacity to succeed is governed by the decedent's national law,
Same; Legitimes; Statutes; Special and general provisions.—Whatever public policy and
good customs may be involved in our system of legitimes, Congres has not intended to extend
the same to the succession of foreign nationals. It has specifically chosen the decedent's national
law to govern, inter alia, the amount of successional rights. Specific provisions must prevail over
general ones.
Same; Testamentary provision that successional right to decedent's estate would be
governed by law other than his national law is void.—A provision in a 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 of the New Civil Code.
Same; System of legitimes does not apply to estate of a citizen of Texas.—Where the
decedent was a citizen of Texas and under Texas laws there are no forced heirs, the system of
legitimes in Philippine law cannot be applied to the succession to the decedent's testate because
the intrinsic validity of the provisions of the decedent's will and the amount of successional
rights are to be determined under Texas law.
APPEAL from an order of the Court of First Instance of Manila.The facts are stated in the
opinion of the Court.
Vicente R. Macasaet and Jose D. Villena for oppositorsappellants.
Paredes, Poblador, Cruz & Nazarenofor heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
 Ozaeta, Gibbs & Ozaeta for appellee A. B. Allsman. Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of ?120,000.00. In
the project of partition, the executor—pursuant to the "Twelfth" clause of the testator's Last Will
BENGZON. J.P., J,: and Testament—divided the residuary estate into seven equal portions for the benefit of the
testator's seven legitimate children by his first and second marriages.
This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective
Instance of Manila dated April 30, 1964. approving the project of partition f iled by the executor
oppositions to the project of partition on the ground that they were deprived of their legitimes as
in 'Civil Case No. 37089 therein.
illegitimate children and, therefore, compulsory heirs of the deceased.
The. facts of the case are as follows:
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United
evidenced by the registry receipt submitted on April 27, 1964 by the executor. 1 After the parties
States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children:
filed their respective memoranda and other pertinent pleadings, the lower court, on April 30,
Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander
1964, issued an order overruling the oppositions and approving the executor's final account,
Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had
report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it
three legitimate children: Edwin G. Bellis. Walter S. Bellis and Dorothy Bellis; and finally, he
applied the national law of the decedent, which in this case is Texas law, which did not provide
had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
for legitimes.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed
Their respective motions for reconsideration having been denied by the lower court on June
that after all taxes, obligations, and expenses of administration are paid f or, his distributable
11, 1964, oppositorsappellants appealed to this Court to raise the issue of which law must
estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first
apply—Texas law or Philippine law.
wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi,
Cristina Bellis and Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two
applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine
items have been satisfied, the remainder shall go to his seven surviving children by his first and
is usually pertinent where the decedent is a national of one country, and a domicile of another. In
second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis, and Anna Bellis
the present case, it is not disputed that the decedent was both a national of Texas and a domicile
Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.
thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing
Subsequently, or on July 8, 1958, Amos G. Bellis died, a resident of San Antonio, Texas,
that the domiciliary system (law of the domicile) should govern, the same would not result in a
U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September
reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if
15, 1958.
Texas has a conflicts rule adopting the situs theory (lex
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein 1 He later filed a motion praying that as a legal heir he be included in this case as one of the
including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the
oppositors-appellants; to file or adopt the opposition of his sisters to the project of partition; to
three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis,
submit his brief after paying his proportionate share in the expenses incurred in the printing of
various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of
the record on appeal; or to allow him to adopt the briefs filed by his sisters—but this Court
P120,000.00, which it released from time to time accordingly as the lower court approved and
resolved to deny the motion.
allowed the various motions or petitions filed by the latter three requesting partial advances on 2 San Antonio, Texas was his legal residence.
account of their respective legacies.
where the properties are situated, renvoi would arise, since the properties here involved are found
On January 8, 1964, preparatory to closing its administration, the executor submitted and
in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it
filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it
should not be presumed different from ours.3Appellants' position is therefore not rested on the
reported,inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of
doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments.
shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina
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.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the
decedent, in intestate or testamentary successions, with regard to four items: (a) the order of
succession; (b) the amount of successional rights; (c) the intrinsic validity of the provisions of
the will; and (d) the capacity to succeed. They provide that—
"ART. 16. Real property as well as personal property is subject to the law of the country where it
is situated. "However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and regardless of the country wherein
said property may be found."
"ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent."
Appellants would however counter that Art. 17. paragraph three, of the Civil Code, stating
that—
"Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country."
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.
Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new
Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the
old Civil Code as Art. 16 in the new. It must have been their purpose to make the second
paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate
succes-sions. As further indication of this legislative intent. Congress added a new provision,
under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of
the decedent.
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 leave, inter. alia, the amount of successional rights, to
the decedent's national law. Specific provisions must prevail over general ones,
Appellants would also point out that the decedent executed two wills—one to govern his
Texas estate and the other his Philippine estate—arguing from this that he intended Philippine
law to govern his Philippine estate. Assuming that such was the decedent's intention in executing
a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v.
Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his national law, is illegal and void.
for his national law cannot be ignored in regard to those matters that Article 10—now Article
16—of the Civil Code states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas,
U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the will and the amount of successional rights are
to be determined under Texas law, the Philippine law on legitimes cannot be applied to the
testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against
appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L.,Dizon, Regala, Makalintal, Zaldivar,Sanchez and Castro, JJ.,
concur.
Judgment affirmed.
Notes.—In Philippine Trust Company vs. Bohanan, 60 O.G. 4615, it was held that the
validity of the provisions of the will of a citizen of Nevada should be governed by his national
law, the law of Nevada. Since the Nevada law allows a citizen of Nevada to dispose of all his
property according to his will, the testamentary provisions therein, depriving his wife and
children of what should be their legitimes under Philippine law should be respected and the
project of partition made in accordance with. his will should be approved,
In Aznar vs. Christensen Garcia, 61 O.G. 7302, it was held that, where the deceased citizen
of California was domiciled in the Philippines, the validity of the provisions of his will should be
governed by Philippine law, pursuant to article 946 of the California Civil Code, and not by the
internal law of California.
 G.R. No. 174489. April 11, 2012.*
ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L.
MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA,
JR., and RAFAEL TITCO, petitioners, vs. LORENZO LAXA, respondent.

Civil Law; Wills; Testamentary Succession; Due execution of the will or its extrinsic
validity pertains to whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law.—Due execution of the will or its extrinsic
validity pertains to whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. These formalities are enshrined in Articles
805 and 806 of the New Civil Code, to wit: Art. 805. Every will, other than a holographic will,
must be subscribed at the end thereof by the testator himself or by the testator’s name written by
some other person in his presence, and by his express direction, and attested and subscribed by
three or more credible witnesses in the presence of the testator and of one another. The testator or
the person requested by him to write his name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all
the pages shall be numbered correlatively in letters placed on the upper part of each page. The
attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof in the presence of the testator and of
one another. If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them. Art. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain a copy of the will, or
file another with the Office of the Clerk of Court.
Same; Same; Same; The state of being forgetful does not necessarily make a person
mentally unsound so as to render him unfit to execute a Will.—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 unsound mind.
Besides, Article 799 of the New Civil Code states: Art. 799. To be of sound mind, it is not
necessary that the testator be in full possession of all his reasoning faculties, or that his mind be
wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be
sufficient if the testator was able at the time of making the will to know the nature of the estate to
be disposed of, the proper objects of his bounty, and the character of the testamentary act.
Same; Same; Same; A purported will is not to be denied legalization on dubious grounds.
Otherwise, the very institution of testamentary succession will be shaken to its foundation, for
even if a will has been duly executed in fact, whether it will be probated would have to depend
largely on the attitude of those interested in the estate of the deceased.—It is worth stressing that
bare arguments, no matter how forceful, if not based on concrete and substantial evidence cannot
suffice to move the Court to uphold said allegations. Furthermore, “a purported will is not [to be]
denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, for even if a will has been duly executed in fact,
whether x x x it will be probated would have to depend largely on the attitude of those interested
in [the estate of the deceased].”
Same; Same; Same; The very existence of the Will is in itself prima facie proof that the
supposed testatrix has willed that her estate be distributed in the manner therein provided, and it
is incumbent upon the state that, if legally tenable, such desire be given full effect independent of
the attitude of the parties affected thereby.—It bears stressing that “[i]rrespective x x x of the
posture of any of the parties as regards the authenticity and due execution of the will x x x in
question, it is the mandate of the law that it is the evidence before the court and/or [evidence
that] ought to be before it that is controlling.” “The very existence of [the Will] is in itself prima
facie proof that the supposed [testatrix] has willed that [her] estate be distributed in the manner
therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given
full effect independent of the attitude of the parties affected thereby.” This, coupled with
Lorenzo’s established relationship withPaciencia, the evidence and the testimonies of
disinterested witnesses, as opposed to the total lack of evidence presented by petitioners apart
from their self-serving testimonies, constrain us to tilt the balance in favor of the authenticity of
the Will and its allowance for probate.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Filemon Al. Manlutac for petitioners.
Viray, Rongcal, Beltran, Yumul & Viray Law Offices for respondent.
DEL CASTILLO, J.:
It is incumbent upon those who oppose the probate of a will to clearly establish that the
decedent was not of sound and disposing mind at the time of the execution of said will.
Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute his
estate in the manner provided in his will so long as it is legally tenable. 1
Before us is a Petition for Review onCertiorari2 of the June 15, 2006 Decision3 of the Court
of Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision 4
the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G-
1186. The assailed CA Decision granted the petition for probate of the notarial will of Paciencia
Regala (Paciencia), to wit:
“WHEREFORE, premises considered, finding the appeal to be impressed with merit, the
decision in SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and a new
one entered GRANTING the petition for the probate of the will of PACIENCIA REGALA.
SO ORDERED.”5
Also assailed herein is the August 31, 2006 CA Resolution 6 which denied the Motion for
Reconsideration thereto.
Petitioners call us to reverse the CA’s assailed Decision and instead affirm the Decision of
the RTC which disallowed the notarial will of Paciencia.
Factual Antecedents
Paciencia was a 78 year old spinster when she made her last will and testament entitled
“Tauli Nang Bilin o Testamento Miss Paciencia Regala”7(Will) in the Pampango dialect on
September 13, 1981. The Will, executed in the house of retired Judge Ernestino G. Limpin
(Judge Limpin), was read to Paciencia twice. After which, Paciencia expressed in the presence of
the instrumental witnesses that the document is her last will and testament. She thereafter affixed
her signature at the end of the said document on page 38 and then on the left margin of pages 1, 2
and 4 thereof.9
The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia
(Francisco) and Faustino R. Mercado (Faustino). The three attested to the Will’s due execution
by affixing their signatures below its attestation clause10 and on the left margin of pages 1, 2 and
4 thereof,11 in the presence of Paciencia and of one another and of Judge Limpin who acted as
notary public.
Childless and without any brothers or sisters, Paciencia bequeathed all her properties to
respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna
Lorella Laxa and Katherine Ross Laxa, thus:
“x x x x
Fourth—In consideration of their valuable services to me since then up to the present by the
spouses LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and
GIVE all my properties enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA and
CORAZON F. LAXA and their children, LUNA LORELLA LAXA and KATHERINE LAXA,
and the spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal age, Filipinos, presently
residing at Barrio Sta. Monica, [Sasmuan], Pampanga and their children, LUNA LORELLA and
KATHERINE ROSS LAXA, who are still not of legal age and living with their parents who
of would decide to bequeath since they are the children of the spouses;
xxxx
[Sixth]—Should other properties of mine may be discovered aside from the properties
mentioned in this last will and testament, I am also bequeathing and giving the same to the
spouses Lorenzo R. Laxa and Corazon F. Laxa and their two children and I also command them
to offer masses yearly for the repose of my soul and that of D[ñ]a Nicomeda Regala, Epifania
Regala and their spouses and with respect to the fishpond situated at San Antonio, I likewise
command to fulfill the wishes of D[ñ]a Nicomeda Regala in accordance with her testament as
stated in my testament. x x x”12
The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencia’s
nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated
Paciencia as his own mother.13 Paciencia lived with Lorenzo’s family in Sasmuan, Pampanga
and it was she who raised and cared for Lorenzo since his birth. Six days after the execution of
the Will or on September 19, 1981, Paciencia left for the United States of America (USA).
There, she resided with Lorenzo and his family until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.
More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a
petition14 with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the
issuance of Letters of Administration in his favor, docketed as Special Proceedings No. G-1186.
There being no opposition to the petition after its due publication, the RTC issued an Order
on June 13, 200015allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra.
Limpin testified that she was one of the instrumental witnesses in the execution of the last will
and testament of Paciencia on September 13, 1981.16 The Will was executed in her father’s
(Judge Limpin) home office, in her presence and of two other witnesses, Francisco and
Faustino.17 Dra. Limpin positively identified the Will and her signatures on all its four
pages.18 She likewise positively identified the signature of her father appearing
thereon.19 Questioned by the prosecutor regarding Judge Limpin’s present mental fitness, Dra.
Limpin testified that her father had a stroke in 1991 and had to undergo brain surgery. 20 The
judge can walk but can no longer talk and remember her name. Because of this, Dra. Limpin
stated that her father can no longer testify in court.21
The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an
opposition22 to Lorenzo’s petition. Antonio averred that the properties subject of Paciencia’s
Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had
no right to bequeath them to Lorenzo.23
Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M.
Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo
(Rosie) and Antonio L. Mangalindan filed a Supplemental Opposition 24 contending that
Paciencia’s Will was null and void because ownership of the properties had not been transferred
and/or titled to Paciencia before her death pursuant to Article 1049, paragraph 3 of the Civil
Code.25 Petitioners also opposed the issuance of Letters of Administration in 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. Lorenzo’s favor arguing
that Lorenzo was disqualified to be appointed as such, he being a citizen and resident of the
USA.26 Petitioners prayed that Letters of Administration be instead issued in favor of Antonio.27
Later still on September 26, 2000, petitioners filed an Amended Opposition 28 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. Simultaneously, petitioners filed an Opposition and
Recommendation29reiterating their opposition to the appointment of Lorenzo as administrator of
the properties and requesting for the appointment of Antonio in his stead.
On January 29, 2001, the RTC issued an Order30 denying the requests of both Lorenzo and
Antonio to be appointed administrator since the former is a citizen and resident of the USA while
the latter’s claim as a co-owner of the properties subject of the Will has not yet been established.
Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin
was recalled for cross-examination by the petitioners. She testified as to the age of her father at
the time the latter notarized the Will of Paciencia; the living arrangements of Paciencia at the
time of the execution of the Will; and the lack of photographs when the event took place. 31
Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness
stand. Monico, son of Faustino, testified on his father’s condition. According to him his father
can no longer talk and express himself due to brain damage. A medical certificate was presented
to the court to support this allegation.32
For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980,
he lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia went
to the USA and lived with him and his family until her death in January 1996; the relationship
between him and Paciencia was like that of a mother and child since Paciencia took care of him
since birth and took him in as an adopted son; Paciencia was a spinster without children, and
without brothers and sisters; at the time of Paciencia’s death, she did not suffer from any mental
disorder and was of sound mind, was not blind, deaf or mute; the Will was in the custody of
Judge Limpin and was only given to him after Paciencia’s death through Faustino; and he was
already residing in the USA when the Will was executed.33 Lorenzo positively identified the
signature of Paciencia in three different documents and in the Will itself and stated that he was
familiar with Paciencia’s signature because he accompanied her in her transactions.34Further,
Lorenzo belied and denied having used force, intimidation, violence, coercion or trickery upon
Paciencia to execute the Will as he was not in the Philippines when the same was executed. 35 On
cross-examination, Lorenzo clarified that Paciencia informed him about the Will shortly after her
arrival in the USA but that he saw a copy of the Will only after her death.36
As to Francisco, he could no longer be presented in court as he already died on May 21,
2000.
For petitioners, Rosie testified that her mother and Paciencia were first cousins. 37 She
claimed to have helped in the household chores in the house of Paciencia thereby allowing her to
stay therein from morning until evening and that during the period of her service in the said
household, Lorenzo’s wife and his children were staying in the same house. 38 She served in the
said household from 1980 until Paciencia’s departure for the USA on September 19, 1981. 39On
September 13, 1981, Rosie claimed that she saw Faustino bring “something” for Paciencia to
sign at the latter’s house.40 Rosie admitted, though, that she did not see what that “something”
was as same was placed inside an envelope.41 However, she remembered Paciencia instructing
Faustino to first look for money before she signs them.42 A few days after or on September 16,
1981, Paciencia went to the house of Antonio’s mother and brought with her the said
envelope.43Upon going home, however, the envelope was no longer with Paciencia. 44 Rosie
further testified that Paciencia was referred to as “magulyan” or “forgetful” because she would
sometimes leave her wallet in the kitchen then start looking for it moments later. 45 On cross
examination, it was established that Rosie was neither a doctor nor a psychiatrist, that her
conclusion that Paciencia was “magulyan” was based on her personal assessment,46 and that it
was Antonio who requested her to testify in court.47
In his direct examination, Antonio stated that Paciencia was his aunt. 48 He identified the
Will and testified that he had seen the said document before because Paciencia brought the same
to his mother’s house and showed it to him along with another document on September 16,
1981.49 Antonio alleged that when the documents were shown to him, the same were still
unsigned.50According to him, Paciencia thought that the documents pertained to a lease of one of
her rice lands,51 and it was he who explained that the documents were actually a special power of
attorney to lease and sell her fishpond and other properties upon her departure for the USA, and a
Will which would transfer her properties to Lorenzo and his family upon her death. 52 Upon
hearing this, Paciencia allegedly uttered the following words: “Why will I never [return], why
will I sell all my properties?” Who is Lorenzo? Is he the only [son] of God? I have other
relatives [who should] benefit from my properties. Why should I die already?”53 Thereafter,
Antonio advised Paciencia not to sign the documents if she does not want to, to which the latter
purportedly replied, “I know nothing about those, throw them away or it is up to you. The more I
will not sign them.”54After which, Paciencia left the documents with Antonio. Antonio kept the
unsigned documents and eventually turned them over to Faustino on September 18, 1981. 55
Ruling of the Regional Trial Court
On September 30, 2003, the RTC rendered its Decision 56 denying the petition thus:
“WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b)
disallows the notarized will dated September 13, 1981 of Paciencia Regala.
SO ORDERED.”57
The trial court gave considerable weight to the testimony of Rosie and concluded that at the
time Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of
mind to have testamentary capacity.58
Ruling of the Court of Appeals
On appeal, the CA reversed the RTC Decision and granted the probate of the Will of
Paciencia. The appellate court did not agree with the RTC’s conclusion that Paciencia was of
unsound mind when she executed the Will. It ratiocinated that “the state of being ‘magulyan’
does not make a person mentally unsound so [as] to render [Paciencia] unfit for executing a
Will.”59Moreover, the oppositors in the probate proceedings were not able to overcome the
presumption that every person is of sound mind. Further, no concrete circumstances or events
were given to prove the allegation that Paciencia was tricked or forced into signing the Will. 60
Petitioners moved for reconsideration61 but the motion was denied by the CA in its
Resolution62dated August 31, 2006.
Hence, this petition.
Issues
Petitioners come before this Court by way of Petition for Review on Certiorariascribing
upon the CA the following errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED
THE PROBATE OF PACIENCIA’S WILL DESPITE RESPONDENT’S UTTER FAILURE TO
COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF COURT;
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING
CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD;
 III. latter witnessed and signed the will and all the pages thereof in the presence of the testator and of
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT one another.
PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND AT If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
THE TIME THE WILL WAS ALLEGEDLY EXECUTED63 them.
The pivotal issue is whether the authenticity and due execution of the notarial Will was Art. 806. Every will must be acknowledged before a notary public by the testator and the
sufficiently established to warrant its allowance for probate. witnesses. The notary public shall not be required to retain a copy of the will, or file another with
the Office of the Clerk of Court.”
Our Ruling Here, 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
We deny the petition.
witnesses and the notary public, are all present and evident on the Will. Further, the attestation
Faithful compliance with the formalities
clause explicitly states the critical requirement that the testatrix and her instrumental witnesses
laid down by law is apparent from the
signed the Will in the presence of one another and that the witnesses attested and subscribed to
face of the Will.
the Will in the presence of the testator and of one another. In fact, even the petitioners acceded
Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate
that the signature of Paciencia in the Will may be authentic although they question her state of
proceedings.64 This is expressly provided for in Rule 75, Section 1 of the Rules of Court, which
mind when she signed the same as well as the voluntary nature of said act.
states:
The burden to prove that Paciencia
Rule 75
was of unsound mind at the time of
Production of Will. Allowance of
the execution of the will lies on the
Will Necessary.
shoulders of the petitioners.
“Section 1. Allowance necessary. Conclusive as to execution.—No will shall pass either
Petitioners, through their witness Rosie, claim that Paciencia was “magulyan” or forgetful so
real or personal estate unless it is proved and allowed in the proper court. Subject to the right of
much so that it effectively stripped her of testamentary capacity. They likewise claimed in their
appeal, such allowance of the will shall be conclusive as to its due execution.”
Motion for Reconsideration66filed with the CA that Paciencia was not only “magulyan” but was
Due execution of the will or its extrinsic validity pertains to whether the testator, being of
actually suffering from paranoia.67
sound mind, freely executed the will in accordance with the formalities prescribed by
We are not convinced.
law.65 These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:
We agree with the position of the CA that the state of being forgetful does not necessarily
“Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
make a person mentally unsound so as to render him unfit to execute a Will. 68 Forgetfulness is
by the testator himself or by the testator’s name written by some other person in his presence,
not equivalent to being of unsound mind. Besides, Article 799 of the New Civil Code states:
and by his express direction, and attested and subscribed by three or more credible witnesses in
“Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of
the presence of the testator and of one another.
all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by
The testator or the person requested by him to write his name and the instrumental witnesses
disease, injury or other cause.
of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
It shall be sufficient if the testator was able at the time of making the will to know the nature
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of
of the estate to be disposed of, the proper objects of his bounty, and the character of the
each page.
testamentary act.”
The attestation shall state the number of pages used upon which the will is written, and the
In this case, apart from the testimony of Rosie pertaining to Paciencia’s forgetfulness, there
fact that the testator signed the will and every page thereof, or caused some other person to write
is no substantial evidence, medical or otherwise, that would show that Paciencia was of unsound
his name, under his express direction, in the presence of the instrumental witnesses, and that the
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.”69 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.
Article 800 of the New Civil Code states:
“Art. 800. The law presumes that every person is of sound mind, in the absence of proof
to the contrary.
The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be insane, the person who maintains the
validity of the will must prove that the testator made it during a lucid interval.”
Here, there was no showing that Paciencia was publicly known to be insane one month or
less before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of
unsound mind lies upon the shoulders of petitioners. However and as earlier mentioned, no
substantial evidence was presented by them to prove the same, thereby warranting the CA’s
finding that petitioners failed to discharge such burden.
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. 70
Bare allegations of duress or influence of fear or threats, undue and improper influence and
pressure, fraud and trickery cannot be used as basis to deny the probate of a will.
An essential element of the validity of the Will is the willingness of the testator or testatrix
to execute the document that will distribute his/her earthly possessions upon his/her death.
Petitioners claim that Paciencia 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; and that assuming Paciencia’s
signature to be genuine, it was obtained through fraud or trickery. These are grounded on the
alleged conversation between Paciencia and Antonio on September 16, 1981 wherein the former
purportedly repudiated the Will and left it unsigned.
We are not persuaded.
We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as
her own son and that love even extended to Lorenzo’s wife and children. This kind of
relationship is not unusual. It is in fact not unheard of in our culture for old maids or spinsters to
care for and raise their nephews and nieces and treat them as their own children. Such is a
prevalent and accepted cultural practice that has resulted in many family discords between those
favored by the testamentary disposition of a testator and those who stand to benefit in case of
intestacy.
In this case, evidence shows the acknowledged fact that Paciencia’s relationship with
Lorenzo and his family is different from her relationship with petitioners. The very fact that she
cared for and raised Lorenzo and lived with him both here and abroad, even if the latter was
already married and already has children, highlights the special bond between them. This
unquestioned relationship between Paciencia and the devisees tends to support the authenticity of
the said document as against petitioners’ allegations of duress, influence of fear or threats, undue
and improper influence, pressure, fraud, and trickery which, aside from being factual in nature,
are not supported by concrete, substantial and credible evidence on record. It is worth stressing
that bare arguments, no matter how forceful, if not based on concrete and substantial evidence
cannot suffice to move the Court to uphold said allegations. 71 Furthermore, “a purported will is
not [to be] denied legalization on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its foundation, for even if a will has been duly
executed in fact, whether x x x it will be probated would have to depend largely on the attitude of
those interested in [the estate of the deceased].”72
Court should be convinced by the
evidence presented before it that the
Will was duly executed.
Petitioners dispute the authenticity of Paciencia’s Will on the ground that Section 11 of Rule
76 of the Rules of Court was not complied with. It provides:
RULE 76
Allowance or Disallowance of Will
“Section 11. Subscribing witnesses produced or accounted for where will contested.—If
the will is contested, all the subscribing witnesses, and the notary in the case of wills executed
under the Civil Code of the Philippines, if present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of any of them must be satisfactorily
shown to the court. If all or some of such witnesses are present in the Philippines but outside the
province where the will has been filed, their deposition must be taken. If any or all of them
testify against the due execution of the will, or do not remember having attested to it, or are
otherwise of doubtful credibility, the will may nevertheless, be allowed if the court is satisfied
from the testimony of other witnesses and from all the evidence presented that the will was opposed to the total lack of evidence presented by petitioners apart from their self-serving
executed and attested in the manner required by law. testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its
If a holographic will is contested, the same shall be allowed if at least three (3) witnesses allowance for probate.
who know the handwriting of the testator explicitly declare that the will and the signature are in WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the
the handwriting of the testator; in the absence of any competent witnesses, and if the court deem Resolution dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are
it necessary, expert testimony may be resorted to.” (Emphasis supplied.) AFFIRMED.
They insist that all subscribing witnesses and the notary public should have been presented SO ORDERED.
in court since all but one witness, Francisco, are still living. Corona (C.J., Chairperson), Leonardo-De Castro, Bersamin andVillarama, Jr., JJ.,
We cannot agree with petitioners. concur.
We note that the inability of Faustino and Judge Limpin to appear and testify before the Petition denied, judgment and resolution affirmed.
court was satisfactorily explained during the probate proceedings. As testified to by his son, Notes.—The object of solemnities surrounding the execution of wills is to close the door on
Faustino had a heart attack, was already bedridden and could no longer talk and express himself bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and
due to brain damage. To prove this, said witness presented the corresponding medical certificate. authenticity. (Lee vs. Tambago, 544 SCRA 393 [2008]).
For her part, Dra. Limpin testified that her father, Judge Limpin, suffered a stroke in 1991 and The choice of his executor is a precious prerogative of a testator, a necessary concomitant of
had to undergo brain surgery. At that time, Judge Limpin could no longer talk and could not even his right to dispose of his property in the manner he wishes. (Republic vs. Marcos II, 595 SCRA
remember his daughter’s name so that Dra. Limpin stated that given such condition, her father 43 [2009]).
could no longer testify. It is well to note that at that point, despite ample opportunity, petitioners
neither interposed any objections to the testimonies of said witnesses nor challenged the same on
cross examination. We thus hold that for all intents and purposes, Lorenzo was able to
satisfactorily account for the incapacity and failure of the said subscribing witness and of the
notary public to testify in court. Because of this the probate of Paciencia’s Will may be allowed
on the basis of Dra. Limpin’s testimony proving her sanity and the due execution of the Will, as
well as on the proof of her handwriting. It is an established rule that “[a] testament may not be
disallowed just because the attesting witnesses declare against its due execution; neither does it
have to be necessarily allowed just because all the attesting witnesses declare in favor of its
legalization; what is decisive is that the court is convinced by evidence before it, not necessarily
from the attesting witnesses, although they must testify, that the will was or was not duly
executed in the manner required by law.”73
Moreover, it bears stressing that “[i]rrespective x x x of the posture of any of the parties as
regards the authenticity and due execution of the will x x x in question, it is the mandate of the
law that it is the evidence before the court and/or [evidence that] ought to be before it that is
controlling.”74 “The very existence of [the Will] is in itself prima facie proof that the supposed
[testatrix] has willed that [her] estate be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be given full effect independent of
the attitude of the parties affected thereby.”75 This, coupled with Lorenzo’s established
relationship with Paciencia, the evidence and the testimonies of disinterested witnesses, as

[No. 22595. November 1, 1924]
Testate Estate of Joseph G. Brimo. JUAN MICIANO, administrator, petitioner and
appellee, vs. ANDRE BRIMO, opponent and appellant.
1. 1.FOREIGN LAWS; PRESUMPTION.—In the absence of evidence to the contrary
foreign laws on a particular subject are presumed to be the same as those of the
Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
1. 2.POSTPONEMENT OF PROCEEDING; DISCRETION.—It is discretionary on the
part of the court to postpone or not to postpone a particular proceeding in a case, and
when the person applying for it has already been given ample opportunity to present
the evidence that he wishes to introduce, the court commits no abuse of discretion in
denying it.
