Succession

I. General Principles

A. Definition and Concept of Succession

Article 712. Ownership is acquired by occupation and by intellectual creation.

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

They may also be acquired by means of prescription. (609a)

Article 774. Succession is a mode of acquisition by virtue of which the property, rights and
obligations to the extent of the value of the inheritance, of a person are transmitted through his death
to another or others either by his will or by operation of law. (n)

Article 1311. Contracts take effect only between the parties, their assigns and heirs, except in case
where the rights and obligations arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law. The heir is not liable beyond the value of the property he received
from the decedent.

If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment
provided he communicated his acceptance to the obligor before its revocation. A mere incidental
benefit or interest of a person is not sufficient. The contracting parties must have clearly and
deliberately conferred a favor upon a third person. (1257a)

Article 1312. In contracts

B. Kinds of Succession

Article 778. Succession may be:

(1) Testamentary;

(2) Legal or intestate; or

(3) Mixed. (n)

Article 779. Testamentary succession is that which results from the designation of an heir, made in
a will executed in the form prescribed by law. (n)

Article 780. Mixed succession is that effected partly by will and partly by operation of law. (n)

Legal or Intestate Succession

SECTION 1
General Provisions
Article 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost its
validity;

(2) When the will does not institute an heir to, or dispose of all the property belonging to the
testator. In such case, legal succession shall take place only with respect to the property of
which the testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no
substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this
Code. (912a)

FC Art. 84. If the future spouses agree upon a regime other than the absolute community of
property, they cannot donate to each other in their marriage settlements more than one-fifth of their
present property. Any excess shall be considered void.

Donations of future property shall be governed by the provisions on testamentary succession and
the formalities of wills. (130a)

Article 130. The future spouses may give each other in their marriage settlements as much as one-
fifth of their present property, and with respect to their future property, only in the event of death, to
the extent laid down by the provisions of this Code referring to testamentary succession. (1331a)

Article 752. The provisions of article 750 notwithstanding, no person may give or receive, by way of
donation, more than he may give or receive by will.
The donation shall be inofficious in all that it may exceed this limitation. (636)

Object of Contracts
Article 1347. All things which are not outside the commerce of men, including future things, may be
the object of a contract. All rights which are not intransmissible may also be the object of contracts.
No contract may be entered into upon future inheritance except in cases expressly authorized by
law.
All services which are not contrary to law, morals, good customs, public order or public policy may
likewise be the object of a contract. (1271a)
C. Opening of Succession
Article 777. The rights to the succession are transmitted from the moment of the death of the
decedent. (657a)
Article 130. The future spouses may give each other in their marriage settlements as much as one-
fifth of their present property, and with respect to their future property, only in the event of death, to
the extent laid down by the provisions of this Code referring to testamentary succession. (1331a)

Article 132. A donation by reason of marriage is not revocable, save in the following cases:
 (1) If it is conditional and the condition is not complied with;

(2) If the marriage is not celebrated;

(3) When the marriage takes place without the consent of the parents or guardian, as
required by law;

(4) When the marriage is annulled, and the donee acted in bad faith;

(5) Upon legal separation, the donee being the guilty spouse;

(6) When the donee has committed an act of ingratitude as specified by the provisions of this
Code on donations in general. (1333a)

Presumption of Death

Article 390. After an absence of seven years, it being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may be opened. (n)

Article 391. The following shall be presumed dead for all purposes, including the division of the
estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing,
who has not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four
years;

(3) A person who has been in danger of death under other circumstances and his existence
has not been known for four years. (n)

Object of Contracts

Article 1347. All things which are not outside the commerce of men, including future things, may be
the object of a contract. All rights which are not intransmissible may also be the object of contracts.

No contract may be entered into upon future inheritance except in cases expressly authorized by
law.

All services which are not contrary to law, morals, good customs, public order or public policy may
likewise be the object of a contract. (1271a)

Article 1461. Things having a potential existence may be the object of the contract of sale.

The efficacy of the sale of a mere hope or expectancy is deemed subject to the condition that the
thing will come into existence.
The sale of a vain hope or expectancy is void. (n)

Article 2253. The Civil Code of 1889 and other previous laws shall govern rights originating, under
said laws, from acts done or events which took place under their regime, even though this Code may
regulate them in a different manner, or may not recognize them. But if a right should be declared for
the first time in this Code, it shall be effective at once, even though the act or event which gives rise
thereto may have been done or may have occurred under prior legislation, provided said new right
does not prejudice or impair any vested or acquired right, of the same origin. (Rule 1)

Article 2263. Rights to the inheritance of a person who died, with or without a will, before the
effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by
the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the
effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws
and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may
be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be
respected; however, their amount shall be reduced if in no other manner can every compulsory heir
be given his full share according to this Code. (Rule 12a)

FC Art. 84. If the future spouses agree upon a regime other than the absolute community of
property, they cannot donate to each other in their marriage settlements more than one-fifth of their
present property. Any excess shall be considered void.

