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ALLOWANCE AND DISALLOWANCE OF WILLS A second motion to reopen and close probate
MERCADO vs. SANTOS (1928)
Facts:
Petitioner Antilano Mercado filed a petition for the
probate of the will of his deceased wife, Ines Basa, with
the Pampanga CFI.
The will was admitted to probate.
Intervenor Rosario Basa de Leon filed with the justice of
the peace court of San Fernando, Pampanga, a
complaint against Mercado for falsification/forgery of
the will probated. Mercado was arrested. The complaint
was subsequently dismissed at the instance of de Leon
herself.
Same intervenor charged Mercado with the same
offense, this time in the justice of the peace court of
Mexico, Pampanga. Mercado was arrested again. The
complaint was likewise dismissed, again at de Leon’s
instance.
Intervenor charged Mercado with the same offense
AGAIN. Upon due investigation, the case was dismissed
on the ground that the will alleged to have been
falsified has already been probated and that there was
no evidence that Mercado had forged the signature of
the testatrix but that, on the contrary, satisfactory
evidence was presented that established the
authenticity of said signature.
Rosario Basa de Leon and other intervenors moved ex
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parte to reopen the probate proceedings, alleging lack
of jurisdiction to probate the will and to close the
proceedings. This motion was denied, having been filed
ex parte.
The provincial fiscal moved for reinvestigation of the
criminal case for forgery before the Pampanga CFI. The
motion was granted, and for the fourth time, Mercado
was arrested. The reinvestigation dragged on for almost
a year.
proceedings was filed, this time with notice to the
adverse party. Same was denied.
The CFI, however, ordered the forgery case to be tried
on the merits.
Intervenors’ motion was appealed to the Supreme
Court, which affirmed the probate court’s order of
denial.
Mercado moved to dismiss the case (forgery), claiming
again that the will alleged to have been forged had
already been probated and, further, that the order
probating the will is conclusive as to the authenticity
and due execution thereof.
The CFI overruled the motion. Mercado thus filed a
petition for certiorari with preliminary injunction with
the Court of Appeals, which promptly denied same.
Issue:
Whether or not the admission to probate is conclusive
upon the due execution of the will (which includes the
issue of signature authenticity).
(side issue: was speedy trial clause violated?)
Ruling:
Applicable law: Code of Civil Procedure (then governing
the law on wills)
Sec. 306 provides, as “the effect of judgments: in case of
a judgment/order in respect to the probate of a will,
such judgment/order is conclusive upon the the will.”
Sec. 333 “establishes an incontrovertible presumption
in favor of judgments declared by the Code to be
conclusive.”
Sec. 625 provides, as “conclusiveness of the due
execution of a probate will: ‘… the allowance by the
court of a will of real and personal estate shall be
conclusive as to its due execution’.”

Basis for PH law on wills (particularly Sec. 625 of the
Code of Civil Procedure) — Statutes of [the US state of]
Vermont.
 Decisions of the Supreme Court of Vermont re:
effect of probate of a will are of persuasive
authority in PH.
 Says the Vermont SC in Missionary Society vs.
Eells: “The probate of a will by the probate court
having jurisdiction thereof, upon the due notice,
is conclusive as to its due execution against the
whole world.”
In view of the provisions of Secs. 306, 333 and 625 of
the Code of Civil Procedure, a criminal action will not lie
against the forger of a will which had been duly
admitted to probate by a court of competent
jurisdiction.
A subtle distinction could perhaps be drawn between
setting aside a decree of probate, and declaring a
probated will to be a forgery. It is clear, however, that
a duly probated will cannot be declared to be a forgery
without disturbing in a way the decree allowing said
will to probate. It is at least anomalous that a will
should be regarded as genuine for one purpose and
spurious for another.
Disposition: Mercado is entitled to have the criminal
proceedings against him quashed; CA judgment is
reversed, without pronouncement as to costs.
(on side issue, YES violation of speedy trial)
SUCCESSION CASE DIGESTS
In the CA ruling, majority ruled that there was no
violation. In the dissenting opinion part, however, it was
stated that:
We cannot join in a decision declining to stop a
prosecution that has dragged for about five years and
caused the arrest on four different occasions of a law
abiding citizen for the alleged offense of falsifying a will
that years be competent jurisdiction.
SC reversed CA decision and ruled that there is a
violation of speedy trial clause.
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Hence, the criminal proceedings against accused should
be quashed.
REVILLA vs. CA
FACTS
Don Cayetano Revilla y De la Fuente owned two (2)
valuable pieces of land with buildings on CalleAzcarraga
(now C.M. Recto Street) in the City of Manila, and six (6)
parcels of land on his hometown in San Miguel, Bulacan.
These properties, now worth some P30M are registered
in his name.
On January 28, 1978, Don Cayetano Revilla, a bachelor,
without issue nor any surviving ascendants, executed a
last will and testament bequeathing all his properties to
his nine (9) nephews and nieces, the parties herein, who
are full blood brothers and sisters, including the
petitioner, Heracio Revilla. To each of them, he
bequeathed an undivided one-tenth (1/10) of his estate
reserving the last tenth for masses to be said after his
death, and for the care of the religious images which he
kept in a chapel in San Miguel, Bulacan, where masses
could be held also.
During his lifetime, Don Cayetano had himself sought
the probate of his will and on March 21, 1980 the CFI if
Manila allowed and admitted said will to probate.
On November 19, 1981, however, the City Hall of
Manila was destroyed by fire. The records of Special
Proceeding also went up in flames. Shortly thereafter, a
petition for reconstitution of the records was filed, and
after a proper hearing wherein Don Cayetano testified
again, the petition for reconstitution was granted.
Don Cayetano died on November 11, 1986 ate the age
of 91.
On November 19, 1986, Heracio Revilla, the oldest
nephew, filed a petition for probate of another will,
allegedly executed by Don Cayetano on September 13,
1982 wherein he (Heracio) was instituted as sole heir of
his uncle’s estate and executor of the will.

The probate of the second will was opposed by
Heracio’s eight (8) brothers and sisters, the private
respondents herein. As grounds for opposition, they
alleged:
a) Cayetano Revilla never informed that he revoked the will dated January
28, 1978
b) The will sought to be probated was not executed in accordance with the
law and that the signature of Cayetano was different from his usual and
customary signature
c) That when the will was executed the decedent was already of unsound
mind or otherwise mentally incapable of making a will or was already
incompetent
d) That the will was executed with undue and improper pressure and
influence
e) That the will was void and ineffective for the reason that it was executed
under duress or the influence of fear or of threats
f) That the decedent acted by mistake and the signature in the alleged will
were procured by fraud or trick
The private respondents also opposed Heracio’s
petition for appointment as executor and/or special
administrator of the estate on the ground that the
alleged will is null and void, hence the designation
follows.
In and order dated May 7, 1987, the lower court held in
abeyance the resolution of the issue with regard to the
propriety of Heracio’s being executor, but ordered the
parties to present their evidence pro and con vis-à-vis
the probated of the second will. The trial court
rendered a decision disallowing the second will and,
accordingly, dismissed the case. On appeal the CA,
affirmed the decision of the lower court. Hence this
petition for review, Rule 45.
ISSUE
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Whether or not the disallowance of the second will is
correct.
HELD
YES. The disallowance of the second will is correct for
the following instances:
I. Don Cayetano testified in the reconstitution
proceedings the he was unaware of the second will
which he supposedly made only two moths previous
on September 13, 1982. He denied having
subsequently made another will. He could not have
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executed a second will on the said date because he
was sick in the hospital at that time – for 2 months,
and he did not, and could not, sign any papers while
he was confined.
II. The petitioner’s contention that Don Cayetano’s
denial constitutes “negative declaration” which has
no “probative value under the rules of evidence” is
not correct. Evidence is negative when the witness
states that he did not see or know the occurrence of
a fact, and positive when the witness affirms that a
fact did or did not occur. Don CayEtano’s declaration
that he did not execute a second will, constitutes
positive evidence of a fact personally known to
himself.
III. Significantly, although the petitioner opposed the
reconstitution of Don Cayetano’s first will, he did not
reveal the second will. The explanation of the
petitioner that an inquiry into the existence of the
second will “was totally uncalled for, immaterial, and
irrelevant” is unconvincing. For is the second will
already existed on November 27, 1982, it would have
been Heracio’s Strongest argument against the
reconstitution of the probate of the first will.
IV. Even the letter that Don Cayetano supposedly sent
to the court disowning the petition for petition for
reconstitution of the records of the first probate
proceeding, did not disclose that he had already
made another will. As observed by CA, if Don
Cayetano were aware that he made a second will, he
“could have easily told the Court that the
reconstitution proceeding was useless” because he
had already made a second will revoking the first.
V. The testimonies of the notary and attesting
witnesses and even photographs of what purported
to be the signing of the second will were not given
credit for it do not show the nature of the
document that was being signed, nor the date of
the transaction, is valid.
VI. To isolate Don Cayetano and make him inaccessible
to the private respondents, Heracio transferred him

from his own house on CM Recto Avenue in Manila
to Heracio’s house in Novaliches, Quezon City. The
execution of the second will in an environment of
secrecy and seclusion and the disinheritance of his
(8) other nephew and nieces of whom he was
equally fond, justified the trial court’s and CA’s
belief of undue influence was exercised by Heracio
over Don Cayetano to make sign the second will in
order to deprive his brothers and sisters of their
rightful share in their uncle’s estate.
VII. The employment of undue influence by Heracio
was not “mutually repugnant” to fraud. There was
fraud because Don Cayetano was not apprised that
the document he was signing with Co, Barredo and
Lim was a second will revoking the dispositions of
property that he made in his first will. Had he been
aware that it was a second will, he would probably
have caused it to be probated while he was still
alive, as he did with his first will.
VIII. That the dispositions in the second will were not
made by Don Cayetano is proven by the omission
therefrom of Don Cayetano’s reservation of one-
tenth of his properties and income thereof to pay
for hoy masses for the repose of his soul and to be
spent for the maintenance of his family chapel
which houses the religious images he owned in San
Miguel, Bulacan.
IX. While the petitioner puts much stock in the
supposed due execution of the will and the
competence of the attesting witnesse – Co, Barredo
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and Lim – the trial court, with whom the CA agreed,
gave low marks for credibility because of major
contradictions in testimonies.
a. Notary public, Atty. Mendoza, the old man couldl
understood both English or Tagalog. Prosecution
witness and corroborated by Ms. Bingel, principal
witness for the oppositors, that the old man is
versatile in Tagalog as he is a Bulakeno but could not
speak English except to say word, ye, sir…
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b. Alfredo Barredo, testified that he was asked by the
old man to fetch the 2 witnesses, however when
asked on direct examination, he stated that he
stayed all along with the old man and did not leave
him after talking with Atty. Mendoza.
c. Dr. Co, a practicing dentist was munificent enough
no to charge Don Caytano for two time services and
only charged him the 3rd time. It may be added that
the testimony of Dr. Co that the testator read his will
in silence before they were asked to affix their
signature is completely different from the testimony
of another witness (Fernando Lim) who testified that
the late Don Cayetano read his will aloud before he
gave is to the witnesses for their signature.
REYES vs. REYES
FACTS:
Spouses Ismael Reyes and FelisaRevita Reyes are the registered
owners of parcels of land situated in Arayat Street, Cubao, Quezon
City covered by Transfer Certificates of Title Nos. 4983 and 3598
(39303). The spouses have seven children, namely: Oscar, Araceli,
Herminia, Aurora, Emmanuel, Cesar and Rodrigo, all surnamed
Reyes.
On April 18, 1973, Ismael Reyes died intestate. Prior to his death,
Ismael Reyes was notified by the Bureau of Internal Revenue (BIR) of
his income tax deficiency which arose out of his sale of a parcel land
located in Tandang Sora, Quezon City. For failure to settle his tax
liability, the amount increased to about P172,724.40 and since no
payment was made by the heirs of deceased Ismael Reyes, the
property covered by TCT No. 4983 was levied4 sold and eventually
forfeited by the Bureau of Internal Revenue in favor of the
government.
Sometime in 1976, petitioners’ predecessor Oscar Reyes availed of
the BIR’s tax amnesty and he was able to redeem the property upon
payment of the reduced tax liability in the amount of about P18,000.
On May 18, 1982, the Office of the City Treasurer of Quezon City
sent a notice to FelisaRevita Reyes informing her that the Arayat
properties will be sold at public auction on August 25, 1982 for her
failure to settle the real estate tax delinquency from 1974-1981.8
On December 15, 1986, petitioners’ predecessor Oscar Reyes
entered into an amnesty compromise agreement with the City
Treasurer and settled the accounts of Felisa R. Reyes.
On May 10, 1989, private respondent Cesar Reyes, brother of Oscar
Reyes, filed a petition for issuance of letters of administration with