1. 3.SUCCESSIONS; CONDITIONAL LEGACY; CONDITION CONTRARY TO
LAW; NULLITY OF.—If the condition imposed upon the legatee is that he respect
the testator's order that his property be distributed in accordance with the laws of the
Philippines and not in accordance with the laws of his nation, said condition is
illegal, because, according to article 10 of the Civil Code, said laws govern his
testamentary disposition, and, being illegal, shall be considered unwritten, thus
making the institution unconditional.
APPEAL from various orders of the Court of First Instance of Manila. Diaz and Harvey, JJ.
The facts are stated in the opinion of the court.
Ross, Lawrence & Selph for appellant.
Camus & Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the
brothers of the deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of
partition; (2) the denial of his participation in the inheritance; (3) the denial of the motion for
reconsideration of the order approving the partition; (4) the approval of the purchase made by
Pietro Lanza of the deceased's business and the deed of transfer of said business; and (5) the
declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the
approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza
until the receipt of the depositions requested in reference to the Turkish laws.
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 of 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. (Lim and Limvs. Collector of Customs, 36
Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself,
acknowledges it when he desires to be given an opportunity to present evidence on this point; so
much so that he assigns as an error of the court in not having deferred the approval of the scheme
of partition until the receipt of certain testimony requested regarding the Turkish laws on the
matter.
The refusal to give the oppositor another opportunity to prove such laws does not constitute
an error, It is discretionary with the trial court. and, taking into consideration that the oppositor
was granted ample opportunity to introduce competent evidence, we find no abuse of discretion
on the part of the court in this particular.
There is, therefore, no evidence in the record that the national law of the testator Joseph G.
Brimo was violated in the testamentary dispositions in question which, not being contrary to our
laws in force, must be complied with
Therefore, the approval of the scheme of partition in respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein
appellant as a legatee, inasmuch as he is one of the persons designated as such in the will, it must
be taken into consideration that such exclusion is based on the last part of the second clause of
the will, which says:
"Second. I likewise desire to state that although, by law, I am a Turkish citizen, this
citizenship having been conferred upon me by conquest and not by free choice, nor by
nationality and, on the other hand, having resided for a considerable length of time in. the
Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my
wish that the distribution of my property and everything in connection with this, my will, be
made and disposed of in accordance with the laws in force in the Philippine Islands, requesting
all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever
disposition found in this will favorable to the person or persons who fail to comply with this
request."
The institution of legatees in this will is conditional, and the condition is that the instituted
legatees must respect the testator's will to distribute his property, not in accordance with the laws
of his nationality, but in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply with
it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of
the testator, as expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792 of
the Civil Code provides the following:
"Impossible conditions and those contrary to law or good morals shall be considered as not
imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the
testator otherwise provide."
And said condition is contrary to law because it expressly ignores the testator's national law
when, according to article 10 of the Civil Code above quoted, such national law of the testator is
the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten,
and the institution of legatees in said will is unconditional and consequently valid and effective
even as to the herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern
it, and to the condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly
valid and effective it not appearing that said clauses are contrary to the testator's national laws.
Therefore, the orders appealed from are modified and it is directed that the distribution of
this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the
legatees, and the scheme of partition submitted by the judicial administrator is approved in all
other respects, without any pronouncement as to costs. So ordered.
Street, Malcolm, Avanceña,Villamor, and Ostrand, JJ., concur.
Johnson, J., dissents.
Orders modified.
No. L-16749. January 31, 1963.
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN,
DECEASED. ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the
deceased, Executor and Heir-appellees, vs. HELEN CHRISTENSEN GARCIA,
oppositor-appellant.
Private International Law; Determination of citizenship; U.S. citizenship not lost by stay
in Philippines before independence.—The citizenship that the deceased acquired in California
when he resided there from 1904 to 1913 was never lost by his stay in the Philippines, for the
latter was a territory of the United States until 1946, and the deceased appears to have considered
himself as a citizen of California by the fact that when he executed his will in 1951 he declared
that he was a citizen of that State; so that he appears never to have intended to abandon his
California citizenship by acquiring another.
Same; Validity of testamentary provisions; Meaning of “national law” in Article 16, Civil
Code; Conflict of law rules in California to be applied in case at bar.—The “national law”
indicated in Article 16 of the Civil Code cannot possibly apply to any general American Law,
because there is no such law governing the validity of testamentary provisions in the United
States, each state of the union having its own private law applicable to its citizens only and in
force only within the state. It can therefore refer to no other than the private law of the state of
which the decedent was a citizen. In the case at bar, the State of California prescribes two sets of
laws for its citizens, an internal law for its citizens residing therein and a conflict of law rules for
its citizens domiciled in other jurisdictions. Hence, reason demands that the California conflict of
law rules should be applied in this jurisdiction in the case at bar.96
Same; Same; Domicile; Factors considered in determining aliens’ domicile in the
Philippines.—An American citizen who was born in New York, migrated to California, resided
there for nine years, came to the Philippines in 1913, and very rarely returned to California and
only for short visits, and who appears to have never owned or acquired a home or properties in
that state, shall be considered to have his domicile in the Philippines.
Same; Same; Same; Rule of resorting to the law of the domicile in determining matters
with foreign element involved.—The rule laid down of resorting to the law of the domicile in the
determination of matters with foreign element involved is in accord with the general principle of
American law that the domiciliary law should govern in most matters or rights which follow the
person of the owner.
Same; Same; Same; Same; Court of domicile bound to apply its own law as directed in the
conflict of law rule of decedents state; Application of the renvoi doctrine.—The conflict of law
rule in California, Article 946 Civil Code, refers back the case, when a decedent is not domiciled
in California, to the law of his domicile, the Philippines in the case at bar. The court of domicile
can not and should not refer the case back to California, as such action would leave the issue
incapable of determination, because the case will then be tossed back and forth between the two
states. If the question has to be decided, the Philippine court must apply its own law as the
Philippines was the domicile of the decedent, as directed in the conflict of law rule of the state of
the decedent, California, and especially because the internal law of California provides no
legitime for natural children, while the Philippine law (Articles 887(4) and 894, Civil Code of
the Philippines makes natural children legally acknowledged forced heirs of the parent recog-
nizing them).
Same; Same; Same; Same; Same; Same; Philippine law to be applied in case at bar.—As
the domicile of the deceased, who was a citizen of California, was the Philippines, the validity of
the provisions of his will depriving his acknowledged natural child of the latter’s legacy, should
be governed by the Philippine law, pursuant to Article 946 of the Civil Code of California, not
by the internal law of California.
APPEAL from a decision of the Court of First Intsance of Davao, Cusi, Jr., J.
The facts are stated in the opinion of the Court.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N.
Cusi, Jr., presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949,
approving among things the final accounts of the executor, directing the executor to reimburse
Maria Lucy Christensen the amount of P3,600 paid by her to Helen Christensen Garcia as her
legacy, and declaring Maria Lucy Christensen entitled to the residue of the property to be
enjoyed during her lifetime, and in case of death without issue, one-half of said residue to be
payable to Mrs. Carrie Louise C. Borton, etc., in accordance with the provisions of the will of the
testator Edward E. Christensen. The will was executed in Manila on March 5, 1951 and contains
the following provisions:
“3. I declare x x x that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN
(now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, and
who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
“4. I further declare that I now have no living ascendants, and no descendants except my
above named daughter, MARIA LUCY CHRISTENSEN DANEY.
 x x x x x the provisions in his will are to be governed by the law of California, in accordance with which a
“7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to testator has the right to dispose of his property in the way he desires, because the right of
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was absolute dominion over his property is sacred and inviolable (In re McDaniel’s Estate, 77 Cal.
baptized Christensen, is not in any way related to me, nor has she been at any time adopted by Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179,
me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the Record on Appeal). Oppositor Maria Helen Christensen, through counsel, filed various motions
sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the for reconsideration, but these were denied. Hence, this appeal.
same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the The most important assignments of error are as follows:
Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine I
Currency per month until the principal thereof as well as any interest which may have accrued THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE
thereon, is exhausted.. SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF
x x x x x EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER
“12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA JUST SHARE IN THE INHERITANCE.
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 II
Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO
and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND
character, and wheresoever situated, of which I may be possessed at my death and which may CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW.
have come to me from any source whatsoever, during her lifetime: x x x” III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER
It is in accordance with the above-quoted provisions that the executor in his final account INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE
and project of partition ratified the payment of only P3,600 to Helen Christensen Garcia and INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE
proposed that the residue of the estate be transferred to his daughter, Maria Lucy Christensen. DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN
Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
insofar as it deprives her (Helen) of her legitime as an acknowledged natural child, she having IV
been declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF
Edward E. Christensen. The legal grounds of opposition are (a) that the distribution should be DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE
governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto LAWS.
insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of V
the estate in full ownership. In amplification of the above grounds it was alleged that the law that THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE
should govern the estate of the deceased Christensen should not be the internal law of California LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE
alone, but the entire law thereof because several foreign elements are involved, that the forum is ESTATE IN FULL OWNERSHIP.
the Philippines and even if the case were decided in California, Section 946 of the California
Civil Code, which requires that the domicile of the decedent should apply, should be applicable.
There is no question that Edward E. Christensen was a citizen of the United States and of the
It was also alleged that Maria Helen Christensen having been declared an acknowledged natural
State of California at the time of his death. But there is also no question that at the time of his
child of the decedent, she is deemed for all purposes legitimate from the time of her birth.
death he was domiciled in the Philippines, as witness the following facts admitted by the
The court below ruled that as Edward E. Christensen was a citizen of the United States and
executor himself in appellee’s brief:100
of the State of California at the time of his death, the successional rights and intrinsic validity of
 “In the proceedings for admission of the will to probate, the facts of record show that the
deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y.,
U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1, 1901,
on board the U.S. Army Transport “Sheridan” with Port of Embarkation as the City of San
Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904.
“In December, 1904, Mr. Christensen returned to the United States and stayed there for the
following nine years until 1913, during which time he resided in, and was teaching school in
Sacramento, California.
“Mr. Christensen’s next arrival in the Philippines was in July of the year 1913. However, in
1928, he again departed the Philippines for the United States and came back here the following
year, 1929. Some nine years later, in 1938, he again returned to his own country, and came back
to the Philippines the following year, 1939.
“Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces
in the Philippines during World War II. Upon liberation, in April 1945, he left for the United
States but returned to the Philippines in December, 1945. Appellees Collective Exhibits “6”, CFI
Davao, Sp. Proc. 622, as Exhibits “AA”, “BB” and “CC-Daney”; Exhs. “MM”, “MM-l”, “MM-
2-Daney” and p. 473, t.s.n., July 21, 1953.)
“In April, 1951, Edward E. Christensen returned once more to California shortly after the
making of his last will and testament (now in question herein) which he executed at his lawyers’
offices in Manila on March 5, 1951. He died at the St. Luke’s Hospital in the City of Manila on
April 30, 1953.” (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we are
persuaded by the fact that he was born in New York, migrated to California and resided there for
nine years, and since he came to the Philippines in 1913 he returned to California very rarely and
only for short visits (perhaps to relatives), and considering that he appears never to have owned
or acquired a home or properties in that state, which would indicate that he would ultimately
abandon the Philippines and make home in the State of California.
“Sec. 16. Residence is a term used with many shades of meaning from mere temporary
presence to the most permanent abode. Generally, however, it is used to denote something more
than mere physical presence.” (Goodrich on Conflict of Laws, p. 29).
As to his citizenship, however, We find that the citizenship that he acquired in California
when he resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the
Philippines, for the latter was a territory of the United States (not a state) until 1946 and the
deceased appears to have considered himself as a citizen of California by the fact that when he
executed his will in 1951 he declared that he was a citizen of that State; so that he appears never
to have intended to abandon his California citizenship by acquiring another. This conclusion is in
accordance with the following principle expounded by Goodrich in his Conflict of Laws.
“The terms ‘residence’ and ‘domicile’ might well be taken to mean the same thing, a place
of permanent abode. But domicile, as has been shown, has acquired a technical meaning. Thus
one may be domiciled in a place where he has never been. And he may reside in a place where
he has no domicile. The man with two homes, between which he divides his time, certainly
resides in each one, while living in it. But if he went on business which would require his
presence for several weeks or months, he might properly be said to have sufficient connection
with the place to be called a resident. It is clear, however, that, if he treated his settlement as
continuing only for the particular business in hand, not giving up his former ‘home,’ he could not
be a domiciled New Yorker. Acquisition of a domicile of choice requires the exercise of
intention as well as physical presence. ‘Residence simply requires bodily presence of an
inhabitant in a given place, while domicile requires bodily presence in that place and also an
intention to make it one’s domicile.’ Residence, however, is a term used with many shades of
meaning, from the merest temporary presence to the most permanent abode, and it is not safe to
insist that any one use et the only proper one.” (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of
the Civil Code of the Philippines, which is as follows:
“ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.
“However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and regardless of the country where
said property may be found.”
The application of this article in the case at bar requires the determination of the meaning of
the term “national law”is used therein.
There is no single American law governing the validity of testamentary provisions in the
United States, each state of the Union having its own private law applicable to its citizens only
and in force only within the state. The “national law” indicated in Article 16 of the Civil Code
above quoted can not, therefore, possibly mean or apply to any general American law. So it can
refer to no other than the private law of the State of California.
 The next question is: What is the law in California governing the disposition of personal
property? The decision of the court below, sustains the contention of the executor-appellee that
under the California Probate Code, a testator may dispose of his property by will in the form and
manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952.
But appellant invokes the provisions of Article 946 of the Civil Code of California, which is as
follows:
“If there is no law to the contrary, in the place where personal property is situated, it is
deemed to follow the person of its owner, and is governed by the law of his domicile.”
The existence of this provision is alleged in appellant’s opposition and is not denied. We have
checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the
case cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly
cited.) It is argued on executor’s behalf that as the deceased Christensen was a citizen of the
State of California, the internal law thereof, which is that given in the abovecited case, should
govern the determination of the validity of the testamentary provisions of Christensen’s will,
such law being in force in the State of California of which Christensen was a citizen. Appellant,
on the other hand, insists that Article 946 should be applicable, and in accordance therewith and
following the doctrine of the renvoi, the question of the validity of the testamentary provision in
question should be referred back to the law of the decedent’s domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors, thus:
“The problem has been stated in this way: ‘When the Conflict of Laws rule of the forum
refers a jural matter to a foreign law for decision, is the reference to the purely internal rules of
law of the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws
rules?’
“On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi,
that is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan
law. But once having determined the the Conflict of Laws principle is the rule looked to, it is
difficult to see why the reference back should not have been to Michigan Conflict of Laws. This
would have resulted in the ‘endless chain of references’ which has so often been criticized be
legal writers. The opponents of the renvoi would have looked merely to the internal law of
Illinois, thus rejecting the renvoi or the reference back. Yet there seems no compelling logical
reason why the original reference should be the internal law rather than to the Conflict of Laws
rule. It is true that such a solution avoids going on a merry-go-round, but those who have
accepted the renvoitheory avoid this inextricabilis circulas by getting off at the second reference
and at that point applying internal law. Perhaps the opponents of the renvoi are a bit more
consistent for they look always to internal law as the rule of reference.
“Strangely enough, both the advocates for and the objectors to the renvoi plead that greater
uniformity will result from adoption of their respective views. And still more strange is the fact
that the only way to achieve uniformity in this choice-of-law problem is if in the dispute the two
states whose laws form the legal basis of the litigation disagree as to whether the renvoi should
be accepted. If both reject, or both accept the doctrine, the result of the litigation will vary with
the choice of the forum. In the case stated above, had the Michigan court rejected the renvoi,
judgment would have been against the woman; if the suit had been brought in the Illinois courts,
and they too rejected the renvoi, judgment would be for the woman. The same result would
happen, though the courts would switch with respect to which would hold liability, if both courts
accepted the renvoi.104
“The Restatement accepts the renvoi theory in two instances: where the title to land is in
question, and where the validity of a decree of divorce is challenged. In these cases the Conflict
of Laws rule of the situs of the land, or the domicile of the parties in the divorce case, is applied
by the forum, but any further reference goes only to the internal law. Thus, a person’s title to
land, recognized by the situs, will be recognized by every court; and every divorce, valid by the
domicile of the parties, will be valid everywhere.” (Goodrich, Conflict of Laws, Sec. 7, pp. 13-
14.)
“X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property
in Massachusetts, England, and France. The question arises as to how this property is to be
distributed among X’s next of kin.
“Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict
of laws as to intestate succession to movables calls for an application of the law of the
deceased’s last domicile. Since by hypothesis X’s last domicile was France, the natural thing for
the Massachusetts court to do would be to turn to French statute of distributions, or whatever
corresponds thereto in French law, and decree a distribution accordingly. An examination of
French law, however, would show that if a French court were called upon to determine how this
property should be distributed, it would refer the distribution to the national law of the deceased,
thus applying the Massachusetts statute of distributions. So on the surface of things the
Massachusetts court has open to it alternative course of action: (a) either to apply the French law
is to intestate succession, or (b) to resolve itself into a French court and apply the Massachusetts
statute of distributions, on the assumption that this is what a French court would do. If it accepts
the so-called renvoi doctrine, it will follow the latter course, thus applying its own law.
“This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the
forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back
again to the law of the forum. This is renvoi in the narrower sense. The German term for this
judicial process is ‘Ruckverweisung.’” (Harvard Law Review, Vol. 31, pp. 523-571.)
“After a decision has been arrived at that a foreign law is to be resorted to as governing a
particular case, the further question may arise: Are the rules as to the conflict of laws contained
in such foreign law also to be resorted to? This is a question which, while it has been considered
by the courts in but a few instances, has been the subject of frequent discussion by textwriters
and essayists; and the doctrine involved has been descriptively designated by them as the
‘Renvoyer’ to send back, or the ‘Ruchversweisung’, or the ‘Weiterverweisung’, since an
affirmative answer to the question postulated and the operation of the adoption of the foreign law
in toto would in many cases result in returning the main controversy to be decided according to
the law of the forum. x x x (16 C.J.S. 872.)
“Another theory, known as the “doctrine ofrenvoi”, has been advanced. The theory of the
doctrine of renvoi is that the court of the forum, in determining the question before it, must take
into account the whole law of the other jurisdiction, but also its rules as to conflict of laws, and
then apply the law to the actual question which the rules of the other jurisdiction prescribe. This
may be the law of the forum. The doctrine of the renvoi has generally been repudiated by the
American authorities.” (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for its application in
a country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918,
pp. 529-531. The pertinent parts of the article are quoted herein below:
“The recognition of the renvoi theory implies that the rules of the conflict of laws are to be
understood as incorporating not only the ordinary or internal law of the foreign state or country,
but its rules of the conflict of laws as well. According to this theory ‘the law of a country’ means
the whole of its law.
x x x x x x x succession, the same rules should determine the validity of an attempted testamentary dispostion
“Von Bar presented his views at the meeting of the Institute of International Law, at
Neuchatel, in 1900, in the form of the following theses:
“(1) Every court shall observe the law of its country as regards the application of foreign
laws.
“(2) Provided that no express provision to the contrary exists, the court shall respect:
“(a) The provisions of a foreign law which disclaims the right to bind its nationals
abroad as regards their personal statute, and desires that said personal statute shall be
determined by the law of the domicile, or even by the law of the place where the act in
question occurred.
“(b) The decision of two or more foreign systems of law, provided it be certain
that one of them is necessarily competent, which agree in attributing the determination
of a question to the same system of law.
x x x x x x x
“If, for example, the English law directs its judge to distribute the personal estate of an
Englishman who has died domiciled in Belgium in accordance with the law of his domicile, he
must first inquire whether the law of Belgium would distribute personal property upon death in
accordance with the law of domicile, and if he finds that the Belgian law would make the
distribution in accordance with the law of nationality — that is the English law — he must
accept this reference back to his own law.”
We note that Article 946 of the California Civil Code is its conflict of laws rule, while the
rule applied in In re Kaufman, Supra, its internal law. If the law on succession and the conflict of
laws rules of California are to be enforced jointly, each in its own intended and appropriate
sphere, the principle cited In re Kaufman should apply to citizens living in the State, but Article
946 should apply to such of its citizens as are not domiciled in California but in other
jurisdictions. The rule laid down of resorting to the law of the domicile in the determination of
matters with foreign element involved is in accord with the general principle of American law
that the domiciliary law should govern in most matters or rights which follow the person of the
owner.
“When a man dies leaving personal property in one or more states, and leaves a will
directing the manner of distribution of the property, the law of the state where he was domiciled
at the time of his death will be looked to in deciding legal questions about the will, almost as
completely as the law of situs is consulted in questions about the devise of land. It is logical that,
since the domiciliary rules control devolution of the personal estate in case of intestate
of the property. Here, also, it is not that the domiciliary has effect beyond the borders of the
domiciliary state. The rules of the domicile are recognized as controlling by the Conflict of Laws
rules at the situs property, and the reason for the recognition as in the case of intestate
succession, is the general convenience of the doctrine. The New York court has said on the point:
‘The general principle that a dispostiton of a personal property, valid at the domicile of the
owner, is valid anywhere, is one of the universal application. It had its origin in that international
comity which was one of the first fruits of civilization, and it this age, when business intercourse
and the process of accumulating property take but little notice of boundary lines, the practical
wisdom and justice of the rule is more apparent than ever.’” (Goodrich, Conflict of Laws, Sec.
164, pp. 442-443.)
 Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as child, the appellant, should be governed by the Philippine Law, the domicile, pursuant to Art.
the national law is the internal law of California. But as above explained the laws of California 946 of the Civil Code of California, not by the internal law of California.
have prescribed two sets of laws for its citizens, one for residents therein and another for those WHEREFORE, the decision appealed from is hereby reversed and the case returned to the
domiciled in other jurisdictions. Reason demands that We should enforce the California internal lower court with instructions that the partition be made as the Philippine law on succession
law prescribed for its citizens residing therein, and enforce the conflict of laws rules for the provides. Judgment reversed, with costs against appellees.
citizens domiciled abroad. If we must enforce the law of California as in comity we are bound to Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon,
go, as so declared in Article 16 of our Civil Code, then we must enforce the law of California in Regala and Makalintal, JJ., concur.
accordance with the express mandate thereof and as above explained, i.e., apply the internal law Bengzon, C.J., took no part.
for residents therein, and its conflict-of-laws rule for those domiciled abroad.
Decision reversed and case returned to lower court with instructions that partition be made
It is argued on appellees’ behalf that the clause “if there is no law to the contrary in the place
as the Philippine law on succession applies.
where the property is situated” in Sec. 946 of the California Civil Code refers to Article 16 of the
Civil Code of the Philippines and that the law to the contrary in the Philippines is the provision
Notes.—The words “amount of successional rights” used in Article 16 of the Civil Code
in said Article 16 that the national law of the deceased should govern. This contention can not be
refer to the extent or amount of property that each heir is legally entitled to inherit from the estate
sustained. As explained in the various authorities cited above the national law mentioned in
available for distribution (Collector v. Fisher, et al., L-11622 and L-11668, Jan, 23, 1960).
Article 16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e.,
The doctrine of renvoi is usually pertinent where the decedent is a national of one country
Article 946, which authorizes the reference or return of the question to the law of the testator’s
and is domiciled in another. It does not apply to a case where the decedent was a citizen of Texas
domicile. The conflict of laws rule in California, Article 946, Civil Code, precisely refers back
and was domiciled therein at the time of his death. (Bellis vs. Bellis, et al., L-23678, June 6,
the case, when a decedent is not domiciled in California, to the law of his domicile, the
1967, 20 SCRA 358).
Philippines in the case at bar. The court of the domicile can not and should not refer the case
back to California; such action would leave the issue incapable of determination because the case
will then be like a football, tossed back and forth between the two states, between the country of
which the decedent was a citizen and the country of his domicile. The Philippine court must
apply its own law as
directed in the conflict of laws rule of the state of the decedent, if the question has to be decided,
especially as the application of the internal law of California provides no legitime for children
while the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines, makes natural
children legally acknowledged forced heirs of the parent recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105;
Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and
Gibbs vs. Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly
apply in the case at bar, for two important reasons, i.e., the subject in each case does not appear
to be a citizen of a state in the United States but with domicile in the Philippines, and it does not
appear in each case that there exists in the state of which the subject is a citizen, a law similar to
or identical with Art. 946 of the California Civil Code.
We therefore find that as the domicile of the deceased Christensen, a citizen of California, is
the Philippines, the validity of the provisions of his will depriving his acknowledged natural

[No. 5971. February 27, 1911.]
BEATRIZ NERA ET AL., plaintiffs and appellees, vs. NARCISA RIMANDO, defendant
and appellant.
1. 1.EXECUTION OF WlLLS; POSITION OF TESTATOR AND WlTNESS WHEN
WILL is SUBSCRIBED.—The position of testator and of the witnesses to a will, at
the moment of the subscription by each, must be such that they may see each other
sign if they choose to do so.
1. 2.ID. ; ID.; SIGNING IN THE PRESENCE OF EACH OTHER.—The question
whether the testator and the subscribing witnesses to an alleged will sign the
instrument in the presence of each other does not depend upon proof of the fact that
their eyes were actually cast upon the paper at the moment of its subscription by each
of them, , but whether at that moment existing conditions and the position of the
parties, with relation to each other, were such that by merely casting their eyes in the
proper direction they could have seen each other sign.
1. 3.ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WILL is SIGNED.—If
one subscribing witness to a will is shown to have been in an outer room at the time
when the testator and the other witnesses attach their signatures to the instrument in
an inner room, the will would be held invalid—the attaching of the said signatures,
under such circumstances, not being done "in the presence" of the witness in the
outer room.
APPEAL from a decree of the Court of First Instance of La Union. Moir, J.
The facts are stated in the opinion of the court.
Valerio Fontanilla and Andres Asprer,for appellant.
Anacleto Diaz, for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was present
in the small room where it was executed at the time when the testator and the other subscribing
witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet
away, in a large room connecting with the smaller room by a doorway, across which was hung a
curtain which made it impossible for one in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the
small room with the testator and the other subscribing witnesses at the time when they attached
their signatures to the instrument, and this finding, of course, disposes of the appeal and
necessitates the affirmance of the decree admitting the document to probate as the last will and
testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact
of vital importance in the determination of this case, as he was of opinion that under the doctrine
laid down in the case of Jaboneta vs.Gustilo (5 Phil. Rep., 541) the alleged fact that one of the
subscribing witnesses was in the outer room when the testator and the other describing witnesses
signed the instrument in the inner room, had it been proven, would not be sufficient in itself to
invalidate the execution of the will. But we are unanimously of opinion that had this subscribing
witness been proven to have been in the outer room at the time when the testator and the other
subscribing witnesses attached their signatures to the instrument in the inner room, it would 'have
been invalid as a will, the attaching of those signatures under such circumstances not being done
"in the presence" of the witness in the outer room. This because the line of vision from this
witness to the testator and the other subscribing witnesses would necessarily have been impeded
by the curtain separating the inner room from the outer one "at the moment of inscription of each
signature."
 In the case just cited, on which the trial court relied, we held that:
"The true test of presence of the testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might have seen each other sign, had
they chosen to do so, considering their mental and physical condition and position with relation
to each other at the moment of inscription of each signature."
But it is especially to be noted that the position of the parties with relation to each other at
the moment of the subscription of each signature, must be such that they may see each other sign
if they choose to do so. This, of course, does not mean that the testator and the subscribing
witnesses may be held to have executed the instrument in the presence of each other if it appears
that they would not have been able to see each other sign at that moment, without changing their
relative positions or existing conditions. The evidence in the case relied upon by the trial judge
discloses that "at the moment when the witness Javellana signed the document he was actually
and physically present and in such position with relation to Jaboneta that he could see everything
that took place by merely casting his eyes in the proper direction and without any physical
obstruction to prevent his doing so." And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses to an alleged will sign the instrument
in the presence of each other does not depend upon proof of the fact that their eyes were actually
cast upon the paper at the moment of its subscription by each of them, but that at that moment
existing conditions and their position with relation to each other were such that by merely casting
the eyes in the proper direction they could have seen each other sign. To extend the doctrine
further would open the door to the possibility of all manner of fraud, substitution, and the like,
and would defeat the purpose for which this particular condition is prescribed in the code as one
of the requisites in the execution of a will. No.L-32213. November 26, 1973.*
The decree entered by the court below admitting the instrument propounded therein to AGAPITA N. CRUZ, petitioner, vs.HON. JUDGE GUILLERMO P. VILLASOR,
probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY,
instance against the appellant. respondents.
Arellano, C. J., Mapa, Moreland,and Trent, JJ., concur. Succession; Wills; Formal requirements;Acknowledging officer cannot serve as witness at
Decree affirmed. the same time.—The notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow; to own as genuine, to assent, to
admit, and “before” means in front or preceding in space or ahead of. Consequently, if the third
witness were the notary public himself, he would have to avow, assent or admit his having
signed the will in front of himself. This cannot be done because he cannot split his personality
into two so that one will appear before the other to acknowledge his participation in the making
of the will.