Donations of future property shall be governed by the provisions on testamentary succession and
the formalities of wills. (130a)

Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases:

(1) If the marriage is not celebrated or judicially declared void ab initio except donations
made in the marriage settlements, which shall be governed by Article 81;

(2) When the marriage takes place without the consent of the parents or guardian, as
required by law;

(3) When the marriage is annulled, and the donee acted in bad faith;

(4) Upon legal separation, the donee being the guilty spouse;

(5) If it is with a resolutory condition and the condition is complied with;

(6) When the donee has committed an act of ingratitude as specified by the provisions of the
Civil Code on donations in general. (132a)

G.R. No. L-4963 January 29, 1953

MARIA USON, plaintiff-appellee,

vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA,
DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-appellants. (The
rights and obligations were passed onto Petitioner at the time of death of the deceased in
retroactive way)

There is no merit in this claim. Article 2253 above referred to provides indeed that rights which
are declared for the first time shall have retroactive effect even though the event which gave rise
to them may have occurred under the former legislation, but this is so only when the new rights
do not prejudice any vested or acquired right of the same origin. Thus, said article provides that
"if a right should be declared for the first time in this Code, it shall be effective at once, even
though the act or event which gives rise thereto may have been done or may have occurred under
the prior legislation, provided said new right does not prejudice or impair any vested or acquired
right, of the same origin." As already stated in the early part of this decision, the right of
ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her
late husband and this is so because of the imperative provision of the law which commands that
the rights to succession are transmitted from the moment of death (Article 657, old Civil Code).
The new right recognized by the new Civil Code in favor of the illegitimate children of the
deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over
the lands in dispute.

As regards the claim that Maria Uson, while her deceased husband was lying in state, in a
gesture of pity or compassion, agreed to assign the lands in question to the minor children for the
reason that they were acquired while the deceased was living with their mother and Maria Uson
wanted to assuage somewhat the wrong she has done to them, this much can be said; apart from
the fact that this claim is disputed, we are of the opinion that said assignment, if any, partakes of
the nature of a donation of real property, inasmuch as it involves no material consideration, and
in order that it may be valid it shall be made in a public document and must be accepted either in
the same document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential
formality has not been followed, it results that the alleged assignment or donation has no valid
effect.

G.R. No. L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE

BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE
BORJA (deceased) as Children of Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de
Borja, appellant. (An heir selling her hereditary share in the estate of the decedent to a co-heir
through compromise agreement is valid in all respect as her ownership over the hereditary opened
at the time of the decedent’s death there being no legal prohibition barring successor-heir of
disposing her hereditary share immediately upon the death of the decedent even if the same be
undivided portion and unliquidated thus, the sale of the hereditary share in Jalajala property to a co-
heir even to a stranger deemed as fortiori is valid)

This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to the
cases at bar. There was here no attempt to settle or distribute the estate of Francisco de Borja
among the heirs thereto before the probate of his will. The clear object of the contract was merely
the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or
eventual in the estate of Francisco de Borja and Josefa Tangco. There is no stipulation as to any
other claimant, creditor or legatee. And as a hereditary share in a decedent's estate is transmitted or
vested immediately from the moment of the death of such causante or predecessor in interest (Civil
Code of the Philippines, Art. 777)3 there is no legal bar to a successor (with requisite contracting
capacity) disposing of her or his hereditary share immediately after such death, even if the actual
extent of such share is not determined until the subsequent liquidation of the estate.4 Of course, the
effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir.
However, the aleatory character of the contract does not affect the validity of the transaction; neither
does the coetaneous agreement that the numerous litigations between the parties (the approving
order of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered
settled and should be dismissed, although such stipulation, as noted by the Rizal Court, gives the
contract the character of a compromise that the law favors, for obvious reasons, if only because it
serves to avoid a multiplicity of suits.

It is likewise worthy of note in this connection that as the surviving spouse of Francisco de Borja,
Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code.
Wherefore, barring unworthiness or valid disinheritance, her successional interest existed
independent of Francisco de Borja's last will and testament and would exist even if such will were
not probated at all. Thus, the prerequisite of a previous probate of the will, as established in the
Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja.

This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to approve the
compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not an heir in the estate
of Josefa Tangco pending settlement in the Rizal Court, but she was an heir of Francisco de Borja,
whose estate was the object of Special Proceeding No. 832 of the Court of First Instance of Nueva
Ecija. This circumstance is irrelevant, since what was sold by Tasiana Ongsingco was only her
eventual share in the estate of her late husband, not the estate itself; and as already shown, that
eventual share she owned from the time of Francisco's death and the Court of Nueva Ecija could not
bar her selling it. As owner of her undivided hereditary share, Tasiana could dispose of it in favor of
whomsoever she chose. Such alienation is expressly recognized and provided for by article 1088 of
the present Civil Code:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser
by reimbursing him for the price of the sale, provided they do so within the period of
one month from the time they were notified in writing of the sale of the vendor.

If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir could
not be forbidden.

G.R. No. L-41715 June 18, 1976

ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their
father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA,
AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court
of First Instance of Abra, respondents. (The petitioners substituting their mother in the case to
quiet title over a real property after the latter’s death have legal capacity to sue in this cause of
action as the heirs-petitioner acquired an absolute ownership over the property of their mother upon
the latter’s death and the claim of their mother as interest was transmitted upon decedent’s death
thus, the denial of trial court of plea to substitute is a grave error)
The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil
Case No. 856 and its orders denying the motion for reconsideration of said order of dismissal. While
it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in
pursuing the case up to its completion. The records of this case show that the death of Fortunata
Barcena took place on July 9, 1975 while the complaint was filed on March 31, 1975. This means
that when the complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and
therefore, the court had acquired jurisdiction over her person. If thereafter she died, the Rules of
Court prescribes the procedure whereby a party who died during the pendency of the proceeding
can be substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a party to a pending
case dies ... it shall be the duty of his attorney to inform the court promptly of such death ... and to
give the name and residence of his executor, administrator, guardian or other legal representatives."
This duty was complied with by the counsel for the deceased plaintiff when he manifested before the
respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution
of parties in the case. The respondent Court, however, instead of allowing the substitution,
dismissed the complaint on the ground that a dead person has no legal personality to sue. This is a
grave error. Article 777 of the Civil Code provides "that the rights to the succession are transmitted
from the moment of the death of the decedent." From the moment of the death of the decedent, the
heirs become the absolute owners of his property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights thereto except by the methods provided for by
law. 3 The moment of death is the determining factor when the heirs acquire a definite right to the
inheritance whether such right be pure or contingent. 4 The right of the heirs to the property of the
deceased vests in them even before judicial declaration of their being heirs in the testate or intestate
proceedings. 5 When Fortunata Barcena, therefore, died her claim or right to the parcels of land in
litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs
upon her death. Her heirs have thus acquired interest in the properties in litigation and became
parties in interest in the case. There is, therefore, no reason for the respondent Court not to allow
their substitution as parties in interest for the deceased plaintiff.

INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO BORROMEO-

HERRERA, petitioner,
vs.
FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS, Judge of the Court of First
Instance of Cebu, Branch II, respondents. (The compromise agreement relinquishing and waiving
rights in the hereditary share of the estate of the decedent is invalid without any intention to
relinquish this right contrary to the attended circumstance of this case as when the heirs’ names
were not necessary to be included in the waiver document if such was the intention of the
respondent the other heir would not have been offered to settle the case amicably and to concede
the properties pursuant to the agreement as these rights were acquired from the moment of death of
the decedent and became the owner of that hereditary share without necessarily coming into
possession of the property which may come later)

Held: The prevailing jurisprudence on waiver of hereditary rights is that "the properties included in
an existing inheritance cannot be considered as belonging to third persons with respect to the heirs,
who by fiction of law continue the personality of the former. Nor do such properties have the
character of future property, because the heirs acquire a right to succession from the moment of the
death of the deceased, by principle established in article 657 and applied by article 661 of the Civil
Code, according to which the heirs succeed the deceased by the mere fact of death. More or less,
time may elapse from the moment of the death of the deceased until the heirs enter into possession
of the hereditary property, but the acceptance in any event retroacts to the moment of the death, in
accordance with article 989 of the Civil Code. The right is vested, although conditioned upon the
adjudication of the corresponding hereditary portion." (Osorio v. Osorio and Ynchausti Steamship
Co., 41 Phil., 531). The heirs, therefore, could waive their hereditary rights in 1967 even if the order
to partition the estate was issued only in 1969.

In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered to be
effective. For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the
knowledge of the existence thereof; and (3) an intention to relinquish such right. (People v. Salvador,
(CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a right or advantage must be shown
clearly and convincingly, and when the only proof of intention rests in what a party does, his act
should be so manifestly consistent with, and indicative of an intent to, voluntarily relinquish the
particular right or advantage that no other reasonable explanation of his conduct is possible (67 C.J.,
311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).

[G.R. No. 129008. January 13, 2004]

TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA assisted by her husband ZALDY
EVANGELISTA, ALBERTO ORFINADA, and ROWENA O. UNGOS, assisted by her husband
BEDA UNGOS, petitioners,
vs.
COURT OF APPEALS, ESPERANZA P. ORFINADA, LOURDES P. ORFINADA, ALFONSO
ORFINADA, NANCY P. ORFINADA, ALFONSO JAMES P. ORFINADA, CHRISTOPHER P.
ORFINADA and ANGELO P. ORFINADA, respondents

(The decedent’s lawful wife-respondent who initiated conveyance extra judicial settlement over the
property of the decedent upon his death including mortgage of property leaving the common law wife-
petitioner with no inheritance have a legal personality to bring suit in behalf of the estate of his late
husband because the rights to succession are transmitted from the moment of death of the decedent
therefore, the wife can recover said property despite pending of property administrator’s appointment
as no such has been declared by the court thus, the denial of grave abuse of discretion on the part of CA
is only proper)

Pending the filing of administration proceedings, the heirs without doubt have legal personality to
bring suit in behalf of the estate of the decedent in accordance with the provision of Article 777 of the
New Civil Code "that (t)he rights to succession are transmitted from the moment of the death of the
decedent." The provision in turn is the foundation of the principle that the property, rights and
obligations to the extent and value of the inheritance of a person are transmitted through his death to
another or others by his will or by operation of law.25

Even if administration proceedings have already been commenced, the heirs may still bring the suit
if an administrator has not yet been appointed. This is the proper modality despite the total lack of
advertence to the heirs in the rules on party representation, namely Section 3, Rule 326 and Section
2, Rule 8727 of the Rules of Court. In fact, in the case of Gochan v. Young,28 this Court recognized the
legal standing of the heirs to represent the rights and properties of the decedent under administration
pending the appointment of an administrator. Thus:

The above-quoted rules,29 while permitting an executor or administrator to represent or to

bring suits on behalf of the deceased, do not prohibit the heirs from representing the
deceased. These rules are easily applicable to cases in which an administrator has
already been appointed. But no rule categorically addresses the situation in which
special proceedings for the settlement of an estate have already been instituted, yet
no administrator has been appointed. In such instances, the heirs cannot be expected to
 wait for the appointment of an administrator; then wait further to see if the administrator
appointed would care enough to file a suit to protect the rights and the interests of the
deceased; and in the meantime do nothing while the rights and the properties of the
decedent are violated or dissipated.

Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz: (1) if the
executor or administrator is unwilling or refuses to bring suit;30 and (2) when the administrator is
alleged to have participated in the act complained of31 and he is made a party defendant.32 Evidently,
the necessity for the heirs to seek judicial relief to recover property of the estate is as compelling
when there is no appointed administrator, if not more, as where there is an appointed administrator
but he is either disinclined to bring suit or is one of the guilty parties himself.

All told, therefore, the rule that the heirs have no legal standing to sue for the recovery of property of
the estate during the pendency of administration proceedings has three exceptions, the third being
when there is no appointed administrator such as in this case.