the Regional Trial Court of Quezon City praying for his appointment
as administrator of the estate of the deceased Ismael Reyes which
estate included 50% of the Arayat properties covered by TCT Nos.
4983 and 3598.Oscar Reyes filed his conditional opposition thereto
on the ground that the Arayat properties do not form part of the
estate of the deceased as he (Oscar) had acquired the properties by
redemption and or purchase.
The probate court subsequently issued letters of administration in
favor of Cesar Reyes where the latter was ordered to submit a true
and complete inventory of properties pertaining to the estate of the
deceased and the special powers of attorney executed by the other
heirs who reside in the USA and that of Aurora Reyes-Dayot
conforming to his appointment as administrator.Cesar Reyes filed an
inventory of real and personal properties of the deceased which
included the Arayat properties with a total area of 1,009 sq.
meters.On the other hand, Oscar Reyes filed his objection to the
inventory reiterating that the Arayat properties had been forfeited
in favor of the government and he was the one who subsequently
redeemed the same from the BIR using his own funds.
A hearing on the inventory was scheduled where administrator
Cesar Reyes was required to present evidence to establish that the
properties belong to the estate of Ismael Reyes and the oppositor to
adduce evidence in support of his objection to the inclusion of
certain properties in the inventory.After hearing the parties’
respective arguments, the probate court issued its Order dated
January 26, 1994, the dispositive portion of which reads:
"WHEREFORE, pursuant to the foregoing findings, the Court hereby
modifies the inventory submitted by the administrator and declares
to belong to the estate of the late Ismael Reyes the following
properties, to wit:
2. One half (1/2) of two (2) adjoining residential lots located on
Arayat Street, Cubao, Quezon City, with total area of 1,009 square
meters, more or less, covered by TCTs No. 4983 AND 3598 (39303),
with an approximate value of P3,027,000.00; but this determination
is provisional in character and shall be without prejudice to the
outcome of any action to be brought hereafter in the proper Court
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on the issue of ownership of the properties; and,
A motion for reconsideration was filed by Oscar Reyes which was
denied in an Order dated May 30, 1994.17 He then filed his appeal
with the respondent Court of Appeals. While the appeal was
pending, Oscar died and he was substituted by his heirs, herein
petitioners.
On May 6, 1999, the respondent Court issued its assailed decision
which affirmed the probate court’s order. It ruled that the probate
court’s order categorically stated that the inclusion of the subject
properties in the inventory of the estate of the deceased Ismael
Reyes "is provisional in character and shall be without prejudice to
the outcome of any action to be brought hereafter in the proper
court on the issue of ownership of the properties"; that the
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provisional character of the inclusion of the contested properties in
the inventory as stressed in the order is within the jurisdiction of
intestate court. It further stated that although the general rule that
question of title to property cannot be passed upon in the probate
court admits of exceptions, i.e. if the claimant and all other parties
having legal interest in the property consent, expressly or impliedly,
to the submission of the question to the probate court for
adjudication, such has no application in the instant case since
petitioner-appellee and oppositor-appellant are not the only parties
with legal interest in the subject property as they are not the only
heirs of the decedent; that it was never shown that all parties
interested in the subject property or all the heirs of the decedent
consented to the submission of the question of ownership to the
intestate court. A motion for reconsideration was filed, but the same
was denied.
Hence this petition for review on certiorari.
Petitioners argue that a probate court’s jurisdiction is not limited to
the determination of who the heirs are and what shares are due
them as regards the estate of a deceased person since the probate
court has the power and competence to determine whether a
property should be excluded from the inventory of the estate or not,
thus the Court a quo committed a reversible error when it included
the Arayat properties in the inventory of the estate of Ismael Reyes
despite the overwhelming evidence presented by petitioner-
oppositor Oscar Reyes proving his claim of ownership.
Petitioners next claim that as an exception to the rule that the
probate court is of limited jurisdiction, the court has jurisdiction to
resolve the issue of ownership when the parties interested are all
heirs of the deceased and they submitted the question of title to the
property, without prejudice to third persons.
ISSUE:
1. Whether the determination of probate court as to what
must be included and/or exluded from the estate of the
deceased is final.
2. Whether this case is an exception to the limited
jurisdiction of the Probate Court.
HELD:
1. No. The probate court has no jurisdiction. .
The jurisdiction of the probate court merely relates to matters
having to do with the settlement of the estate and the probate of
wills of deceased persons, and the appointment and removal of
administrators, executors, guardians and trustees.18 The question of
ownership is as a rule, an extraneous matter which the Probate
Court cannot resolve with finality.19 Thus, for the purpose of
determining whether a certain property should or should not be
included in the inventory of estate proceeding, the probate court
may pass upon the title thereto, but such determination is
provisional, not conclusive, and is subject to the final decision in a
separate action to resolve title.20
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We find that the respondent Court did not err in affirming the
provisional inclusion of the subject properties to the estate of the
deceased Ismael Reyes without prejudice to the outcome of any
action to be brought thereafter in the proper court on the issue of
ownership considering that the subject properties are still titled
under the torrens system in the names of spouses Ismael and
FelisaRevita Reyes which under the law is endowed with
incontestability until after it has been set aside in the manner
indicated in the law.21 The declaration of the provisional character of
the inclusion of the subject properties in the inventory as stressed in
the order is within the jurisdiction of the Probate Court.
present, his alleged ownership of theArayat Street properties
cannot still be sustained in a manner which would warrant their
exclusion from the administrator’s inventory.
To begin with, there are portions in the records which show that the
oppositor himself was somehow uncertain about his rights on the
properties and the basis therefor. During his cross-examination
(tsn, Oct. 4, 1991), he gave the following statements:
(Atty, Javellana)

Q: Mr. Reyes, on cross-examination, you were asked by the

2. No. It does not fall under the exception.
petitioner’s counsel whether because you had paid the BIR
P17,872.44 you are now claiming to be the owner of the property in
Settled is the rule that the Regional Trial Court acting as a probate Arayat Street to which you answered no, will you explain your
court exercises but limited jurisdiction, thus it has no power to answer?
take cognizance of and determine the issue of title to property
claimed by a third person adversely to the decedent, unless the
A: When I paid almost P18,000.00, it does not mean that I claim the
claimant and all other parties having legal interest in the property
property already; on the contrary, I have my own reasons to claim it
consent, expressly or impliedly, to the submission of the question
now on other conditions which are the following: number one,
to the Probate Court for adjudgment, or the interests of third
there was a levy by the BIR on the property, it was forfeited due to
persons are not thereby prejudiced.22
delinquency of real estate taxes; number two, for abandonment,
when my mother, brother(s) and sisters left the property, they told
The facts obtaining in this case, however, do not call for the me it is my problem and I should take care of it. Number three, the
application of the exception to the rule. It bears stress that the disposition, my mother, my brothers and sisters sold the property of
purpose why the probate court allowed the introduction of my father, the Hi-Cement and the property in Visayas Street without
evidence on ownership was for the sole purpose of determining giving my share. And another thing I have to sell my own property,
whether the subject properties should be included in the inventory my own assets so that I can redeem from the BIR the Arayat
which is within the probate court’s competence. Thus, when property and which I did with my personal funds, and number five,
private respondent Cesar Reyes was appointed as administrator of nobody helped me in my problems regarding those properties, I was
the properties in the court’s Order dated July 26, 1989, he was alone and so I felt that the property in Arayat is mine.
ordered to submit a true inventory and appraisal of the real and
personal properties of the estate which may come into his
Notwithstanding his clarifying statements on redirect examination,
possession or knowledge which private respondent complied with.
the impression of the Court on the issue is not entirely favorable to
However, petitioner Oscar Reyes submitted his objection to the
him. Apart from the absence of a specific document of transfer, the
inventory on the ground that it included the subject properties
circumstances and factors he gave may not suffice in and by
which had been forfeited in favor of the government on April 21,
themselves to convey or transfer title, for, at best, they may only be
1975 and which he subsequently redeemed on August 19, 1976. The
the basis of such transfer. They may be considered as proof of the
Court resolved the opposition as follows:At the hearing today of the
intention to dispose in his favor or as evidence of a set off among
pending incidents, it was agreed that the said incidents could not be
the heirs, which seems to be what he has in mind. There might also
resolved without introduction of evidence.Accordingly, the
be substance in his assertions about the abandonment in his favor,
petitioner/administrator shall be required to present evidence to
which, if raised in the proper action, could constitute either
establish that the properties stated in the inventory belong to the
prescription or laches. It is hardly needed to stress, therefore, that
estate of Ismael Reyes. The oppositor shall thereafter adduce his
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more than these are required to predicate the exclusion of the

evidence in support of his objection to the inclusion of certain
properties from the inventory.
properties of the estates in the inventory.

Another obtrusive reality stands out to invite notice: the BIR levy
The probate court, aware of its limited jurisdiction declared that its
was only made on the property covered in TCT 4983 and did not
determination of the ownership was merely provisional and
include the property covered in TCT 3598 (39303). This somehow
suggested that either the administrator or the widow Felisa Reyes
detracts from the logic of the oppositor’s assertion of ownership of
may commence the proper action in the Regional Trial Court.
the entire Arayat Street properties; even if his assertion is valid and
Moreover, the court admitted that it was not competent to pass
true, it can encompass, at most, only the property subject of the
upon the ownership of the subject properties, thus:
BIR’s levy and declaration of forfeiture (i.e., TCT 4983), not the
property covered by TCT 3598 (39303).1ªvvph!1
"Although the testimony of the oppositor should have greater
persuasive value than that of the petitioner/administrator, mainly
This ruling then, cannot be a final adjudication on the present and
because it agrees closely with the recitals of facts found in the
existing legal ownership of the properties. Whatever is declared
several public documents submitted as evidence in this case and is
herein ought not to preclude oppositor from prosecuting an
corroborated to the greatest extent by the fact that the properties
ordinary action for the purpose of having his claims or rights
were, indeed, abandoned in his possession since 1975 until the

established over the properties. If he still cares hereafter to
prosecute such claim of ownership adversely to the estate and the
apparent co-owner, his mother Felisa. As stated in Valera, et al. vs.
Judge Inserto, et al. (149 SCRA 533), this Court, acting as a probate
court, exercises but limited jurisdiction; accordingly, its
determination that property should be included in the inventory or
not is within its probate jurisdiction, but such determination is only
provisional in character, not conclusive, and is subject to the final
decision in a separate action that may be instituted by the parties."
DY YIENG SEANGIO vs. JUDGE REYES
This is a petition for certiorari with application for the issuance of a
writ of preliminary injunction and/or TRO seeking the nullification of
the orders, RTC Manila, Branch 21, dismissing the petition for
probate on the ground of preterition, in the consolidated cases,
docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and
entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio
v. Alfredo D. Seangio, et al." and "In the Matter of the Probate of the
Will of Segundo C. Seangio v. DyYiengSeangio, Barbara D. Seangio
and Virginia Seangio."
FACTS:
Private respondents filed a petition for the settlement of the
intestate estate of the late Segundo Seangio, docketed as Sp. Proc.
No. 98–90870 of the RTC, and praying for the appointment of
private respondent Elisa D. Seangio–Santos as special administrator
and guardian ad litem of petitioner DyYiengSeangio.
Petitioners DyYieng, Barbara and Virginia, all surnamed Seangio,
opposed the petition. They contended that: 1) DyYieng is still very
healthy and in full command of her faculties; 2) the deceased
Segundo executed a general power of attorney in favor of Virginia
giving her the power to manage and exercise control and
supervision over his business in the Philippines; 3) Virginia is the
most competent and qualified to serve as the administrator of the
estate of Segundo because she is a CPA and, 4) Segundo left a
holographic will, dated September 20, 1995, disinheriting one of the
private respondents, Alfredo Seangio, for cause. In view of the
purported holographic will, petitioners averred that in the event the
decedent is found to have left a will, the intestate proceedings are
to be automatically suspended and replaced by the proceedings for
the probate of the will.
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On April 7, 1999, a petition for the probate of the holographic will of
Segundo, docketed as SP. Proc. No. 99–93396, was filed by
petitioners before the RTC. They likewise reiterated that the probate
proceedings should take precedence over SP. Proc. No. 98–90870
because testate proceedings take precedence and enjoy priority
over intestate proceedings.
The document that petitioners refer to as Segundo’s holographic will
is quoted, as follows:
Kasulatansapag-aalisngmana
Tantuninngsinuman
Akosi Segundo Seangio Filipino may asawananinirahansa 465-A
Flores St., Ermita, Manila at nagtatalayngmaiwanagnapag-iisip at
disposisyon ay tahasan at hayaganginaalisankonglahat at
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anumangmanaangpaganaykonganaknasi Alfredo Seangiodahilsiya ay
naginglapastangansa akin at
isanbesessiyangsasalitangmasamaharapanko at mgakapatidniyanasi
Virginia Seangiolabiskongkinasamangloobko at sasaberinni Alfredo
sa akin
naakonasaibabawgayongunitdaratinangarawnaakonasailalimsiya at
siyanasaibabaw.
Labiskongikinasamangloobkoanggamitni Alfredo ng akin
pagalanparamakapagutangnakuartasiya at kanyaasawanasiMerna de
los Reyes sa China Bangking Corporation namillon pesos at
hindingbabayad at hindingbabayadito ay
nagdulotsaakingngmalakingkahihiyasamga may-ari at stockholders
ng China Banking.
At ikinagalitko pa rinangpagkuhani Alfredo at
ngkanyangasawanamga customer ng Travel Center of the Philippines
napinagasiwaanko at nganakkosi Virginia.
Ditoakonagalit din kaya gayonayokonabilaninsi Alfredo nganakko at
hayanankonginaalisannglahat at anomanmananasi Alfredo at si
Alfredo Seangio ay hindikosiyaanak at hindisiyamakohamana.
Nilagdaankongayonika 20 ngSetyembre 1995 salongsodng Manila
saharapngtatlongsaksi. XXXXXX
On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870
and SP. Proc. No. 99–93396 were consolidated.
On July 1, 1999, private respondents moved for the dismissal of the
probate proceedings primarily on the ground that the document
purporting to be the holographic will of Segundo does not contain
any disposition of the estate of the deceased and thus does not
meet the definition of a will under Article 783 of the Civil Code.
According to private respondents, the will only shows an alleged act
of disinheritance by the decedent of his eldest son, Alfredo, and
nothing else; that all other compulsory heirs were not named nor
instituted as heir, devisee or legatee, hence, there is preterition
which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called
upon to rule only on the extrinsic validity of the will, it is not barred
from delving into the intrinsic validity of the same, and ordering the
dismissal of the petition for probate when on the face of the will it is
clear that it contains no testamentary disposition of the property of
the decedent.
Petitioners filed their opposition to the motion to dismiss
contending that: 1) generally, the authority of the probate court is
limited only to a determination of the extrinsic validity of the will; 2)
private respondents question the intrinsic and not the extrinsic
validity of the will; 3) disinheritance constitutes a disposition of the
estate of a decedent; and, 4) the rule on preterition does not apply
because Segundo’s will does not constitute a universal heir or heirs
to the exclusion of one or more compulsory heirs.
On August 10, 1999, the RTC issued its assailed order, dismissing the
petition for probate proceedings:
A perusal of the document termed as "will" by
oppositors/petitioners DyYiengSeangio, et al., clearly shows that
there is preterition, as the only heirs mentioned thereat are Alfredo
and Virginia. [T]he other heirs being omitted, Article 854 of the New
 8