 Notary public; Function of office of notary public.—The function of a notary public is,
among others, to guard against any illegal or immoral arrangements. That function would be
defeated if the notary public were one of the attesting witnesses. For then he would be interested
in sustaining the validity of the will as it directly involves himself and the validity of his own act.
It would place him in an inconsistent position and the very purpose of the acknowledgment,
which is to minimize fraud would be thwarted.
PETITION for review by certiorari of a judgment of the Court of First Instance of Cebu.
The facts are stated in the opinion of the Court.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court of First Instance of Cebu allowing the
probate of the last will and testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N.
Cruz, the surviving spouse of the said deceased, opposed the allowance of the will (Exhibit
“E”), alleging that the will was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was executed without the testator having been fully informed
of the contents thereof, particularly as to what properties he was disposing; and that the supposed
last will and testament was not executed in accordance with law. Notwithstanding her objection,
the Court allowed the probate of the said last will and testament. Hence this appeal by certiorari
which was given due course.
The only question presented for determination, on which the decision of the case hinges, is
whether the supposed last will and testament of Valente Z. Cruz (Exhibit “E”) was executed in
accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring
at least three credible witnesses to attest and subscribe to the will, and the second requiring the
testator and the witnesses to acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr., Dr.
Francisco Pañares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time
the Notary Public before whom the will was supposed to have been acknowledged. Reduced to
simpler terms, the question was attested and subscribed by at least three credible witnesses in the
presence of the testator and of each other, considering that the three attesting witnesses must
appear before the notary public to acknowledge the same. As the third witness is the notary
public himself, petitioner argues that the result is that only two witnesses appeared before the
notary public to acknowledge the will. On the other hand, private respondent-appellee, Manuel
B. Lugay, who is the supposed executor of the will, following the reasoning of the trial court,
maintains that there is substantial compliance with the legal requirement of having at least three
attesting witnesses even if the notary public acted as one of them, bolstering up his stand with 57
American Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
“It is said that there are practical reasons for upholding a will as against the purely technical
reason that one of the witnesses required by law signed as certifying to an acknowledgment of
the testator’s signature under oath rather than as attesting the execution of the instrument.”
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that
of the appellant that the last will and testament in question was not executed in accordance with
law. The notary public before whom the will was acknowledged cannot be considered as the
third instrumental witness since he cannot acknowledge before himself his having signed the
will. To acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262;Castro v.
Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit; and “before” means in front
or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p.
252; Webster’s New International Dictionary 2d. p. 245.) Consequently, if the third witness were
the notary public himself, he would have to avow, assent, or admit his having signed the will in
front of himself. This cannot be done because he cannot split his personality into two so that one
will appear before the other to acknowledge his participation in the making of the will. To permit
such a situation to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against any illegal or
immoral arrangements.Balinon v. De Leon, 50 O. G. 583.) That function would be defeated if
the notary public were one of the attesting or instrumental witnesses. For them he would be
interested in sustaining the validity of the will as it directly involves himself and the validity of
his own act. It would place him in an inconsistent position and the very purpose of the
acknowledgment, which is to minimize fraud (Report of the Code Commission p. 106-107),
would be thwarted.
Admittedly, there are American precedents holding that a notary public may, in addition, act
as a witness to the execution of the document he has notarized. (Mahilum v. Court of Appeals,
64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his
signing merely as a notary in a will nonetheless makes him a witness thereunder (Ferguson v.
Ferguson, 47 S. E. 2d. 346; In Re Douglas’ Will, 83 N. Y. S. 2d. 641;Ragsdal v. Hill, 269 S. W.
2d. 911, Tyson v. Utterback, 122 So. 496; In Re Baybee’s Estate 160 N. W. 900; Merill v. Boal,
132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve the
purpose of the law in this jurisdiction or are not decisive of the issue herein, because the notaries
public and witnesses referred to in the aforecited cases merely acted as instrumental, subscribing
or attesting witnesses, and not as acknowledgingwitnesses. Here the notary public acted not only
as attesting witness but also as acknowledging witness, a situation not envisaged by Article 805
of the Civil Code which reads:
“ART. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will or file another with
the office of the Clerk of Court.” [Underscoring supplied]
To allow the notary public to act as third witness, or one of the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which would
be in contravention of the provisions of Article 805 requiring at least three credible witnesses to
act as such and of Article 806 which requires that the testator and the required number of
witnesses must appear before the notary public to acknowledge the will. The result would be, as
has been said, that only two witnesses appeared before the notary public for that purpose. In the
circumstances, the law would not be duly observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the
probate of the last will and testament of Valente Z. Cruz (Exhibit “E”) is declared not valid and
hereby set aside.
Cost against the appellee.
Makalintal, C. J., Castro,Teehankee, Makasiar and Muñoz Palma, JJ., concur.
Judgment reversed.
Notes.—Acknowledgment of Will Before Notary Public. The requirement of Arts. 805 and
806 of the new Civil Code that every will be acknowledged before a notary public by the testator
and the witnesses, and that the latter must avow to the certifying officer the authenticity of their
signatures, etc., is sufficiently complied with where the avowal is duly made at the time of
execution of the will, and it is immaterial that the notary’s signing and sealing of the certification
is done later, at his own office. Re Estate of Ledesma, L-7179, June 30, 1955.
The requirement of Art. 806 of the new Civil Code that a will be “acknowledged” before a
notary means only that it must be assented to, avowed, or admitted before such officer. It does
not require raising of the right hand or any particular ceremony, if the testator’s signature is
affixed in the notary’s presence. De Castro vs. De Castro, L-8996, October 31, 1956.

[No. L-4067. November 29, 1951]
In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA,
petitioner, vs. JULJANA LACUESTA, ET AL., respondents.
1. 1.WILLS; ATTESTATION CLAUSE;SIGNING BY ANOTHER OP TESTATOR'S
NAMB AT LATTER'S DIRECTION.—When the testator expressly caused another
to sign the former's name, this fact must be recited in the attestation clause.
Otherwise, the will is fatally defective.
1. 2.ID.; SIGNATURE OF TESTATOR;CROSS.—Where the cross appearing on a will
is not the usual signature of the testator or even one of the ways by which he signed
his name, that cross cannot be considered a valid signature.
PETITION for review by eertiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines andFederico Tacason for respondents.
PARAS, C. J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero
Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the
following attestation clause:
"We, the undersigned, by these presents do declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation clause and
that of the left margin of the three pages thereof. Page three the continuation of this attestation
clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and
it bears the corresponding number in letter which compose of three pages and all of them were
signed in the presence of the testator and witnesses, and the witnesses in the presence of the
testator and all and each and every one of us witnesses. "In testimony, whereof, we sign this
testament, this the third day of January, one thousand nine hundred forty three, (1943) A.D.
(Sgd.) "NUMERIANO (Sgd.) ROSENDO CORTES
EVANGELISTA
(Sgd.) "BIBIANA ILLEGIBLE"
The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed bclow by "A ruego del testador" and the name of Florentino Javier. Antero
Mercado is alleged tc have written a cross immediately after his name. The Court of Appeals,
reversing the judgment of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and
at the end of the will by Atty. Florentino Javier at the express request of the testator in the
presence of the testator and each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's request s'aid testator has written
a cross at the end of his name and on the left margin of the three pages of which the will consists
and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages
thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write the testator's name under his express direction,
as required by section 618 of the Code of Civil Procedure. The herein petitioner (who is
appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that
there is no need for such recital because the cross written by the testator after his name is a
sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's
theory is that the cross is as much a signature as a thumbmark, the latter having been held
sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil.,
104;Dolar vs. Diancin, 55 Phil., 479; Payadvs. Tolentino, 62 Phil., 848; Neyra vs.Neyra, 76 Phil.,
296 and Lopez vs.Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero
Mercado or even one of the ways by which he signed his name. After mature reflection, we are
not prepared to liken the mere sign of a cross to a thumbmark, and the reason is obvious. The
cross cannot and does not have the trustworthiness of a thumbmark.
 What has been said makes it unnecessary for us to determine whether there is a sufficient
recital in the attestation clause as to the signing of the will by the testator in the presence of the
witnesses, and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So
ordered.
Feria, Pablo, Bengzon, Padilla,Reyes, Jugo, and Bautista Angelo, JJ.,concur.
Judgment affirmed.

G.R. No. 103554. May 28, 1993.*

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO,
AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA
RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA**ABAPO VELANO, and CONSESO CANEDA, represented herein by his
heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA,
petitioners, vs. HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
Wills and Succession; There are two (2) kinds of wills.—In addition, the ordinary will
must be acknowledged before a notary public by the testator and the attesting witnesses, hence it
is likewise known as a notarial will. Where the testator is deaf or a deaf-mute, Article 807
requires that he must personally read the will, if able to do so. Otherwise, he should designate
two persons who will read the will and communicate its contents to him in a practicable manner.
On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone
of the witnesses thereto, and then again, by the notary public before whom it is acknowledged.
The other kind of will is the holographic will, which Article 810 defines as one that is entirely
written, dated, and signed by the hand of the testator himself. This kind of will, unlike the
ordinary type, requires no attestation by witnesses. A common requirement in both kinds of wills
is that they should be in writing and must have been executed in a language or dialect known to
the testator.
Same; Attestation clause valid even if in a language not known to testator.—However, in
the case of an ordinary or attested will, its attestation clause need not be written in a language or
dialect known to the testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise need not even be known to the
attesting witnesses. The last paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.
Same; Purposes of attestation clause.—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; whereas the subscription of the signatures of the testator and the attesting witnesses is
made for the purpose of authentication and identification, and thus indicates that the will is the
very same instrument executed by the testator and attested to by the witnesses.
Same; Same.—Further, by attesting and subscribing to the will, the witnesses thereby
declare the due execution of the will as embodied in the attestation clause. The attestation clause,
therefore, provides strong legal guaranties for the due execution of a will and to insure the
authenticity thereof. As it appertains only to the witnesses and not to the testator, it need be
signed only by them. Where it is left unsigned, it would result in the invalidation of the will as it
would be possible and easy to add the clause on a subsequent occasion in the absence of the
testator and the witnesses.
Same; Words and Phrases; “Attestation” and “Subscription” distinguished.—It will be
noted that Article 805 requires that the witnesses should both attest and subscribe to the will in
the presence of the testator and of one another. “Attestation” and “subscription” differ in
meaning. Attestation is the act of the senses, while subscription is the act of the hand. The former
is mental, the latter mechanical, and to attest a will is to know that it was published as such, and
to certify the facts required to constitute an actual and legal publication; but to subscribe a paper
published as a will is only to write on the same paper the names of the witnesses, for the sole
purpose of identification.
Same; Attestation clause which does not state that testament “was signed by the witnesses
in the presence of one another and of the testator” renders the will null and void.—What is
fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that
while it recites that the testator indeed signed the will and all its pages in the presence of the
three attesting witnesses and states as well the number of pages that were used, the same does not
expressly state therein the circumstance that said witnesses subscribed their respective signatures
to the will in the presence of the testator and of each other. The phrase “and he has signed the
same and every page thereof, on the spaces provided for his signature and on the left hand
margin,” obviously refers to the testator and not the instrumental witnesses as it is immediately
preceded by the words “as his Last Will and Testament.” On the other hand, although the words
“in the presence of the testator and in the presence of each and all of us” may, at first blush,
appear to likewise signify and refer to the witnesses, it must, however, be interpreted as referring
only to the testator signing in the presence of the witnesses since said phrase immediately
follows the words “hehas signed the same and every page thereof, on the spaces provided
for his signature and on the left hand margin.” What is then clearly lacking, in the final logical
analysis, is the statement that the witnesses signed the will and every page thereof in the
presence of the testator and of one another. It is our considered view that the absence of that
statement required by law is a fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be admitted to probate.
Same; Mere defects in form in the attestation clause do not render will void.—We stress
once more that under Article 809, the defects or imperfections must only be with respect to the
form of the attestation or the language employed therein. Such defects or imperfections would
not render a will invalid should it be proved that the will was really executed and attested in
compliance with Article 805. In this regard, however, the manner of proving the due execution
and attestation has been held to be limited to merely an examination of the will itself without
resorting to evidence aliunde,whether oral or written.
Same; Same; Defects in attestation clause which require submission of parol evidence not
mere defects of form.—In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied only by extrinsic evidence thereof, since an
overall appreciation of the contents of the will yields no basis whatsoever from which such facts
may be plausibly deduced. What private respondent insists on are the testimonies of his
witnesses alleging that they saw the compliance with such requirements by the instrumental
witnesses, oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the
same and would accordingly be doing by indirection what in law he cannot do directly.
Same; Same; Same.—It may thus be stated that the rule, as it now stands, is that omission
which can be supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to
probate of the will being assailed. However, those omissions which cannot be supplied except by
evidencealiunde would result in the invalidation of the attestation clause and ultimat ely, of the
will itself.
PETITION for review on certiorari of the decision of the Court of Appeals. Cebu and opposed thereat the probate of the testator’s will and the appointment of a special
administrator for his estate.5
The facts are stated in the opinion of the Court. Benoni Cabrera died on February &, 1982 hence the probate court, now known as Branch
Palma, Palma & Associates for petitioners. XV of the Regional Trial Court of Cebu, appointed William Cabrera as special administrator on
Emilio Lumontad, Jr. for private respondent. June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of
Special Proceeding No. 3965-R to the archives since the testate proceedings for the probate of
REGALADO, J.:
the will had to be heard and resolved first. On March 26, 1984 the case was reraffled and
eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until
Presented for resolution by this Court in the present petition for review on certiorari is the issue
the conclusion of the probate proceedings.6
of whether or not the attestation clause contained in the last will and testament of the late Mateo
In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared
Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil
as oppositors and objected to the allowance of the testator’s will on the ground that on the
Code.
alleged date of its execution, the testator was already in a poor state of health such that he could
The records show that on December 5, 1978, Mateo Caballero, a widower without any
not have possibly executed the same. Petitioners likewise reiterated the issue as to the
children and already in the twilight years of his life, executed a last will and testament at his
genuineness of the signature of the testator therein.7
residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio
On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public,
Cabando and Flaviano Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio
Atty. Filoteo Manigos, testified that the testator executed the will in question in their presence
Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that last will. 1 It was
while he was of sound and disposing mind and that, contrary to the assertions of the oppositors,
declared therein, among other things, that the testator was leaving by way of legacies and devises
Mateo Caballero was in good health and was not unduly influenced in any way in the execution
his real and personal properties to Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo,
of his will. Labuca also testified that he and the other witnesses attested and signed the will in the
Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be
presence of the testator and of each other. The other two attesting witnesses were not presented
related to the testator.2
in the probate hearing as they had died by then.8
Four months, later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as
On April 5, 1988, the probate court rendered a decision declaring the will in question as the
Special Proceeding No. 3899-R before Branch II of the then Court of First Instance of Cebu
last will and testament of the late Mateo Caballero, on the ratiocination that:
seeking the probate of his last will and testament. The probate court set the petition for hearing
“x x x The self-serving testimony of the two witnesses of the oppositors cannot overcome the
on August 20, 1979 but the same and subsequent scheduled hearings were postponed for one
positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the Court
reason or another. On May 29, 1980, the testator passed away before his petition could finally be
that indeed Mateo Caballero executed this Last Will and Testament now marked Exhibit ‘C’ on
heard by the probate court.3 On February 25, 1981, Benoni Cabrera, one of the legatees named in
December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of
the will, sought his appointment as special administrator of the testator’s estate, the estimated
his Will during his lifetime when he caused the filing of the original petition now marked Exhibit
value of which was P24,000.00, and he was so appointed by the probate court in its order of
‘D’ clearly underscores the fact that this was indeed his Last Will. At the start, counsel for the
March 6, 1981.4
oppositors manifested that he would want the signature of Mateo Caballero in Exhibit ‘C’
Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a
examined by a handwriting expert of the NBI but it would seem that despite their avowal and
second petition, entitled “In the Matter of the Intestate Estate of Mateo Caballero” and docketed
intention for the examination of this signature of Mateo Caballero in Exhibit ‘C’, nothing came
as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of
out of it because they abandoned the idea and instead presented Aurea Caballero and Helen
Cebu. On October 18, 1982, herein petitioners had their said petition for intestate proceedings
Caballero Campo as witnesses for the oppositors.
consolidated with Special Proceeding No. 3899-R in Branch II of the Court of First Instance of
“All told, it is the finding of this Court that Exhibit ‘C’ is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of law.” 9
Undaunted by said judgment of the probate court, petitioners elevated the case to the Court of
Appeals in CA-G.R. CV No. 19669. They asserted therein that the will in question is null and
void for the reason that its attestation clause is fatally defective since it fails to specifically state
that the instrumental witnesses to the will witnessed the testator signing the will in their presence
and that they also signed the will and all the pages thereof in the presence of the testator and of
one another.
On October 15, 1991, respondent court promulgated its decision 10affirming that of the trial
court, and ruling that the attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
“The question therefore is whether the attestation clause in question may be considered as having
substantially complied with the requirements of Art. 805 of the Civil Code. What appears in the
attestation clause which the oppositors claim to be defective is ‘we do certify that the testament
was read by him and the testator, Mateo Caballero, has published unto us the foregoing will
consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively
in letters on the upper part of each page, as his Last Will and Testament,and he has signed the
same and every page thereof, on the spaces provided for his signature and on the left hand
margin in the presence of the said testator and in the presence of each and all of us’ (Italics
supplied).
“To our thinking, this is sufficient compliance and no evidence need be presented to indicate
the meaning that the said will was signed by the testator and by them (the witnesses) in the
presence of all of them and of one another. Or as the language of the law would have it that the
testator signed the will ‘in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another.’ If not completely or ideally perfect in accordance with the wordings of Art. 805 but
(sic) the phrase as formulated is in substantial compliance with the requirement of the law.” 11
Petitioners moved for the reconsideration of said ruling of respondent court, but the same was
denied in the latter’s resolution of January 14, 1992,12 hence this appeal now before us.
Petitioners assert that respondent court has ruled upon said issue in a manner not in accord
with the law and the settled jurisprudence on the matter and are now questioning once more, on
the same ground as that raised before respondent court, the validity of the attestation clause in
the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter explain, after
some prefatory observations which we feel should be made in aid of the rationale for our
resolution of the controversy.
1. 1.A will has been defined as a species of conveyance whereby a person is permitted,
with the formalities prescribed by law, to control to a certain degree the disposition
of his estate after his death.13 Under the Civil Code, there are two kinds of wills
which a testator may execute.14 The first kind is the ordinary or attested will, the
execution of which is governed by Articles 804 to 809 of the Code. Article 805
requires that:
“Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator’s name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to write
his name, under his express direction, in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them.”
In addition, the ordinary will must be acknowledged before a notary public by the testator and
the attesting witnesses,15 hence it is likewise known as a notarial will. Where the testator is deaf
or a deaf-mute, Article 807 requires that he must personally read the will, if able to do so.
Otherwise, he should designate two persons who will read the will and communicate its contents
to him in a practicable manner. On the other hand, if the testator is blind, the will should be read
to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public
before whom it is acknowledged.16
The other kind of will is the holographic will, which Article 810 defines as one that is
entirely written, dated, and signed by the hand of the testator himself. This kind of will, unlike
the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of
wills is that they should be in writing and must have been executed in a language or dialect
known to the testator.17
However, in the case of an ordinary or attested will, its attestation clause need not be written
in a language or dialect known to the testator since it does not form part of the testamentary
disposition. Furthermore, the language used in the attestation clause likewise need not even be
known to the attesting witnesses.18 The last paragraph of Article 805 merely requires that, in
such a case, the attestation clause shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby the attesting witnesses
certify that the instrument has been executed before them and to the manner of the execution of
the same.19 It is a separate memorandum or record of the facts surrounding the conduct of
execution and once signed by the witnesses, it gives affirmation to the fact that compliance with
the essential formalities required by law has been observed.20 It is made for the purpose of
preserving in a permanent form a record of the fact that attended the execution of a particular
will, so that in case of failure of the memory of the attesting witnesses, or other casualty, such
facts may still be proved.21
Under the third paragraph of Article 805, such a clause, the complete lack of which would
result in the invalidity of the will,22 should state (1) the number of pages used upon which the
will is written; (2) that the testator signed, or expressly caused another to sign, the will and every
page thereof in the presence of the attesting witnesses; and (3) that theattesting witnesses
witnessed the signing by the testator of the will and all its pages, and that said witnesses also
signed the will and every page thereof in the presence of the testator and of one another.
The purpose of the law in requiring the clause to state the number of pages on which the will
is written is to safeguard against possible interpolation or omission of one or some of its pages
and to prevent any increase or decrease in the pages;23 whereas the subscription of the signatures
of the testator and the attesting witnesses is made for the purpose of authentication and
identification, and thus indicates that the will is the very same instrument executed by the testator
and attested to by the witnesses.24
Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause.25 The attestation clause, therefore,
provides strong legal guaranties for the due execution of a will and to insure the authenticity
thereof.26 As it appertains only to the witnesses and not to the testator, it need be signed only by
them.27Where it is left unsigned, it would result in the invalidation of the will as it would be
possible and easy to add the clause on a subsequent occasion in the absence of the testator and
the witnesses.28
In its report, the Code Commission commented on the reasons of the law for requiring the
formalities to be followed in the execution of wills, in the following manner:
“The underlying and fundamental objectives permeating the provisions on the law on wills in
this Project consists in the liberalization of the manner of their execution with the end in view of
giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue and improper pressure
and influence upon the testator.
“This objective is in accord with the modern tendency with respect to the formalities in the
execution of wills. x x x”29
1. 2.An examination of the last will and testament of Mateo Caballero shows that it is
comprised of three sheets all of which have been numbered correlatively, with the
left margin of each page thereof bearing the respective signatures of the testator and
the three attesting witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot
thereof by the testator. The attestation clause in question, on the other hand, is recited
in the English language and is likewise signed at the end thereof by the three attesting
witnesses thereto.30 Since it is the proverbial bone of contention, we reproduce it
again for facility of reference:
“We, the undersigned attesting Witnesses, whose Residences and postal addresses appear on the
Opposite of our respective names, we do hereby certify that the Testament was read by him and
the testator, MATEO CABALLERO, has published unto us the foregoing Will consisting of
THREE PAGES, including the Acknowledgment, each page numbered correlatively in letters on
the upper part of each page, as his Last Will and Testament and he has signed the same and every
page thereof, on the spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.”
It will be noted that Article 805 requires that the witnesses should both attest and subscribe
to the will in the presence of the testator and of one another. “Attestation” and “subscription”
differ in meaning. Attestation is the act of the senses, while subscription is the act of the hand.
The former is mental, the latter mechanical, and to attest a will is to know that it was published
as such, and to certify the facts required to constitute an actual and legal publication; but to
subscribe a paper published as a will is only to write on the same paper the names of the
witnesses, for the sole purpose of identification.31
In Taboada vs. Rosal,32 we clarified that attestation consists in witnessing the testator’s
execution of the will in order to see and take note mentally that those things are done which the
statute requires for the execution of a will and that the signature of the testator exists as a fact.
On the other hand, subscription is the signing of the witnesses’ names upon the same paper for
the purpose of identification of such paper as the will which was executed by the testator. As it
involves a mental act, there would be no means, therefore, of ascertaining by a physical
examination of the will whether the witnesses had indeed signed in the presence of the testator
and of each other unless this is substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause, in contravention of the
express requirements of the third paragraph of Article 805 of the Civil Code for attestation
clauses, fails to specifically state the fact that the attesting witnesses witnessed the testator sign
the will and all its pages in their presence and that they, the witnesses, likewise signed the will
and every page thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein assailed is the
fact that while it recites that the testator indeed signed the will and all its pages in the presence of
the three attesting witnesses and states as well the number of pages that were used, the same does
not expressly state therein the circumstance that said witnesses subscribed their respective
signatures to the will in the presence of the testator and of each other.
The phrase “and he has signed the same and every page thereof, on the spaces provided for
his signature and on the left hand margin,” obviously refers to the testator and not the
instrumental witnesses as it is immediately preceded by the words “as his Last Will and
Testament.” On the other hand, although the words “in the presence of the testator and in the
presence of each and all of us” may, at first blush, appear to likewise signify and refer to the
witnesses, it must, however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the words “he has signed the
same and every page thereof, on the spaces provided for his signature and on the left hand
margin.” What is then clearly lacking, in the final logical analysis, is the statement that the
witnesses signed the will and every page thereof in the presence of the testator and of one
another.
It is our considered view that the absence of that statement required by law is a fatal defect
or imperfection which must necessarily result in the disallowance of the will that is here sought
to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the form of the will or
the language used therein which would warrant the application of the substantial compliance
rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:
“Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in theform of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805” (Italics supplied.)
While it may be true that the attestation clause is indeed subscribed at the end thereof and at the
left margin of each page by the three attesting witnesses, it certainly cannot be conclusively
inferred therefrom that the said witnesses affixed their respective signatures in the presence of
the testator and of each other since, as petitioners correctly observed, the presence of said
signatures only establishes the fact that it was indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in the presence of the testator and of each other. The
execution of a will is supposed to be one act so that where the testator and the witnesses sign on
various days or occasions and in various combinations, the will cannot be stamped with the
imprimatur of effectivity.33
We believe that the following comment of former Justice J.B.L. Reyes34regarding Article
809, wherein he urged caution in the application of the substantial compliance rule therein, is
correct and should be applied in the case under consideration, as well as to future cases with
similar questions:
“x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether the
signatures appear in each and every page; whether the subscribing witnesses are three or the will
was notarized. All these are facts that the will itself can reveal, and defects or even omissions
concerning them in the attestation clause can be safely disregarded. But the total number of
pages, and whether all persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check against perjury in the probate
proceedings.” (Emphasis ours.)
1. 3.We stress once more that under Article 809, the defects or imperfections must only
be with respect to the form of the attestation or the language employed therein. Such
defects or imperfections would not render a will invalid should it be proved that the
will was really executed and attested in compliance with Article 805. In this regard,
however, the manner of proving the due execution and attestation has been held to be
limited to merely an examination of the will itself without resorting to
evidencealiunde, whether oral or written.
The foregoing considerations do not apply where the attestation clausetotally omits the fact that
the attesting witnesses signed each and every page of the will in the presence of the testator and
of each other.35 In such a situation, the defect is not only in the form or the language of the
attestation clause but the total absence of a specific element required by Article 805 to be
specifically stated in the attestation clause of a will. That is precisely the defect complained of in
the present case since there is no plausible way by which we can read into the questioned
attestation clause any statement, or an implication thereof, that the attesting witnesses did
actually bear witness to the signing by the testator of the will and all its pages and that said
instrumental witnesses also signed the will and every page thereof in the presence of the testator
and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot be invoked or relied
on by respondents since it presupposes that the defects in the attestation clause can be cured or
supplied by the text of the will or a consideration of matters apparent therefrom which would
provide the data not expressed in the attestation clause or from which it may necessarily be
gleaned or clearly inferred that the acts not stated in the omitted textual requirements were
actually complied with in the execution of the will. In other words, the defects must be remedied
by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by the
attesting witnesses can be supplied only by extrinsic evidence thereof, since an overall
appreciation of the contents of the will yields no basis whatsoever from which such facts may be
plausibly deduced. What private respondent insists on are the testimonies of his witnesses
alleging that they saw the compliance with such requirements by the instrumental witnesses,
oblivious of the fact that he is thereby resorting to extrinsic evidence to prove the same and
would accordingly be doing by indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views
as to which manner of interpretation should be followed in resolving issues centering on
compliance with the legal formalities required in the execution of wills. The formal requirements
were at that time embodied primarily in Section 618 of Act No. 190, the Code of Civil
Procedure. Said decision was later amended by Act No. 2645, but the provisions respecting said
formalities found in Act No. 190 and the amendment thereto were practically reproduced and
adopted in the Civil Code.
One view advanced the liberal or substantial compliance rule. This was first laid down in the
case of Abangan vs. Abangan,36 where it was held that the object of the solemnities surrounding
the execution of wills is to close the door against bad faith and fraud, to avoid substitution of
wills and testaments and to guarantee their truth and authenticity. Therefore, the laws on this
subject should be interpreted in such a way as to attain these primordial ends. Nonetheless, it was
also emphasized that one must not lose sight of the fact “that it is not the object of the law to
restrain and curtail the exercise of the right to make a will, hence when an interpretation already
given assures such ends, any other interpretation whatsoever that adds nothing but demands more
requisites entirely unnecessary, useless and fnistrative of the testator’s last will, must be
disregarded. The subsequent cases ofAvera vs. Garcia,37 Aldaba vs. Roque,38Unson vs.