D. Subject and Object of Succession

Article 775. In this Title, "decedent" is the general term applied to the person whose property is
transmitted through succession, whether or not he left a will. If he left a will, he is also called the
testator. (n)
Article 776. The inheritance includes all the property, rights and obligations of a person which are
not extinguished by his death. (659)
Article 777. The rights to the succession are transmitted from the moment of the death of the
decedent. (657a)

Article 778. Succession may be:

(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n)

Article 779. Testamentary succession is that which results from the designation of an heir, made in
a will executed in the form prescribed by law. (n)

Article 780. Mixed succession is that effected partly by will and partly by operation of law. (n)
Article 781. The inheritance of a person includes not only the property and the transmissible rights
and obligations existing at the time of his death, but also those which have accrued thereto since the
opening of the succession. (n)
Article 782. An heir is a person called to the succession either by the provision of a will or by
operation of law.
Devisees and legatees are persons to whom gifts of real and personal property are respectively
given by virtue of a will. (n)
Article 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
 (2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2;
neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in
the manner and to the extent established by this Code. (807a)
SUBSECTION 1. Relationship

Article 963. Proximity of relationship is determined by the number of generations. Each generation
forms a degree. (915)

Article 964. A series of degrees forms a line, which may be either direct or collateral.
A direct line is that constituted by the series of degrees among ascendants and descendants.
A collateral line is that constituted by the series of degrees among persons who are not ascendants
and descendants, but who come from a common ancestor. (916a)
Article 965. The direct line is either descending or ascending.
The former unites the head of the family with those who descend from him.
The latter binds a person with those from whom he descends. (917)

Article 966. In the line, as many degrees are counted as there are generations or persons,
excluding the progenitor.
In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed
from the parent, two from the grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the common ancestor and then descent is made to the
person with whom the computation is to be made. Thus, a person is two degrees removed from his
brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth.
(918a)
Article 967. Full blood relationship is that existing between persons who have the same father and
the same mother.
Half blood relationship is that existing between persons who have the same father, but not the same
mother, or the same mother, but not the same father. (920a)
Article 968. If there are several relatives of the same degree, and one or some of them are unwilling
or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right
of representation when it should take place. (922)
Article 969. If the inheritance should be repudiated by the nearest relative, should there be one only,
or by all the nearest relatives called by law to succeed, should there be several, those of the
following degree shall inherit in their own right and cannot represent the person or persons
repudiating the inheritance. (923)
SUBSECTION 5. Collateral Relatives
Article 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse,
the collateral relatives shall succeed to the entire estate of the deceased in accordance with the
following articles. (946a)

Article 1014. If a person legally entitled to the estate of the deceased appears and files a claim
thereto with the court within five years from the date the property was delivered to the State, such
person shall be entitled to the possession of the same, or if sold, the municipality or city shall be
accountable to him for such part of the proceeds as may not have been lawfully spent. (n)

Capacity to Succeed by Will or by Intestacy

Article 1024. Persons not incapacitated by law may succeed by will or ab intestato.
The provisions relating to incapacity by will are equally applicable to intestate succession. (744, 914)
Article 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the
moment the succession opens, except in case of representation, when it is proper.
A child already conceived at the time of the death of the decedent is capable of succeeding provided
it be born later under the conditions prescribed in article 41. (n)
Article 1026. A testamentary disposition may be made to the State, provinces, municipal
corporations, private corporations, organizations, or associations for religious, scientific, cultural,
educational, or charitable purposes.

All other corporations or entities may succeed under a will, unless there is a provision to the contrary
in their charter or the laws of their creation, and always subject to the same. (746a)
Article 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator during his last illness, or the minister
of the gospel who extended spiritual aid to him during the same period;

(2) The relatives of such priest or minister of the gospel within the fourth degree, the church,
order, chapter, community, organization, or institution to which such priest or minister may
belong;
(3) A guardian with respect to testamentary dispositions given by a ward in his favor before
the final accounts of the guardianship have been approved, even if the testator should die
after the approval thereof; nevertheless, any provision made by the ward in favor of the
guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be
valid;
(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any
one claiming under such witness, spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator
during his last illness;
 (6) Individuals, associations and corporations not permitted by law to inherit. (745, 752, 753,
754a)
Article 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply
to testamentary provisions. (n)
Article 1029. Should the testator dispose of the whole or part of his property for prayers and pious
works for the benefit of his soul, in general terms and without specifying its application, the executor,
with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination
to which the testator may belong, to be used for such prayers and pious works, and the other half to
the State, for the purposes mentioned in article 1013. (747a)
Article 1030. Testamentary provisions in favor of the poor in general, without designation of
particular persons or of any community, shall be deemed limited to the poor living in the domicile of
the testator at the time of his death, unless it should clearly appear that his intention was otherwise.

The designation of the persons who are to be considered as poor and the distribution of the property
shall be made by the person appointed by the testator for the purpose; in default of such person, by
the executor, and should there be no executor, by the justice of the peace, the mayor, and the
municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these
cases, the approval of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has disposed of his property in favor of the
poor of a definite locality. (749a)
Article 1031. A testamentary provision in favor of a disqualified person, even though made under
the guise of an onerous contract, or made through an intermediary, shall be void. (755)
Article 1032. The following are incapable of succeeding by reason of unworthiness:
(1) Parents who have abandoned their children or induced their daughters to lead a corrupt
or immoral life, or attempted against their virtue;
(2) Any person who has been convicted of an attempt against the life of the testator, his or
her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been found groundless;
(4) Any heir of full age who, having knowledge of the violent death of the testator, should fail
to report it to an officer of the law within a month, unless the authorities have already taken
action; this prohibition shall not apply to cases wherein, according to law, there is no
obligation to make an accusation;