Civil Code thus applies. However, insofar as the widow the disinheritance of Alfredo, nonetheless, is an act of
DyYiengSeangio is concerned, Article 854 does not apply, she not disposition in itself. In other words, the disinheritance
being a compulsory heir in the direct line. results in the disposition of the property of the testator
Segundo in favor of those who would succeed in the
As such, the RTCdismiss the petition, for to do otherwise would absence of Alfredo.
amount to an abuse of discretion. And thus, Special Proceedings No.
99–93396 is DISMISSED. Petitioners’ motion for reconsideration was Moreover, it is a fundamental principle that the intent or
denied by the RTC. the will of the testator, expressed in the form and within
the limits prescribed by law, must be recognized as the
ISSUES: supreme law in succession. All rules of construction are
designed to ascertain and give effect to that intention. It is
1. Whether no preteriton exists and that the will is both only when the intention of the testator is contrary to law,
intrinsically and extrinsically valid morals, or public policy that it cannot be given effect.
2. Whether the document executed by Segundo can be
considered as a holographic will Holographic wills, therefore, being usually prepared by
one who is not learned in the law, as illustrated in the
RULING: present case, should be construed more liberally than the
ones drawn by an expert, taking into account the
1. Yes. The holographic will does not contain any institution
circumstances surrounding the execution of the
of an heir, but rather, as its title clearly states,
instrument and the intention of the testator.12 In this
KasulatanngPag-AalisngMana, simply contains a
regard, the Court is convinced that the document, even if
disinheritance of a compulsory heir. Thus, there is no
captioned as KasulatanngPag-AalisngMana, was intended
preterition in the decedent’s will and the holographic will
by Segundo to be his last testamentary act and was
on its face is not intrinsically void;The testator intended all
executed by him in accordance with law in the form of a
his compulsory heirs, petitioners and private respondents
holographic will. Unless the will is probated,13 the
alike, with the sole exception of Alfredo, to inherit his
disinheritance cannot be given effect.With regard to the
estate. None of the compulsory heirs in the direct line of
issue on preterition, the Court believes that the
Segundo were preterited in the holographic will since
compulsory heirs in the direct line were not preterited in
there was no institution of an heir;The purported
the will. It was, in the Court’s opinion, Segundo’s last
holographic will of Segundo that was presented by
expression to bequeath his estate to all his compulsory
petitioners was dated, signed and written by him in his
heirs, with the sole exception of Alfredo. Also, Segundo did
own handwriting. Except on the ground of preterition,
not institute an heir16 to the exclusion of his other
private respondents did not raise any issue as regards the
compulsory heirs. The mere mention of the name of one
authenticity of the document.The document, entitled
of the petitioners, Virginia, in the document did not
KasulatanngPag-AalisngMana, unmistakably showed
operate to institute her as the universal heir. Her name
Segundo’s intention of excluding his eldest son, Alfredo, as
was included plainly as a witness to the altercation
an heir to his estate for the reasons that he cited therein.
between Segundo and his son, Alfredo.
In effect, Alfredo was disinherited by Segundo.For
disinheritance to be valid, Article 916 of the Civil Code
Considering that the questioned document is Segundo’s
requires that the same must be effected through a will
holographic will, and that the law favors testacy over
wherein the legal cause therefor shall be specified. With
intestacy, the probate of the will cannot be dispensed
regard to the reasons for the disinheritance that were
with. Article 838 of the Civil Code provides that no will
stated by Segundo in his document, the Court believes
shall pass either real or personal property unless it is
that the incidents, taken as a whole, can be considered a
proved and allowed in accordance with the Rules of Court.
form of maltreatment of Segundo by his son, Alfredo, and
Thus, unless the will is probated, the right of a person to
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that the matter presents a sufficient cause for the

dispose of his property may be rendered nugatory.
disinheritance of a child or descendant under Article 919
of the Civil Code
The Court ruled that the trial court, therefore, should have
allowed the holographic will to be probated. It is settled
2. A holographic will, as provided under Article 810 of the
that testate proceedings for the settlement of the estate
Civil Code, must be entirely written, dated, and signed by
of the decedent take precedence over intestate
the hand of the testator himself. It is subject to no other
proceedings for the same purpose.
form, and may be made in or out of the Philippines, and
need not be witnessed.
MALOLES II vs. PHILIPS
Segundo’s document, although it may initially come across Jan 31, 2000
as a mere disinheritance instrument, conforms to the
formalities of a holographic will prescribed by law. It is Facts:
written, dated and signed by the hand of Segundo himself. On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of
An intent to dispose mortis causa can be clearly deduced Makati City, filed a petition for probate of his will 1in the Regional
from the terms of the instrument, and while it does not Trial Court, Branch 61, Makati. In his petition, Dr. De Santos alleged
make an affirmative disposition of the latter’s property,

that he had no compulsory heirs; that he had named in his will as
sole legatee and devisee the Arturo de Santos Foundation, Inc.; that
he disposed by his will his properties with an approximate value of
not less than P2,000,000.00; and that copies of said will were in the
custody of the named executrix, private respondent Pacita de los
Reyes Phillips.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-
Makati, Branch 61 issued an order granting the petition and allowing
the will: the Court finds that the petitioner has substantially
established the material allegations contained in his petition. The
Last Will and Testament having been executed and attested as
required by law; that testator at the time of the execution of the will
was of sane mind and/or not mentally incapable to make a Will; nor
was it executed under duress or under the influence of fear or
threats; that it was in writing and executed in the language known
and understood by the testator duly subscribed thereof and attested
and subscribed by three (3) credible witnesses in the presence of the
testator and of another; that the testator and all the attesting
witnesses signed the Last Will and Testament freely and voluntarily
and that the testator has intended that the instrument should be his
Will at the time of affixing his signature thereto.
Shortly after the probate of his will, Dr. De Santos died on February
26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for
intervention claiming that, as the only child of Alicia de Santos
(testator's sister) and Octavio L. Maloles, Sr., he was the sole full-
blooded nephew and nearest of kin of Dr. De Santos. He likewise
alleged that he was a creditor of the testator. Petitioner thus prayed
for the reconsideration of the order allowing the will and the
issuance of letters of administration in his name.
On the other hand, private respondent Pacita de los Reyes Phillips,
the designated executrix of the will, filed a motion for the issuance
of letters testamentary with Branch 61. Later, however, private
respondent moved to withdraw her motion. This was granted, while
petitioner was required to file a memorandum of authorities in
support of his claim that said court (Branch 61) still had jurisdiction
to allow his intervention
Upon private respondent's motion, Judge Salvador Abad Santos of
Branch 65 issued an order, dated June 28, 1996, appointing her as
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special administrator of Dr. De Santos's estate.
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-
4343 and to set aside the appointment of private respondent as
special administrator. He reiterated that he was the sole and full
blooded nephew and nearest of kin of the testator; that he came to
know of the existence of Sp. Proc. No. M-4343 only by accident; that
the probate proceedings in Sp. Proc. No. M-4223 before Branch 61
of the same court was still pending; that private respondent
misdeclared the true worth of the testator's estate; that private
respondent was not fit to be the special administrator of the estate;
and that petitioner should be given letters of administration for the
estate of Dr. De Santos
9
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp.
Proc. No. M-4343 to Branch 61, on the ground that "[it] is related to
the case before Judge Gorospe of RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe
had denied on August 26, 1996 petitioner's motion for intervention.
Petitioner brought this matter to the Court of Appeals which, in a
decisionpromulgated on February 13, 1998, upheld the denial of
petitioner's motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4,
1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on
the ground that there was a pending case involving the Estate of
Decedent Arturo de Santos pending before said court.
Initially, in his decision dated September 23, 1996,Judge Abad
Santos appeared firm in his position that " . . . it would be improper
for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-
4343)," considering that the probate proceedings were commenced
with Branch 61. He thus ordered the transfer of the records back to
the latter branch. However, he later recalled his decision and took
cognizance of the case "to expedite the proceedings.
On November 4, 1996, Judge Abad Santos granted petitioner's
motion for intervention. Private respondent moved for a
reconsideration but her motion was denied by the trial court. She
then filed a petition for certiorari in the Court of Appeals which, on
February 26, 1997, rendered a decisionsetting aside the trial court's
order on the ground that petitioner had not shown any right or
interest to intervene in Sp. Proc. No. M-4343.
Hence this petition.
Issue:
1. Whether or not the RTC Branch 61 has lost jurisdiction to proceed
with the probate proceedings upon its issuance of an order allowing
the will of Dr. Arturo de Santos and Branch 65 acquired jurisdiction
over the petition for issuance of letters testamentary filed by
(private) respondent?
Held:
First. Petitioner contends that the probate proceedings in Branch 61
of RTC-Makati did not terminate upon the issuance of the order
allowing the will of Dr. De Santos. He argues that the proceedings
must continue until the estate is fully distributed to the lawful heirs,
devisees, and legatees of the testator, pursuant to Rule 73, §1 of the
Rules of Court. Consequently, petitioner contends that Branch 65
could not lawfully act upon private respondent's petition for
issuance of letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority
of the court is limited to ascertaining the extrinsic validity of the
will, i.e., whether the testator, being of sound mind, freely

executed the will in accordance with the formalities prescribed by
law.
Ordinarily, probate proceedings are instituted only after the death
of the testator, so much so that, after approving and allowing the
will, the court proceeds to issue letters testamentary and settle the
estate of the testator. The cases cited by petitioner are of such
nature. In fact, in most jurisdictions, courts cannot entertain a
petition for probate of the will of a living testator under the principle
of ambulatory nature of wills.
However, Art. 838 of the Civil Code authorizes the filing of a petition
for probate of the will filed by the testator himself. It provides:
CIVIL CODE, ART. 838. No will shall pass either real or
personal property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In
such case, the pertinent provisions of the Rules of Court
for the allowance of wills after the testator's death shall
govern.
The Supreme Court shall formulate such additional Rules
of Court as may be necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his death,
shall be conclusive as to its due execution.
Rule 76, §1 likewise provides:
Sec. 1. Who may petition for the allowance of will. — Any
executor, devisee, or legatee named in a will, or any other
person interested in the estate, may, at any time after the
death of the testator, petition the court having jurisdiction
to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition in
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the court for the allowance of his will.
The rationale for allowing the probate of wills during the lifetime of
testator has been explained by the Code Commission thus:
Most of the cases that reach the courts involve either the
testamentary capacity of the testator or the formalities
adopted in the execution of wills. There are relatively few
cases concerning the intrinsic validity of testamentary
dispositions. It is far easier for the courts to determine the
mental condition of a testator during his lifetime than
after his death. Fraud, intimidation and undue influence
are minimized. Furthermore, if a will does not comply with
the requirements prescribed by law, the same may be
corrected at once. The probate during the testator's life,
therefore, will lessen the number of contest upon wills.
10
Once a will is probated during the lifetime of the testator,
the only questions that may remain for the courts to
decide after the testator's death will refer to the intrinsic
validity of the testamentary dispositions. It is possible, of
course, that even when the testator himself asks for the
allowance of the will, he may be acting under duress or
undue influence, but these are rare cases.
After a will has been probated during the lifetime of the
testator, it does not necessarily mean that he cannot alter
or revoke the same before his death. Should he make a
new will, it would also be allowable on his petition, and if
he should die before he has had a chance to present such
petition, the ordinary probate proceeding after the
testator's death would be in order.
Thus, after the allowance of the will of Dr. De Santos on February 16,
1996, there was nothing else for Branch 61 to do except to issue a
certificate of allowance of the will pursuant to Rule 73, §12 of the
Rules of Court. There is, therefore, no basis for the ruling of Judge
Abad Santos of Branch 65 of RTC-Makati that —
Branch 61 of the Regional Trial Court of Makati having
begun the probate proceedings of the estate of the
deceased, it continues and shall continue to exercise said
jurisdiction to the exclusion of all others. It should be
noted that probate proceedings do not cease upon the
allowance or disallowance of a will but continues up to
such time that the entire estate of the testator had been
partitioned and distributed.
The fact that the will was allowed during the lifetime of
the testator meant merely that the partition and
distribution of the estate was to be suspended until the
latter's death. In other words, the petitioner, instead of
filing a new petition for the issuance of letters
testamentary, should have simply filed a manifestation for
the same purpose in the probate court.
Petitioner, who defends the order of Branch 65 allowing him to
intervene, cites Rule 73, §1 which states:
Where estate of deceased persons settled. — If the
decedent is an inhabitant of the Philippines at the time of
his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate
settled, in the Court of First Instance in the province in
which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance
of any province in which he had estate. The court first
taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a court, so far as
it depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a suit
or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on
the record.