Abella,39 Pecson vs. Coronel,40Fernandez vs. Vergel de Dios, et al.,41 andNayve vs. Mojal, et
al.42 all adhered to this position. The other view which advocated the rule that statutes which
prescribe the formalities that should be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed in the subsequent cases of In the Matter of
the Estate of Saguinsin,43 In re Will of Andrada,44 Uy Coque vs. Sioca,45 In re Estate of
Neumark,46 andSano vs. Quintana.47
Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly
conflicting decisions in the aforementioned cases. In said case ofGumban, the attestation clause
had failed to state that the witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator. The will in question was disallowed, with these reasons
therefor:
“In support of their argument on the assignment of error above-mentioned, appellants rely on a
series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin
([1920], 41 Phil., 875), continuing with In re Will of Andrada ([1921],42 Phil., 180), Uy Coque
vs. Navas L. Sioca([1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46 Phil., 841),
and ending with Sano vs. Quintana ([1925], 48 Phil., 506), Appellee counters with the citation of
a series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil. 378), and Fernandez vs. Vergel de Dios([1924], 46
Phil., 922), and culminating inNayve vs. Mojal and Aguilar ([1924], 47 Phil. 152). In its last
analysis, our task is to contrast and, if possible, conciliate, the last two decisions cited by
opposing counsel, namely, those of Sano vs. Quintana, supra,and Nayve vs. Mojal and
Aguilar, supra.
“In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which does
not recite that the witnesses signed the will and each and every page thereof on the left margin in
the presence of the testator is defective, and such a defect annuls the will. The case of Uy Coque
vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and Aguilar, supra, was not
mentioned. In contrast, is the decision in Nayve vs. Mojal and Aguilar, supra, wherein it was
held that the attestation clause must state the fact that the testator and the witnesses reciprocally
saw the signing of the will, for such an act cannot be proved by the mere exhibition of the will, if
it is not stated therein. It was also held that the fact that the testator and the witnesses signed each
and every page of the will can be proved also by the mere examination of the signatures
appearing on the document itself, and the omission to state such evident facts does not invalidate
the will.
“It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided by casuistry of the extreme type, it would be
impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If
we rely on one, we affirm. If we rely on the other, we reverse.
“In resolving this puzzling question of authority, three outstanding points may be mentioned.
In the first place, the Mojal decision was concurred in by only four members of the court, less
than a majority, with two strong dissenting opinions; the Quintana decision was concurred in by “The present law provides for only one form of executing a will, and that is, in accordance with
seven members of the court, a clear majority, with one formal dissent. In the second place, the the formalities prescribed by Section 618 of the Code of Civil Procedure as amended by Act No.
Mojal decision was promulgated in December, 1924, while the Quintana decision was 2645. The Supreme Court of the Philippines had previously upheld the strict compliance with the
promulgated in December 1925; the Quintana decision was thus subsequent in point of time. legal formalities and had even said that the provisions of Section 618 of the Code of Civil
And in the third place, the Quintana decision is believed more nearly to conform to the Procedure, as amended regarding the contents of the attestation clause were mandatory, and non-
applicable provisions of the law. compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These decisions
“The right to dispose of property by will is governed entirely by statute. The law of the case necessarily restrained the freedom of the testator in disposing of his property.
is here found in section 61 of the Code of Civil Procedure, as amended by Act No. 2645, and in “However, in recent years the Supreme Court changed its attitude and has become more
section 634 of the same Code, as unamended. It is in part provided in section 61, as amended liberal in the interpretation of the formalities in the execution of wills. This liberal view is
that ‘No will * * * shall be valid * * * unless * * *.’ It is further provided in the same section that enunciated in the cases of Rodriguez vs. Yap,G.R. No. 45924, May 18, 1939; Leynez vs.
The attestation shallstate the number of sheets or pages used, upon which the will is written, and Leynez, G.R. No. 46097, October 18, 1939;Martir vs. Martir, G.R. No. 46995, June 21, 1940;
the fact that the testator signed the will and every page thereof, or caused some other person to and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
write his name, under his express direction, in the presence of three witnesses, and the latter “In the above mentioned decisions of our Supreme Court, it has practically gone back to the
witnessed and signed the will and all pages thereof in the presence of the testator and of each original provisions of Section 618 of the Code of Civil Procedure before its amendment by Act
other.’ Codal section 634 provides that ‘The will shall be disallowed in either of the following No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to attain the
cases: 1. If not executed and attestedas in this Act provided.’ The law not alone carefully makes main objective of the proposed Code in the liberalization of the manner of executing wills, article
use of the imperative, but cautiously goes further and makes use of the negative, to enforce 829 of the Project is recommended, which reads:
legislative intention. It is not within the province of the courts to disregard the legislative purpose ‘ART. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
so emphatically and clearly expressed. influence, defects and imperfections in the form of attestation or in the language used therein
“We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the shall not render the will invalid if it is proved that the will was in fact executed and attested in
extent necessary, modify the decision in the case of Nayve vs. Mojal and substantial compliance with all the requirements of article 829.’ ”65
Aguilar, supra.”(Emphases in the original text). The so-called liberal rule, the Court said in Gil vs. Murciano,66 “does not offer any puzzle or
But after the Gumban clarificatory pronouncement, there were decisions of the Court that once difficulty, nor does it open the door to serious consequences. The later decisions do tell us when
more appeared to revive the seeming diversity of views that was earlier threshed out therein. The and where to stop; they draw the dividing line with, precision. They do not allow
cases of Quinto vs. Morata,49Rodriguez vs. Alcala,50 evidencealiunde to fill a void in any part of the document or supply missing details that should
Echevarria vs. Sarmiento,51 and Testate Estate of Toray52 went the way of the ruling as restated appear in the will itself. They only permit a probe into the will, an exploration into its confines,
in Gumban. But De Gala vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De to ascertain its meaning or to determine the existence or absence of the requisite formalities of
Gorostiza,55Sebastian vs. Panganiban,56 Rodriguez vs. Yap,57 Grey vs. Fabia,58 Leynez vs. law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire
Leynez,59 Martir vs. Martir,60 Alcala vs. De Villa,61 Sabado vs. Fernandez,62 Mendoza vs. results.”
Pilapil,63 and Lopez vs. Liboro,64veered away from the strict interpretation rule and established a It may thus be stated that the rule, as it now stands, is that omission which can be supplied
trend toward an application of the liberal view. by an examination of the will itself, without the need of resorting to extrinsic evidence, will not
The Code Commission, cognizant of such a conflicting welter of views and of the be fatal and, correspondingly, would not obstruct the allowance to probate of the will being
undeniable inclination towards a liberal construction, recommended the codification of the assailed. However, those omissions which cannot be supplied except by evidencealiunde would
substantial compliance rule, as it believed this rule to be in accord with the modern tendency to result in the invalidation of the attestation clause and ultimately, of the will itself. 67
give a liberal approach to the interpretation of wills. Said rule thus became what is now Article WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent
809 of the Civil Code, with this explanation of the Code Commission: court is hereby REVERSED and SET ASIDE. The courta quo is accordingly directed to
forthwith DISMISS its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will
and Testament of Mateo Caballero) and to REVIVE Special Proceeding No. 3965-R (In the
Matter of the Intestate Estate of Mateo Caballero) as an active case and thereafter duly proceed
with the settlement of the estate of the said decedent.
SO ORDERED.
Narvasa (C.J., Chairman),Padilla and Nocon, JJ., concur.
Petition granted. Decision reversed and set aside.
Notes.—Persons convicted of falsification of a document, perjury or false testimony are
disqualified from being witnesses to a will (People vs. Umali, 193 SCRA 493).
Failure to attach will to petition not critical where it was adduced in evidence (Heirs of Fran
vs. Salas, 210 SCRA 303).
G.R. No. 189984. November 12, 2012.*
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL
AND TESTAMENT OF ENRIQUE S. LOPEZ,
RICHARD B. LOPEZ, petitioner, vs.DIANA JEANNE LOPEZ, MARYBETH DE LEON
and VICTORIA L. TUAZON, respondents.
Civil Law; Wills; Testamentary Succession; Attestation Clause; 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.—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 evidencealiunde.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the resolution of the Court.
P.C. Nolasco & Associates for petitioner.
Poblador, Bautista & Reyes for respondent Marybeth De Leon.
Jose Bernas for respondent Diana Jeanne Lopez.
Ma. Luwalhati C. Cruz for respondent Victoria L. Tuazon.
RESOLUTION
PERLAS-BERNABE, J.:
This Petition for Review on Certiorariassails the March 30, 2009 Decision1 and October 22,
2009 Resolution2 of the Court of Appeals (CA) in CA-G.R. CV No. 87064 which affirmed the
August 26, 2005 Decision3 of the Regional Trial Court of Manila, Branch 42 (RTC), in SP. Proc.
No. 99-95225 disallowing the probate of the Last Will and Testament of Enrique S. Lopez.
The Factual Antecedents
 On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B. Lopez, and thereof, the rule only applies if the number of pages is reflected somewhere else in the will with
their four legitimate children, namely, petitioner Richard B. Lopez (Richard) and the respondents no evidence aliunde or extrinsic evidence required. While the acknowledgment portion stated
Diana Jeanne Lopez (Diana), Marybeth de Leon (Marybeth) and Victoria L. Tuazon (Victoria) as that the will consists of 7 pages including the page on which the ratification and
compulsory heirs. Before Enrique’s death, he executed a Last Will and Testament 4 on August 10, acknowledgment are written, the RTC observed that it has 8 pages including the
1996 and constituted Richard as his executor and administrator. acknowledgment portion. As such, it disallowed the will for not having been executed and
On September 27, 1999, Richard filed a petition for the probate of his father’s Last Will and attested in accordance with law.
Testament before the RTC of Manila with prayer for the issuance of letters testamentary in his Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order dated
favor. Marybeth opposed the petition contending that the purported last will and testament was October 26, 2005.6
not executed and attested as required by law, and that it was procured by undue and improper
pressure and influence on the part of Richard. The said opposition was also adopted by Victoria.
After submitting proofs of compliance with jurisdictional requirements, Richard presented
Ruling of the Court of Appeals
the attesting witnesses, namely: Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes
Manalo (Manalo); and the notary public who notarized the will, Atty. Perfecto Nolasco (Atty.
On March 30, 2009,7 the CA issued the assailed decision dismissing the appeal. It held that
Nolasco). The instrumental witnesses testified that after the late Enrique read and signed the will
the RTC erroneously granted Richard’s appeal as the Rules of Court is explicit that appeals in
on each and every page, they also read and signed the same in the latter’s presence and of one
special proceedings, as in this case, must be made through a record on appeal. Nevertheless, even
another. Photographs of the incident were taken and presented during trial. Manalo further
on the merits, the CA found no valid reason to deviate from the findings of the RTC that the
testified that she was the one who prepared the drafts and revisions from Enrique before the final
failure to state the number of pages of the will in the attestation clause was fatal. It noted that
copy of the will was made.
while Article 809 of the Civil Code sanctions mere substantial compliance with the formal
Likewise, Atty. Nolasco claimed that Enrique had been his client for more than 20 years.
requirements set forth in Article 805 thereof, there was a total omission of such fact in the
Prior to August 10, 1996, the latter consulted him in the preparation of the subject will and
attestation clause. Moreover, while the acknowledgment of the will made mention of “7 pages
furnished him the list of his properties for distribution among his children. He prepared the will
including the page on which the ratification and acknowledgment are written,” the will had
in accordance with Enrique’s instruction and that before the latter and the attesting witnesses
actually 8 pages including the acknowledgment portion thus, necessitating the presentation of
signed it in the presence of one another, he translated the will which was written in English to
evidence aliunde to explain the discrepancy. Richard’s motion for reconsideration from the
Filipino and added that Enrique was in good health and of sound mind at that time.
decision was likewise denied in the second assailed Resolution 8 dated October 22, 2009.
On the other hand, the oppositors presented its lone witness, Gregorio B. Paraon (Paraon),
Hence, the instant petition assailing the propriety of the CA’s decision.
Officer-in-Charge of the Notarial Section, Office of the Clerk of Court, RTC, Manila. His
testimony centered mainly on their findings that Atty. Nolasco was not a notary public for the Ruling of the Court
City of Manila in 1996, which on cross examination was clarified after Paraon discovered that
Atty. Nolasco was commissioned as such for the years 1994 to 1997.212 The petition lacks merit.
The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the
Ruling of the RTC Civil Code provide:
ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof
In the Decision dated August 26, 2005,5 the RTC disallowed the probate of the will for
by the testator himself or by the testator’s name written by some other person in his presence,
failure to comply with Article 805 of the Civil Code which requires a statement in the attestation
and by his express direction, and attested and subscribed by three or more credible witnesses in
clause of the number of pages used upon which the will is written. It held that while Article 809
the presence of the testator and of one another.
of the same Code requires mere substantial compliance of the form laid down in Article 805
 The testator or the person requested by him to write his name and the instrumental witnesses
of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to write
his name, under his express direction, in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof in the presence of the testator and of
one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them. (underscoring supplied)
ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the form of attestation or in the language used therein
shall not render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of Article 805.
The 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.9
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”10 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
evidencealiunde.11 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 of
pages, and whether all persons required to sign did so in the presence of each other must
substantially appear in the attestation clause, being the only check against perjury in the probate
proceedings.12(Emphasis supplied)
Hence, the CA properly sustained the disallowance of the will. Moreover, it correctly ruled
that Richard pursued the wrong mode of appeal as Section 2(a), Rule 41 of the Rules of Court
explicitly provides that in special proceedings, as in this case, the appeal shall be made by record
on appeal.
WHEREFORE, premises considered, the petition is DENIED.
SO ORDERED.
Carpio (Chairperson), Brion, Del Castillo and Perez, JJ., concur.
Petition denied.
Notes.—That the requirements of attestation and acknowledgement 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. (Echavez vs. Dozen Construction
and Development Corporation, 632 SCRA 594 [2010])
The very existence of the Will is in itself prima facie proof that the supposed testatrix has
willed that her estate be distributed in the manner therein provided, and it is incumbent upon the
state that, if legally tenable, such desire be given full effect independent of the attitude of the
parties affected thereby. (Baltazar vs. Laxa, 669 SCRA 249 [2012])
No. L-40207. September 28, 1984.*
ROSA K. KALAW, petitioner, vs. HON. JUDGE BENJAMIN RELOVA, Presiding Judge
of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
Settlement of Estate; Ordinarily erasures or alterations in a holographic will does not
invalidate the will itself—Ordinarily, when anumber of erasures, corrections, and interlineations
made by the testator in a holographic Will have not been noted under his signature, x x x the Will
is not thereby invalidated as a whole, but at most only as respects the particular words erased,
corrected or interlined. Manresa gave an identical commentary when he said “la omision de la
salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4
de Abril de 1895.”
 Same; Where a holographic will has designate only one heir to the entire estate and the
designation was cancelled and another sole heir designated, without the cancellation being
authenticated by full signature of testator, entire will is void.—However, when as in this case,
the holographic Will in dispute had only one substantial provision, which was altered by
substituting the original heir with another, but which alteration did not carry the requisite of full
testatrix left no valid will and both Rosa and Gregorio as her next of kin succeed to her intestate
estate.
PETITION for certiorari to review the decision of the Court of First Instance of Batangas, Br.
VI. Relova, J.

authentication by the full signature of the testator, the effect must be that the entire Will is voided
The facts are stated in the opinion of the Court.
or revoked for the simple reason that nothing remains in the Will after that which could remain
Leandro H. Fernandez for petitioner.
valid. To state that the Will as first written should be given efficacy is to disregard the seeming
Antonio Quintos and Jose M. Yacat for respondents.
change of mind of the testatrix. But that change of mind can neither be given effect because she
failed to authenticate it in the manner required by law by affixing her full signature.
MELENCIO-HERRERA, J.:
Same; Same.—The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir
altered words themselves but not the essence and validity of the Will itself. As it is, with the of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December
determined with certitude. 24, 1968.

TEEHANKEE, J., concurring: The holographic Will reads in full as follows:

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her
Settlement of Estate; Certiorari; Petitioner Rosa is bound by the factual finding of the
sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging,
trial court that testator herself crossed-out Rosa’s name as sole heir. Hence, the substitution of
in substance, that the holographic Will contained alterations, corrections, and insertions without
Gregorio as sole heir even if void for not being authenticated as prescribed by law will not result
the proper authentication by the full signature of the testatrix as required by Article 814 of the
in Rosa being declared heir.—I concur. Rosa, having appealed to this Court on a sole question of
Civil Code reading:
law, is bound by the trial court’s factual finding that the peculiar alterations in the holographic
“Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the
will crossing out Rosa’s name and instead inserting her brother Gregorio’s name as sole heir and
testator must authenticate the same by his full signature.”
“sole executrix” were made by the testatrix in her own handwriting. (I find it peculiar that the
ROSA’s position was that the holographic Will, as first written, should be given effect and
testatrix who was obviously an educated person would unthinkingly make such crude alterations
probated so that she could be the sole heir thereunder.
instead of consulting her lawyer and writing an entirely new holographic will in order to avoid
After trial, respondent Judge denied probate in an Order, dated September 3, 1973,
any doubts as to her change of heir. It should be noted that the first alteration crossing out “sister
reading in part:
Rosa K. Kalaw” and inserting “brother Gregorio Kalaw” as sole heir is not even initialed by the
“The document Exhibit ‘C’ was submitted to the National Bureau of Investigation for
testatrix. Only the second alteration crossing out “sister Rosa K. Kalaw” and inserting “brother
examination. The NBI reported that the handwriting, the signature, the insertions and/or
Gregorio Kalaw” as “sole executrix” is initialed.) Probate of the radically altered will replacing
additions and the initial were made by one and the same person. Consequently, Exhibit ‘C’ was
Gregorio for Rosa as sole heir is properly denied, since the same was not duly authenticated by
the handwriting of the decedent, Natividad K. Kalaw. The only question is whether the will,
the full signature of the executrix as mandatorily required by Article 814 of the Civil Code. The
Exhibit ‘C’, should be admitted to probate although the alterations and/or insertions or additions
original unaltered will naming Rosa as sole heir cannot, however, be given effect in view of the
above-mentioned were not authenticated by the full signature of the testatrix pursuant to Art. 814
trial court’s factual finding that the testatrix had by her own handwriting substituted Gregorio for
of the Civil Code. The petitioner contends that the oppositors are estopped to assert the provision
Rosa, so that there is no longer any will naming Rosa as sole heir. The net result is that the
of Art. 814 on the ground that they themselves agreed thru their counsel to submit the Document
to the NBI FOR EXAMINATIONS. This is untenable. The parties did not agree, nor was it
impliedly understood, that the oppositors would be in estoppel.
“The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable
to Exhibit ‘C’. Finding the insertions, alterations and/or additions in Exhibit ‘C’ not to be
authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny the
admission to probate of Exhibit ‘C’.
“WHEREFORE, the petition to probate Exhibit ‘C’ as the holographic will of Natividad K.
Kalaw is hereby denied.”
“SO ORDERED.”
From that Order, GREGORIO moved for reconsideration arguing that since the alterations
and/or insertions were made by the testatrix, the denial to probate of her holographic Will would
be contrary to her right of testamentary disposition. Reconsideration was denied in an Order,
dated November 2, 1973, on the ground that “Article 814 of the Civil Code being clear and
explicit, (it) requires no necessity for interpretation.”
From that Order, dated September 3, 1973, denying probate, and the Order dated November
2, 1973 denying reconsideration, ROSA filed this Petition for Review on Certiorari on the sole
legal question of whether or not the original unaltered text after subsequent alterations and
insertions were voided by the Trial Court for lack of authentication by the full signature of the
testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator
in a holographic Will have not been noted under his signature, x x x the Will is not thereby
invalidated as a whole, but at most only as respects the particular words erased, corrected or
interlined.1 Manresa gave an identical commentary when he said “la omision de la salvedad no
anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de
1895.”2
However, when as in this case, the holographic Will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but which alteration
did not carry the requisite of full authentication by the full signature of the testator, the effect
must be that the entire Will is voided or revoked for the simple reason that nothing remains in the
Will after that which could remain valid. To state that the Will as first written should be given
efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can
neither be given effect because she failed to authenticate it in the manner required by law by
affixing her full signature.
The ruling in Velasco, supra, must be held confined to such insertions, cancellations,
erasures or alterations in a holographic Will, which affect only the efficacy of the altered words
themselves but not the essence and validity of the Will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix herein, her real intention cannot be determined
with certitude. As Manresa had stated in his commentary on Article 688 of the Spanish Civil
Code, whence Article 814 of the new Civil Code was derived:
“x x x No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la
nulidad de un testamento olografo que contenga palabras tachadas, enmendadas o entre
renglones, no salvadas por el testador bajo su firma, segun previene el parrafo tercero del mismo,
porque, en realidad, tal omision solo puede afectar a la validez o eficacia de tales palabras, y
nunca al testamento mismo, ya por estar esa disposition en parrafo aparte de aquel que determina
las condiciones necesarias para la validez del testamento olografo, ya porque, de admitir lo
contrario, se llegaria al absurdo de que pequeñas enmiendas no salvadas, que en nada afectasen a
la parte esencial y respectiva del testamento, vinieran a anular este, y ya porque el precepto
contenido en dicho parrafo ha de entenderse en perfecta armonia y congruencia con el art. 26 de
la ley del Notariado, que declara nulas las adiciones, apostillas, entrerrenglonados, raspaduras y
tachados en las escrituras matrices, siempre que no se salven en la forma prevenida, pero no el
documento que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del pensamiento del
testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin trascendencia
alguna(l).
“Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es
preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar, sean de palabras que no
afecten, alteren ni varien de modo substancial la expresa voluntad del testador manifiesta en el
documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un
testamento olografo por no estar salvada por el testador la enmienda del guarismo ultimo del año
en que fue extendido”3 (Italics ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Teehankee, (Chairman), J., concurs in a separate opinion.
Relova, J., took no part.
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial
court’s factual finding that the peculiar alterations in the holographic will crossing out Rosa’s
name and instead inserting her brother Gregorio’s name as sole heir and “sole executrix” were
made by the testatrix in her own handwriting. (I find it peculiar that the testatrix who was
obviously an educated person would unthinkingly make such crude alterations instead of
consulting her lawyer and writing an entirely new holographic will in, order to avoid any doubts
as to her change of heir. It should be noted that the first alteration crossing out “sister Rosa K.
Kalaw” and inserting “brother Gregorio Kalaw” as sole heir is not even initialed by the testatrix.
Only the second alteration crossing out “sister Rosa K. Kalaw” and inserting “brother Gregorio
Kalaw” as “sole executrix” is initialed.) Probate of the radically altered will replacing Gregorio
for Rosa as sole heir is properly denied, since the same was not duly authenticated by the full
signature of the executrix as mandatorily required by Article 814 of the Civil Code. The original
unaltered will naming Rosa as sole heir cannot, however, be given effect in view of the trial
court’s factual finding that the testatrix had by her own handwriting substituted Gregorio for
Rosa, so that there is no longer any will naming Rosa as sole heir. The net result is that the
testatrix left no valid will and both Rosa and Gregorio as her next of kin succeed to her intestate
estate.
Decision affirmed.
Notes.—The will of the testator clearly and explicitly must be respected and complied with
as an inviolable law among the parties in interest. (Rodriguez vs. Court of Appeals, 27 SCRA
546.)
Where a will has already been admitted to probate, its due execution and authenticity are
deemed established for purposes of settlement proceedings. (Santos vs. Buenaventura, 18 SCRA
47.)
 on the other hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but demands
more requisites entirely unnecessary, useless and frustrative of the testator’s last will, must be
disregarded.” For purposes of probating non-holographic wills, these formal solemnities include
the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of
the New Civil Code.
Same; Same; Same; Same; Failure to strictly observe other formalities will not result in
the disallowance of a holographic will that is unquestionably handwritten by the testator.—In
the case of holographic wills, on the other hand, what assures authenticity is the requirement that
they be totally autographic or handwritten by the testator himself, as provided under Article 810
of the New Civil Code. Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably handwritten by the testator.
Same; Same; Same; Same; The requirement of Article 813 of the New Civil Code affects
the validity of the dispositions contained in the holographic will, but not its probate.—A reading
G.R. No. 106720. September 15, 1994.*
of Article 813 of the New Civil Code shows that its requirement affects the validity of
SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF
the dispositions contained in the holographic will, but not its probate. If the testator fails to sign
APPEALS AND CLEMENTE SAND, respondents.
and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such
Succession; Wills; Holographic Wills;Probate Proceedings; The grounds enumerated in
failure, however, does not render the whole testament void.
the Civil Code and Rules of Court for the disallowance of wills are exclusive; Issues in a petition
Same; Same; Same; Same;Unauthenticated alterations, cancellations or insertions do not
to admit a holographic will to probate.—Section 9, Rule 76 of the Rules of Court provides the
invalidate a holographic will, unless they were made on the date or on testator’s signature.—
cases in which wills shall be disallowed. In the same vein, Article 839 of the New Civil Code
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance
enumerates the grounds for disallowance of wills. These lists are exclusive; no other grounds can
with the provisions of Article 814. Thus, unless the unauthenticated alterations, cancellations or
serve to disallow a will. Thus, in a petition to admit a holographic will to probate, the only issues
insertions were made on the date of the holographic will or on testator’s signature, their presence
to be resolved are: (1) whether the instrument submitted is, indeed, the decedent’s last will and
does not invalidate the will itself. The lack of authentication will only result in disallowance of
testament; (2) whether said will was executed in accordance with the formalities prescribed by
such changes.
law; (3) whether the decedent had the necessary testamentary capacity at the time the will was
Same; Same; Same; Same; Only the requirements of Article 810 of the New Civil Code—
executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the
and not those found in Articles 813 and 814—are essential to the probate of a holographic
decedent.
will.—It is also proper to note that the requirements of authentication of changes and signing and
Same; Same; Same; Same; Statutory Construction; The object of the solemnities
dating of dispositions appear in provisions (Articles 813 and 814) separate from that which
surrounding the execution of wills is to close the door against bad faith and fraud, accordingly,
provides for the necessary conditions for the validity of the holographic will (Article 810). The
laws on this subject should be interpreted to attain these primordial ends.—We reiterate what
distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the
we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that: “The object of the solemnities
present provisions covering holographic wills are taken. This separation and distinction adds
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
support to the interpretation that only the requirements of Article 810 of the New Civil Code—
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the
and not those found in Article 813 and 814 of the same Code—are essential to the probate of a
laws on this subject should be interpreted in such a way as to attain these primordial ends. But,
holographic will.
 Same; Same; Same; Same; Probate Courts; While courts in probate proceedings are
generally limited to pass only upon the extrinsic validity of the will sought to be probated, in
exceptional cases, courts are not powerless to do what the situation constrains them to do, and
pass upon certain provisions of the will.—As a general rule, courts in probate proceedings are
limited to pass only upon the extrinsic validity of the will sought to be probated. However, in
exceptional instances, courts are not powerless to do what the situation constrains them to do,
and pass upon certain provisions of the will. In the case at bench, decedent herself indubitably
stated in her holographic will that the Cabadbaran property is in the name of her late father, John
H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its
entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole
property, which she shares with her father’s other heirs.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No.
22840, dated March 30, 1992, the dispositive portion of which reads:
“PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is
hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No
costs.”
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-
37171, and the instrument submitted for probate is the holographic will of the late Annie Sand,
who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma
Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand,
Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent’s holographic will. They alleged that at the time of its execution, she was of sound and
disposing mind, not acting under duress, fraud or undue influence, and was in every respect
capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament’s body nor
the signature therein was in decedent’s handwriting; it contained alterations and corrections
which were not duly signed by decedent; and, the will was procured by petitioners through
improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He
contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte.
He claimed that said property could not be conveyed by decedent in its entirety, as she was not
its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent’s holographic will to
probate. It found,inter alia:
“Considering then that the probate proceedings herein must decide only the question of
identity of the will, its due execution and the testamentary capacity of the testatrix, this probate
court finds no reason at all for the disallowance of the will for its failure to comply with the
formalities prescribed by law nor for lack of testamentary capacity of the testatrix.
“For one, no evidence was presented to show that the will in question is different from the
will actually executed by the testatrix. The only objections raised by the oppositors x x x are that
the will was not written in the handwriting of the testatrix which properly refers to the question
of its due execution, and not to the question of identity of will. No other will was alleged to have
been executed by the testatrix other than the will herein presented. Hence, in the light of the
evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will
submitted in Court must be deemed to be the will actually executed by the testatrix.
“x x x xxx xxx
“While the fact that it was entirely written, dated and signed in the handwriting of the
testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the
holographic will in question was indeed written entirely, dated and signed in the handwriting of
the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of
the testatrix have been presented and have explicitly and categorically identified the handwriting
with which the holographic will in question was written to be the genuine handwriting and
signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the
holographic will be entirely written, dated and signed in the handwriting of the testatrix has been
complied with.
“x x x xxx xxx
“As to the question of the testamentary capacity of the testatrix, (private respondent)
Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind
when he visited her during her birthday celebration in 1981, at or around which time the
holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient
that the testatrix, at the time of making the will, knew the value of the estate to be disposed of,
the proper object of her bounty, and the character of the testamentary act x x x. The will itself
shows that the testatrix even had detailed knowledge of the nature of her estate. She even
identified the lot number and square meters of the lots she had conveyed by will. The objects of
her bounty were likewise identified explicitly. And considering that she had even written a
nursing book which contained the law and jurisprudence on will and succession, there is more
than sufficient showing that she knows the character of the testamentary act.