(5) Any person convicted of adultery or concubinage with the spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or undue influence should cause the
testator to make a will or to change one already made;

(7) Any person who by the same means prevents another from making a will, or from
revoking one already made, or who supplants, conceals, or alters the latter's will;

(8) Any person who falsifies or forges a supposed will of the decedent. (756, 673, 674a)
Article 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof
at the time he made the will, or if, having known of them subsequently, he should condone them in
writing. (757a)
Article 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the
time of the death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of article 1032, it shall be necessary to wait until final judgment
is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional, the time of the compliance with the condition
shall also be considered. (758a)
Article 1035. If the person excluded from the inheritance by reason of incapacity should be a child
or descendant of the decedent and should have children or descendants, the latter shall acquire his
right to the legitime.
The person so excluded shall not enjoy the usufruct and administration of the property thus inherited
by his children. (761a)
Article 1036. Alienations of hereditary property, and acts of administration performed by the
excluded heir, before the judicial order of exclusion, are valid as to the third persons who acted in
good faith; but the co-heirs shall have a right to recover damages from the disqualified heir. (n)

Article 1037. The unworthy heir who is excluded from the succession has a right to demand
indemnity or any expenses incurred in the preservation of the hereditary property, and to enforce
such credits as he may have against the estate. (n)
Article 1038. Any person incapable of succession, who, disregarding the prohibition stated in the
preceding articles, entered into the possession of the hereditary property, shall be obliged to return it
together it its accessions.
He shall be liable for all the fruits and rents he may have received, or could have received through
the exercise of due diligence. (760a)
Article 1039. Capacity to succeed is governed by the law of the nation of the decedent. (n)
Article 1040. The action for a declaration of incapacity and for the recovery of the inheritance,
devise or legacy shall be brought within five years from the time the disqualified person took
possession thereof. It may be brought by any one who may have an interest in the succession.
(762a)

SECTION 3
Acceptance and Repudiation of the Inheritance
Article 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary
and free. (988)

Article 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the
death of the decedent. (989)
Article 1043. No person may accept or repudiate an inheritance unless he is certain of the death of
the person from whom he is to inherit, and of his right to the inheritance. (991)
Article 1044. Any person having the free disposal of his property may accept or repudiate an
inheritance.
Any inheritance left to minors or incapacitated persons may be accepted by their parents or
guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial
authorization.
The right to accept an inheritance left to the poor shall belong to the persons designated by the
testator to determine the beneficiaries and distribute the property, or in their default, to those
mentioned in article 1030. (992a)
Article 1045. The lawful representatives of corporations, associations, institutions and entities
qualified to acquire property may accept any inheritance left to the latter, but in order to repudiate it,
the approval of the court shall be necessary. (993a)
Article 1046. Public official establishments can neither accept nor repudiate an inheritance without
the approval of the government. (994)
Article 1047. A married woman of age may repudiate an inheritance without the consent of her
husband. (995a)

Article 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance
personally or through an agent. Should they not be able to read and write, the inheritance shall be
accepted by their guardians. These guardians may repudiate the same with judicial approval. (996a)
Article 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private document.
A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied,
or which one would have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance
if, through such acts, the title or capacity of an heir has not been assumed. (999a)
Article 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of
them;
(2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of
his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this
renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon
whom the portion renounced should devolve by virtue of accretion, the inheritance shall not
be deemed as accepted. (1000)
Article 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or
by petition presented to the court having jurisdiction over the testamentary or intestate proceedings.
(1008)
Article 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter
may petition the court to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their
credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be
adjudicated to the persons to whom, in accordance with the rules established in this Code, it may
belong. (1001)
Article 1053. If the heir should die without having accepted or repudiated the inheritance his right
shall be transmitted to his heirs. (1006)

Article 1054. Should there be several heirs called to the inheritance, some of them may accept and
the others may repudiate it. (1007a)
Article 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato,
repudiates the inheritance in his capacity as a testamentary heir, he is understood to have
repudiated it in both capacities.
Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he
may still accept it in the latter capacity. (1009)
Article 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and
cannot be impugned, except when it was made through any of the causes that vitiate consent, or
when an unknown will appears. (997)
Article 1057. Within thirty days after the court has issued an order for the distribution of the estate in
accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having
jurisdiction whether they accept or repudiate the inheritance.

If they do not do so within that time, they are deemed to have accepted the inheritance. (n)

Article 1178. Subject to the laws, all rights acquired in virtue of an obligation are transmissible, if
there has been no stipulation to the contrary. (1112)

Article 1311. Contracts take effect only between the parties, their assigns and heirs, except in case
where the rights and obligations arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law. The heir is not liable beyond the value of the property he received
from the decedent.

If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment
provided he communicated his acceptance to the obligor before its revocation. A mere incidental
benefit or interest of a person is not sufficient. The contracting parties must have clearly and
deliberately conferred a favor upon a third person. (1257a)

Article 1429. When a testate or intestate heir voluntarily pays a debt of the decedent exceeding the
value of the property which he received by will or by the law of intestacy from the estate of the
deceased, the payment is valid and cannot be rescinded by the payer.