The above rule, however, actually provides for the venue of actions
for the settlement of the estate of deceased persons. In Garcia Fule
v. Court of Appeals, it was held:
The aforequoted Section 1, Rule 73 (formerly Rule 75,
Section 1), specifically the clause "so far as it depends on
the place of residence of the decedent, or of the location
of the state," is in reality a matter of venue, as the caption
of the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes." It could not have been
intended to define the jurisdiction over the subject matter,
because such legal provision is contained in a law of
procedure dealing merely with procedural matters.
Procedure is one thing, jurisdiction over the subject matter
is another. The power or authority of the court over the
subject matter "existed was fixed before procedure in a
given cause began." That power or authority is not altered
or changed by procedure, which simply directs the manner
in which the power or authority shall be fully and justly
exercised. There are cases though that if the power is not
exercised conformably with the provisions of the
procedural law, purely, the court attempting to exercise it
loses the power to exercise it legally. However, this does
not amount to a loss of jurisdiction over the subject
matter. Rather, it means that the court may thereby lose
jurisdiction over the person or that the judgment may
thereby be rendered defective for lack of something
essential to sustain it. The appearance of this provision in
the procedural law at once raises a strong presumption
that it has nothing to do with the jurisdiction of the court
over the subject matter. In plain words, it is just a matter
of method, of convenience to the parties.
Indeed, the jurisdiction over probate proceedings and settlement
of estates with approximate value of over P100,000.00 (outside
Metro Manila) or P200,000.00 (in Metro Manila) belongs to the
regional trial courts under B.P. Blg. 129, as amended. The different
branches comprising each court in one judicial region do not
possess jurisdictions independent of and incompatible with each
other.
It is noteworthy that, although Rule 73, §1 applies insofar as the
venue of the petition for probate of the will of Dr. De Santos is
concerned, it does not bar other branches of the same court from
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taking cognizance of the settlement of the estate of the testator
after his death. As held in the leading case of Bacalso v. Ramolote:
The various branches of the Court of First Instance of Cebu
under the Fourteenth Judicial District, are a coordinate
and co-equal courts, and the totality of which is only one
Court of First Instance. The jurisdiction is vested in the
court, not in the judges. And when a case is filed in one
branch, jurisdiction over the case does not attach to the
branch or judge alone, to the exclusion of the other
branches. Trial may be held or proceedings continue by
and before another branch or judge. It is for this reason
that Section 57 of the Judiciary Act expressly grants to the
Secretary of Justice, the administrative right or power to
apportion the cases among the different branches, both
for the convenience of the parties and for the coordination
11
of the work by the different branches of the same court.
The apportionment and distribution of cases does not
involve a grant or limitation of jurisdiction, the jurisdiction
attaches and continues to be vested in the Court of First
Instance of the province, and the trials may be held by any
branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has
jurisdiction over Sp. Proc. No. M-4343.
Second. Petitioner claims the right to intervene in and oppose the
petition for issuance of letters testamentary filed by private
respondent. He argues that, as the nearest next of kin and creditor
of the testator, his interest in the matter is material and direct. In
ruling that petitioner has no right to intervene in the proceedings
before Branch 65 of RTC-Makati City, the Court of Appeals held:
The private respondent herein is not an heir or legatee
under the will of the decedent Arturo de Santos. Neither is
he a compulsory heir of the latter. As the only and nearest
collateral relative of the decedent, he can inherit from the
latter only in case of intestacy. Since the decedent has left
a will which has already been probated and disposes of all
his properties the private respondent can inherit only if
the said will is annulled. His interest in the decedent's
estate is, therefore, not direct or immediate.
His claim to being a creditor of the estate is a belated one,
having been raised for the first time only in his reply to the
opposition to his motion to intervene, and, as far as the
records show, not supported by evidence.
. . . . [T]he opposition must come from one with a direct
interest in the estate or the will, and the private
respondent has none. Moreover, the ground cited in the
private respondent's opposition, that the petitioner has
deliberately misdeclared the truth worth and value of the
estate, is not relevant to the question of her competency
to act as executor. Section 2, Rule 76 of the Rules of Court
requires only an allegation of the probable value and
character of the property of the estate. The true value can
be determined later on in the course of the settlement of
the estate.
Rule 79, §1 provides:
Opposition to issuance of letters
testamentary. Simultaneous petition for administration. —
Any person interested in a will may state in writing the
grounds why letters testamentary should not issue to the
persons named therein as executors, or any of them, and
the court, after hearing upon notice, shall pass upon the
sufficiency of such grounds. A petition may, at the same
time, be filed for letters of administration with the will
annexed.
Under this provision, it has been held that an "interested person" is
one who would be benefited by the estate, such as an heir, or one

who has a claim against the estate, such as a creditor, and whose
interest is material and direct, not merely incidental or contingent.
Even if petitioner is the nearest next of kin of Dr. De Santos, he
cannot be considered an "heir" of the testator. It is a fundamental
rule of testamentary succession that one who has no compulsory or
forced heirs may dispose of his entire estate by will. Thus, Art. 842
of the Civil Code provides:
One who has no compulsory heirs may dispose by will of
all his estate or any part of it in favor of any person having
capacity to succeed.
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this
Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testator's —
(1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by
legal fiction;
(5) Other illegitimate children referred to in Article 287 of
the Civil Code.
Petitioner, as nephew of the testator, is not a compulsory heir who
may have been preterited in the testator's will.
Nor does he have any right to intervene in the settlement
proceedings based on his allegation that he is a creditor of the
deceased. Since the testator instituted or named an executor in his
will, it is incumbent upon the Court to respect the desires of the
testator. As we stated in Ozaeta v. Pecson:
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The choice of his executor is a precious prerogative of a
testator, a necessary concomitant of his right to dispose of
his property in the manner he wishes. It is natural that the
testator should desire to appoint one of his confidence,
one who can be trusted to carry out his wishes in the
disposal of his estate. The curtailment of this right may be
considered a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or
fails to give bond may the court appoint other persons to
administer the estate.None of these circumstances is present in
this case.
Third. Petitioner contends that private respondent is guilty of forum
shopping when she filed the petition for issuance of letters
12
testamentary (Sp. Proc. No. M-4343) while the probate proceedings
(Sp. Proc. No. M-4223) were still pending. According to petitioner,
there is identity of parties, rights asserted, and reliefs prayed for in
the two actions which are founded on the same facts, and a
judgment in either will result in res judicata in the other.
This contention has no merit. As stated earlier, the petition for
probate was filed by Dr. De Santos, the testator, solely for the
purpose of authenticating his will. Upon the allowance of his will,
the proceedings were terminated.1âwphi1.nêt
On the other hand, the petition for issuance of letters testamentary
was filed by private respondent, as executor of the estate of Dr. De
Santos, for the purpose of securing authority from the Court to
administer the estate and put into effect the will of the testator. The
estate settlement proceedings commenced by the filing of the
petition terminates upon the distribution and delivery of the
legacies and devises to the persons named in the will. Clearly, there
is no identity between the two petitions, nor was the latter filed
during the pendency of the former. There was, consequently, no
forum shopping.
INSTITUTION OF HEIRS
A. DEFINITION AND REQUISITES
PECSON vs. CORONEL (1923)
Facts:
On November 28, 1922, Lorenzo Pecson filed in the CFI
Pampanga the probate of the will of Dolores Coronel
who stipulated in her will that:
“That I institute Lorenzo Pecson, married to Angela
Coronel, and a known resident of the town, my heir to
succeed to all my properties”
Opponents are the blood relatives of Dolores who
impugn the institution of Lorenzo as her sole heir to the
exclusion of the all the former.
About the year 1916 or 1917, Atty. Francisco, as the
then legal counsel of Dolores, suggested that the
latter’s will be remade to be more legally valid. Upon
the instructions of Dolores, Atty. Francisco drafted the
will and signed the same for her in her presence and
upon her direction. The witnesses likewise signed in the
presence of each other (basta nag comply sila sa
formalities lol).

Pablo Bartolome, one of the witnesses to the will was
not presented as a witness in the opposition
proceedings despite being in the court room, and
despite oppositors submitting in evidence his affidavit
that Dolores did not understand the true contents of
the will.
Appellants argue that the fact that Dolores instituted
Pecson as the executor must have meant that he was
merely an executor.
"I name and appoint my aforesaid nephew, Lorenzo
Pecson, executor of all that is willed and ordained in this
my will, without bond. Should he not be able to
discharge his duties as such executor for any reason
whatsoever, I name and appoint as a substitute
executor my grandson Victor Pecson, resident of the
town of Betis, without requiring him to give bond,"
If the intention of the testatrix was to make him the
sole beneficiary, there would have been no necessity of
appointing an executor, nor any reason for designating
a substitute in case that the first one should not be able
to discharge his duties, and they perceived in this clause
the idea which, according to them, was not expressed in
the document, and which was that Pecson was simply
to be a mere executor entrusted with the distribution to
the estate.
It is also argued that the will of the testatrix was to will
her estate to her blood relatives for such was the
promise made to Maria Coronel, whom Rosario Coronel
tends to corroborate and that Atty. Francisco was hired
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by Pecson to influence the making of the will of Dolores
in his favor.
Issue:
Whether or not Dolores, as the testator, may exclude
her blood relatives as the beneficiaries of her estate, in
favor of one relative by affinity.
Ruling:
Yes.
13
The testamentary capacity of Dolores Coronel is not
disputed in this case.
It appears from the testimony of Attorney Francisco
that Dolores Coronel revealed to him her suspicion
against some of her nephews as having been
accomplices in a robbery of which she had been a
victim.
It is true that ties of relationship in the Philippines are
very strong, but we understand that cases of preterition
of relatives from the inheritance are not rare. The
liberty to dispose of one's estate by will when there are
no forced heirs is rendered sacred by the civil Code in
force in the Philippines since 1889.
As to preference given to Lorenzo Pecson, it is not
purely arbitrary, nor a caprice or a whim of the
moment.
The proof adduced by this appelle, although
contradicted, shows by a preponderance of evidence
that besides the services which the opponents admit
had been rendered by him to Dolores Coronel since the
year 1914, he had also rendered services prior to that
time and was the administrator and manager of the
affairs of said Dolores in the last years of her life.
We find, therefore, nothing strange in the preterition
made by Dolores Coronel of her blood relatives, nor in
the designation of Lorenzo Pecson as her sole
beneficiary.
In the absence of any statutory restriction every person
possesses absolute dominion over his property, and
may bestow it upon whomsoever he pleases without
regard to natural or legal claim upon his bounty.
Nothing can prevent the testator from making a will as
eccentric, as injudicious, or as unjust as caprice,
frivolity, or revenge can dictate.
The fact that Dolores Coronel foresaw the necessity of
an executor does not imply a negation of her desire to
will all her estate to Lorenzo Pecson.