“In this wise, the question of identity of the will, its due execution and the testamentary
capacity of the testatrix has to be resolved in favor of the allowance of probate of the will
submitted herein.
“Likewise, no evidence was presented to show sufficient reason for the disallowance of
herein holographic will. While it was alleged that the said will was procured by undue and
improper pressure and influence on the part of the beneficiary or of some other person, the
evidence adduced have not shown any instance where improper pressure or influence was
exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix was
still alert at the time of the execution of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also established that she is a very intelligent person and
has a mind of her own. Her independence of character and to some extent, her sense of
superiority, which has been testified to in Court, all show the unlikelihood of her being unduly
influenced or improperly pressured to make the aforesaid will. It must be noted that the undue
influence or improper pressure in question herein only refer to the making of a will and not as to
the specific testamentary provisions therein which is the proper subject of another proceeding.
Hence, under the circumstances, this Court cannot find convincing reason for the disallowance of
the will herein.
“Considering then that it is a well-established doctrine in the law on succession that in case
of doubt, testate succession should be preferred over intestate succession, and the fact that no
convincing grounds were presented and proven for the disallowance of the holographic will of
the late Annie Sand, the aforesaid will submitted herein must be admitted to probate.” 3 (Citations
omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent’s will was
dismissed. The Court of Appeals found that, “the holographic will fails to meet the requirements
for its validity.”4It held that the decedent did not comply with Articles 813 and 814 of the New
Civil Code, which read, as follows:
“Article 813: When a number of dispositions appearing in a holographic will are signed without
being dated, and the last disposition has a signature and date, such date validates the dispositions
preceding it, whatever be the time of prior dispositions.”
“Article 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the
testator must authenticate the same by his full signature.”
It alluded to certain dispositions in the will which were either unsigned and undated, or signed
but not dated. It also found that the erasures, alterations and cancellations made thereon had not
been authenticated by decedent.
Thus, this appeal is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any of the
following cases:
1. “(a)If not executed and attested as required by law;
2. (b)If the testator was insane, or otherwise mentally incapable to make a will, at the
time of its execution;
3. (c)If it was executed under duress, or the influence of fear, or threats;
4. (d)If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;
5. (e)If the signature of the testator was procured by fraud or trick, and he did not intend
that the instrument should be his will at the time of fixing his signature thereto.”
In the same vein, Article 839 of the New Civil Code reads:
“Article 839: The will shall be disallowed in any of the following cases:
1. (1)If the formalities required by law have not been complied with;
2. (2)If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;
3. (3)If it was executed through force or under duress, or the influence of fear, or threats;
4. (4)If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;
5. (5)If the signature of the testator was procured by fraud;
6. (6)If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.”
These lists are exclusive; no other grounds can serve to disallow a will. 5Thus, in a petition to
admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument
submitted is, indeed, the decedent’s last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent had the necessary
testamentary capacity at the time the will was executed; and, (4) whether the execution of the
will and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not
executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814
of the New Civil Code, ante, were not complied with, hence, it disallowed the probate of said
will. This is erroneous.
We reiterate what we held inAbangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
“The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not
the object of the law to restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and frustrative of the
testator’s last will, must be disregarded.”
For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the
New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator himself,7 as provided
under Article 810 of the New Civil Code, thus:
“A person may execute a holographic will which must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed.” (Italics supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic
will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the
validity of the dispositionscontained in the holographic will, but not its probate. If the testator
fails to sign and date some of the dispositions, the result is that these dispositions cannot be
effectuated. Such failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-
compliance with the provisions of Article 814. In the case of Kalaw vs. Relova, 132 SCRA 237,
242 (1984), this Court held:
“Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will have not been noted under his signature, x x x the Will is not thereby
invalidated as a whole, but at most only as respects the particular words erased, corrected or
interlined. Manresa gave an identical commentary when he said ‘la omision de la salvedad no
anula el testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de
1895.’ ”8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of
the holographic will or on testator’s signature,9 their presence does not invalidate the will
itself.10 The lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and
dating of dispositions appear in provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the holographic will (Article 810). The
distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They read as follows:
“Article 678: A will is called holographic when the testator writes it himself in the form and with
the requisites required in Article 688.”
“Article 688: Holographic wills may be executed only by persons of full age.
“In order that the will be valid it must be drawn on stamped paper corresponding to the year
of its execution, written in its entirety by the testator and signed by him, and must contain a
statement of the year, month and day of its execution.
“If it should contain any erased, corrected, or interlined words, the testator must identify
them over his signature. “Foreigners may execute holographic wills in their own language.”
This separation and distinction adds support to the interpretation that only the requirements of
Article 810 of the New Civil Code—and not those found in Articles 813 and 814 of the same
Code—are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the
house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must
be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic
validity of the will sought to be probated. However, in exceptional instances, courts are not
powerless to do what the situation constrains them to do, and pass upon certain provisions of the
will.11 In the case at bench, decedent herself indubitably stated in her holographic will that the
Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr.
Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by
respondent court, she cannot validly dispose of the whole property, which she shares with her
father’s other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE,
except with respect to the invalidity of the disposition of the entire house and lot in Cabadbaran,
Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp.
Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of
decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the
Cabadbaran property.
No costs.
SO ORDERED.
Narvasa (C.J., Chairman)Padilla, Regalado and Mendoza, JJ.,concur.
Petition granted. Judgment reversed and set aside.
Note.—Attestation clause is valid even if in a language not known to testator. (Caneda vs.
Court of Appeals,222 SCRA 781 [1993])
No. L-76464. February 29, 1988.*
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO
CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN
CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners, vs. COURT OF
APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
Civil Law; Wills; Revocation of Will; To constitute an effective revocation, the physical
act of destruction of a will must be coupled with animus revocandi on the part of the testator.—It
is clear that the physical act of destruction of a will, like burning in this case, does not per se
constitute an effective revocation, unless the destruction is coupled with animus revocandi on the
part of the testator. It is not imperative that the physical destruction be done by the testator
himself. It may be performed by another person but under the express direction and in the
presence of the testator. Of course, it goes without saying that the document destroyed must be
the will itself.
Same; Same; Same; Same; Intention to revoke must be accompanied by overt physical act
of burning, tearing, obliterating or cancelling the will by the testator or by another person in his
presence and under his express direction.—In this case, while animus revocandi, or the intention
to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice.
Animus revocandi is only one of the necessary elements for the effective revocation of a last will
and testament. The intention to revoke must be accompanied by the overt physical act of
burning, tearing, obliterating, or cancelling the will carried out by the testator or by another
person in his presence and under his express direction. There is paucity of evidence to show
compliance with these requirements. For one, the document or papers burned by Adriana's maid,
Guadalupe, was not satisfactorily established to be a will at all, much less the will of Adriana
Maloto. For another, the burning was not proven to have been done under the express direction
of Adriana. And then, the burning was not in her presence. Both witnesses, Guadalupe and
Eladio, were one in stating that they were the only ones present at the place where the stove
(presumably in the kitchen) was located in which the papers proferred as a will were burned.
Civil Procedure; Res Adjudicata; Doctrine of res adjudicata finds no application in the
case at bar; Requisites of res adjudicata.—The doctrine of res adjudicata finds no application in
the present controversy. For a judgment to be a bar to a subsequent case, the following requisites
must concur: (1) the presence of a final former judgment; (2) the former judgment was rendered
by a court having jurisdiction over the subject matter and the parties; (3) the former judgment is
a judgment on the merits; and (4) there is, between the first and the second action, identity of
parties, of subject matter, and of cause of action. We do not find here the presence of all the
enumerated requisites.
Same; Same; Same; Strictly speaking, no final judgment rendered insofar as the probate
of Adriana Maloto's will is concerned.—For one, there is yet, strictly speaking, no final
judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The decision of
the trial court in Special Proceeding No. 1736, although final, involved only the intestate
Settlement of the estate of Adria iana. As such, that j udgment could not in any manner be
construed to be final with respect to the probate of the subsequently discovered will of the
decedent. Neither is it a judgment on the merits of the action for probate. This is understandably
so because the trial court, in the intestate proceeding, was without jurisdiction to rule on the
probate of the contested will. After all, an action for probate, as it implies, is founded on the
presence of a will and with the objective of proving its due execution and validity, something
which can not be properly done in an intestate settlement of estate proceeding which is
predicated on the assumption that the decedent left no will. Thus, there is likewise no identity
between the cause of action in intestate proceeding and that in an action for probate, Be that as it
may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479
that the petitioners instituted this separate action for the probate of the late Adriana Maloto's will.
Hence, on these grounds alone, the position of the private respondents on this score can not be
sustained.
PETITION for certiorari to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other cases directly
related to the present one and involving the same parties had already been decided by us in the
past. In G.R. No. L-30479,1 which was a petition for certiorari and mandamus instituted by the
petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the
petitioners is a separate proceeding for the probate of the will in question. Pursuant to the said
ruling, the petitioners commenced in the then Court of First Instance of Iloilo, Special
Proceeding No. 2176, for the probate of the disputed will, which was opposed by the private
respondents presently, Panfilo and Felino, both surnamed Maloto. The trial court dismissed the
petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to this
Court on a petition for review by certiorari.2Acting on the said petition, we set aside the trial
court's order and directed it to proceed to hear the case on the merits. The trial court, after
hearing, found the will to have already been revoked by the testatrix. Adriana Maloto, and thus,
denied the petition. The petitioners appealed the trial court's decision to the Intermediate
Appellate Court which, on June 7, 1985, affirmed the order. The petitioners' motion for
reconsideration of the adverse decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the
petitioners Aldina Maloto-Casiano and Constancio Maloto, and the private respondents Panfilo
Maloto and Felino Maloto. Believing that the deceased did not leave behind a last will and
testament, these four heirs commenced on November 4, 1963 an intestate proceeding for the
settlement of their aunt's estate. The case was instituted in the then Court of First Instance of
Iloilo and was docketed as Special Proceeding No. 1736. However, while the case was still in
progress, or to be exact on February 1, 1964, the parties—Aldina, Constancio, Panfilo, and
Felino—executed an agreement of extrajudicial settlement of Adriana's estate. The agreement
provided for the division of the estate into four equal parts among the parties. The Malotos then
presented the extrajudicial settlement agreement to the trial court for approval which the court
did on March 21, 1964. That should have signalled the end of the controversy, but, unfortunately,
it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of
Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN
NGA PAGBULUT-AN (Testamento)," dated January 3, 1940, and purporting to be the last will
and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy,
while he was going through some materials inside the cabinet drawer formerly used by Atty.
Hervas. The document was submitted to the office of the clerk of the Court of First Instance of
Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said
will, Aldina and Constancio are bequeathed much bigger and more valuable shares in the estate
of Adriana than what they received by virtue of the agreement of extrajudicial settlement they
had earlier signed. The will likewise gives devises and legacies to other parties, among them
being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion
Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees
named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of the will. When the trial court
denied their motion, the petitioner came to us by way of a petition for certiorari and mandamus
assailing the orders of the trial court.3 As we stated earlier, we dismissed that petition and
advised that a separate proceeding for the probate of the alleged will would be the appropriate
vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not
the document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda,
de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that
the will had been revoked. The respondent court stated that the presence of animus revocandi in
the destruction of the will had, nevertheless, been sufficiently proven. The appellate court based
its finding on the facts that the document was not in the two safes in Adriana's residence, by the
testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's
possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up.
For reasons shortly to be explained, we do not view such facts, even considered collecti vely, as
sufficient bases for the conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the
will. The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
1. (1)By implication of law; or
2. (2)By some will, codicil, or other writing executed as provided in case of wills; or
3. (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. If burned, torn, cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be established, and the
estate distributed in accordance therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (Italics Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per se
constitute an effective revocation, unless the destruction is coupled with animus revocandi on the

part of the testator. It is not imperative that the physical destruction be done by the testator
himself. It may be performed by another person but under the express directionand in the
presence of the testator. Of course, it goes without saying that the document destroyed must be
the will itself.
In this case, while animus revocandi,or the intention to revoke, may be conceded, for that is
a state of mind, yet that requisite alone would not suffice,"Animus revocandi is only one of the
necessary elements for the effective revocation of a last will and testament. The intention to
revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his presence and under his
express direction. There is paucity of evidence to show compliance with these requirements. For
one, the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana Maloto. For another, the burning was
not proven to have been done under the express direction of Adriana. And then, the burning was
not in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were
the only ones present at the place where the stove (presumably in the kitchen) was located in
which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private
respondents as oppositors in the trial court, concluded that the testimony of the two witnesses
who testified in favor of the will's revocation appear "inconclusive." We share the same view.
Nowhere in the records before us does it appear that the two witnesses, Guadalupe Vda. de
Corral and Eladio Itchon, both illiterates, were unequivocably positive that the document burned
was indeed Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the
will only because, according to her, Adriana told her so. Eladio, on the other hand, obtained his
information that the burned document was the will because Guadalupe told him so, thus, his
testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a
purported will is not denied legalization on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its very foundations x x x."4
The private respondents in their bid for the dismissal of the present action for probate
instituted by the petitioners argue that the same is already barred byres adjudicata. They claim
that this bar was brought about by the petitioners' failure to appeal timely from the order dated
November 16,1968 of the
____________
4
Vda, de Precilla vs. Narciso, No. L-27200, August 18, 1972, 46 SCRA 538, 565-566,
quoted in: Maninang vs. Court of Appeals, No. L-57848, June 19,1982, 114 SCRA 78. trial court
in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to
reopen the case, and their prayer to annul the previous proceedings therein and to allow the last
will and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a
judgment to be a bar to a subsequent case, the following requisites must concur: (1) the presence
of a final former judgment; (2) the former judgment was rendered by a court having jurisdiction
over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and
(4) there is, between the first and the second action, identity of parties, of subject matter, and of
cause of action.5We do not find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of
Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding No.
1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that
judgment could not in any manner be construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action
for probate. This is understandably so because the trial court, in the intestate proceeding, was
without jurisdiction to rule on the probate of the contested will.6 After all, an action for probate,
as it implies, is founded on the presence of a will and with the objective of proving its due
execution and validity, something which can not be properly done in an intestate settlement of
estate proceeding which is predicated on the assumption that the decedent left no will. Thus,
there is likewise no identity between the cause of action in intestate proceeding and that in an
action for probate. Be that as it may, it would be remembered that it was precisely because of our
ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of
the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the
fact that "(a) major and substantial bulk of the properties mentioned in the will had been
disposed of: while an insignificant portion of the properties remained at the time of death (of the
testatrix); and, furthermore, more valuable properties have been acquired after the execution of
the will on January 3, 1940."7 Suffice it to state here that as these additional matters raised by
the private respondents are extraneous to this special proceeding, they could only be
appropriately taken up after the will has been duly probated and a certificate of its allowance
issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the
Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court
of Appeals, and a new one ENTERED for the allowance of Adriana Maloto's last will and
testament. Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY,
SO ORDERED.
Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.
Padilla, J., no part in the deliberation.
Judgment reversed and set aside.
Notes.—Under Article 1056 of the Civil Code of 1899 which governs this case a person
during his lifetime may partition his property among his heirs take effect after his death and this
deed is neither a will or a donation. (Mang-oy vs. Court of Appeals, 144 SCRA 33.)
Rights to inheritance of a person who died after the New Civil Code took effect shall be
governed by said Code. (Yap vs. Court of Appeals, 145 SCRA 229.)
[No. 48840. December 29, 1943]
ERNESTO M. GUEVARA, petitioner and appellant, vs. ROSARIO GUEVARA and her husband PEDRO
BUISON,respondents and appellees.
1.WILLS; PRESENTATION OF WILL FOR PROBATE IS MANDATORY; SETTLEMENT OF ESTATE ON
BASIS OF INTESTACY WHEN DECEDENT LEFT A WILL, AGAINST THE LAW.—We hold that under
section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the
heirs and legatees desire" to make an extrajudicial partition of the estate, they must first
present that will to the court for probate and divide the estate in accordance with the will.
They may not disregard the provisions of the will unless those provisions are contrary to
law. Neither may they do away with the presentation of the will to the court for probate,
because such suppression of the will is contrary to law and public policy. The law enjoins
the probate of the will and public policy requires it, because 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, as is attempted to be done in the instant case. Absent
legatees and devisees, or such of them as may have no knowledge of the will, could be
cheated of their inheritance thru the collusion of some of the heirs who might agree to the
partition of the estate among themselves to the exclusion of others.
2.ID.; ID.; ID.—Even if the decedent left no debts and nobody raises any question as to the
authenticity and due execution of the will, none of the heirs may sue for the partition of the
estate in accordance with that will without first securing its allowance or probate of the
court: first, because the law expressly provides that "no will shall pass either real or personal
estate unless it is proved and allowed in the proper court"; and, second, because the probate
of a will, which is a proceeding in rem,cannot be dispensed with and substituted by any
other proceeding, judicial or extrajudicial, without offending against public policy designed
to effectuate the testator's right to dispose of his property by will in accordance with law and
to protect the rights of the heirs and legatees under the will thru the means provided by law,
among which are the publication and the personal notices to each and all of said heirs and
legatees. Nor may the court approve and allow the will presented in evidence in such an an
action for partition, which is one in personam, any more than it could decree the registration
under the Torrens system of the land involved in an ordinary action for reivindieacion or
partition.480
3.TORRENS REGISTRATION; REGISTRATION DOES NOT AFFECT RIGHTS OF PARTITION BETWEEN
LEGATEES.It results that the interested parties consented to the registration of the land in
question in the name of E. M. G. alone subject to the implied trust on account of which he is
under obligation to deliver and convey to them their corresponding shares after all the debts
of the original owner of said land had been paid. Such finding does not constitute a reversal
of the decision and decree of registration, which merely confirmed the petitioner's title; and
in the absence of any intervening innocent third party, the petitioner may be compelled to
fulfil the promise by virtue of which he acquired his title. That is authorized by section 70 of
the Land Registration Act, cited by the Court of Appeals, and by the decision of this Court in
Severino vs. Severino, 44 Phil., 343, and the cases therein cited.
PETITION to review on certiorari a decision of the Court of Appeals.
The facts are stated in the opinion of the court.
Primicias, Abad, Mencias & Castillofor appellant.
Pedro C. Quinto for appellees.
OZAETA, J.:
Ernesto M. Guevara and Rosario Guevara, legitimate son and natural daughter, respectively,
of the deceased Victorino L. Guevara, are litigating here over their inheritance from the latter.
The action was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto
Guevara what she claims to be her strict ligitime as an acknowledged natural daughter of the
deceased—to wit, a portion of 423,492 square meters of a large parcel of land described in
original certificate of title No. 51691 of the province of Pangasinan, issued in the name of
Ernesto M. Guevara— and to order the latter to pay her P6,000 plus P2,000 a year as damages
for withholding such legitime from her. The defendant answered the complaint contending that
whatever right or rights the plaintiff might have had, had been barred by the operation of law.
 It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A),
apparently with all the formalities of the law, wherein he made the following bequests: To his
stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his
son Ernesto M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other
religious objects found in the residence of the testator in Poblacion Sur, Bayambang, Pangasinan;
"a mi hija Rosario Guevara," a pair of earrings worth P120; to his stepson Pio Guevara, a ring
worth P120; and to his wife by second marriage, Angustia Posadas, various pieces of jewelry
worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y
a mis hijastros, Vivencio, Eduviges, Dionisia, Cándida y Pío, apellidados Guevara," a residential
lot with its improvements situate in the town of Bayambang, Pangasinan, having an area of 960
square meters and assessed at P540; to his wife Angustia Posadas he confirmed the
donationpropter nuptias theretofore made by him to her of a portion of 25 hectares of the large
parcel of land of 259-odd hectares described in plan Psu-66618. He also devised to her a portion
of 5 hectares of the same parcel of land by way of complete settlement of her usufructuary right.
He set aside 100 hectares of the same parcel of land to be disposed bf either by him during
his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts
and to defray his expenses and those of his family up to the time of his death.
The remander of said parcel of land he disposed of in the following manner:
"(d).—Toda la porción restante de mi terreno arriba descrito, de la extensión superficial
aproximada de ciento veintinueve (129) hectáreas setenta (70) áreas, y veinticinco (25)
centíareas, con todas sus mejoras existentes en la misma, dejo y distribuyo, proindiviso, a mis
siguientes herederos como sigue:
"A mi hijo legítimo Ernesto M. Guevara, ciento ocho (108) hectáreas, ocho (8) áreas y
cincuenta y cuatro (54) centíareas, hacia la parte que colinda al Oeste de las cien(100) hectareas
referidas en el inciso (a) de este párrafo del testamento, como su propiedad absoluta y exclusiva,
en la cual extensión superficial están incluídas cuarenta y tres (43) hectáreas, veintitrés (23) áreas
y cuarenta y dos (42) centíareas que le doy en concepto de mejora.
"A mi hija natural reconocida, Hosario Guevara, veintiun (21) hectáreas, sesenta y un (61)
áreas y setenta y un (71) centíareas, que es la parte restante.
"Duodecimo.—Nombro por la presente como Albacea Tes-tamentario a mi hi jo Ernesto M.
Guevara, con relevación de fianza. Y una yez legalizado este testamento, y en cuanto sea posible,
es mi deseo, que los herederos y legatarios aquí nombrados se repartan extrajudicialmente mis
bienes de conformidad con mis disposiciones arriba consignadas."
Subsequently, and on July 12, 1933, Victorino L. Guevara executed a deed of sale (exhibit
2) in favor of Ernesto M. Guevara whereby he conveyed to him the southern half of the large
parcel of land of which he had theretofore disposed by the will above mentioned, in
consideration of the sum of P1 and other valuable considerations, among which were the
payment of all his debts and obligations amounting to not less than P16,500, his maintenance up
to his death, and the expenses of his last illness and funeral expenses. As to the northern half of
the same parcel of land, he declared : "Hago constar también que reconozco a mi referido hi jo
Ernesto M. Guevara como dueño de la mitad norte de la totalidad y con junto de los referidos
terrenos por haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien había
vendido con anterioridad."
On September 27, 1933, final decree of registration was issued in land registration case No.
15174 of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of
title No. 51691 of the same province was issued on October 12 of the same year in favor of
Ernesto M. Guevara over the whole parcel of land described in the deed of sale above referred to.
The registration proceeding had been commenced on November 1, 1932, by Victorino L.
Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but
before the trial of the case Victorino L. Guevara withdrew as applicant and Ros-ario Guevara and
her co-oppositors also withdrew their opposition, .thereby facilitating the issuance of the title in
the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevara died. His last will and testament, however,
was never presented to the court for probate, nor has any administration proceeding ever been
instituted for the settlement of his estate. Whether the various legatees mentioned in the will have
received their respective legacies or have even been given due notice of the execution of said
will and of the dispositions therein made in their favor, does not affirmatively appear from the
record of this case. Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto
M. Guevara appears to have possessed the land adjudicated to him in the registration proceeding
and to have disposed of various portions thereof for the purpose of paying the debts left by his
father.
In the meantime Rosario Guevara, who appears to have had her father's last will and
testament in her custody, did nothing judicially to invoke the testamentary dispositions made
therein in her favor, whereby the testator acknowledged her as his natural daughter and, aside
from certain legacies and bequests, devised to her a portion of 21.6171 hectares of the large
parcel of land described in the will. But a little over four years after the testator's demise, she
(assisted by her husband) commenced the present action against Ernesto M. Guevara alone for
the purpose hereinbefore indicated; and it was only during the trial of this case that she presented
the will to the court, not for the purpose of having it probated but only to prove that the deceased
Victorino L. Guevara had acknowledged her as his natural daughter. Upon that proof of province by a warrant issued by the court, and there kept in close confinement until he delivers
acknowledgment she claimed her share of the inheritance from him, but on the theory or the will."
assumption that he died intestate, because the will had not been probated, for which reason, she
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which
asserted, the betterment therein made by the testator in favor of his legitimate son Ernesto M.
took effect on July 1, 1940.
Guevara should be disregarded. Both the trial court and the Court of Appeals sustained that
The proceeding for the probate of a will is one in rem, with notice by publication to the
theory.
whole world and with personal notice to each of the known heirs, legatees, and devisees of the
Two principal questions are before us for determination: (1) the legality of the procedure
testator (section 630, C. C. P., and sections 3 and 4, Rule 77). Altho not contested (section 5,
adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of
Rule 77), the due execution of the will and the fact that the testator at the time of its execution
sale exhibit 2 and the effect of the certificate of title issued to the defendant (petitioner herein)
was of sound and disposing mind and not acting under duress, menace, and undue influence or
Ernesto M. Guevara.
fraud, must be proved to the satisfaction of the court, and only then may the will be legalized and
I
given effect by means of a certificate of its allowance, signed by the judge and attested by the
We cannot sanction the procedure adopted by the respondent Rosario Gueyara, it being in
seal, of the court; and when the will devises real property, attested copies thereof and of the
our opinion in violation of procedural law and an attempt to circumvent and disregard the last
certificate of allowance must be recorded in the register of deeds of the province in which the
will and testament of the decedent. The Code of Civil Procedure, which was in force up to the
land lies. (Section 12, Rule 77, and section 624, C. C. P.)
time this case was decided by the trial court, contains the following pertinent provisions:
It will readily be seen from the above provisions of the law that the presentation of a will to
"Sec. 625. Allotvance Necessary, and Conclusive as to Execution.—No will shall pass either
the court for probate is mandatory and its allowance by the court is essential and indispensable to
the real or personal estate, unless it is proved and allowed in the Court of First Instance, or by
its efficacy. To assure and compel the probate of a will, the law punishes a person who neglects
appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate
his duty to present it to the court with a fine not exceeding P2,000, and if he should persist in not
shall be conclusive as to its due execution.
presenting it, he may be committed to prison and kept there until he delivers the will.
"Sec. 626. Custodian of Will to Deliver.—The person who has the custody of a will shall,
The Court of Appeals took express notice of these requirements of the law and held that a
within thirty days after he knows of the death of the testator, deliver the will into the court which
will, unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the
has jurisdiction, or to the executor named in the will.
respondent for the following reasons :
"Sec. 627. Executor to Present Will and Accept or Refuse Trust.—A person named as
"The majority of the Court is of the opinion that if this case is dismissed ordering the filing
executor in a will, shall within thirty days after he knows of the death of the testator, or within
of testate proceedings, it would cause injustice, inconvenience, delay, and much expense to the
thirty days after he knows that he is named executor, if he obtained such knowledge after
parties, and that therefore, it is preferable to leave them in the very status which they themselves
knowing of the death of the testator, present such will to the court which has jurisdiction, unless
have chosen, and to decide their controversy once and for all, since, in a similar case, the
the will has been otherwise returned to said court, and shall, within such period, signify to the
Supreme Court applied that same criterion (Leaño vs.Leaño, supra), which is now sanctioned by
court his acceptance of the trust, or make known in writing his refusal to accept it.
section 1 of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124 provides that, if the
"Sec. 628. Penalty.—A person who neglects any of the duties required in the two preceding procedure which the court ought to follow in the exercise of its jurisdiction is not specifically
sections, unless he gives a satisfactory excuse to the court) shall be subject to a fine not pointed out by the Rules of Court, any suitable process or mode of procedure may be adopted
exceeding one thousand dollars. which appears most consistent to the spirit of the said Rules. Hence, we declare the action
"Sec. 629. Person Retaining Will may be Committed.—If a person having custody of a will instituted by the plaintiff to be in accordance with law."
after the death of the testator neglects without reasonable cause to deliver the same to the court
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as
having jurisdiction, after notice by the court so to do, he may be committed to the prison of the
follows:
 "Section 1. Extrajudicial settlement by agreement between heirs.—If the decedent left no enjoins the probate of the will and public policy requires it, because unless the will is probated
debts and the heirs and legatees are all of age, or the minors are represented by their judicial and notice thereof given to the whole world, the right of a person to dispose of his property by
guardians, the parties may, without securing letters of administration, divide the estate among will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees
themselves as they see fit by means of a public instrument filed in the office of the register of and devisees, or such of them as may have no knowledge of the will, could be cheated of their
deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only inheritance thru the collusion of some of the heirs who might agree to the partition of the estate
one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit among themselves to the exclusion of others.
filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if In the instant case there is no showing that the various legatees other than the present
no creditor files a petition for letters of administration within two years after the death of the de- litigants had received their respective legacies or that they had knowledge of the existence and of
cedent." the provisions of the will. Their right under the will cannot be disregarded, nor may those rights
be obliterated on account of the failure or refusal of the custodian of the will to present it to the
That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:
court for probate.