G.R. No. L-54919 May 30, 1984

POLLY CAYETANO, petitioner,

vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court
of First Instance of Manila and NENITA CAMPOS PAGUIA, respondents. (A will executed by a
decedent who was a permanent resident of Pensylvania with an estate in Manila and probated in
Manila was properly allowed by the Court; The national law of the decedent which is the Pensylvania
shall govern the successional rights with regard the estate even alleging the same would cause
injustice and prejudice to the legitimes of the decedent applying the local law as the legislative body
in enacting our laws does not intend to extend our laws with foreign jurisdiction, thus, the application
of the law of Pensylvania is aptly decided pursuant to Art. 16 [2] and 1039)

Petitioner Cayetano persists with the allegations that the respondent judge acted without or in
excess of his jurisdiction when:

1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic)
upon the filing of the Motion to Dismiss opposition with waiver of rights or interests
against the estate of deceased Adoracion C. Campos, thus, paving the way for the
hearing ex-parte of the petition for the probate of decedent will.

2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by way
of a motion presented prior to an order for the distribution of the estate-the law
especially providing that repudiation of an inheritance must be presented, within 30
days after it has issued an order for the distribution of the estate in accordance with
the rules of Court.

3) He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in
complete disregard of Law of Succession

4) He denied petitioner's petition for Relief on the ground that no evidence was
adduced to support the Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petition — a denial of the due process and a
grave abuse of discretion amounting to lack of jurisdiction.

5) He acquired no jurisdiction over the testate case, the fact that the Testator at the
time of death was a usual resident of Dasmariñas, Cavite, consequently Cavite Court
of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No.
L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the respondent judge
acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to
the reprobate of the will.

We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to
support petitioner's contention that the motion to withdraw was secured through fraudulent means
and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of
the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that
the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion
was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case
and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner
cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of
filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing
the probate of the will ex-parte, there being no other opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a general rule, the
probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof,
the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed
by law. The intrinsic validity of the will normally comes only after the court has declared that the will
has been duly authenticated. However, where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the issue.
(Maninang vs. Court of Appeals, 114 SCRA 478).

In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of
Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the
law for him.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the respondent
judge should have denied its reprobate outright, the private respondents have sufficiently
established that Adoracion was, at the time of her death, an American citizen and a permanent
resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the
Civil Code which respectively provide:

Art. 16 par. (2).

xxx xxx xxx

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.

Art. 1039.

Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the
national law of the decedent. Although the parties admit that the Pennsylvania law does not provide
for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it would be contrary to the sound and
established public policy and would run counter to the specific provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by
Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was
squarely applied in the case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:

It is therefore evident that whatever public policy or good customs may be involved in
our system of legitimes, Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's national law. Specific provisions
must prevail over general ones.

xxx xxx xxx

 The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of
Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the Philippine Law on
legitimes cannot be applied to the testacy of Amos G. Bellis.

As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear
the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was
the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is
no reason why the petitioner should have been led to believe otherwise. The court even admonished
the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing.
There was no denial of due process. The fact that he requested "for the future setting of the case for
hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given
preference in lieu of the petition for relief. Furthermore, such request should be embodied in a
motion and not in a mere notice of hearing.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit.
Under Rule 73, Section 1, of the Rules of Court, it is provided that:

SECTION 1. 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 resided 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.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of
First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at
the time of her death was a citizen and permanent resident of Pennsylvania, United States of
America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled
rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See
Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE PARISH
PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA ESCOBAR
DE FAUSTO, respondents-appellees.

(The will of the testator devising his ricelands to an heir nearest of kin who would pursue
ecclesiastical undertaking or priesthood the life and soul of the testamentary succession in effect the
law of succession petitioner church being a trustee of the properties was construed to be that the
decedent Father’s bequest operate at the time of his death those nearest male relative living at the
time of his demise as the successional rights only open at the time of the decedent’s death
otherwise rule against perpetuities of succession can set in thus, an unavoidable conclusion that a
nephew who was then only in grade school is not the one contemplated in the will further, the
bequest cannot be made to be bequeathed in favor of the parish church alleging its capacity as
substitute devisee the properties must be distributed among the testator’s legal heirs as if no will has
been made)
In this case, as in cases involving the law of contracts and statutory construction, where the intention
of the contracting parties or of the lawmaking body is to be ascertained, the primary issue is the
determination of the testator's intention which is the law of the case (dicat testor et erit lex. Santos
vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27
SCRA 546).

The will of the testator is the first and principal law in the matter of testaments. When his intention is
clearly and precisely expressed, any interpretation must be in accord with the plain and literal
meaning of his words, except when it may certainly appear that his intention was different from that
literally expressed (In re Estate of Calderon, 26 Phil. 333).

The intent of the testator is the cardinal rule in the construction of wills." It is "the life and soul of a
will It is "the first greatest rule, the sovereign guide, the polestar, in giving effect to a will". (See
Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that "the testator's intention is to be
ascertained from the words of the wilt taking into consideration the circumstances under which it was
made", but excluding the testator's oral declarations as to his intention (Art. 789, Civil Code of the
Philippines).
To ascertain Father Rigor's intention, it may be useful to make the following re-statement of the
provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest male relatives who would pursue an
ecclesiastical career until his ordination as a priest.

2. That the devisee could not sell the ricelands.

3. That the devisee at the inception of his studies in sacred theology could enjoy and administer the
ricelands, and once ordained as a priest, he could continue enjoying and administering the same up
to the time of his death but the devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to celebrate every year twenty masses
with prayers for the repose of the souls of Father Rigor and his parents.

5. That if the devisee is excommunicated, he would be divested of the legacy and the administration
of the riceland would pass to the incumbent parish priest of Victoria and his successors.