As to the arguments that a promise was made to will
the estate to her blood relatives and that Atty.
Francisco was hire by Appellee, there was no sufficient
evidence to prove the same.
In the absence of sufficient proof of fraud, or undue
influence, we cannot take such a promise into account,
for even if such a promise was in fact made, Dolores
Coronel could retract or forget it afterwards and
dispose of her estate as she pleased. Wills themselves,
which contain more than mere promises, are essentially
revocable.
Hence, The probate of Dolores’ will is affirmed.
C. STATEMENT OF FALSE CAUSE IN THE INSTITUTION OF HEIR
AUSTRIA vs. REYES
FACTS
On July 7, 1956 Basilia Austria vda de Cruz filed with the
CFI a petition for probate, ante mortem, of her last will
and testament. The probate was opposed by the
present petitioners Ruben Austria, Consuelo Austria-
Benta and Lauro Austria Mozo, and still others who, like
the petitioner are nephews and nieces of Basilia. This
opposition was, however, dismissed and the probated
of the will allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was
destined under the will to pass on the respondents
Perfecto Cruz, Benita Cruz-Menez, Isagani Cruz, Alberto
Cruz, and Luz Cruz-Salonga, all of whom had been
SUCCESSION CASE DIGESTS
assumed and declared by Basilia as her own legally
adopted children. More than 2 years after the will was
allowed, Basilia died. Respondent Perfecto Cruz was
appointed executor. The present petitioners filed in the
same proceedings a petition in intervention for partition
alleging in substance that they are the nearest of kin if
Basilia, and that the five respondents had not in fact
been adopted by the decedent in accordance with law,
in effect rendering these respondents mere strangers to
the decedent and without any right to succeed as heirs.
14
Notwithstanding opposition by the respondent Perfecto
Cruz, as executor of the estate, the court a quo allowed
the petitioner’ intervention.
In the meantime, the contending sides debated the
matter of authenticity or lack of it of the several
adoption papers produced and presented by the
respondents. Evidently, NBI report seems to bear out
the genuineness of the documents, but petitioners,
dissatisfied with the results, managed to obtain a
preliminary opinion from Constabulary whose views
undermine the authenticity of the said documents.
Petitioners likewise located former personnel of the
court which appeared to have granted the question
adoption, and obtained written depositions from two of
them denying any knowledge of the pertinent adoption
proceedings.
More than three years after they were allowed to
intervene, Benita Cruz-Menez who entered an
appearance separately, filed a motion asking the lower
court, by way of alternative relief, to confine the
petitioners’ intervention, should it be permitted, to
properties not disposed of in the will of the decedent.
The lower court issued an order delimiting petitioner’s
intervention to the properties. Petitioner filed until
second motion for reconsideration but was summarily
denied.
Hence, this petition.
The lower court had, however, assumed, by its orders in
question, that the validity or invalidity of the adoption is
not material nor decisive on the efficacy of the
institution of heirs; for, even if the adoption in question
were spurious, the respondents Perfecto Cruz, et al.,
will nevertheless succeed not as compulsory heirs but
as testamentary heirs instituted in Basilia’s will. This
ruling finds support in Article 842.
The petitioners nephews and niece, upon the other
hand, insist that the entire estate should descend to
them by intestacy by reason of the intrinsic nullity of
the institution of heirs embodied in the decedent’s will.
They have thus raised squarely the issue whether or not

such institution of heirs would retain efficacy in the
event there exists proof that the adoption of the same
heirs by the decedent is false, citing as the controlling
rule, Article 850.
The tenor of the language used, the petitioners argue,
gives rise to the inference that the late Basilia was
deceived into believing that she was legally bound to
bequeath one-half of her estate to the respondents as
the latter’s legitime.
ISSUE
Whether or not the institution of heirs may be annulled
under Article 850 of the Civil Code.
HELD
No. Where the decedent’s will does not state in a
specific or unequivocal manner the cause for such
institution of heirs, the will cannot be annulled under
Article 850 of the Civil Code. Such institution may be
annulled only when it is clearly would not have made
the institution if he had known the cause for it to be
false.
Before institution of heirs may be annulled under Article
950, the following requisites must concur:
1. The cause for the institution of heirs must be
stated in the will
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2. The cause must be shown to be false
3. It must appear from the face of the will that the
testator would not have made such institution if
he had known the falsity of the cause
The petitioners would have us imply, from the use of
the terms, “sapilitangtagapagmana” (compulsory heirs)
and “sapilitangmana” (legitime), theimpelling reason or
cause for the institution of the respondents was the
testratix’s belief that under the law she could not do
otherwise. If this were indeed what prompted the
testatrix in instituting the respondents, she did not
make it known in her will. Surely if she was aware that
15
succession to the legitime takes place by operation of
law, independent of her own whishes, she would not
have found it convenient to name her supposed
compulsory heirs to their legitimes. Her express
adoption of the rules on legitimes should very well
indicate her complete agreement with that statutory
scheme. But even this, like the petitioners’ own
proposition, is highly speculative of what was in the
mind of the testatrix when she executed her will. One
fact prevails, however, and it is that the decedent’s will
does not state in a specific or unequivocal manner the
cause for such institution of heirs. We cannot annul the
same on the basis of quesswork or uncertain
implications.
Were we to exclude the respondents Perfecto Cruz, et
al. from the inheritance, then the petitioners and the
other nephews and nieces would succeed to the bulk of
the testate by intestacy- a result which would subvert
the clear wishes of the decedent.
Testacy is favored and doubts are resolved on its side,
especially where the will evinces an intention on the
part of the testator to dispose of practically his whole
estate, as was done in this case. Moreover, so
compelling is the principle that intestacy should be
avoided and the wishes of the testator allowed to
prevail, that we could even vary the language of the will
for the purpose of giving it effect.
E. PRETERITION
NUGUID vs. NUGUID
FACTS:
Rosario Nuguid, a resident of Quezon City, died on December 30,
1962, single, without descendants, legitimate or illegitimate.
Surviving her were her legitimate parents, Felix Nuguid and Paz
SalongaNuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed
Nuguid.
On May 18, 1963, petitioner RemediosNuguid filed in the Court of
First Instance of Rizal a holographic will allegedly executed by
Rosario Nuguid on November 17, 1951, some 11 years before her
demise. Petitioner prayed that said will be admitted to probate and
that letters of administration with the will annexed be issued to her.

Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and
memory, having amassed a certain amount of property, do hereby
give, devise, and bequeath all of the property which I may have
when I die to my beloved sister RemediosNuguid, age 34, residing
with me at 38-B Iriga, Q.C. In witness whereof, I have signed my
name this seventh day of November, nineteen hundred and fifty-
one.
(Sgd.) Illegible
On June 25, 1963, Felix Nuguid and Paz SalongaNuguid, concededly
the legitimate father and mother of the deceased Rosario Nuguid,
entered their opposition to the probate of her will. Ground
therefor, inter alia, is that by the institution of petitioner
RemediosNuguid as universal heir of the deceased, oppositors —
who are compulsory heirs of the deceased in the direct ascending
line — were illegally preterited and that in consequence the
institution is void.
On August 29, 1963, before a hearing was had on the petition for
probate and objection thereto, oppositors moved to dismiss on the
ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the
motion to dismiss.The court's order of November 8, 1963, held that
"the will in question is a complete nullity and will perforce create
intestacy of the estate of the deceased Rosario Nuguid" and
dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner
came to this Court on appeal.
ISSUE:
1. Whether the will annul the institution of herein sole heir.
SUCCESSION CASE DIGESTS
HELD:
Yes. The statute we are called upon to apply in Article 854 of the
Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devises and legacies shall be
valid insofar as they are not inofficious. ...
To "annul" means to abrogate, to make void ... In re Morrow's
Estate, 54 A. 342, 343, 204 Pa. 484.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;
16
obliterate; blot out; to make void or of no effect; to nullify; to
abolish.. To reduce to nothing; annihilate; obliterate; to make void
or of no effect; to nullify; to abolish; to do away with. 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 SalongaNuguid. 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 "anularasiempre la institucion de heredero,
dandocaracterabsoluto a este ordenamiento referring to the
mandate of Article 814, now 854 of the Civil Code.The one-sentence
will here institutes petitioner as the sole, universal heir — nothing
more. No specific legacies or bequests are therein provided for. It is
in this posture that we say that the nullity is complete.
eally, as we analyze the word annul employed 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.
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 "totalmentepor la
pretericion"; but added (in reference to legacies and bequests)
"perosubsistiendo ... todasaquellasotrasdisposicionesque no se
refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire
inheritance including "la porcionlibre (que) no hubiesedispuesto 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.
Petitioner's mainstay is that the present is "a case of ineffective
disinheritance rather than one of preterition". 15From this,

petitioner draws the conclusion that Article 854 "does not apply to
the case at bar". This argument fails to appreciate the distinction
between pretention 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." 16 Disinheritance,
in turn, "is a testamentary disposition depriving any compulsory heir
of his share in the legitime for a cause authorized by law. " In
Manresa's own words: "La privacionexpresa de la legitimaconstituye
la desheredacion. La privaciontacita de la misma se
denomina pretericion." Sanchez Roman emphasizes the distinction
by stating that disinheritance "essiempre voluntaria"; preterition,
upon the other hand, is presumed to be "involuntaria". Express as
disinheritance should be, the same must be supported by a legal
cause specified in the will itself.
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. 21 Better 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
SUCCESSION CASE DIGESTS
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.
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 favor 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
17
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. ... 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.
ACAIN vs. IAC
This is a petition for review on certiorari of the decision of the
respondent court in AC-G.R. SP No. 05744 promulgated on August
30, 1985 ordering the dismissal of the petition in SP No, 591 ACEB
and its Resolution issued on October 23, 1985 denying respondents'
(petitioners herein) MR.
FACTS:
On May 1984 petitioner ConstantinoAcain filed on the RTC of Cebu
City Branch XIII, a petition for the probate of the will of the late
NemesioAcain and for the issuance to the same petitioner of letters
testamentary, docketed as SP No. 591 ACEB on the premise that
NemesioAcain died leaving a will in which petitioner and his
brothers Antonio, Flores and Jose and his sisters Anita, Concepcion,
Quirina and Laura were instituted as heirs. The will allegedly
executed by NemesioAcain on FebruarY1960 was written in Bisaya
with a translation in English submitted by petitioner without
objection raised by private respondents. The will contained
provisions on burial rites, payment of debts, and the appointment of
a certain Atty. Ignacio G. Villagonzalo as the executor of the
testament. On the disposition of the testator's property, the will
provided:
THIRD: All my shares that I may receive from our properties. house,
lands and money which I earned jointly with my wife Rosa Diongson

shall all be given by me to my brother SEGUNDO ACAIN Filipino,
widower, of legal age and presently residing at 357-C Sanciangko
Street, Cebu City. In case my brother Segundo Acain pre-deceased
me, all the money properties, lands, houses there in Bantayan and
here in Cebu City which constitute my share shall be given to me to
his children, namely: Anita, Constantino, Concepcion, Quirina, laura,
Flores, Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceasedNemesio. Thus it is the children of
Segundo who are claiming to be heirs, with Constantino as the
petitioner in SP No. 591 ACEB
After the petition was set for hearing in the lower court on June
1984 the oppositors (respondents herein Virginia A. Fernandez, a
legally adopted daughter of tile deceased and the latter's widow
Rosa DiongsonVda. de Acain filed a motion to dismiss on the
following grounds for the petitioner has no legal capacity to institute
these proceedings; (2) he is merely a universal heir and (3) the
widow and the adopted daughter have been pretirited. Said motion
was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in
the lower court, respondents filed with theSC a petition for
certiorari and prohibition with preliminary injunction which was
subsequently referred to the IAC by Resolution dated March 1985.
Respondent IAC granted private respondents' petition and ordered
the trial court to dismiss the petition for the probate of the will of
NemesioAcain in SP No. 591 ACEB
His MR having been denied, petitioner filed this present petition for
the review of respondent Court's decision on December 1985.
Respondents' Comment was filed on June 1986
On August 1986 the Court resolved to give due course to the
petition. Respondents' Memorandum was filed on September 1986
the Memorandum for petitioner was filed on September 1986
ISSUE: Whether or not private respondents have been pretirited.
RULING:
Article 854 of the Civil Code provides:
The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of
SUCCESSION CASE DIGESTS
the will or born after the death of the testator, shall annul the
institution of heir; but the devisees and legacies shall be valid insofar
as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall he effectual, without prejudice to the right of
representation.
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 (Nuguid v. Nuguid,
17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478
[1982]). Insofar as the widow is concerned, Article 854 of the Civil
Code may not apply as she does not ascend or descend from the
testator, although she is a compulsory heir. Stated otherwise, even if
18
the surviving spouse is a compulsory heir, there is no preterition
even if she is omitted from the inheritance, for she is not in the
direct line. (Art. 854, Civil code) however, the same thing cannot be
said of the other respondent Virginia A. Fernandez, whose legal
adoption by the testator has not been questioned by petitioner.
Under Article 39 of P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted person the same rights
and duties as if he were a legitimate child of the adopter and makes
the adopted person a legal heir of the adopter. It cannot be denied
that she has totally omitted and preterited in the will of the testator
and that both adopted child and the widow were deprived of at
least their legitime. Neither can it be denied that they were not
expressly disinherited. Hence, this is a clear case of preterition of the
legally adopted child.
Pretention annuls the institution of an heir and annulment throws
open to intestate succession the entire inheritance. The only
provisions which do not result in intestacy are the legacies and
devises made in the will for they should stand valid and respected,
except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and
sisters to the entire inheritance of the testator results in totally
abrogating the will because the nullification of such institution of
universal heirs-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 of the Civil Code
offers no leeway for inferential interpretation (Nuguid v. Nuguid),
supra. No legacies nor devises having been provided in the will the
whole property of the deceased has been left by universal title to
petitioner and his brothers and sisters. The effect of annulling the
"Institution of heirs will be, necessarily, the
opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943])
except that proper legacies and devises must, as already stated
above, be respected.
We now deal with another matter. In order that a person may be
allowed to intervene in a probate proceeding he must have an
interest in the estate, or in the will, or in the property to be affected
by it either as executor or as a claimant of the estate and an
interested party is one who would be benefited by the estate such
as an heir or one who has a claim against the estate like a creditor
(Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the
appointed executor, neither a devisee nor a legatee there being no
mention in the testamentary disposition of any gift of an individual
item of personal or real property he is called upon to receive (Article
782, Civil Code). At the outset, he appears to have an interest in the
will as an heir, defined under Article 782 of the Civil Code as a
person called to the succession either by the provision of a will or by
operation of law. However, intestacy having resulted from the
preterition of respondent adopted child and the universal institution
of heirs; petitioner is in effect not an heir of the testator. He has no
legal standing to petition for the probate of the will left by the
deceased and Special Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except
when the questioned order is an oppressive exercise of judicial
authority. It is axiomatic that the remedies of certiorari and
prohibition are not available where the petitioner has the remedy of
appeal or some other plain, speedy and adequate remedy in the
course of law . They are, however, proper remedies to correct a