"Sec. 596. Settlement of Certain Intestates Without Legal Proceedings.—Whenever all the
Even if the decedent left no debts and nobody raises any question as to the authenticity and
heirs of a person who died intestate are of lawful age and legal capacity and there are no debts
due execution of the will, none of the heirs may sue for the partition of the estate in accordance
due from the estate, or all the debts have been paid the heirs may, by agreement duly executed in
with that will without first securing its allowance or probate by the court, first, because the law
writing by all of them, and not otherwise, apportion and divide the estate among themselves, as
expressly provides that "no will shall pass either real or personal estate unless it is proved and
they may see fit, without proceedings in court."
allowed in the proper court"; and, second, because the probate of a will, which is a proceeding in
The implication is that by the omission of the word "intestate" and the use of the word
rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial,
"legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's
without offending against public policy designed to effectuate the testator's right to dispose of his
estate, whether he died testate or intestate, may be made under the conditions specified. Even if
property by will in accordance with law and to protect the rights of the heirs and legatees under
we give retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did,
the will thru the means provided by law, among which are the publication and the personal
we do not believe it sanctions the nonpresentation of a will for probate and much less the
notices to each and all of said heirs and legatees. Nor may the court approve and allow the will
nullification of such will thru the failure of its custodian to present it to the court for probate; for
presented in evidence in such an action for partition, which is one in personam, any more than it
such a result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74 merely
could decree the registration under the Torrens system of the land involved in an ordinary action
authorizes the extrajudicial or judicial partition of the estate of a decedent "without securing
for reivindicacion or partition.
letters of administration." It does not say that in case the decedent left a will the heirs and
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of
legatees may divide the estate among themselves without the necessity of presenting the will to
Appeals, does not sanction the procedure adopted by the respondent.
the court for probate.The petition to probate a will and the petition to issue letters of
The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of Appeals, like section 1 of
administration are two different things, altho both may be made in the same case. The allowance
Rule 74, sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but
of a will precedes the issuance of letters testamentary or of administration (section 4, Rule 78).
not the nonpresentation of a will for probate. In that case one Paulina Ver executed a will on
One can have a will probated without necessarily securing letters testamentary or of
October 11, 1902, and died on November 1, 1902. Her will was presented for probate on
administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent
November 10, 1902, and was approved and allowed by the Court on August 16, 1904. In the
left a will and no debts arid the heirs and legatees desire to make an extrajudicial partition of the
meantime, and on November 10, 1902, the heir 3 went ahead and divided the properties among
estate, they must first present that will to the court for probate and divide the estate in accordance
themselves and some of them subsequently sold and disposed of their shares to third persons. It
with the will. They may not disregard the provisions of the will unless those provisions are
does not affirmatively appear in the decision in that case that the partition made by the heirs was
contrary to law. Neither may they do away with the presentation of the will to the court for
not in accordance with the will or that they in any way disregarded the will. In closing the case
probate, because such suppression of the will is contrary to law and public policy. The law
by its order dated September 1, 1911, the trial court validated the partition, and one of the heirs, by the Rules of Court, any suitable process or mode of proceeding may be adopted which
Cunegunda Leaño, appealed. In deciding the appeal this Court said: appears most conformable to the spirit of the said Rules. That provision is not applicable here for
"The principal assignment of error is that the lower court committed an error in deciding that the simple reason that the procedure which the court ought to follow in the exercise of its
the heirs and legatees of the estate of Dña. Paulina Ver had voluntarily divided the estate among jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the
themselves." In resolving that question this Court said: Rules of Court.
"In view of the positive finding of the judge of the lower court that there had been a The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate
voluntary partition of the estate among the heirs and legatees, and in the absence of positive proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties."
proof to the contrary, we must conclude that the lower court had some evidence to support its We see no injustice in requiring the plaintiff not to violate but to comply with the law. On the
conclusion." contrary, an injustice might be committed against the other heirs and legatees mentioned in the
will if the attempt of the plaintiff to nullify said will by not presenting it to the court for probate
Thus it will be seen that as a matter of fact no question of law was raised and decided in that
should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to
case. That decision cannot be relied upon as an authority for the unprecedented and unheard of
blame because she was the custodian of the will and she violated the duty imposed upon her by
procedure adopted by the respondent whereby she seeks to prove her status as an acknowledged
sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of a
natural child of the decedent by his will and attempts to nullify and circumvent the testamentary
fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant, he is
dispositions made by him by not presenting the will to the court for probate and by claiming her
not complaining of inconvenience, delay, and expense, but on the contrary he is insisting that the
legitime as an acknowledged natural child on the basis of intestacy; and that in the face of
procedure prescribed by law be followed by the plaintiff.
express mandatory provisions of the law requiring her to present the will to the court for probate.
Our conclusion is that the Court of Appeals erred in declaring the action instituted by the
In the subsequent case of Riosa vs.Rocha (1926), 48 Phil. 737, this Court departed from the
plaintiff to be in accordance with law. It also erred in awarding relief to the plaintiff in this action
procedure sanctioned by the trial court and impliedly approved by this Court in the Leano case,
on the basis of intestacy of the decedent notwithstanding the proven existence of a will left by
by holding that an extrajudicial partition is not proper in testate succession. In the Riosa case the
him and solely because said will has not been probated due to the failure of the plaintiff as
Court, speaking thru Chief Justice Avancena, held:
custodian thereof to comply with the duty imposed upon her by the law.
"1. Extrajudicial Partition; Not Proper in Testate Succession.—Section 596 of the Code of
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will,
Civil Procedure, authorizing the heirs of a person who died intestate to make extrajudicial
did not take any step to have it presented to the court for probate and did not signify his
partition of the property of the deceased, without going into any court of justice, makes express
acceptance of the trust or refusal to accept it as required by section 3 of Rule 76 (formerly
reference to intestate succession, and therefore excludes testate succession.
section 627 of the Code of Civil Procedure), because his contention is that said will, insofar as
"2. Id.; Effects of; Testate Succession.—In the instant case, which is a testate succession,
the large parcel of land in litigation is concerned, has been superseded by the deed of sale exhibit
the heirs made an extrajudicial partition of the estate and at the same time instituted proceeding
2 and by the subsequent issuance of the Torrens certificate of title in his favor.
for the probate of the will and the administration of the estate. When the time came for making
II
the partition, they submitted to the court the extrajudicial partition previously made by them,
This brings us to the consideration of the second question, referring to the efficacy of the
which the court approved. Held: That for the purposes of the reservation and the rights and
deed of sale exhibit 2 and the effect of the certificate of title issued to the defendant Ernesto M.
obligations created thereby, in connection with the relatives benefited, the property must not be
Guevara. So that the parties may not have litigated here in vain insofar as that question is
deemed transmitted to the heirs from the time the extrajudicial partition was made, but from the
concerned, we deem it proper to decide it now and obviate the necessity of a new action.
time said partition was approved by the court." (Syllabus.)
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M.
Guevara before a notary public on July 12, 1933, may be divided into two parts: (a) insofar as it
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure
disposes of and conveys to Ernesto M. Guevara the sourthern half of Victorino L. Guevara's
which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out
hacienda of 259-odd hectares in consideration of P1 and other valuable considerations therein
mentioned; and(b) insofar as it declares that Ernesto M. Guevara became the owner of the defendant to deliver her corresponding share in the estate left by the deceased, Victorino L.
northern half of the same hacienda by repurchasing it with his own money from Rafael T. Puzon. Guevara."
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in
In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of
consideration of the latter's assumption of the obligation to pay all the debts of the deceased, the
the Court of Appeals. But the findings of fact made by said court are final and not reviewable by
Court of Appeals found it to be valid and efficacious because: " (a) it has not been proven that
us on certiorari. The Court of Appeals found that the money with which the petitioner
the charges imposed as a condition is [are] less than the value of the property; and (b) neither has
repurchased the northern half of the land in question from Rafael Puzon was not his own but his
it been proven that the defendant did not comply with the conditions imposed upon him in the
father's, it being the proceeds of the sale of a parcel of land made by the latter to Silvestre P.
deed of transfer." As a matter of fact the Court of Appeals found: "It appears that the defendant
Coquia. Said court also found that the respondent withdrew her opposition to the registration of
has been paying the debts left by his father. To accomplish this, he had to alienate considerable
the land in the name of the petitioner upon the latter's promise that after paying all the debts of
portions of the abovementioned land. And we cannot brand such alienation as anomalous unless
their father he would deliver to her and to the widow their corresponding shares. From these
it is proven that they have exceeded the value of what he has acquired by virtue of the deed of
facts, it results that the interested parties consented to the registration of the land in question in
July 12, 1933, and that of his corresponding share in the inheritance." The finding of the Court of
the name of Ernesto M. Guevara alone subject to the implied trust on account of which he is
Appeals on this aspect of the case is final and conclusive upon the respondent, who did not
under obligation to deliver and convey to them their corresponding shares after all the debts of
appeal therefrom.
the original owner of said land had been paid. Such finding does not constitute a reversal of the
B. With regard to the northern half of the hacienda, the findings of fact and of law made by
decision and decree of registration, which merely confirmed the petitioner's title; and in the
the Court of Appeals are as follows:
absence of any intervening innocent third party, the petitioner may be compelled to fulfil the
"The defendant has tried to prove that with his own money, he bought from Rafael Puzon
promise by virtue of which he acquired his title. That is authorized by section 70 of the Land
one-half of the land in question, but the Court a quo, after considering the evidence, found it not
Registration Act, cited by the Court of Appeals, and by the decision of this Court in
proven; we hold that such conclusion is well founded. The acknowledgment by the deceased,
Severino vs. Severino, 44 Phil., 343, and the cases therein cited.
Victorino L. Guevara, of the said transactions, which was inserted incidentally in the document
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the
of July 12, 1933, is clearly belied by the fact that the money paid to Rafael Puzon came from
northern half of the land described in the will exhibit A and in original certificate of title No.
Silvestre P. Coquia, to whom Victorino L. Guevara had sold a parcel of land with the right of
51691 still belongs to the estate of the deceased Victorino L. Guevara. In the event the petitioner
repurchase. The defendant, acting for his father, received the money and delivered it to Rafael
Ernesto M. Guevara has alienated any portion thereof, he is under obligation to compensate the
Puzon to redeem the land in question, and instead of executing a deed of redemption in favor of
estate with an equivalent portion from the southern half of said land that has not yet been sold. In
Victorino L. Guevara, the latter executed a deed of sale in favor of the defendant.
other words, to the estate of Victorino L. Guevara still belongs one half of the total area of the
"The plaintiff avers that she withdrew her opposition to the registration of the land in the
land described in said original certificate of title, to be taken from such portions as have not yet
name of the defendant, because of the latter's promise that after paying all the debts of their
been sold by the petitioner, the other half having been lawfully acquired by the latter in
father, he would deliver to her and to the widow their corresponding shares. As their father then
consideration of his assuming the obligation to pay all the debts of the deceased.
was still alive, there was no reason to require the delivery of her share and that was why she did
Wherefore, that part of the decision of the Court of Appeals which declares in effect that
not insist on her opposition, trusting on the reliability and sincerity of her brother's promise. The
notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name
evidence shows that such promise was really made. The registration of land under the Torrens
of Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the
system does not have the effect of altering the laws of succession, or the rights of partition
estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the
between coparceners, joint tenants, and other cotenants nor does it change or affect in any other
latter's assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but
way any other rights and liabilities created by law and applicable to unregistered land (sec. 70,
the judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in
Land Registration Law). The plaintiff is not, then, in estoppel, nor can the doctrine of res
this action is hereby reversed and set aside, and the parties herein are hereby ordered to present
judicata be invoked against her claim. Under these circumstances, she has the right to compel the
the document exhibit A to the proper court for probate in accordance with law, without prejudice
to such action as the provincial fiscal of Pangasinan may take against the responsible party or
parties under section 4 of Rule 76. After the said document is approved and allowed by the court
as the last will .and testament of the deceased Victorino L. Guevara, the heirs and legatees
therein named may take such action, judicial or extrajudicial, as may be necessary to partition the
estate of the testator, taking into consideration the pronouncements made in part II of this
opinion. No finding as to costs in any of the three instances.
Yulo, C. J., and Hontiveros,1 J.,concur.
BOCOBO, J., concurring:
I concur in the result. Extrajudicial settlement by agreement among the heirs is authorized by
section 1 of Rule 74
MORAN, J., concurring in part and dissenting in part:
I would be agreeable to the majority decision but for a statement therein made which in my
view repeals by an erroneous interpretation the provisions of Rule 74, section 1, of the Rules of
Court, which reads as follows:
"EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS.—If the decedent left no
debts and the heirs and legatees are all of age, or the minors are represented by their judicial
guardians, the parties may, without securing letters of administration, divide the estate among
themselves as they see fit by means of a public instrument filed in the office of the register of
deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only
one heir or one legatee, he may adjudicate to himself the entire estate by means of an affidavit
filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if
no creditor files a petition for letters of administration within two years after the death of the de-
cedent."
The majority holds that under this provision, the heirs and legatees, even if all of them are of
age, and there are no debts to be paid, cannot make an extrajudicial settlement of the estate left
by the decedent without first submitting in court for probate the will left by the testator. This
erroneous interpretation clearly overlooks not only the letter and the spirit but more specially the
whole background of the provision.
It is admitted that the provision has been taken from section 596 of Act No. 190 but with a
modification consisting in that it is made to apply in testate succession. Said section 596 reads:
"Settlement of Certain Intestate Estates without Legal Proceedings.—Whenever all the heirs
of a person who died intestate are of lawful age and legal capacity, and there are no debts due
from the estate, or all the debts have been paid the heirs may, by agreement duly executed in
writing by all of them, and not otherwise, apportion and divide the estate among themselves, as
they may see fit, without proceedings in court."
It must be observed that the procedure contemplated in this legal provision is completely
extrajudicial and the same procedure intended in section 1 of Rule 74 above quoted which is
captioned "Extrajudicial Settlement by Agreement * * *". Justice Laurel, who was one of the
members of this Court when the new Rules were promulgated, in commenting upon Rule 74,
said:
"Rule 74. Summary Settlement of Estates.—The corresponding provisions in the Code of
Civil Procedure are sections 596-598. There is substantial analogy between the provisions of the
Code of Civil Procedure and those of Rule 74, save that: (1) Under section 1 of Rule 74, there
may be extrajudicial settlement whether a person died testate or intestate, while under section
596 of the Code of Civil Procedure extrajudicial settlement can be had only when a person died
intestate. (2) Under Rule 74, section 1, extrajudicial settlement may take place 'if the decedent
left no debts,' while under section 596 of the Code of Civil Procedure it may take place 'when
there are no debts due from the estate, or all the debts have been paid.' (3) Under section 596
of the Code of Civil Procedure, extrajudicial settlement may take place when all the heirs are of
lawful age and legal capacity, while under section 1 of Rule 74 it may take place when 'the heirs
and legatees are all of legal age, or the minors are represented by their judicial guardians'. (4)
Unlike the Code of Civil Procedure, section 596, section 1 of Rule 74 requires the extrajudicial
agreement to be filed in the office of the register of deeds; provides that should the heirs
disagree, 'they may do so in an ordinary action of partition', and that 'if there is only one heir or
one legatee, he may adjudicate to himself the entire estate by means of an affidavit filed in the
office of the register of deeds', and that 'it shall be presumed that the decedent left no debts if no
creditor files a petition for letters of administration within two years after the death of the
decedent" [ (Italics mine) ; Laurel, Procedural Reform in the Philippines, pp.137-138].
The phrase "extrajudicial settlement" unquestionably means liquidation and distribution of
the estate without judicial proceeding. In other words, even in cases of testate succession, the
heirs and legatees, when they are all of age or Are represented by their judicial guardians, and
there are no debts to be paid, are allowed by section 1 of Rule 74 of the Rules of Court to
liquidate and distribute among themselves the estate left by the decedent and need not go to court
even for the probate of the will. Unless legal terms mean nothing, this is clearly what is meant in
said provision by the words "extrajudicial settlement" and by the clause "* * * the parties may,
without securing letters of administration, divide the estate among themselves as they see fit" * *
*. When judicial administration is made unnecessary by the provision, the inevitable implication
is that the probate of the will is also unnecessary, the probate having no other object than
administration for purposes of distribution according to the provisions of the will. That is why
section 4 of Rule 78 provides :
"Estate, How Administered.—When a will is thus allowed, the court shall grant letters
testamentary, or letters of administration with the will annexed, and such letters testamentary or
of administration shall extend to all the estate of the testator in the Philippines. Such estate, after
the payment of just debts and expenses of administration, shall be disposed of according to such
will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is
provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of
another state or country."
If judicial administration and distribution is made unnecessary by section 1 of Rule 74, then,
I repeat, the probate of the will being purposeless, becomes unnecessary. If the parties have
already divided the estate in accordance with the will, the probate of the will is a useless
ceremony. If they have dividedthe estate in a different manner, the probate of the will is worse
than useless; it is ridiculous. The following words of this Court in a previous case may well be
here reiterated:
"These sections provide for the voluntary division of the whole property of the decedent without
proceedings in court. The provisions which they contain are extremely important. The wisdom
which underlies them is apparent. It is the undisputed policy of every people which maintains the
principle of private ownership of property that he who owns a thing shall not be deprived of its
possession or use except for the most urgent and imperative reasons and then only so long as is
necessary to make the rights which underlie those reasons effective. It is a principle of universal
acceptance which declares that one has the instant right to occupy and use that which he owns,
and it is only in the presence of reasons of the strongest and most urgent nature that that principle
is prevented from accomplishing the purpose which underlies it. The force which gave birth to
this stern and imperious principle is the same force which destroyed. the feudal despotism and
created the democracy of private owners.
"These provisions should, therefore, be given the most liberal construction so that the intent
of the framers may be fully carried out. They should not be straitened or narrowed but should
rather be given that widenessand fullness of application without which they cannot produce their
most beneficial effects.“* * * The purpose which underlies them, as we have already intimated,
is to put into one's hands the property which belongs to him not only at the earliest possible
moment but also with the least possible expense. By permitting the partition and division without
proceedings in court no time is lost and substantially all expense and waste are saved. This is as
it should be. The State fails wretchedly in its duty to its citizens if the machinery furnished by it
for the division and distribution of the property of a decedent is so cumbersome, unwieldly and
expensive that a considerable portion of the estate is absorbed in the process of such
division." * * * (McMicking vs. Sy Conbieng, 21 Phil., 211; 219-220).
Indeed, there can be no valid reason why the probate of a will may not be dispensed with by
agreement of all the parties interested and the estate left by the decedent settled extrajudicially
among all the heirs and legatees, as is now provided in section 1 of Rule 74. It is well recognized
that the allowance of a will gives conclusiveness merely to its due execution, but not to the
intrinsic validity of its provisions which are governed by the substantive law regarding descent
and distribution. If so, why cannot all the parties interested agree, without going to court, that the
will of the decedent is in form valid (this being the only point to be litigated in a probate
proceeding), and that they will divide the inheritance in the manner acceptable to them? The
procedure would not be against public policy or the law placing in the hands of the courts the
probate of wills, because what the courts are enjoined to do for the benefit of the parties, the
latter have already done. As long as the extrajudicial partition of the estate does not affect the
rights of third parties and is not rendered invalid by any provision of the substantive law, no
possible objection can be raised thereto. On practical considerations, it would be useless to force
the parties, at their expense, to go thru the formality of probating a will and dividing the estate in
accordance therewith, because as soon as the routine is over, they are of course free to make such
transfers to one another as will be necessary to effect a partition which they would have made if
they were allowed to settle the estate extrajudicially. It is true that there are provisions in the
Rules of Court compelling the delivery of a will to the competent court and punishing omissions
to do so, but said provisions are calculated to protect the interests of the persons entitled to share
in the inheritance. The latter may waive such benefit. This waiver cannot be said to be a
withdrawal or diminution of the jurisdiction of the court, since it only implies a desire of the
parties not to litigate. The fear that "absent legatees and devisees, or such of them as may have
no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the
heirs who might agree to the partition of the estate among themselves to the exclusion of others",
is wisely provided against in the requirement of the Rule that all the parties interested and all the
beneficiaries under the will should be parties to the extrajudicial settlement. The participation of
all the interested parties excludes the probability of fraud or collusion and, even in that
eventuality, the aggrieved beneficiaries are not without adequate remedy for the voidance of the
partition under the Civil Code.
And this is in accordance with the weight of authority in this and other jurisdictions. In
Leaño vs. Leaño (25 Phil., 180), all the heirs and legatees have made an extrajudicial partition of
the estate left by the decedent and then filed the will in court which was probated. Nine years of
costly probate proceedings have followed after which the extrajudicial partition was made known
to court. Such extrajudicial partition was objected to by one party upon the ground that it was not
in conformity with the provisions of the will. But the trial Court held:
"Naturally the partition made by the heirs voluntarily and spontaneously must produce and
has produced a legal status, which cannot be annulled merely for the caprice of one person. And
it cannot be said that, because the partition was not made in accordance with the will, if such be
the case, the latter has to be annulled, for by voluntarily and spontaneously concurring therein
they implicitly renounced the effects of said will, of which they were'aware." (See p. 183). On
appeal, this Court affirmed the ruling with the following pronouncement:
"In view of the positive finding of the judge of the lower court that there had been a
voluntary partition of the estate among the heirs and legatees and in the absence of positive proof
to the contrary, we must conclude that the lower court had some evidence to support his
conclusion. If the heirs and legatees had voluntarily divided the estate among themselves, then
their division is conclusive, unless and until it is shown that there were debts existing against the
estate which had not been paid. No claim is made whatever by third parties nor objections of any
character are made by others than the heirs against said partition. We see no reason why the heirs
and legatees should not be bound by their voluntary acts." (Pages 183-184).
This case furnishes precisely a valuable experience as to the practical wisdom underlying the
procedure established in section 1 of Rule 74. After the will was probated and after nine years of
costly administration proceedings, nothing—absolutely nothing—was accomplished by the court
except to make the belated pronouncement that the extrajudicial partition made by the parties
prior to the institution of the proceedings was proper and binding upon them. Thus, the whole
proceedings for nine years have proved no more than a futile chronicle of wasted time and
money for the. parties and the court. This disgraceful experience could not and did not pass
unnoticed to the members of this Court wljo drafted the new Rules of Court. The solemn
admonition made by this Court in a previous case (McMicking vs. Sy Conbieng, supra) when it
said that "the State fails wretchedly in its duty to its citizens if the machinery furnished by it for
the division and distribution of the property of a decedent is so cumbersome, unwieldly aiid
expensive that a considerable portion of the estate is absorbed in the process of such division",
rang with re-echoing insistence and was heeded to when the new Rules of Court was drafted and
promulgated. The fundamental policy pervading the whole system of procedure adopted in said
Rules is speed, economy and justice. Thus, features of procedure were done away with when,
without them, the same purpose may be achieved. The result is brevity and simplicity of pro-
cedure with, such guarantees as are necessary to assure due process. And to remedy such evil as
is disclosed in the Leafio case, a completely extrajudicial settlement is allowed even in testate
succession with the probate of the will dispensed with, when the heirs and legatees who are all of
age or represented by their judicial guardians, so agree, and there are no debts to be paid. Thus,
the scope of section 596 of Act No. 190 was amplified and with it the ruling of this Court in
Riosa vs. Rocha (48 Phil. 737). The procedure is in consonance with the almost unanimous
weight of authority in other jurisdictions:
"The complaint, to which a demurrer was sustained, shows that all the persons interested in a
decedent's estate, as widow, heirs, distributees, legatees, or devisees, including the person
appointed executrix by the will, and the husbands of femes covert, (all being adults), by
agreement divided among themselves all the property of the estate according to the direction of
the will, paid off all debts against the estate, and delivered the note described to the plaintiff, as a
part of her share; and all this was done without probate of the will, or administration of the
estate. The effect of such a division was to invest the plaintiff with an equitable title to the note.
In the absence' of the will, the decisions of this court, heretofore made, would meet every
argument in favor of an opposite conclusion. (Anderson vs. Anderson, 37 Ala., 683;
Marshall vs. Crow, 29 Ala., 278; Vanderveervs. Alston, 16 Ala., 494; Miller vs. Eatman, 11 Ala.,
609). Does the presence of an unprobated will, as a feature of this case, take it out of the
principle of those decisions? We can perceive no sufficient reason why it should. All the parties
interested, or to be affected, may as well by agreement divide property, where there is a will,
without employing the agency of courts, as in case of intestacy. Parties, competent to act, ought
to do that, without the agency of courts, which the courts would ultimately accomplish.
To deny them the privilege of so doing, would manifest a judicial abhorrence of harmony.
By the probate of the will, the claims of heirs and distributees and of the widow, would have
been subordinated to the directions of the will. This has been accomplished by agreement. There
being no debts, the executrix would have had no other duty to perform, than to divide the
property according to the will. This, too, has been done by agreement of competent parties. All
the ends and objects of judicial proceedings have been accomplished, by agreement of the
parties; and that agreement must be effective." (Carter vs.Owens, 41 Ala., 215; 216-217).
"The absence of sound objection on this ground, to a contract having for its sole purpose the
disposition of property in a manner different from that proposed by a testator, even where the
contract contemplates the rejection of the will when offered for probate or its setting aside when
admitted to probate, when it is entirely free from fraud, and is made by all the parties in interest,
may be freely conceded. As has often been substantially said, the public generally has no interest
in the matter of the probate of. a will; and only those interested in the estate under the will or
otherwise are affected by such a contract. If they all agree upon some course to be followed, and
their contract is otherwise free from contemplated fraud or violation of any law, no one else has
any such interest as warrants complaint. Such was the character of contract involved in
Spangenberg vs. Spangenberg (App.), 126 Pac, 379, especially relied on by plaintiff here, where
the contract purported to affect only such property of the deceased as should in fact be received
by the parties thereto. In Estate of Garcelon, 104 Cal., 570; 38 Pac, 414; 32 L. R. A., 595;
43'Am. St. Rep., 134, another case much relied on by plaintiff, a contract by an heir to refrain
from contesting a will was involved. It was said that the contract was one that concerned the par-
ties alone, and one that did not appear to be against public policy." (Gugolz vs.Gehrkens, 130
Pac. Rep., 8, 10; 164 Cal., 596).
"The question of public policy is introduced. The disposition of one's property after death is
controlled by statute. One of the next of kin has no vested interest in such property. In cases of
intestacy, a next of kin has such interest as the statute declares. In case there is a will, he has an
interest which gives him a standing and right to contest the will. This right is his alone; in it the
public has no interest; he may refrain from exercising it, or he may dispose of it as he wishes, by
release or assignment or settlement, and the law of public policy is not offended." (In re Cook's
Will, 217 N. Y. S., 176, 180-181).
"Agreement.—'It has been definitely decided by the courts of this state, and of many other
states, that the beneficiaries under a will have a right to agree among themselves upon any
distribution they see proper of the property bequeathed to them. * * * That holding is based upon
the proposition that the property is theirs. No one else is interested in its disposition, and they
may, with propriety, make any distribution of it that suits them, so long as they do not invade the
rights of other parties or infringe some rule of public policy'." (Fore vs. McFadden, 276 N. W.,
327; 329).
"The first assignment of error presented by appellants complains of the action of the court in
sustaining exceptions to averments asking the enforcement of the agreement that the will should
not be probated, and that the estate should be divided among the parties as they would be entitled
as heirs at law of the deceased, the proponent of the will surrendering thereby his rights as
principal legatee. This assignment must be sustained. It cannot be seen that the agreement is
contrary to public policy. Parties may make any contract with reference to their property rights
that is not illegal, may adjust by compromise their differences and disputes concerning the same
and, as they bind themselves, so shall they be bound. It is difficult to understand why this cannot
be effected by an agreement not to probate a will, or how it interferes with public policy. The
power to litigate and to establish a right by appeal to the courts is as much the subject of contract
as any other right in property. Such adjustments by contract are favored by the law and the
courts, and are not deemed to be an unwarranted interference with the jurisdiction of the courts,
or against public policy. On the contrary, public policy favors them.
"Appellants have cited a case in point,—the case of Phillips v. Phillips, 8 Watts, 197, in
which it is held competent for devisees and legatees to bind themselves by a written or parol
agreement to destroy a will before probate, and that a party to the agreement would be estopped
from claiming any interest under the will. The court says: 'It cannot admit of doubt that before
probate the parties in interest under a will would have the right to set aside a will, and such an act
would be favored, when the object was to avert a family controversy'. The agreement that the
will should not be probated, and that the parties would take the property as heirs at law of the
deceased, destroyed the legal effect of the will; and it could not thereafter have legal existence in
conferring rights upon the legatees." (String-fellow vs. Early, 40 SW. 871, 873-874; 15 Tex. Civ.
App., 597).
"The contention that the complaint does not state a cause of action, because the contract sued
on is against public policy, and therefore void, is made here for the first time. It is to the interest
of the public generally that the right to make contract should not be unduly restricted, and no
agreement will be pronounced void, as being against public policy, unless it clearly contravenes
that which has been declared by statutory enactment or by judicial decisions to be public policy,
or unless the agreement manifestly tends in some way to injure the public. Whether or not a
contract in any given case is contrary to public policy is a question of law, to be determined from
the circumstances of each particular. case. Smithvs. Du Bose, 78 Ga., 413; 3 SE., 309-316; 6
Am. St. Rep., 260; Weber vs. Shay, 56 Ohio St., 116; 46 NE., 377; 37 L. R. A., 230; 60 Am. St.