6. That during the interval of time that there is no qualified devisee as contemplated above, the
administration of the ricelands would be under the responsibility of the incumbent parish priest of
Victoria and his successors, and
7. That the parish priest-administrator of the ricelands would accumulate annually the products
thereof, obtaining or getting from the annual produce five percent thereof for his administration and
the fees corresponding to the twenty masses with prayers that the parish priest would celebrate for
each year, depositing the balance of the income of the devise in the bank in the name of his
bequest.
From the foregoing testamentary provisions, it may be deduced that the testator intended to devise
the ricelands to his nearest male relative who would become a priest, who was forbidden to sell the
ricelands, who would lose the devise if he discontinued his studies for the priesthood, or having been
ordained a priest, he was excommunicated, and who would be obligated to say annually twenty
masses with prayers for the repose of the souls of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in
two situations: one, during the interval of time that no nearest male relative of the testator was
studying for the priesthood and two, in case the testator's nephew became a priest and he was
excommunicated.

What is not clear is the duration of "el intervalo de tiempo que no haya legatario acondicionado", or
how long after the testator's death would it be determined that he had a nephew who would pursue
an ecclesiastical vocation. It is that patent ambiguity that has brought about the controversy between
the parish priest of Victoria and the testator's legal heirs.

Interwoven with that equivocal provision is the time when the nearest male relative who would study
for the priesthood should be determined. Did the testator contemplate only his nearest male
relative at the time of his death?Or did he have in mind any of his nearest male relatives at anytime
after his death?

We hold that the said bequest refers to the testator's nearest male relative living at the time of his
death and not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee
or legatee must be living at the moment the succession opens, except in case of representation,
when it is proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or reasonably construed. To construe them as
referring to the testator's nearest male relative at anytime after his death would render the provisions
difficult to apply and create uncertainty as to the disposition of his estate. That could not have been
his intention.

In 1935, when the testator died, his nearest leagal heirs were his three sisters or second-degree
relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator specified
his nearest male relative, he must have had in mind his nephew or a son of his sister, who would be
his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact
date of his death or state with certitude what category of nearest male relative would be living at the
time of his death, he could not specify that his nearest male relative would be his nephew or
grandnephews (the son of his nephew or niece) and so he had to use the term "nearest male
relative".
It is contended by the legal heirs that the said devise was in reality intended for Ramon Quiambao,
the testator's nephew and godchild, who was the son of his sister, Mrs. Quiambao. To prove that
contention, the legal heirs presented in the lower court the affidavit of Beatriz Gamalinda, the
maternal grandmother of Edgardo Cunanan, who deposed that after Father Rigor's death her own
son, Valentin Gamalinda, Jr., did not claim the devise, although he was studying for the priesthood
at the San Carlos Seminary, because she (Beatriz) knew that Father Rigor had intended that devise
for his nearest male relative beloning to the Rigor family (pp. 105-114, Record on Appeal).

Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not the one
contemplated in Father Rigor's will and that Edgardo's father told her that he was not consulted by
the parish priest of Victoria before the latter filed his second motion for reconsideration which was
based on the ground that the testator's grandnephew, Edgardo, was studying for the priesthood at
the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in 1961.
For that reason, the legal heirs apprised the Court of Appeals that the probate court's order
adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p. 84,
Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the testator's
intention and which is hearsay, has no probative value. Our opinion that the said bequest refers to
the testator's nephew who was living at the time of his death, when his succession was opened and
the successional rights to his estate became vested, rests on a judicious and unbiased reading of
the terms of the will.
Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la camera
eclesiatica" would include indefinitely anyone of his nearest male relatives born after his death, he
could have so specified in his will He must have known that such a broad provision would suspend
for an unlimited period of time the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de tiempo que no haya legatario acondicionado"?
The reasonable view is that he was referring to a situation whereby his nephew living at the time of
his death, who would like to become a priest, was still in grade school or in high school or was not
yet in the seminary. In that case, the parish priest of Victoria would administer the ricelands before
the nephew entered the seminary. But the moment the testator's nephew entered the seminary, then
he would be entitled to enjoy and administer the ricelands and receive the fruits thereof. In that
event, the trusteeship would be terminated.
Following that interpretation of the will the inquiry would be whether at the time Father Rigor died in
1935 he had a nephew who was studying for the priesthood or who had manifested his desire to
follow the ecclesiastical career. That query is categorically answered in paragraph 4 of appellant
priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged therein that
"not male relative of the late (Father) Pascual Rigor has ever studied for the priesthood" (pp. 25 and
35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable
conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest of Victoria, as envisaged in the wilt was likewise
inoperative.
The appellant in contending that a public charitable trust was constituted by the testator in is favor
assumes that he was a trustee or a substitute devisee That contention is untenable. A reading of the
testamentary provisions regarding the disputed bequest not support the view that the parish priest of
Victoria was a trustee or a substitute devisee in the event that the testator was not survived by a
nephew who became a priest.
It should be understood that the parish priest of Victoria could become a trustee only when the
testator's nephew living at the time of his death, who desired to become a priest, had not yet entered
the seminary or, having been ordained a priest, he was excommunicated. Those two contingencies
did not arise, and could not have arisen in this case because no nephew of the testator manifested
any intention to enter the seminary or ever became a priest.
The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code,
now article 956, which provides that if "the bequest for any reason should be inoperative, it shall be
merged into the estate, except in cases of substitution and those in which the right of accretion
exists" ("el legado ... por qualquier causa, no tenga efecto se refundira en la masa de la herencia,
fuera de los casos de sustitucion y derecho de acrecer").
This case is also covered by article 912(2) of the old Civil Code, now article 960 (2), which provides
that legal succession takes place when the will "does not dispose of all that belongs to the testator."
There being no substitution nor accretion as to the said ricelands the same should be distributed
among the testator's legal heirs. The effect is as if the testator had made no disposition as to the
said ricelands.
The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may
be mixed succession. The old rule as to the indivisibility of the testator's will is no longer valid. Thus,
if a conditional legacy does not take effect, there will be intestate succession as to the property
recovered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
PAZ SAMANIEGO-CELADA, Petitioner, - versus - G.R. No. 145545 Present: QUISUMBING, J.,
Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ. LUCIA D. ABENA,
Respondent. Promulgated: June 30, 2008
(The will of the decedent satisfies the requirements on the formalities of the will given in favor of the
respondent whereas the former executed the same with full knowledge without fraud and minor
discrepancies such as size and appearance of signature on different pages of the will do not
necessarily invalidate the will in the absence of fraud, undue pressure or influence and the non-
inclusion of notarial will in attesting the number of pages of the will as the same is not really included
and further the picture admitted as evidence shows that the testator was smiling and in good mood
while surrounded by the instrumental witnesses and notary thus, the claim of petitioner as
compulsory heirs with the above disquisition devising the properties in favor of respondent being
valid disposition of decedent’s properties by virtue of will has no leg to stand claiming a right to be
part of decedent’s estate)