grave abuse of discretion of the trial court in not dismissing a case
where the dismissal is founded on valid grounds
SP No. 591 ACEB is for the probate of a will. As stated by respondent
Court, the general rule is that the probate court's authority is limited
only to the extrinsic validity of the will, the due execution thereof,
the testator's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of
the will normally come only after the Court has declared that the will
has been duly authenticated. Said court at this stage of the
proceedings is not called upon to rule on the intrinsic validity or
efficacy of the provisions of the will.
The rule, however, 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. In Nuguid v. Nuguid the oppositors to the probate moved to
dismiss on the ground of absolute preteriton The probate court
acting on the motion held that the will in question was a complete
nullity and dismissed the petition.
In Saguimsim v. Lindayag the motion to dismiss the petition by the
surviving spouse was grounded on petitioner's lack of legal capacity
to institute the proceedings which was fully substantiated by the
evidence during the hearing held in connection with said motion.
The Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, one of the issues raised in the motion to
dismiss the petition deals with the validity of the provisions of the
will. Respondent Judge allowed the probate of the will. The Court
held that as on its face the will appeared to have preterited the
petitioner the respondent judge should have denied its probate
outright. Where circumstances demand that intrinsic validity of
testamentary provisions be passed upon even before the extrinsic
validity of the will is resolved, the probate court should meet the
issue.
In the instant case private respondents filed a motion to dismiss the
petition in Sp. Proceedings No. 591 ACEB of the RTC of Cebu on the
following grounds: (1) petitioner has no legal capacity to institute
the proceedings; (2) he is merely a universal heir; and (3) the widow
and the adopted daughter have been preterited. It was denied by
the trial court in an order dated January 1985 for the reason that
"the grounds for the motion to dismiss are matters properly to be
resolved after a hearing on the issues in the course of the trial on
SUCCESSION CASE DIGESTS
the merits of the case. A subsequent motion for reconsideration was
denied by the trial court on February 15, 1985.
For private respondents to have tolerated the probate of the will
and allowed the case to progress when on its fact the will appears to
be intrinsically void as petitioner and his brothers and sisters were
instituted as universal heirs coupled with the obvious fact that one
of the private respondents had been preterited would have been an
exercise in futility. It would have meant a waste of time, effort,
expense, plus added futility. The trial court could have denied its
probate outright or could have passed upon the intrinsic validity of
the testamentary provisions before the extrinsic validity of the will
was resolved. The remedies of certiorari and prohibition were
properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are
indubitable, the defendants had the right to resort to the more
19
speedy, and adequate remedies of certiorari and prohibition to
correct a grave abuse of discretion, amounting to lack of jurisdiction,
committed by the trial court in not dismissing the case, and even
assuming the existence of the remedy of appeal, the Court harkens
to the rule that in the broader interests of justice, a petition for
certiorari may be entertained, particularly where appeal would not
afford speedy and adequate relief.
Separate Opinions
MELENCIO-HERRERA, concurring:
I concur in the result on the basic proposition that preterition in this
case was by mistake or inadvertence.
To my mind, an important distinction has to be made as to whether
the omission of a forced heir in the will of a testator is by mistake or
inadvertence, or voluntary or intentional. If by mistake or
inadvertence, there is true preterirton and total intestacy results.
The reason for this is the "inability to determine how the testator
would have distributed his estate if none of the heirs had been
omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C.
Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received nothing
in the will. (111 Padilla, Civil Code Annotated, 1973 Edition, pp. 224-
225) (Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would be
a defective disinheritance covered by Article 918 of the Civil Code in
which case the institution of heir is not wholly void but only insofar
as it prejudices the legitime of the person disinherited. Stated
otherwise.the nullity is partial unlike in true preterition where the
nullity is total.
Pretention is presumed to be only an involuntary omission; that is,
that if the testator had known of the existence of the compulsory
heir at the time of the execution of the will, he would have
instituted such heir. On the other hand, if the testator attempts to
disinherit a compulsory heir, the presumption of the law is that he
wants such heir to receive as little as possible from his estate. (III
Tolentino, Civil Code, 1973 Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in
advertence in the omission of the adopted daughter, hence, my
concurrence in the result that total intestacy ensued.
NERI vs. AKUTIN
May 21, 1943
Facts:
This is a case where the testator in his will left all his property by
universal title to the children by his second marriage, the herein
respondents, with preterition of the children by his first marriage,

the herein petitioner. This Court annulled the institution of heirs and
declared a total intestacy.
A motion for reconsideration has been filed by the respondents on
the ground (1) that there is no preterition as to the children of the
first marriage who have received their shares in the property left by
the testator, and (2) that, even assuming that there has been a
preterition, the effect would not be the annulment of the institution
of heirs but simply the reduction of the bequest made to them.
1. The findings of the trial court and those of the Court of Appeals
are contrary to respondents' first contention. The children of the
first marriage are Eleuterio, Agripino, Agapita, Getulia (who died a
little less than eight years before the death of her father
AgripinoNeri, leaving seven children), Rosario and Celerina.
As to Eleuterio, the trial court said that "it is not, therefore, clear
that Eleuterio has received his share out of the properties left by his
father." It is true that Eleuterio appears to have received, as a
donation from his father, parcel of land No. 4, but the question of
whether there has been a donation or not is apparently left for
decision in an independent action, and to that effect IgnaciaAkutin
has been appointed special administratrix for the purpose of
instituting such action.
With respect to Agripino and Agapita, the parcels of land which they
have occupied, according to the trial Court, "are a part of public land
which had been occupied by AgripinoNeri Chaves, and, therefore,
were not a part of the estate of the latter."
Concerning Getulia who died about eight years before the death of
her father AgripinoNeri, the trial Court found that "neither Getulia
nor her heirs received any share of the properties."
And with respect to Rosario and Celerina, the trial Court said that "it
does not appear clear, therefore, that Celerina and Rosario received
their shares in the estate left by their father AgripinoNeri Chaves."
From these findings of the trial Court it is clear that Agapita, Rosario
and the children of Getulia had received from the testator no
property whatsoever, personal, real or in cash.
But clause 8 of the will is invoked wherein the testator made the
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statement that the children by his first marriage had already
received their shares in his property excluding what he had given
them as aid during their financial troubles and the money they had
borrowed from him which he condoned in the will.
Since all the parcels that corresponded to AgripinoNeri y Chaves are
now in the administrator's possession, as appears in the inventory
filed in court, it is clear that the property of the deceased has
remained intact and that no portion thereof has been given to the
children of the first marriage.
As regards that large parcel of land adjoining parcel No. 1, it is
contended that after the court had denied the registration thereof.
AgripinoNeri y Chaves abandoned the said land and that later on
some of the children of the first marriage possessed it, thereby
20
acquiring title and interest therein by virtue of occupation and not
through inheritance.
ISSUE: WON the institution of heirs should be annulled?
Held: YES.
We conclude, therefore, that according to the findings of fact made
by the Court of Appeals, the testator left all his property by
universal title to the children by his second marriage, and that
without expressly disinheriting the children by his first marriage,
he left all his property by universal title to the children by his
second marriage, he left nothing to them or, at least, some of
them. This is, accordingly, a case of preterition governed by article
814 of the Civil Code, which provides that the institution of heirs
shall be annulled and intestate succession should be declared
open.
2. Upon the second question propounded in the motion for
reconsideration, respondents seem to agree that article 814 of the
Civil Code is the law applicable but, in their discussion as to the
effect of preterition, they confuse article 814 with articles 817 and
851 and other articles of the Civil Code. These three articles read:
ART. 814. The preterition of one or of all of the forced
heirs in the direct line, whether living at the execution of
the will or born after the death of the testator, shall annul
the institution of heirs; but the legacies and betterments
shall be valid in so far as they are not inofficious.
The preterition of the widower or widow does not annul
the institution; but the person omitted shall retain all the
rights granted to him by articles 834, 835, 836, and 837 of
this Code.
ART. 817. Testamentary dispositions which diminish the
legitimate of the forced heirs shall be reduced on petition
of the same in so far as they are inofficious or excessive.
ART. 851. Disinheritance made without a statement of the
cause, or for a cause the truth of which, if contested, is not
shown, or which is not one of those stated in the four
following articles, shall annul the institution of heirs in so
far as it is prejudicial to the disinherited person; but the
legacies, betterments, and other testamentary dispositions
shall be valid in so far as they are not prejudicial to said
legitime.
The following example will make the question clearer: The testator
has two legitimate sons, A and B, and in his will he leaves all his
property to A, with total preterition of B. Upon these facts, shall
we annul entirely the institution of heir in favor of A and declare a
total intestacy, or shall we merely refuse the bequest left A, giving
him two-thirds, that is one third of free disposal and one-third of
betterments, plus one-half of the other third as strict legitime, and
awarding B only the remaining one-half of the strict legitime? If we
do the first, we apply article 814; if the second, we apply articles
851 or 817. But article 851 applies only in cases of
unfoundeddisinheritance, and all are agreed that the present case

is not one of disinheritance but of preterition. Article 817 is merely
a general rule inapplicable to specific cases provided by law, such
as that of preterition or disinheritance.
Manresa: These comments should be read with care if we are to
avoid misunderstanding. Manresa, for instance, starts expounding
the meaning of the law with an illustration. He says that in case of
preterition (article 814) the nullity of the institution of heirs is total,
whereas in case of disinheritance (article 851), the nullity is partial,
that is, in so far as the institution affects the legitime of the
disinherited heirs. He then proceeds to comment upon the wisdom
of the distinction made by law, giving two views thereon. He first
lays the view contrary to the distinction made by law, then the
arguments in support of the distinction, and lastly a possible defense
against said arguments. And after stating that the Spanish
jurisprudence has not as yet decided squarely the question, with an
allusion] to two resolutions of the Spanish Administrative Direction,
one in favor of article 814 and another evasive, he concludes that
the construction which may rightly be given to article 814 is that in
case of preterition, the institution of heirs is null in toto whereas in
case of disinheritance the nullity is limited to that portion of the
legitime of which the disinherited heirs have been illegally deprived.
He further makes it clear that in cases of preterition, the property
bequeathed by universal titled to the instituted heirs should not be
merely reduced according to article 817, but instead, intestate
succession should be opened in connection therewith under article
814.
Of course, the annulment of the institution of heirs in cases of
preterition does not always carry with it the ineffectiveness of the
whole will. Neither Manresa nor Sanchez Roman nor this Court has
ever said so. If, aside from the institution of heirs, there are in the
will provisions leaving to the heirs so instituted or to other persons
some specific properties in the form of legacies or mejoras, such
testamentary provisions shall be effective and the legacies
and mejoras shall be respected in so far as they are not inofficious
or excessive, according to article 814. In the instant case, however,
no legacies or mejoras are provided in the will, the whole property
of the deceased having been left by universal title to the children
of the second marriage. The effect, therefore, of annulling the
institution of heirs will be necessarily the opening of a total
intestacy.
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But the theory is advanced that the bequest made by universal
titled in favor 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.
21
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 of separate and distinct from
legacies or betterment. 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. The first is also different from a betterment which
should be made expressly as such (article 828). The only instance
of implied betterment recognized by law is where legacies are
made which cannot be included in the free portion (article 828).
But again an institution of heirs cannot be taken as a legacy.
It is clear, therefore, that article 814 refers to two different things
which are the two different objects of its two different provisions.
One of these objects cannot be made to merge in the other
without mutilating the whole article with all its multifarious
connections with a great number of provisions spread throughout
the Civil Code on the matter of succession. It should be borne in
mind, further, that although article 814 contains who different
provisions, its special purpose is to establish a specific rule
concerning a specific testamentary provision, namely, the
institution of heirs in a case of preterition. Its other provision
regarding the validity of legacies and betterments if not inofficious is
a mere reiteration of the general rule contained in other provisions
(articles 815 and 817) and signifies merely that it also applies in
cases of preterition. As regards testamentary dispositions in general,
the general rule is that all "testamentary disposition which diminish
the legitime of the forced heirs shall be reduced on petition of the
same in so far as they are inofficous or excessive" (article 817). But
this general rule does not apply to the specific instance of a
testamentary disposition containing an institution of heirs in a case
of preterition, which is made the main and specific subject of article
814. In such instance, according to article 814, the testamentary
disposition containing the institution of heirs should be not only
reduced but annulled in its entirety and all the forced heirs,
including the omitted ones, are entitled to inherit in accordance
with the law of intestate succession. It is thus evident that, if, in
construing article 814, the institution of heirs therein dealt with is to
be treated as legacies or betterments, the special object of said
article would be destroyed, its specific purpose completely defeated,
and in that wise the special rule therein established would be
rendered nugatory. And this is contrary to the most elementary rule
of statutory construction. In construing several provisions of a
particular statute, such construction shall be adopted as will give
effect to all, and when general and particular provisions are
inconsistent, the latter shall prevail over the former.
It is maintained that the word "heredero" under the Civil Code, is
not synonymous with the term "heir" under the Code of Civil
Procedure, and that the "heir" under the latter Code is no longer
personally liable for the debts of the deceased as was the
"heredero" under the Civil Code, should his acceptance be pure
and simple, and from all these the conclusion is drawn that the
provisions of article 814 of the Civil Code regarding the total nullity
of the institution of heirs has become obsolete. This conclusion is
erroneous. It confuses form with substance. It must be observed,