Rep., 743; Pierce vs. Randolph, 12 Tex., 290; Printing Numerical Registering Co. vs. Sampson,
19 L. R. Eq. Cas., 465.
"The contract in controversy is in effect but an agreement whereby the parties thereto,
'because of their love and affection for one another' and 'being desirous of avoiding litigation
over the estate' of their father 'in case of his death,' agreed to ignore his will in the event that he
made one, and then share his estate equally as if he had died intestate. In other words, the
contract was but an agreement of heirs apparent not to contest the will of an ancestor. There is
nothing to be found in our code or statutory law prohibiting the making and enforcement of such
a contract, and it has been held in this state that a contract, made after the death of the deceased,
not to contest his will, is purely personal to the parties making it, that it is not against public
policy, and that, when fairly made, it will be enforced." (Spangenberg vs. Spangenberg, 126 Pac.
Rep., 379, 382; 19 Cal. App., 439).
 "Probate Dispensed With.—Probate of a will may be dis-pened with by an agreement beneficiaries and requiring testimony as to the tearing of the will by the testator. Probate,
between the persons interested ; or it may be dispensed with where the testator, before his death, however, is not prevented by an agreement executed by a part only of the beneficiaries, and the
conveyed to the devisees all the property which he had devised to them, or where the will makes parties to such agreement are not prevented thereby from taking under the will which is probated
no other disposition of the testator's property than the law would have done had he died intestate, by another interested person." ([Italics supplied] 68 C. J., pp 914-915).
and the rights sought to be established are admitted by all concerned. But where the language of
"Thus, where the parties, being in doubt as to the instrument being construed as a will, and
the will expressly invokes the jurisdiction of the probate court the fact that no administration is
for the purpose of saving a family controversy and for the purpose of dividing the estate, enter
necessary does not affect the power of the court to probate the will." (68 C. J., pp. 877-878).
into a compromise and settlement agreement, under the terms of which the entire estate is to be,
"Agreement between Persons Interested: a. Requisites and Validity. (1) In General.—It has
and has in part been, divided, and agree that the instrument shall not be offered for probate, it is
been held that, since the nature of a probate proceeding is one in rem, the parties cannot submit a
sufficient to prevent a probate." (Brown vs. Burk, 26 NW [2d ed.], 415).
controversy arising therein to arbitration. The law, however, favors the settlement, in good faith,
"Validity of Agreements to Dispense with Probate or to Modify, or Set Aside Will.—Though
of will contests, by a so-called 'family settlement', although it changes the mode of disposition of
in some jurisdictions an agreement to dispense with the probate of a will has been declared to be
the estate; and, therefore, subject to the limitation that a contestant cannot compromise anything
against public policy and void, in a majority of the decisions on the point it has been held that all
beyond his own personal interest in the contest, persons, such as devisees, legatee, heirs, or next
the persons interested in a decedent's estate may by agreement divide the estate among
of kin, having interests in the will or estate, sufficient to entitle them to oppose probate or contest
themselves, without probating such decedent's will or administering the estate, and the validity of
the will, may enter into an agreement which, in the absence of fraud or misrepresentation, is
a contract having for its sole purpose the disposition of property in a manner different from that
valid and binding on all the parties thereto, whereby they waive probate of the will and bind
proposed by a testator, even where the contract contemplates the rejection of the will when
themselves to abide by its provisions, or whereby they agree that the will is not to be probated or
offered for probate or its setting aside when admitted to probate, when it is entirely free from
is to be superseded or destroyed; or whereby any controversy relative to the probate or contest of
fraud, and is made by all the parties in interest, would seem to be freely conceded. Thus it has
the will is compromised or settled, and a contest is avoided, whether or not there were, in fact,
been held that all the parties in interest may agree to eliminate from a will a clause providing for
valid grounds for the contest. Such an agreement, in order to be valid, must not exclude anyone
survivorship among them. But an agreement to resist the probate of a will and procure it to be set
entitled under the will, must be entered into by all the persons affected thereby, and all the
aside so as to cut off the interest of one who is not a party to such agreement is against public
parties thereto must be competent to make the agreement, and either they or their representative
policy, Nor does the right of all the parties in interest to set aside or disregard a will extend to the
must fully execute it, and, under some statutes, it must be properly approved by the court."
case of an active trust, for a definite term, created by a testator as he deems proper for the
([Italics supplied] 68 C. J., pp. 909-910).
protection of his beneficiaries. A contract between the next of kin of a decedent, that they will
"As to Probate.—The operation and effect of the agreement may be not to supersede the each have a certain portion of the estate, does not amount to an agreement to divide the estate
provisions of the will, but to carry out its provisions without a probate, and under such an without probating the will." (28 R. C. L., pp. 357-358).
agreement the parties are precluded from denying the probate, or insisting on the invalidating of
The minority decision pointed out in the last quotation from the Ruling Case Law (Vol. 28,
the will for want of probate. So, also, a person who agrees not to contest the will is precluded
pp. 357-358) is from the Supreme Court of only one State—that of Wisconsin, in re Will of
from opposing probate; or the probate of a will may be dispensed with, and the persons
Dardis (135 Wis., 457; 115 NW., 332). All the other States held the contrary doctrine that is now
interested in the estate under the will given at least an equitable interest in the property, where
embodied in section 1 of Kiile 74. Commenting upon the Wisconsin rule, the Editor of the L. R.
they, being under no disability, divide the estate, pursuant to an agreement among
A. says the following: "No case has been found other than Re Dardis wherein any court passed
themselves. Where the effect of the agreement of all interested parties is to repudiate or
upon the validity of a stipulation to secure the denial to probate of a will theretofore offered for
renounce the will, it will not be probated, especially where the agreement expressly so
probate, on the ground that the testator was mentally incompetent to make a will at the time of its
provides; but it has been held that, where the executor, defending a torn will, agrees, for a
execution. The decision of the court is based upon the doctrine therein enunciated, that
consideration, not to probate it, the court should not refuse probate without notifying other
proceedings to probate a will are proceedings in rem, which public interest demands should be
pursued to a final adjudication, regardless of the wishes of the interested parties. In this
connection and with reference to this broader question, it is of interest to note that courts of other
jurisdictions, although generally recognizing that proceedings to probate a will are
proceedings in rem, hold that the proceeding is inter partes to the extent that all the parties in
interest may control the probate proceedings, even to the extent of doing away with the probate."
(23 L. R. A. [N.S.],p. 783).
For the sake of fixity in judicial policy, this Court in the exercise of its constitutional
powers, has solemnly given a form of a rule—section 1, Rule 74—to what was merely the
consensus of judicial opinion. We cannot now repudiate the procedure outlined in said provision
unless we amend it by another rule.
The majority, however, expresses fear that abuses may easily be committed under the Rules.
Such fears have always been the bugbear set up against all task of procedural reforms. To be
sure, there has never been any provision of law that is not liable to abuses. If by a mere
possibility of abuse we are to disregard clear provisions of a procedural law, the result would be
not only the abrogation of all laws but also the abolition of all courts. When a procedural law is
calculated to remedy an evil under a specific situation therein contemplated, it must be deemed
good even if other situations may be simulated or falsified and placed within its purview. And
when that law is duly enacted, it is no concern of the courts to pass upon its wisdom, their
duty being to apply its provisions in a manner which shall not defeat the intention underlying it.
Laws are promulgated to be obeyed and when they are abused there are the courts to check up
the abuse. Courts must deal with the specific circumstances of each case and construe the
provisions in such a manner as to make it impregnable if possible to further abuses. This is
constructive, not destructive, jurisprudence. This explains why laws are more often worded so
broadly as to lay merely general principles—a skeleton— the flesh to be supplied with judicial
decisions. Judicial statemanship requires that courts in deciding judicial controversies should be
careful not to advance opinions which are not necessary to a proper disposition of the case. Ju-
dicial experience has shown that such advanced opinions may not infrequently place the court in
an embarrassing position when a proper case with the proper factual environment is properly
presented with all its angles before the court. Jurisprudence must be carefully progressive and
not impetuously aggressive. For instance, the majority, impressed by the awful circumstances of
the present case, has found it dangerous to hold that the probate of the will may be dispensed
with. While this conclusion is constructive under the peculiar facts of the case, to generalize it is
to make destructive. If a proper case is presented to the court wherein all the heirs and legatees
who are all of age have agreed to dispense with the probate of a will and have actually made an
extrajudicial partition, and if it appears further that each of the recipients is in peaceful
enjoyment of his share in the estate, I am sure that the majority, with the practical wisdom they
have shown in other cases, would not dare disturb the peace enjoyed by such heirs and legatees
and compel them to go into court and litigate.
The majority, without the necessity of holding whether the probate of a will may or may not
be dispensed with under Rule 74, section 1, could have decided this case by stating that said
provision is not applicable, its requirements not being present. And I would be wholly agreeable
to this conclusion because the beneficiaries under the will do not appear to have made an
extrajudicial settlement of the estate left by the deceased Victorino L. Guevara, nor the action
brought by the natural daughter, Rosario Guevara, is one for partition against all such
beneficiaries founded either on an extrajudicial settlement or on the provisions of the will as
accepted by all parties to be valid anol binding. Upon the contrary, Rosario Guevara appears to
be wishing to take advantage of the will in so far as it is favorable to her, and repudiate it in so
far as it is favorable to others. Apparently, Rosario Guevara was in possession of the will and the
other heirs and legatees were not aware of its contents. The situation not being the one
contemplated by section 1 of Rule 74, plaintiff may not invoke its provisions.
Judgment modified.
G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.
GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of
Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the deceased,
substantially in these words:
"Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang aking
kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamaganakang
sumusunod:chanrob1es virtual 1aw library
Vicente Esguerra, Sr. 5 Bahagi
Fausto E. Gan 2 Bahagi
Rosario E. Gan 2 Bahagi
Filomena Alto 1 Bahagi
Beatriz Alto 1 Bahagi
‘At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana sa
aking asawang si Ildefonso D. Yap sa kondisyong siya’y magpapagawa ng isang Health Center
na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na
nakaukit ang aking pañgalang Felicidad Esguerra-Alto. At kung ito ay may kakulañgan man ay
bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan.’
(Lagda) Felicidad E. Alto-Yap"
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not
left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,1 refused to probate the alleged will. A seventy-page motion for reconsideration failed.
Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by
the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario
Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her
husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of
Felicidad, who was then preparing for the bar examinations. The latter replied it could be done
without any witness, provided the document was entirely in her handwriting, signed and dated by
her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the
morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the tenor above transcribed, in the presence
of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon
of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to
read the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece.
To these she showed the will, again in the presence of Felina Esguerra, who read it for the third
time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness,
she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours
later, Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason
of his well-known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso
Yap returned the purse to Felina, only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet,
opened it and read the will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent physicians, Dr.
Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to
the United States wherein for several weeks she was treated for the disease; that thereafter she
felt well and after visiting interesting places, the couple returned to this country in August 1950.
However, her ailment recurred, she suffered several attacks, the most serious of which happened
in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was
surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors
and of by the Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at
about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctor's advice the patient
stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs.
Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap
made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important
of which were these: (a) if according to his evidence, the decedent wanted to keep her will a
secret, so that her husband would not know it, it is strange she executed it in the presence of
Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a
showing that Felina was a confidant of the decedent it is hard to believe that the latter would
have allowed the former to see and read the will several times; (c) it is improbable that the
decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to
read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it
is also improbable that her purpose being to conceal the will from her husband she would carry it
around, even to the hospital, in her purse which could for one reason or another be opened by her
husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital
and that the will was there, it is hard to believe that he returned it without destroying the will, the
theory of the petitioner being precisely that the will was executed behind his back for fear he will
destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that
Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and
of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or
most of them, were presented in the motion to reconsider; but they failed to induce the court a
quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We
deem it unnecessary to go over the same matters, because in our opinion the case should be
decided not on the weakness of the opposition but on the strength of the evidence of the
petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms.
The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form,
thereby repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person
may execute a holographic will which must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form and may be made in or out of the Philippines,
and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act
190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and
three credible witnesses in each andevery page; such witnesses to attest to the number of sheets
used and to the fact that the testator signed in their presence and that they signed in the presence
of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and fraud,
to prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40
Phil., 476) and to avoid those who have no right to succeed the testator would succeed him and
be benefited with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However,
formal imperfections may be brushed aside when authenticity of the instrument is duly proved.
(Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the subscribing
witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three
must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil.,
742). From the testimony of such witnesses (and of other additional witnesses) the court may
form its opinion as to the genuineness and authenticity of the testament, and the circumstances its
due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded,
since as stated, they need no witnesses; provided however, that they are "entirely written, dated,
and signed by the hand of the testator himself." The law, it is reasonable to suppose, regards the
document itself as material proof of authenticity, and as its own safeguard, since it could at any
time, be demonstrated to be — or not to be — in the hands of the testator himself. "In the probate
of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's
handwriting) and if the court deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will. They
may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it
is in the testator's hand. However, the oppositor may present other witnesses who also know the
testator's handwriting, or some expert witnesses, who after comparing the will with other
writings or letters of the deceased, have come to the conclusion that such will has not been
written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such
contradictory testimony may use its own visual sense, and decide in the face of the document,
whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of authenticity3 — the testator's
handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare that it was in the handwriting of the
testator? How can the oppositor prove that such document was not in the testator's handwriting?
His witnesses who know testator's handwriting have not examined it. His experts can not testify,
because there is no way to compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper
millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they
may have been shown a faked document, and having no interest to check the authenticity thereof
have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they have
not "been shown" a document which they believed was in the handwriting of the deceased. Of
course, the competency of such perjured witnesses to testify as to the handwriting could be tested
by exhibiting to them other writings sufficiently similar to those written by the deceased; but
what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply stick to his statement: he has
seen and read a document which he believed was in the deceased's handwriting. And the court
and the oppositor would practically be at the mercy of such witness (or witnesses) not only as to
the execution, but also as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed
will by secondary — evidence the testimony of witnesses, in lieu of the original document. Yet
such Rules could not have contemplated holographic wills which could not then be validly made
here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it
may be lost or stolen4 — an implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge,
(Art. 689) who shall subscribe it and require its identity to be established by the three witnesses
who depose that they have no reasonable doubt that the will was written by the testator (Art.
691). And if the judge considers that the identity of the will has been proven he shall order that it
be filed (Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving spouse and the legitimate
ascendants and descendants be summoned so that they may make "any statement they may desire
to submit with respect to the authenticity of the will." As it is universally admitted that the
holographic will is usually done by the testator and by himself alone, to prevent others from
knowing either its execution or its contents, the above article 692 could not have the idea of
simply permitting such relatives to state whether they know of the will, but whetherin the face of
the document itself they think the testator wrote it. Obviously, this they can't do unless the will
itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying
with the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is
frustrated when the document is not presented for their examination. If it be argued that such
choice is not essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and privilegeto comply with
the will, if genuine, a right which they should not be denied by withholding inspection thereof
from them.
We find confirmation of these ideas--about exhibition of the document itself--in the decision of
the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a
document containing testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing the mutilation to the
opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of
the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it
shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del
articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera
estar escrito todo el y firmado por testador, con expression del año, mes y dia en que se
otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos
esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo
en que el verbo se emplea, se desprende la necesidad de que el documento se
encuentre en dichas condiciones en el momento de ser presentado a la Autoridad
competente, para au adveracion y protocolizacion; y como consecuencia ineludible de
ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no
estarfirmado por el testador, cualquiera que sea la causa de la falta de firma, y sin
perjuicio de las acciones que puedan ejercitar los perjudicados, bien para pedir
indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via
criminal si procediere, por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis
of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues
que los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de
la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos,
que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si
semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere
connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda
otra vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz,
1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion
as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make
this Rule decisive of this controversy, simultaneously with its promulgation. Anyway, decision
of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed.
The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the
handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and
of the notary, now). The loss of the holographic will entails the loss of the only medium of proof;
if the ordinary will is lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts
on the particular day, the likelihood that they would be called by the testator, their intimacy with
the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to
end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not
receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could
engineer the fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and read
the forgery; and the latter, having no interest, could easily fall for it, and in court they would in
all good faith affirm its genuineness and authenticity. The will having been lost — the forger
may have purposely destroyed it in an "accident" — the oppositors have no way to expose the
trick and the error, because the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of them need be signed, the
substitution of the unsigned pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature —
feasibility of forgery — would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses
would be testifying to a fact which they saw, namely the act of the testator of subscribing the
will; whereas in the case of a lost holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial
judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we
find it hard to believe that the deceased should show her will precisely to relatives who had
received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into
amending her will to give them a share, or threaten to reveal its execution to her husband
Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from
her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not
lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the
will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will,
we think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77,
sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L.,
Endencia and Felix, JJ., concur.
No. L-23445. June 23, 1966.
REMEDIOS NUGUID, petitioner and appellant, vs. FELIX NuGUID and PAZ SALONGA
NUGUID, oppositors and appellees.
Wills; Succession; Probate of will; Court’s area of inquiry is limited to extrinsic validity
of will; When Court may rule on intrinsic validity.—In a proceeding for the probate of a will, the
court’s area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of
the will, the due execution thereof, the testatrix’s testamentary capacity and the compliance with
the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes
only after the court has declared that the will has been duly authenticated. However, where
practical considerations demand that the intrinsic validity of the will be passed upon, even before
it is probated, the Court should meet that issue.
Same; Preterition; Omission of forced heirs in the will.—Where the deceased left no
descendants, legitimate or illegitimate, but she left forced heirs in the direct ascending line—her
parents, and her holographic will does not explicitly disinherit them but simply omits their names
altogether, the case is one of preterition of the parents, not a case of ineffective disinheritance.
Same; Preterition distinguished from disinheritance.—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.” (Neri vs.Akutin, 72 Phil., 325). Disinheritance, in turn,
a testamentary disposition depriving any compulsory heir of his share in thelegitime for a cause
authorized by law.” (Justice J.B.L. Reyes and R.C. Puno, “An Outline of Philippine Civil Law”,
1966 ed., Vol. III, p. 8, citing cases.) Disinheritance is always “voluntary”; preterition, upon the
other hand, is presumed to be “involuntary” (Sánchez Román, Estudios de Derecho Civil, 2nd
edition, Volumen 2.o, p. 1131).
Same; Effects flowing from preterition and disinheritance.—The effects flowing from
preterition are totally different from those of disinheritance. Preterition under Article 854 of the
New Civil Code “shall annul the institution of heir”. This annulment is in toto,unless in the will
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 (III Tolentino, Civil Code of the Philippines, 1961
Edition, p. 172). Better stated yet, in disinheritance the nullity is limited to that portion of the
estate of which the disinherited heirs have been illegally deprived.
Same; When institution of heirs is void.—Where the onesentence will institutes the
petitioner as the sole, universal heir and preterits the parents of the testatrix, and it contains no
specif ic legacies or bequests, such universal institution of petitioner, by itself, is void. And
intestate succession ensues.
Same; When legacies and devises merit consideration.—Legacies and devises merit
consideration only when they are so expressly given as such in a will. Nothing in Article 854 of
the New Civil Code suggests that the mere institution of a universal heir in a will—void because
of preterition—would give the heir so instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a testamentary disposition granting him
bequests or legacies apart and separate from the nullified institution of heir.
Same; Institution of heirs cannot be considered a legacy.—If every case of institution of
heirs may be made to fall into the concept of legacies and betterments reducing the bequest
accordingly, then the provisions of Articles 814 and 851 of the old Civil Code, regarding total or
partial nullity of the institution, would be absolutely meaningless and will never have any
application at all. And the remaining provisions contained in said articles concerning the
reduction of inofficious legacies or betterments would be a surplusage because they would be
absorbed by Article 817 of the same Code.
APPEAL from an order of the Court of First Instance of Rizal, San Diego, J.
The facts are stated in the opinion of the Court.
“is
Custodio O. Partade for petitioner and appellant.
 Beltran, Beltran and Beltran for oppositors and appellees. be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will
be protracted. And for aught that appears in the record, in the event of probate or if the court
SANCHEZ, J.: rejects the will, probability exists that the case will come up once again before us on the same
issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
added anxiety. These are the practical considerations that induce us to a belief that we might as
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid
well meet head-on the issue of the validity of the provisions of the will in question. 3 After all,
and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios,
there exists a justiciable controversy crying for solution.
Conrado, Lourdes and Alberto, all surnamed Nuguid.
2. Petitioner’s sole assignment of error challenges the correctness of the conclusion below
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
that the will is a complete nullity. This exacts from us a study of the disputed will and the
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years
applicable statute.
before her demise. Petitioner prayed that said will be admitted to probate and that letters of
Reproduced hereunder is the will:
administration with the will annexed be issued to her.
“Nov. 17, 1951
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a
and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will.
certain amount of property, do hereby give, devise, and bequeath all of the property which I may
Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal
have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga,
heir of the deceased, oppositors—who are compulsory heirs of the deceased in the direct
Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen
ascending line—were illegally preterited and that in consequence the institution is void.
hundred and fifty-one.
On August 29, 1963, before a hearing was had on the petition for probate and objection
(Sgd.) Illegible
thereto, oppositors moved to dismiss on the ground of absolute preterition.
T/ ROSARIO NUGUID"
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.
The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:
The court’s order of November 8, 1963, held that “the will in question is a complete nullity
“ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct
and will perforce create intestacy of the estate of the deceased Rosario Nuguid” and dismissed
line, whether living at the time of the execution of the will or born after the death of the testator,
the petition without costs.
shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
not inofficious. x x x”
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of
probate of a will. The court’s area of inquiry is limited—to an examination of, and resolution on,
the Civil Code of Spain of 1889, which is similarly herein copied, thus—
theextrinsic validity of the will. The due execution thereof, the testatrix’s testamentary capacity,
“Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the
and the compliance with the requisites or solemnities by law prescribed, are the
time of the execution of the will or born after the death of the testator, shall void the institution of
questions solely to be presented, and to be acted upon, by the court Said court at this stage of the
heir; but the legacies and betterments4 shall be valid, in so far as they are not inofficious. x x x”
proceedings—is not called upon to rule on the intrinsicvalidity or efficacy of the provisions of
A comprehensive understanding of the term preterition employed in the law becomes a
the will, the legality of any devise or legacy therein. 1
necessity. On this point Manresa comments:
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether
“La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera, o
or not the will should be allowed probate. For them, the meat of the case is the intrinsic validity
aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda
of the will. Normally, this comes only after the court has declared that the will has been duly
expresamente, ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito de
authenticated.2 But petitioner and oppositors, in the court below and here on appeal, travelled on
su derecho a legitima.
the issue of law, to wit: Is the will intrinsically a nullity? We pause to reflect. If the case were to
 Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el
testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea
completa; que el heredero forzoso nada reciba en el testamento."5
It may now appear trite but nonetheless helpful in giving us a clear perspective of the problem
before us, to have on hand a clear-cut definition of the word annul:
“To ‘annul’ means to abrogate, to make void; x x x In re Morrow’s Estate, 54 A. 342, 343, 204
Pa. 484."6
“The word ‘annul’ as used in statute requiring court to annul alimony provisions of divorce
decree upon wife’s remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to
make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50—38 (now N.J.S. 2A:34–
35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N.J Eq. 132."7
“ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to
nullify; to abolish; to do away with. Ex parteMitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774."8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line—her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them:
They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither
were they expressly disinherited. This is a clear case of preterition, Such preterition in the words
of Manresa “anulara siempre la institucion de heredero, dando caracter absoluto a este
ordenamiento”, referring to the mandate of Article 814, now 854 of the Civil Code. 9 The one-
sentence will here institutes petitioner as the sole, universal heir—nothing more. No specif ic
legacies or bequests are therein provided for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
“En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, ¿ en todo o en
parte? No se añade limitacion alguna, como en el articulo 851, en el que se expresa que se
anulara la institucion de heredero en cuanto perjudique a la legitima del deseheredado. Debe,
pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el
caso que le motiva, rige con preferencia al 817."10
The same view is expressed by Sanchez Roman:—
“La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno,
varios o todos los forzosos en linea recta, es la apertura de la sucesion
intestada, total oparcial. Sera total, cuando el testador que comete la pretericion, hubiese
dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos
instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del art.
814, al determinar, como efecto de la pretericion, el de que ‘anulara la institucion de heredero/ x
x x"11
Really, as we analyze the word annulemployed in the statute, there is no escaping the conclusion
that the universal institution of petitioner to the entire inheritance results in totally abrogating the
will. Because, the nullification of such institution of universal heir—without any other
testamentary disposition in the will—amounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation.
Giving it an expansive meaning will tear up by the roots the fabric of the statute. On this point,
Sanchez Roman cites the “Memoria annual del Tribunal Supremo, correspondiente a 1908",
which in our opinion expresses the rule of interpretation, viz:
“x x x El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido antes
expuesto, aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una
nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado,
debiendo, por lo tanto, procederse sobre tal base o supuesto, y consiguientemente, en un
testamento donde falte la institucion, es obligado llamar a los herederos f orzosos en todo caso,
como habria que llamar a los de otra clase, cuando el testador no hubiese distribudo todos sus
bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de
testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no basta que
sea conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya
institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador,
pues aun cuando asi f uese, sera esto razon para modif icar la ley, pero no autoriza a una
interpretacion contraria a sus terminos y a los principios que informan la testamentifaccion, pues
no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para
convereste juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo
que el legislador quiere establecer."12
3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding,
‘the devises and legacies shall be valid insofar as they are not inofficious”. Legacies and devises
merit consideration only when they are so expressly given as such in a will. Nothing in Article
854 suggests that the mere institution of a universal heir in a will—void because of preterition—
would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There
must be, in addition to such institution, a testamentary disposition granting him bequests or
legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of the
two component parts of Article 814, now 854, states that preterition annuls the institution of the
heir “totalmente por la pretericion”; but added (in reference to legacies and bequests), “pero
subsistiendo, x x x todas aquellas otras disposiciones que no se refieren a la nstitucion de
heredero x x x".13 As Manresa puts it, annulment throws open to intestate succession the entire
inheritance including “la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o
donacion."14
As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate succession
ensues,
4. Petitioner’s mainstay is that the present is “a case of ineffective disinheritance rather than
one of preterition” 15 From this, petitioner draws the conclusion that Article 854 “does not apply
to the case at bar”. This argument fails to appreciate the distinction between preterition and
disinheritance.
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."16Disinheritance, in turn, “is
atestamentary disposition depriving any compulsory heir of his share in the legitime for a cause
authorized by law."17In Manresa’s own words: “La privacion expresa de la legitima constituye
ladesheredacion. La privacion tacita de la misma se denomina pretericion."18Sanchez Roman
emphasizes the distinction by stating that disinheritance “es siempre voluntaria”;preterition,
upon the other hand, is presumed to be “involuntaria".19 Express as disinheritance should be, the
same must be supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix’s parents, the forced heirs. It simply
omits their names altogether. Said will rather than be labeled ineffective disinheritance is clearly
one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from
those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, “shall annul
the institution of heir”. This annulment is in toto, unless in the will 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”, put
only “insofar as it may prejudice the person disinherited”, which last phrase was omitted in the
case of preterition.21Better stated yet, in disinheritance the nullity is limited to that portion of the
estate of which the disinherited heirs have been illegally deprived. Manresa’s expressive
language, in commenting on the rights of the preterited heirs in the case of preterition on the one
hand and legal disinheritance on the other, runs thus: “Preteridos, adquiren el derecho a
todo; desheredados solo les corresponde un tercio o dos tercios,22 el caso."23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive
their legitimes, but that the institution of heir “is not invalidated,” although the inheritance of the
heir so instituted is reduced to the extent of said legitimes.24 ,
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited,viz:
“But the theory is advanced that the bequest made by universal title in f avor of the children by
the second marriage should be treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted, will result in a complete
abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be
made to fall into the concept of legacies and betterments reducing the bequest accordingly, then
the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would
be absolutely meaningless and will never have any application at all. And the remaining
provisions contained in said article concerning the reduction of inofficious legacies or
betterments would be a surplusage because they would be absorbed by Article 817. Thus, instead
of construing, we would be destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision. With
reference to article 814, which is the only provision material to the disposition of this case, it
must be observed that the institution of heirs is therein dealt with as a thing separate and distinct
from legacies or betterments. And they are separate and distinct not only because they are
distinctly and separately treated in said article but because they are in themselves different.
Institution of heirs is a bequest by universal title of property that is undetermined. Legacy refers
to specific property bequeathed by a particular or special title. x x x But again an institution of
heirs cannot be taken as a legacy."25
The disputed order, we observe, declares the will in question “a complete nullity”. Article 854 of
the Civil Code in turn merely nullifies “the institution of heir”. Considering, however, that the
will before us solely provides for the institution of petitioner as universal heir, and nothing more,
the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.
Chief Justice Concepcion andJustices J.B.L.
Reyes, Barrera, Dizon,Regala, Makalintal, J.P. Bengzon andZaldivar, concur.
Order affirmed.
Note.—Preterition (pretermission) is the omission from the inheritance of a compulsory heir
in the direct line (not including the spouse).
 The Nuguid case holds that a will instituting the testatrix’s sister as heir and preteriting her
parents or her compulsory heirs, is void because of that preterition. Being void, the institution is
annulled and completely intestacy results (Par. 1, Art. 960, New Civil Code).
The Nuguid case follows the ruling inNeri vs. Akutin, 72 Phil. 322 and 74 Phil. 185 and
revokes the ruling in Escuin vs. Escuin, 11 Phil. 322 and Eleazar vs. Eleazar, 67 Phil. 497. These
two cases are not mentioned at all in the Nuguidcase.
In the Eleazar case, the testator preterited in his will his father, disinherited his wife and
instituted as heir one Miguela Eleazar. It was held that the institution of heir was void only
insofar as it impaired the father’s legitime. It was valid as to the free portion, which should be
considered as a legacy to Miguela Eleazar. The preterition did not result in total intestacy. The
decision in the Eleazarcase was penned by Justice Moran, theponente in the Akutin case,
The ruling in the Eleazar case was based on the Escuin case, where the testator (a natural
child) instituted as heirs in his will his natural father and his wife, preteriting his own
acknowledged natural child. It was held that the preterition did not produce total intestacy. The
natural child was given his legitime, or one-third of the estate, as fixed in the old Civil Code, and
the father and wife were given the other two-thirds as “legacies”. The same solution was adopted
in Ramirez vs. Gamur, 42 Phil. 855. See Aznar vs. Duncan, L-24365, June 30, 1966, post.
No. L-62952. October 9, 1985.*
SOFIA J. NEPOMUCENO, petitioner,vs. THE HONORABLE COURT OF APPEALS,
RUFINA GOMEZ, OSCAR JUGO ANG CARMELITA JUGO, respondents.
Succession; Wills; Jurisdiction; The fact that the probate court declared a devise made in
a will null and void will be sustained where no useful purpose will be served by requiring the
filing of a separate civil action and restricting the court only to the issue of extrinsic validity of
the will.—We are of the opinion that in view of certain unusual provisions of the will, which are
of dubious legality, and because of the motion to withdraw the petition f or probate (which the
lower court assumed to have been filed with the petitioner's authorization), the trial court acted
correctly in passing upon the will's intrinsic validity even before its formal validity had been
established. The probate of a will might become an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64
O.G. 1527, 17 SCRA 449. Compare with Sumilang v. Ramagosa, L-23135, December 26, 1967,
21 SCRA 1369; Cacho v. Udan, L-19996, April 30, 1965, 13 SCRA 693).
Same; Same; Same; Same.—We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before us on the same issue of the
intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a belief that we might as well meet head-
on the issue of the validity 01 the provisions of the will in question. (Section 2, Rule 1, Rules of
Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable
controversy crying f or solution.
Same; Same; A devise given by a married man estranged from his wife for 22 years prior
to his death, to a woman with whom he has been living for said period of time is void.—
Moreover, the prohibition in Article 739 of the Civil Code is against the making of
adonation between persons who are living in adultery or concubinage. It is the donation which
becomes void. The giver cannot give even assuming that the recipient may receive. The very
wordings of the Will invalidate the legacy because the testator admitted he was disposing the
properties to a person with whom he had been living in concubinage.
PETITION for certiorari to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision of the respondent Court of
Appeals (now Intermediate Appellate Court) dated June 3, 1982, as amended by the resolution
dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the
resolution dated December 28, 1982 denying petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly
signed by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4
thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leaño, who in
turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2 and
4 of the Will in the presence of the testator and of each other and the Notary Public. The Will
was acknowledged before the Notary Public Romeo Escareal by the testator and his three
attesting witnesses.
 In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as
his sole and only executor of his estate. It is clearly stated in the Will that the testator was legally
married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and
Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been
living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin
Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the
Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina
Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to
herein petitioner. The Will reads in part:
"Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina
Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and
admit to be legally and properly entitled to inherit from me; that while I have been estranged
from my above-named wife for so many years, I cannot deny that I was legally married to her or
that we have been separated up to the present for reasons and justifications known fully well by
them;
"Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all the things
which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my
full knowledge and consent, did comport and represent myself as her own husband, in truth and
in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of
matrimony because of my aforementioned previous marriage;"
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament
of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan
City and asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an
opposition alleging inter alia that the execution of the Will was procured by undue and improper
influence on the part of the petitioner; that at the time of the execution of the Will, the testator
was already very sick and that petitioner having admitted her living in concubinage with the
testator, she is wanting in integrity and thus letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the
testator admitted in his Will to cohabiting with the petitioner from December 1952 until his death
on July 16, 1974, the Will's admission to probate will be an idle exercise because on the face of
the Wills the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of
Rizal denying the probate of the Will. The respondent court declared the Will to be valid except
that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with
Article 1028 of the Civil Code of the Philippines. The dispositive portion of the decision reads:
"WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except
the devise in favor of the appellant which is declared null and void. The properties so devised are
instead passed on in intestacy to the appellant in equal shares, without pronouncement as to
costs."
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction
of Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion
of the decision be changed to "appellees" so as to read: "The properties so devised are instead
passed on intestacy to theappellees in equal shares, without pronouncement as to costs." The
motion was granted by the respondent court on August 10,1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by
the respondent court in a resolution dated December 28,1982.
The main issue raised by the petitioner is whether or not the respondent court acted in excess
of its jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo
validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor
of herein petitioner,
The petitioner submits that the validity of the testamentary provision in her favor cannot be
passed upon and decided in the probate proceedings but in some other proceedings because the
only purpose of the probate of a Will is to establish conclusively as against everyone that a Will
was executed with the formalities required by law and that the testator has the mental capacity to
execute the same. The petitioner further contends that even if the provisions of paragraph 1 of
Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity
could only be made by the proper court in a separate action brought by the legal wife for the
specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will
in favor of the person with whom the testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament
itself expressly admits indubitably on its face the meretricious relationship between the testator
and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led private respondents to present
contrary evidence, merits the application of the doctrine enunciated inNuguid v. Felix Nuguid, et
al (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al (G.R. No. L-39247,
June 27, 1975). Respondents also submit that the admission of the testator of the illicit
relationship between him and the petitioner put in issue the legality of the devise.
We agree with the respondents.
 The respondent court acted within its jurisdiction when after declaring the Will to be validly
drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in f avor
of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will. The rule is expressed thus:
xxx xxx xxx
' 'x x x It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his last Will and
testament, irrespective of whether its provisions are valid and enforceable or
otherwise." (Fernandez v. Dimagiba, 21 SCRA 428)
"The petition below being for the probate of a Will, the court's area of inquiry is limited to
the extrinsic validity thereof. The testator s testamentary capacity and the compliance with the
formal requisites or solemnities prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the
will or the legality of any devise or legacy is premature.
xxx xxx xxx
"True or not, the alleged sale is no ground for the dismissal of the petition for probate.
Probate is one thing; the validity of the testamentary provisions is another, The first decides the
execution of the document and the testamentary capacity of the testator; the second relates to
descent and distribution."(Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
"To establish conclusively as against everyone, and once for all, the f acts that a will was
executed with the formalities required by law and that the testator was in a condition to make a
will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec.
625). The judgment in such proceedings determines and can determine nothing more. In them the
court has no power to pass upon the validity of any provisions made in the will. It can not decide,
for example, that a certain legacy is void and another one valid. x x x" (Castañeda v. Alemany, 3
Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate
court is not powerless to do what the situation constrains it to do and pass upon certain
provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the
petitioner as universal heir and completely preterited her surviving forced heirs. A will of this
nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter
proceedings to determine the intrinsic validity of the testamentary provisions would be
superfluous.
Even before establishing the formal validity of the will, the Court in Balanay, Jr. v.
Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
"The basic issue is whether the probate court erred in passing upon the intrinsic validity of the
will, bef ore ruling on its allowance or formal validity, and in declaring it void.
"We are of the opinion that in view of certain unusual provisions of the will, which are of
dubious legality, and because of the motion to withdraw the petition for probate (which the lower
court assumed to have been filed with the petitioner's authorization), the trial court acted
correctly in passing upon the will's intrinsic validity even before its formal validity had been
established. The probate of a will might become an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64
O.G. 1527, 17 SCRA 449. Compare with Sumilang v. Ramagosa, L-23135, December 26,
1967,21 SCRA 1369; Cacho v. Udan, L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will. Both
parties are agreed that the Will of Martin Jugo was executed with all the formalities required by
law and that the testator had the mental capacity to execute his Will. The petitioner states that she
completely agrees with the respondent court when in resolving the question of whether or not the
probate court correctly denied the probate of Martin Jugo's last Will and Testament, it ruled:
"This being so, the will is declared validly drawn." (Page 4, Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in
toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
"We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, probability exists that the case will
come up once again before us on the same issue of the intrinsic validity or nullity of the will.
Result. waste of time, effort, expense, plus added anxiety. These are the practical considerations
that induce us to a belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et
al., 77 Phil. 517, 522).
After all, there exists a justiciable controversy crying for solution. We see no useful purpose that
would be served if we remand the nullified provision to the proper court in a separate action for
that purpose simply because, in the probate of a will, the court does not ordinarily look into the
intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
"The following donations shall be void:
1. (1)Those made bet ween persons who were guilty of adultery or concubinage at the
time of the donation;
1. (2)Those made between persons found guilty of the same criminal offense, in
consideration thereof;
2. (3)Those made to a public officer or his wife, descendants and ascendants, by reason of
his office.
"In the case referred to in No. 1, the action for declaration of nullity may be brought by the
spouse of the donor or donee; and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
"The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to
testamentary provisions."
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the
testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal
wife from whom he had been estranged "for so many years." He also declared that respondents
Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had
been living as man and wife with the petitioner since 1952. Testator Jugo declared that the
petitioner was entitled to his love and affection. He stated that Nepomuceno represented Jugo as
her own husband but "in truth and in fact, as well as in the eyes of the law, l could not bind her to
me in the holy bonds of matrimony because of my af orementioned previous marriage.''
There is no question from the records about the fact of a prior existing marriage when Martin
Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in
an ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted
a marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old
while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in
the belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:
"First. The last will and testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and petitioner, the devisee.
"Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of
the true civil status of the testator, which led private respondents to present contrary evidence,
"In short, the parties themselves dueled on the intrinsic validity of the legacy given in the
will to petitioner by the deceased testator at the start of the proceedings.
"Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man
and wife, as already married was an important and specific issue brought by the parties before
the trial court, and passed upon by the Court of Appeals.
"Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who
opted to present evidence on her alleged good faith in marrying the testator. (Testimony of
Petitioner, TSN of August 1,1982, pp. 56-57 and pp. 62-64).
"Private respondents, naturally, presented evidence that would refute the testimony of
petitioner on the point.
"Sebastian Jugo, younger brother of the deceased testator, testified at length on the
meretricious relationship of his brother and petitioner. (TSN of August 18, 1975).
"Clearly, the good faith of petitioner was by option of the parties made a decisive issue right
at the inception of the case.
- "Confronted by the situation, the trial court had to make a ruling on the question.
"When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty
of adultery or concubinage', it was a finding that petitioner was not the innocent woman she
pretended to be."
xxx xxx xxx
"3' If a review of the evidence must be made nonetheless, then private respondents
respectfully offer the f ollowing analysis:
"FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town
in Tarlac where neither she nor the testator ever resided. If there was nothing
to hide from, why the concealment? Of course, it maybe argued that the
marriage of the deceased with private respondent Rufina Gomez was likewise
done in secrecy. But it should be remembered that Rufina Gomez was already
in the family way at that time and it would seem that the parents of Martin
Jugo were not in favor of the marriage so much so that an action in court
wasbrought concerning the marriage. (Testimony of Sebastian Jugo, TSN of
August 18, 1975, pp. 29-30)
"SECOND: Petitioner was a sweetheart of the deceased testator when they were still both
single. That would be in 1922 as Martin Jugo married respondent Rufina
 Gomez on November 29, 1923 (Exh. 3). Petitioner married the testator only Teehankee (Chairman),Melencio-Herrera, Plana, Relova, De la Fuente and Patajo,
on December 5, 1952. There was a space of about 30 years inb etween. JJ., concur.
During those 30 years, could it be believed that she did not even wonder why Petition dismissed. Decision affirmed.
Martin Jugo did not marry her nor contact her anymore after November, Notes.—Where circumstances demand that intrinsic validity of testamentary provisions be
1923—facts that should impel her to ask her groom before she married him in passed upon even before the extrinsic validity of will is resolved, probate court should meet the
secrecy, especially so when she was already about 50 years old at the time of issue. (Cayetano vs. Leonidas, 129 SCRA 522.)
marriage. Will should not be denied legality based on dubious grounds. (Maninang vs, Court of
'THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself
Appeals 114 SCRA 478.)
conclusive demonstration that she knew that the man she had openly lived for
Generally, the probate of a will is mandatory. The law enjoins the probate of the will and
22 years as man and wife was a married man with already two children.
public requires it, because unless the will is probated and notice thereof given to the whole word,
"FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it
the right of a person to dispose of his property by will maybe rendered nugatory. (Id.)
possible that she would not have asked Martin Jugo whether or not they were
The law on the formal requirements of a will should be liberally construed. While perfection
his illegitimate or legitimate children and by whom? That is un-Filipino.
in drafting is desirable, unsubstantial departures should be ignored. (Perez vs. Rosal, 118 SCRA
"FIFTH: Having often gone to Pasig to the residence of the parents of the deceased
195.)
testator, is it possible that she would not have known that the mother of
private respondent Oscar Jugo and Carmelita Jugo was respondent Rufina
Gomez, considering that the houses of the parents of Martin Jugo (where he
had lived for many years) and that of respondent Rufina Gomez were just a
few meters away?
"Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least,
inherently improbable, for they are against the experience in common life and the ordinary
instincts and promptings of human nature that a woman would not bother at all to ask the man
she was going to marry whether or not he was already married to another, knowing that her
groom had children. It would be a story that would strain human credulity to the limit if
petitioner did not know that Martin Jugo was already a married man in view of the irrefutable
fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to break off
with the deceased during their younger years."
Moreover, the prohibition in Article 739 of the Civil Code is against the making of
a donation between persons who are living in adultery or concubinage. It is the donation which
becomes void. The giver cannot give even assuming that the recipient may receive. The very
wordings of the Will invalidate the legacy because the testator admitted he was disposing the
properties to a person with whom he had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of
Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
 G.R. No. 124099. October 30, 1997.*
MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, MARITES
AGAPE, ESTEBANA GALOLO, and CELSA AGAPE, petitioners, vs. COURT OF
APPEALS and JULIO VIVARES, respondents.
Courts; Jurisdiction; Settlement of Estates; Wills; Probate; As a general rule, courts in
probate proceedings are limited to passing only upon the extrinsic validity of the will sought to
be probated.—As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. Thus, the court merely inquires on its due
execution, whether or not it complies with the formalities prescribed by law, and the
testamentary capacity of the testator. It does not determine nor even by implication prejudge the
validity or efficacy of the will’s provisions. The intrinsic validity is not considered since the
consideration thereof usually comes only after the will has been proved and allowed.
Same; Same; Same; Same; Same; The intrinsic validity of a will may be passed upon
where “practical considerations” demanded it as when there is preterition of heirs or the
testamentary provisions are of doubtful legality, or where the parties agree that the intrinsic
validity be first determined.—There are, however, notable circumstances wherein the intrinsic
validity was first determined as when the defect of the will is apparent on its face and the probate
of the will may become a useless ceremony if it is intrinsically invalid. The intrinsic validity of a
will may be passed upon because “practical considerations” demanded it as when there is
preterition of heirs or the testamentary provisions are of doubtful legality. Where the parties
agree that the intrinsic validity be first determined, the probate court may also do so.
Parenthetically, the rule on probate is not inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the situation constrains it to do and
pass upon certain provisions of the will.
Same; Same; Same; Same; Same; The propriety of the institution of the devisees/legatees
already involves inquiry on the will’s intrinsic validity which the probate court need not inquire
upon.—The case at bar arose from the institution of the petition for the probate of the will of the
late Torcuato Reyes. Perforce, the only issues to be settled in the said proceeding were: (1)
whether or not the testator had animus testandi; (2) whether or not vices of consent attended the
execution of the will; and (3) whether or not the formalities of the will had been complied with.
Thus, the lower court was not asked to rule upon the intrinsic validity or efficacy of the
provisions of the will. As a result, the declaration of the testator that Asuncion “Oning” Reyes
was his wife did not have to be scrutinized during the probate proceedings. The propriety of the
institution of Oning Reyes as one of the devisees/legatees already involved inquiry on the will’s
intrinsic validity and which need not be inquired upon by the probate court.
Same; Same; Same; Same; Same; Words and Phrases; A will is the testator speaking after
his death.—In the elegant language of Justice Moreland written decades ago, he said—“A will is
the testator speaking after death. Its provisions have substantially the same force and effect in the
probate court as if the testator stood before the court in full life making the declarations by word
of mouth as they appear in the will. That was the special purpose of the law in the creation of the
instrument known as the last will and testament. Men wished to speak after they were dead and
the law, by the creation of that instrument, permitted them to do so. x x x All doubts must be
resolved in favor of the testator’s having meant just what he said.”(Santos vs. Manarang, 27 Phil.
209).
Same; Same; Same; Same; Same;Evidence; The failure of a party to present a document
before the probate court to support his position constitutes a waiver and the same evidence can
no longer be entertained on appeal, much less in a petition for review before the Supreme
Court.—Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly
a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle. Their failure to present
the said certificate before the probate court to support their position that Asuncion Reyes had an
existing marriage with Ebarle constituted a waiver and the same evidence can no longer be
entertained on appeal, much less in this petition for review. This Court would not try the case
anew or settle factual issues since its jurisdiction is confined to resolving questions of law which
have been passed upon by the lower courts. The settled rule is that the factual findings of the
appellate court will not be disturbed unless shown to be contrary to the evidence on the record,
which petitioners have not shown in this case.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Quimpo, Willkom, Borja, Neri,Calejesan & Oclarit Law Offices for petitioners.
Algarra, Mutia & Trinidad Law Offices for private respondent.
TORRES, JR., J.:
Unless legally flawed, a testator’s intention in his last will and testament is its “life and soul”
which deserves reverential observance.
The controversy before us deals with such a case.
Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites Agape,
Estebana Galolo and Celsa Agape, the oppositors in Special Proceedings No. 112 for the probate
of the will of Torcuato J. Reyes, assail in this petition for review the decision of the Court of
Appeals1 dated November 29, 1995, the dispositive portion of which reads:
“WHEREFORE, premises considered, the judgment appealed from allowing or admitting the
will of Torcuato J. Reyes to probate and directing the issuance of Letters Testamentary in favor
of petitioner Julio A. Vivares as executor without bond is AFFIRMED but modified in that the
declaration that paragraph II of the Torcuato Reyes’ last will and testament, including
subparagraphs (a) and (b) are null and void for being contrary to law is hereby SET ASIDE, said
paragraph II and subparagraphs (a) and (b) are declared VALID. Except as above modified, the
judgment appealed from is AFFIRMED.
SO ORDERED.”2
The antecedent facts:
On January 3, 1992, Torcuato J. Reyes executed his last will and testament declaring therein
in part, to wit:
“x x x
II. I give and bequeath to my wife Asuncion “Oning” R. Reyes the following properties to wit:
1. a.All my shares of our personal properties consisting among others of jewelries, coins,
antiques, statues, tablewares, furnitures, fixtures and the building;
2. b.All my shares consisting of one half (1/2) or 50% of all the real estates I own in
common with my brother Jose, situated in Municipalities of Mambajao, Mahinog,
Guinsiliban, Sagay all in Camiguin; real estates in Lunao, Gingoog, Caamulan,
Sugbongcogon, Boloc-Boloc, Kinoguitan, Balingoan, Sta. Ines, Caesta, Talisayan, all
in the province of Misamis Oriental.”3
The will consisted of two pages and was signed by Torcuato Reyes in the presence of three
witnesses: Antonio Veloso, Gloria Borromeo, and Soledad Gaputan. Private respondent Julio A.
Vivares was designated the executor and in his default or incapacity, his son Roch Alan S.
Vivares.
Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a petition for
probate of the will before the Regional Trial Court of Mambajao, Camiguin. The petition was set
for hearing and the order was published in the Mindanao Daily Post, a newspaper of general
circulation, once a week for three consecutive weeks. Notices were likewise sent to all the
persons named in the petition.
On July 21, 1992, the recognized natural children of Torcuato Reyes with Estebana Galolo,
namely Manuel, Mila, and Danilo all surnamed Reyes, and the deceased’s natural children with
Celsa Agape, namely Lyn and Marites Agape, filed an opposition with the following allegations:
a) that the last will and testament of Reyes was not executed and attested in accordance with the
formalities of law; and b) that Asuncion Reyes Ebarle exerted undue and improper influence
upon the testator at the time of the execution of the will. The opposition further averred that
Reyes was never married to and could never marry Asuncion Reyes, the woman he claimed to be
his wife in the will, because the latter was already married to Lupo Ebarle who was still then
alive and their marriage was never annulled. Thus, Asuncion can not be a compulsory heir for
her open cohabitation with Reyes was violative of public morals.
On July 22, 1992, the trial court issued an order declaring that it had acquired jurisdiction
over the petition and, therefore, allowed the presentation of evidence. After the presentation of
evidence and submission of the respective memoranda, the trial court issued its decision on April
23, 1993.
The trial court declared that the will was executed in accordance with the formalities
prescribed by law. It, however, ruled that Asuncion Reyes, based on the testimonies of the
witnesses, was never married to the deceased Reyes and, therefore, their relationship was an
adulterous one. Thus:
“The admission in the will by the testator to the illicit relationship between him and ASUNCION
REYES EBARLE who is somebody else’s wife, is further bolstered, strengthened, and
confirmed by the direct testimonies of the petitioner himself and his two “attesting” witnesses
during the trial.
In both cases, the common denominator is the immoral, meretrecious, adulterous and illicit
relationship existing between the testator and the devisee prior to the death of the testator, which
constituted the sole and primary consideration for the devise or legacy, thus making the will
intrinsically invalid.”4
The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the will which
was declared null and void for being contrary to law and morals. Hence, Julio Vivares filed an
appeal before the Court of Appeals with the allegation that the oppositors failed to present any
competent evidence that Asuncion Reyes was legally married to another person during the period
of her cohabitation with Torcuato Reyes.
On November 29, 1995, the Court of Appeals promulgated the assailed decision which
affirmed the trial court’s decision admitting the will for probate but with the modification that
paragraph II including subparagraphs (a) and (b) were declared valid. The appellate court stated:
“Considering that the oppositors never showed any competent, documentary or otherwise during
the trial to show that Asuncion “Oning” Reyes’ marriage to the testator was inexistent or void,
either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred
in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for
being contrary to law and morals. Said declarations are not sufficient to destroy the presumption
of marriage. Nor is it enough to overcome the very declaration of the testator that Asuncion
Reyes is his wife.”5
Dissatisfied with the decision of the Court of Appeals, the oppositors filed this petition for
review.
Petitioners contend that the findings and conclusion of the Court of Appeals was contrary to
law, public policy and evidence on record. Torcuato Reyes and Asuncion “Oning” Reyes were
collateral relatives up to the fourth civil degree. Witness Gloria Borromeo testified that Oning
Reyes was her cousin as her mother and the latter’s father were sister and brother. They were
also nieces of the late Torcuato Reyes. Thus, the purported marriage of the deceased Reyes and
Oning Reyes was void ab initio as it was against public policy pursuant to Article 38 (1) of the
Family Code. Petitioners further alleged that Oning Reyes was already married to Lupo Ebarle at
the time she was cohabiting with the testator hence, she could never contract any valid marriage
with the latter. Petitioners argued that the testimonies of the witnesses as well as the personal
declaration of the testator, himself, were sufficient to destroy the presumption of marriage. To
further support their contention, petitioners attached a copy of the marriage certificate of
Asuncion Reyes and Lupo Ebarle.6
The petition is devoid of merit.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic
validity of the will sought to be probated.7 Thus, the court merely inquires on its due execution,
whether or not it complies with the formalities prescribed by law, and the testamentary capacity
of the testator. It does not determine nor even by implication prejudge the validity or efficacy of
the will’s provisions.8 The intrinsic validity is not considered since the consideration thereof
usually comes only after the will has been proved and allowed. There are, however, notable
circumstances wherein the intrinsic validity was first determined as when the defect of the will is
apparent on its face and the probate of the will may become a useless ceremony if it is
intrinsically invalid.9 The intrinsic validity of a will may be passed upon because “practical
considerations” demanded it as when there is preterition of heirs or the testamentary provisions
are of doubtful legality.10 Where the parties agree that the intrinsic validity be first determined,
the probate court may also do so.11 Parenthetically, the rule on probate is not inflexible and
absolute. Under exceptional circumstances, the probate court is not powerless to do what the
situation constrains it to do and pass upon certain provisions of the will.12
The case at bar arose from the institution of the petition for the probate of the will of the late
Torcuato Reyes. Perforce, the only issues to be settled in the said proceeding were: (1) whether
or not the testator had animus testandi; (2) whether or not vices of consent attended the
execution of the will; and (3) whether or not the formalities of the will had been complied with.
Thus, the lower court was not asked to rule upon the intrinsic validity or efficacy of the
provisions of the will. As a result, the declaration of the testator that Asuncion “Oning” Reyes
was his wife did not have to be scrutinized during the probate proceedings. The propriety of the
institution of Oning Reyes as one of the devisees/legatees already involved inquiry on the will’s
intrinsic validity and which need not be inquired upon by the probate court.
The lower court erroneously invoked the ruling in Nepomuceno vs. Court of Appeals (139
SCRA 206) in the instant case. In the case aforesaid, the testator himself, acknowledged his illicit
relationship with the devisee, to wit:
“Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno,
whom I declare and avow to be entitled to my love an [sic] affection, for all the things which she
has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full
knowledge and consent, did comfort and represent myself as her own husband, in truth and in
fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony
because of my aforementioned previous marriage.”
Thus, the very tenor of the will invalidates the legacy because the testator admitted he was
disposing of the properties to a person with whom he had been living in concubinage. 13 To
remand the case would only be a waste of time and money since the illegality or defect was
already patent. This case is different from the Nepomuceno case. Testator Torcuato Reyes
merely stated in his will that he was bequeathing some of his personal and real properties to his
wife, Asuncion “Oning” Reyes. There was never an open admission of any illicit relationship. In
the case of Nepomuceno, the testator admitted that he was already previously married and that he
had an adulterous relationship with the devisee.
We agree with the Court of Appeals that the trial court relied on uncorroborated testimonial
evidence that Asuncion Reyes was still married to another during the time she cohabited with the
testator. The testimonies of the witnesses were merely hearsay and even uncertain as to the
whereabouts or existence of Lupo Ebarle, the supposed husband of Asuncion. Thus:
“The foregoing testimony cannot go against the declaration of the testator the Asuncion “Oning”
Reyes is his wife. In Alvarado v. City Government of Tacloban (supra) the Supreme Court stated
that the declaration of the husband is competent evidence to show the fact of marriage.
Considering that the oppositors never showed any competent evidence, documentary or
otherwise during the trial to show that Asuncion “Oning” Reyes’ marriage to the testator was
inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial
court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and
Testament, as void for being contrary to law and morals. Said declarations are not sufficient to
destroy the presumption of marriage. Nor is it enough to overcome the very declaration of the
testator that Asuncion Reyes is his wife.”14
In the elegant language of Justice Moreland written decades ago, he said—
“A will is the testator speaking after death. Its provisions have substantially the same force and
effect in the probate court as if the testator stood before the court in full life making the
declarations by word of mouth as they appear in the will. That was the special purpose of the law
in the creation of the instrument known as the last will and testament. Men wished to speak after
they were dead and the law, by the creation of that instrument, permitted them to do so. x x x All
doubts must be resolved in favor of the testator’s having meant just what he said.” (Santos vs.
Manarang, 27 Phil. 209).
Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly a copy
of the marriage certificate of Asuncion Reyes and Lupo Ebarle. Their failure to present the said
certificate before the probate court to support their position that Asuncion Reyes had an existing
marriage with Ebarle constituted a waiver and the same evidence can no longer be entertained on
appeal, much less in this petition for review. This Court would not try the case anew or settle
factual issues since its jurisdiction is confined to resolving questions of law which have been
passed upon by the lower courts. The settled rule is that the factual findings of the appellate court
will not be disturbed unless shown to be contrary to the evidence on the record, which petitioners
have not shown in this case.15
Considering the foregoing premises, we sustain the findings of the appellate court it
appearing that it did not commit a reversible error in issuing the challenged decision.
ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby AFFIRMED
and the instant petition for review is DENIED for lack of merit.
SO ORDERED.
Regalado (Chairman), Romero,Puno and Mendoza, JJ., concur.
Petition denied, judgment affirmed.
Notes.—Attestation clause is valid even if in a language not known to testator.(Caneda vs.
Court of Appeals,222 SCRA 781 [1993])
Proof that wills executed abroad conform with the formalities prescribed by laws in the
foreign jurisdiction or by Philippine laws is imperative. (Vda. de Perez vs. Tolete, 232 SCRA
722 [1994])
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, accordingly, laws on this subject should be interpreted to attain these
primordial ends. (Ajero vs. Court of Appeals, 236 SCRA 488 [1994])