in this connection, that in construing and applying a provision of
the Civil Code, such meaning of its words and phrases as has been
intended by the framers thereof shall be adopted. If thus
construed it is inconsistent with the provisions of the Code of Civil
Procedure, then it shall be deemed repealed; otherwise it is in
force. Repeals by implication are not favored by the courts and
when there are twoacts upon the same subject, effect should be
given to both if possible (Posadas vs. National City Bank, 296 U. S.,
497). The word "heir" as used in article 814 of the Civil Code may
not have the meaning that it has under the Code of Civil Procedure,
but this in no wise can prevent a bequest from being made by
universal title as is in substance the subject-matter of article 814 of
the Civil Code. Again, it may also be true that heirs under the Code
of Civil Procedure may receive that bequest only after payment of
debts left by the deceased and not before as under the Civil Code,
but this may have a bearing only upon the question as to when
succession becomes effective and can in no way destroy the fact
that succession may still be by universal or special title. Since a
bequest may still be made by universal title and with preterition of
forced heirs, its nullity as provided in article 814 still applies there
being nothing inconsistent with it in the Code of Civil Procedure.
What is important and is the basis for its nullity is the nature and
effect of the bequest and not its possible name nor the moment of
its effectiveness under the Code of Civil Procedure.
Our attention is directed to the case of Escuin vs. Escuin (11 Phil.,
332). We have never lost sight of the ruling laid down in that case
which has been reiterated in Eleazar vs. Eleazar (37 Off. Gaz., p.
1782). In the Escuin case, the deceased left all his property to his
natural father (not a forced heir) and his wife with total preterition
of his father and wife. Without reconsidering the correctness of the
ruling laid down in these two cases, we will note that the doctrine
stands on facts which are different from the facts in the present
case. There is certainly a difference between a case of preterition in
which the whole property is left to a mere friend and a case of
preterition in which the whole property is left to one or some forced
heirs. If the testamentary disposition be annulled totally in the first
case, the effect would be a total deprivation of the friend of his
share in the inheritance. And this is contrary to the manifest
intention of the testator. It may fairly be presumed that, under such
circumstances, the testator would at leave give his friend the
portion of free disposal. In the second case, the total nullity of the
testamentary disposition would have the effect, not of depriving
totally the instituted heir of his share in the inheritance, but of
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placing him and the other forced heirs upon the basis of equality.
This is also in consonance with the presumptive intention of the
testator. Preterition, generally speaking, is due merely to mistake or
inadvertence without which the testator may be presumed to treat
alike all his children.
VIADO NON vs. CA (2000)
Facts:
Spouses Julian and Virginia Viado owned several pieces
of property, among them was the disputed property.
Virginia died on 20 October 1982. Julian C. Viado died
three years later on 15 November 1985.
22
Petitioners and respondents shared, since 1977, a
common residence at the Isarog property. However,
tension would appear to have escalated between
petitioner Rebecca Viado and respondent Alicia Viado
(wife of Nilo Viado) after the former had asked that the
property be equally divided between the two families.
Respondents, forthwith, claimed absolute ownership
over the entire property and demanded that petitioners
vacate the portion occupied by the latter. Hence,
petitioners, asserting co-ownership over the property in
question, filed a case for partition before the RTC.
Respondents predicated their claim of absolute
ownership over the subject property on two documents
— a deed of donation executed by the late Julian
covering his one-half conjugal share of the Isarog
property in favor of Nilo and a deed of extrajudicial
settlement in which Julian Viado, Leah Viado Jacobs and
petitioner Rebecca waived in favor of Nilo their rights
and interests over their share of the property inherited
from Virginia. Both instruments were executed on 26
August 1983 and registered on 07 January 1988 by
virtue of which TCT No.373646 was issued to the heirs
of Nilo Viado.
Petitioners, in their action for partition, attacked the
validity of the foregoing instruments, contending that
the late Nilo employed forgery and undue influence to
coerce Julian to execute the deed of donation.
Petitioner Rebecca, in her particular case, averred that
her brother Nilo employed fraud to procure her
signature to the deed of extrajudicial settlement. She
added that the exclusion of her retardate sister, Delia,
in the extrajudicial settlement, resulted in the latter’s
preterition that should warrant its annulment.
Finally, petitioners asseverated that the assailed
instruments, although executed on 23 August 1983,
were registered only five years later, on 07 January
1988, when the three parties thereto, namely, Julian,
Nilo and Leah had already died.
The RTC then found for respondents and adjudged
Alicia Viado and her children as being the true owners
of the disputed property. The

CA affirmed with modification by ordering the remand
of the records of the case to the court a quo for further
proceedings to determine the value of the property and
the amount respondents should pay to petitioner Delia
for having been preterited in the deed of extrajudicial
settlement.
Issue:
Whether or not the partition should be rescinded due
to the preterition of Delia as an heir.
Ruling:
NO. The exclusion of petitioner Delia, alleged to be a
retardate, from the deed of extrajudicial settlement
verily has had the effect of preterition.
This kind of preterition, however, in the absence of
proof of fraud and bad faith, does not justify a collateral
attack on TCT No. 373646. The relief, as so correctly
pointed out by the CA, instead rests on Article 1104 of
the Civil Code to the effect that where the preterition is
not attended by bad faith and fraud, the partition shall
not be rescinded but the preterited heir shall be paid
the value of the share pertaining to her. (Art. 1104 Civil
Code)
The appellate court has thus acted properly in ordering
the remand of the case for further proceedings to make
the proper valuation of the Isarog property and
ascertainment of the amount due petitioner Delia
Viado.
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Petitioners are vague on how and in what manner those
supposed vices occurred, their testimonies being merely
self-serving.
It is also quite difficult to believe that Rebecca Viado, a
teacher by profession, could have misunderstood the
tenor of the assailed document.
The fact alone that the two deeds were registered five
years after the date of their execution did not adversely
affect their validity nor would such circumstance alone
be indicative of fraud. The registration of the
documents was a ministerial act5 and merely created a
23
constructive notice of its contents against all third
persons.
Among the parties, the instruments remained
completely valid and binding.
SC denied appeal by Rebecca Viado Non and affirmed
CA Ruling that Alicia et al owns solely the Isarog
Properties.
And specially is this true in the instant case where the testator
omitted the children by his first marriage upon the erroneous belief
that he had given them already more shares in his property than
those given to the children by his second marriage. It was, therefore,
the thought of the testator that the children by his first marriage
should not receive less than the children by his second marriage,
and to that effect is the decision of this Court sought to be
reconsidered. Motion for reconsideration is hereby denied.
SUBSTITUTION OF HEIRS
RAMIREZ vs. RAMIREZ
FACTS:
The main issue in this appeal is the manner of partitioning the
testate estate of Jose Eugenio Ramirez among the principal
beneficiaries, namely: his widow MarcelleDemoron de Ramirez; his
two grandnephews Roberto and Jorge Ramirez; and his companion
Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French
who lives in Paris, while the companion Wanda is an Austrian who
lives in Spain. Moreover, the testator provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December
11, 1964, with only his widow as compulsory heir. His will was
admitted to probate by the Court of First Instance of Manila, Branch
X, on July 27, 1965. Maria Luisa Palacios was appointed
administratrix of the estate. In due time she submitted an inventory
of the estate as follows:
INVENTARIO
Unasextaparte (1/6) proindiviso de un te
rreno, con susmejoras y edificaciones, situadoen
la Escolta, Manila............................................................ P500,000.00
Unasextaparte (1/6) proindiviso de dos
parcelas de terrenosituadas en Antipolo, Rizal................... 658.34
Cuatrocientosnoventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00
poraccion ...............................................................................8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion a P0.15 poraccion ...............................................1,620.90
Cuenta de Ahorros en el Philippine Trust
Co................................................................................ ......... 2,350.73
TOTAL.............................................................. P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garan-
tizada con prenda de las acciones de La Carlota ......... P 5,000,00
VALOR LIQUIDO........................................... P507,976.97
On June 23, 1966, the administratrix submitted a project of partition
as follows: the property of the deceased is to be divided into two
parts. One part shall go to the widow 'en plenodominio" in
satisfaction of her legitime; the other part or "free portion" shall go
to Jorge and Roberto Ramirez "en nudapropriedad." Furthermore,
one third (1/3) of the free portion is charged with the widow's
usufruct and the remaining two-thirds (2/3) with a usufruct in favor
of Wanda.
Jorge and Roberto opposed the project of partition on the grounds:
(a) that the provisions for vulgar substitution in favor of Wanda de
Wrobleski with respect to the widow's usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's
usufruct are invalid because the first heirs Marcelle and Wanda)
survived the testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not related
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to the second heirs or substitutes within the first degree, as
provided in Article 863 of the Civil Code; (c) that the grant of a
usufruct over real property in the Philippines in favor of Wanda
Wrobleski, who is an alien, violates Section 5, Article III of the
Philippine Constitution; and that (d) the proposed partition of the
testator's interest in the Santa Cruz (Escolta) Building between the
widow Marcelle and the appellants, violates the testator's express
win to give this property to them Nonetheless, the lower court
approved the project of partition in its order dated May 3, 1967. It is
this order which Jorge and Roberto have appealed to this Court.
ISSUE:
3. Whether the court aquo erred in granting the 1/3 usufract
in favor of the widow
24
4. Whether the sustitution of heir is valid.
HELD:
1. Yes.
under Art. 900 of the Civil Code "If the only survivor is the widow or
widower, she or he shall be entitled to one-half of the hereditary
estate." And since Marcelle alone survived the deceased, she is
entitled to one-half of his estate over which he could impose no
burden, encumbrance, condition or substitution of any kind
whatsoever. (Art. 904, par. 2, Civil Code.)
It is the one-third usufruct over the free portion which the
appellants question and justifiably so. It appears that the court a
quo approved the usufruct in favor of Marcelle because the
testament provides for a usufruct in her favor of one-third of the
estate. The court a quo erred for Marcelle who is entitled to one-
half of the estate "en plenodominio" as her legitime and which is
more than what she is given under the will is not entitled to have
any additional share in the estate. To give Marcelle more than her
legitime will run counter to the testator's intention for as stated
above his dispositions even impaired her legitime and tended to
favor Wanda. (Marcella not entitled to the usufruct)
2. Substitution
It may be useful to recall that "Substitution is the appoint- judgment
of another heir so that he may enter into the inheritance in default
of the heir originally instituted." (Art. 857, Civil Code. And that there
are several kinds of substitutions, namely: simple or common, brief
or compendious, reciprocal, and fideicommissary (Art. 858, Civil
Code.) According to Tolentino, "Although the Code enumerates four
classes, there are really only two principal classes of substitutions:
the simple and the fideicommissary. The others are merely
variations of these two." (111 Civil Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code
which reads:
ART. 859. The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or heirs
should die before him, or should not wish, or should be
incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it
refers, shall comprise the three mentioned in the preceding
paragraph, unless the testator has otherwise provided.
The fideicommissary substitution is described in the Civil Code as
follows:
ART. 863. A fideicommissary substitution by virtue of which the
fiduciary or first heir instituted is entrusted with the obligation to
preserve and to transmit to a second heir the whole or part of
inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally

instituted, and provided further that the fiduciary or first heir and
the second heir are living at time of the death of the testator.
It will be noted that the testator provided for a vulgar substitution in
respect of the legacies of Roberto and Jorge Ramirez, the appellants,
thus: con sustitucion vulgar a favor de susrespectivosdescendientes,
y, en su defecto, con substitution vulgar reciprocal entreambos.
The appellants do not question the legality of the substitution so
provided. The appellants question the sustitucion vulgar y
fideicomisaria a favor de Da. Wanda de Wrobleski" in connection
with the one-third usufruct over the estate given to the widow
Marcelle However, this question has become moot because as We
have ruled above, the widow is not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria
in connection with Wanda's usufruct over two thirds of the estate in
favor of Juan Pablo Jankowski and Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void because
Wanda survived the testator or stated differently because she did
not predecease the testator. But dying before the testator is not the
only case for vulgar substitution for it also includes refusal or
incapacity to accept the inheritance as provided in Art. 859 of the
Civil Code, supra. Hence, the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the
appellants are correct in their claim that it is void for the following
reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez)
are not related to Wanda, the heir originally instituted. Art. 863 of
the Civil Code validates a fideicommissary substitution "provided
such substitution does not go beyond one degree from the heir
originally instituted."
What is meant by "one degree" from the first heir is explained by
Tolentino as follows:
Scaevola Maura, and Traviesas construe "degree" as designation,
substitution, or transmission. The Supreme Court of Spain has
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decidedly adopted this construction. From this point of view, there
can be only one tranmission or substitution, and the substitute need
not be related to the first heir. Manresa, Morell and Sanchez Roman,
however, construe the word "degree" as generation, and the
present Code has obviously followed this interpretation. by
providing that the substitution shall not go beyond one degree
"from the heir originally instituted." The Code thus clearly indicates
that the second heir must be related to and be one generation from
the first heir.
From this, it follows that the fideicommissary can only be either a
child or a parent of the first heir. These are the only relatives who
are one generation or degree from the fiduciary (Op. cit., pp. 193-
194.)
25
(b) There is no absolute duty imposed on Wanda to transmit the
usufruct to the substitutes as required by Arts. 865 and 867 of the
Civil Code. In fact, the appellee admits "that the testator contradicts
the establishment of a fideicommissary substitution when he
permits the properties subject of the usufruct to be sold upon
mutual agreement of the usufructuaries and the naked owners."
(Brief, p. 26.)
3. Sub issue.
The appellants claim that the usufruct over real properties of the
estate in favor of Wanda is void because it violates the constitutional
prohibition against the acquisition of lands by aliens.
The 1935 Constitution which is controlling provides as follows:
SEC. 5. Save in cases of hereditary succession, no private agricultural
land shall be transferred or assigned except to individuals,
corporations, or associations qualified to acquire or hold lands of the
public domain in the Philippines. (Art. XIII.)
The court a quo upheld the validity of the usufruct given to Wanda
on the ground that the Constitution covers not only succession by
operation of law but also testamentary succession. We are of the
opinion that the Constitutional provision which enables aliens to
acquire private lands does not extend to testamentary succession
for otherwise the prohibition will be for naught and meaningless.
Any alien would be able to circumvent the prohibition by paying
money to a Philippine landowner in exchange for a devise of a piece
of land.
This opinion notwithstanding, We uphold the usufruct in favor of
Wanda because a usufruct, albeit a real right, does not vest title to
the land in the usufructuary and it is the vesting of title to land in
favor of aliens which is proscribed by the Constitution.
RESERVA TRONCAL
NIEVA vs. ALCALA
October 27, 1920
Facts:
Juliana Nieva, the alleged natural mother of the plaintiff Segunda
Maria Nieva, married Francisco Deocampo. Of said marriage
AlfeoDeocampo was born.
Julian Nieva died intestate on April 19, 1889, and her said son,
AlfeoDeocampo, inherited from her, ab intestate, the parcels of land
described in Paragraphs V and X of the complaint.
AlfeoDeocampo died intestate and without issue on July 7, 1890.
Thereupon the two parcels of land above-mentioned passed to his
father, Francisco Deocampo, by intestate succession. Thereafter
Francisco Deocampo married the herein defendant Manuela Alcala,
of which marriage was born Jose Deocampo, the other defendant
herein.

Francisco Deocampo died on August 15, 1914, whereupon his widow
and son, the defendants herein, took possession of the parcels of
land in question, under the claim that the said son, the defendant
Jose Deocampoo (a minor) had inherited the same, ab intestate,
from his deceased father.
On September 30, 1915, the plaintiff herein, claiming to be an
acknowledged natural daughter of the said Juliana Nieva, instituted
the present action for the purposes of recovering from the
defendants the parcels of land in question, particularly described in
Paragraphs V and X of the complaint, invoking the provisions of
article 811 of the Civil Code.
The lower court held that, even granting, without deciding, that the
plaintiff was an acknowledged natural daughter of Juliana Nieva, she
was not entitled to the property here in question because, in its
opinion, an illegitimate relative has no right to
the reservatroncal under the provisions of article 811 of the Civil
Code.
The first question presented by this appeal is, whether or not the
plaintiff is an acknowledged natural daughter of the deceased
Juliana Nieva. It appears from the record that the said Juliana Nieva,
while unmarried, gave birth to the plaintiff on March 29, 1882, and
that the plaintiff was duly baptized as her natural daughter, of
unknown fatherthat the said Juliana Nieva nourished and reared her
said child, the plaintiff herein; that the plaintiff lived with her said
mother until the latter was married to Francisco Deocampo; that the
said mother treated the plaintiff, and exhibited her publicly, as a
legitimate daughter.
Issue: Whether or not an illegitimate relative within the third degree
is entitled to the reservatroncal provided for by article 811 of the
Civil Code.
Held: No.
Art 811: Any ascendant who inherits from his descendant any
property acquired by the latter gratuitously from some other
ascendant, or from a brother or sister, is obliged to reserve such of
the property as he may have acquired by operation of law for the
benefit of relatives within the third degree belonging to the line
from which such property came.
SUCCESSION CASE DIGESTS
The property here in question was inherited, by operation by law, by
Francisco Deocampo from his son AlfeoDeocampo, who, in turn, had
inherited it, in the same manner, from his mother Juliana Nieva, the
natural mother of the plaintiff. The plaintiff is the natural sister of
AlfeoDeocampo, and she belongs to the same line from which the
property in question came. Was Francisco Deocampo obliged by law
to reserve said property for the benefit of the plaintiff, an
illegitimate relative within the third degree of AlfeoDeocampo? If he
was, then, upon his death, the plaintiff, and not his son the
defendant Jose Deocampo, was entitled to the said property; if he
was not, the plaintiff's action must fail.
There can be no question whatever but that, under said article 811
of the Civil Code, the plaintiff would be entitled to the property in
question if she were a legitimate daughter of Julian Nieva.
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But in said article 811 the legislator uses the generic terms
"ascendant," "descendant," and "relatives," without specifying
whether or not they have to be legitimate. Does the legislator, then,
refer to legitimate as well as to illegitimate relatives?
This question, so far as our investigation shows, has not been
decided before by any court or tribunal. However, eminent
commentators on the Spanish Civil Code, who have devoted their
lives to the study and solution of the intricate and difficult problems
that may arise under the provisions of that Code, have dealt with
the very question now before us, and are unanimous in the opinion
that the provision of article 811 of the Civil Code apply only
tolegitimate relative. One of such commentators, undoubtedly the
best known of them all, is Manresa. We believe we can do no better
than to adopt his reasons and conclusions, in deciding the question
before us. In determining the persons who are obliged to reserve
under article 811, he says:
Is every ascendant, whether legitimate or not, obliged to
reserve? Should the natural father or grandfather reserve
the properties proceeding from the mother or other
natural ascendant? Article 811 does not distinguish; it
speaks of the ascendant, without attaching the
qualification of legitimate, and, on the other hand, the
same reason that exists for applying the provision to the
natural family exists for applying it to the legitimate family.
Nevertheless, the article in referring to the ascendant in an
indeterminate manner shows that it imposes the
obligation to reserve only upon the legitimate ascendant.
Let us overlook for the moment the question whether the
Code recognizes or does not recognize the existence of the
natural family, or whether it admits only the bond
established by acknowledgement between the father or
mother who acknowledges and the acknowledged
children. However it may be, it may be stated as an
indisputable truth, that in said Code, the legitimate
relationship forms the general rule and the natural
relationship the exception; which is the reason why, as
may be easily seen, the law in many articles speaks only of
children or parents, of ascendants or descendants, and in
them reference is of course made of those who are
legitimate; and when it desires to make a provision
applicable only to natural relationship, it does not say
father or mother, but natural father or natural mother; it
does not say child, but natural child; it does not speak of
ascendants, brothers or parents in the abstract, but of
natural ascendants, natural brothers or natural parents.
(See, for example, articles 294, 302, 809, 810, 846, 935, to
938, 944 and 945 and 946 to 955.)
Articles 809 and 810 themselves speak only of ascendants.
Can it in any way be maintained that they refer to
legitimate as well as to natural ascendants? They evidently
establish the legitime of the legitimate ascendants
included as forced heirs in number 2 of article 807. And
article 811, — and as we will see also article 812, —
continues to treat of this same legitime. The right of the
natural parents and children in the testamentary
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succession in wholly included in the eighth section and is
limited to the parents, other ascendants of such class
being excluded in articles 807, No. 3, and 846. Therefore,
the place which article 811 occupies in the Code of proof
that it refers only to legitimate ascendants. And if there
were any doubt, it disappears upon considering the text of
article 938, which states that the provisions of article 811
applies to intestate succession, which is just established in
favor of the legitimate direct ascending line, the text of
articles 939 to 945, which treat of intestate succession of
natural parents, as well as that of articles 840 to 847,
treating of their testamentary succession, which do not
allude directly or indirectly to that provision.
Lastly, the principle which underlies the exception which
article 811 creates in the right to succeed neither admits
of any other interpretation. Whether the provision is due
to the desire that the properties should not pass, by
reason of new marriage, out of the family to which they
belonged, or is directly derived from the system of the so-
called "reservatroncal," and whether the idea of
reservation or that of lineal rights (troncalidad)
predominate the patrimony which is intended to be
preserved is that of the legitimate family. Only to
legitimate ascendants and descendants do article 968 et
seq. of the Code refer, arising as they do from the danger
of second or subsequent marriage; only to legitimate
parents do the special laws of Navarra, Aragon, Vizcaya
and Cataluña concede the right to succeed with respect to
lineal properties (bienestroncales); only to the legitimate
ascendants does article 811 impose the duty to reserve.
The convenience of amplifying the precept to natural
parents and ascendants may be raised just as the question
whether it would be preferable to suppress it altogether
may be raised; but in the realm of the statute law there is
no remedy but to admit that article 811, the interpretation
of which should on the other hand be strict was drafted by
the legislator with respect only to legitimate ascendants.
It also treats of legitimate relationship. The person obliged
to reserve it a legitimate ascendant who inherits from a
descendant property which proceeds from the same
legitimate family, and this being true, there can be no
question, because the line from which the properties
proceed must be the line of that family and only in favor of
that line is the reservation established. Furthermore, we
have already said, the object is to protect the patrimony of
the legitimate family, following the precedents of the foral
law. And it could not be otherwise. Article 943 denies to
legitimate parents the right to succeed the natural child
and viceversa, from which it must be deduced that natural
parents neither have the right to inhering from legitimate
ones; the law in the article cited established a barrier
between the two families; properties of the legitimate
family shall never pass by operation of law to the natural
family. (Ibid. pp. 251-252.)
Scævola, after a very extended discussion of this same
subject, arrives at the same conclusion as Manresa. "La
reserva del articulo 811 esprivilegio de la familialegitima.
(The reservation in article 811 is a privilege of the
legitimate family.)" (See Scævola, Codigo Civil, Vol. 14, pp.
211-224, 3401-305.)
Article 943, above referred to by Manresa, provides as follows:
A natural or legitimated child has no right to succeed ab
intestate the legitimate children and relatives of the father
or mother who has acknowledged it; nor shall such
children or relatives so inherit from the natural or
legitimated child.
To hold that the appellant is entitled to the property left by her
natural brother, AlfeoDeocampo, by operation of law, would be a
fragrant violate of the express provision of the foregoing article

The same jurist, in determining the persons in whose favor the

reservation is established, says:

Persons in whose favor the reservation is established. —

SUCCESSION CASE DIGESTS

This is one of the most delicate points in the interpretation

of article 811. According to this article, the reservation is
established in favor of the parentswho are within the third
degree and belong to the line from which the properties
came.

It treats of blood, relationship, which is applicable to

questions on succession, according to articles 915 to 920.
It could not be otherwise, because relationship by affinity
is established between each spouse and the family of the
other, by marriage, and to admit it, would be to favor the
transmission of the properties of the family of one spouse
to that of the other, which is just what this article intends
to prevent.
SUCCESSION CASE DIGESTS

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