Nonetheless, a review of the findings of the RTC as upheld by the Court of

Appeals, reveal that petitioners arguments lack basis. The RTC correctly held:
With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.]
that the testator [Margarita Mayores] was not mentally capable of making a will at the
time of the execution thereof, the same is without merit. The oppositors failed to
establish, by preponderance of evidence, said allegation and contradict the presumption
that the testator was of sound mind (See Article 800 of the Civil Code). In fact, witness for
the oppositors, Dr. Ramon Lamberte, who, in some occasions, attended to the testator
months before her death, testified that Margarita Mayores could engage in a normal
conversation and he even stated that the illness of the testator does not warrant
hospitalization. Not one of the oppositors witnesses has mentioned any instance that
they observed act/s of the testator during her lifetime that could be construed as a
manifestation of mental incapacity. The testator may be admitted to be physically weak
but it does not necessarily follow that she was not of sound mind. [The] testimonies of
contestant witnesses are pure aforethought.

Anent the contestants submission that the will is fatally defective for the reason
that its attestation clause states that the will is composed of three (3) pages while in truth
 and in fact, the will consists of two (2) pages only because the attestation is not a part of
the notarial will, the same is not accurate. While it is true that the attestation clause is
not a part of the will, the court, after examining the totality of the will, is of the considered
opinion that error in the number of pages of the will as stated in the attestation clause is
not material to invalidate the subject will. It must be noted that the subject instrument is
consecutively lettered with pages A, B, and C which is a sufficient safeguard from the
possibility of an omission of some of the pages. The error must have been brought about
by the honest belief that the will is the whole instrument consisting of three (3) pages
inclusive of the attestation clause and the acknowledgement. The position of the court is
in consonance with the doctrine of liberal interpretation enunciated in Article 809 of the
Civil Code which reads:

In the absence of bad faith, forgery or fraud, or undue [and] improper

pressure and influence, defects and imperfections in the form of
attestation or in the language used therein shall not render the will
invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of Article 805.

The court also rejects the contention of the oppositors that the signatures of the
testator were affixed on different occasions based on their observation that the signature
on the first page is allegedly different in size, texture and appearance as compared with
the signatures in the succeeding pages. After examination of the signatures, the court
does not share the same observation as the oppositors. The picture (Exhibit H-3) shows
that the testator was affixing her signature in the presence of the instrumental witnesses
and the notary. There is no evidence to show that the first signature was procured earlier
than February 2, 1987.

Finally, the court finds that no pressure nor undue influence was exerted on the
testator to execute the subject will. In fact, the picture reveals that the testator was in a
good mood and smiling with the other witnesses while executing the subject will (See
Exhibit H).

In fine, the court finds that the testator was mentally capable of making the will
at the time of its execution, that the notarial will presented to the court is the same
notarial will that was executed and that all the formal requirements (See Article 805 of
the Civil Code) in the execution of a will have been substantially complied with in the
subject notarial will.[14](Emphasis supplied.)

Thus, we find no reason to disturb the abovementioned findings of the

RTC. Since, petitioner and her siblings are not compulsory heirs of the decedent
under Article 887[15] of the Civil Code and as the decedent validly disposed of her
properties in a will duly executed and probated, petitioner has no legal right to
claim any part of the decedents estate.
 E. Law governing form and content

Article 16. Real property as well as personal property is subject to the law of the country where it is
stipulated.
However, intestate and testamentary successions, both with respect to the order of succession and
to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration, whatever may
be the nature of the property and regardless of the country wherein said property may be found.
(10a)
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of
the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed
in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have for their object
public order, public policy and good customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country. (11a)

Article 795. The validity of a will as to its form depends upon the observance of the law in force at
the time it is made. (n)
Article 810. A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be made in or out
of the Philippines, and need not be witnessed. (678, 688a)
Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the
forms established by the law of the country in which he may be. Such will may be probated in the
Philippines. (n)
Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this Code prescribes. (n)

Article 817. A will made in the Philippines by a citizen or subject of another country, which is
executed in accordance with the law of the country of which he is a citizen or subject, and which
might be proved and allowed by the law of his own country, shall have the same effect as if executed
according to the laws of the Philippines. (n)

Article 818. Two or more persons cannot make a will jointly, or in the same instrument, either for
their reciprocal benefit or for the benefit of a third person. (669)
Article 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall
not be valid in the Philippines, even though authorized by the laws of the country where they may
have been executed. (733a)

Article 2263. Rights to the inheritance of a person who died, with or without a will, before the
effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by
the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the
effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws
and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may
be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be
respected; however, their amount shall be reduced if in no other manner can every compulsory heir
be given his full share according to this Code. (Rule 12a)

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.

SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.

(A will made in 1943 which time the old Civil Code prohibits the holographic will meaning a full
handwritten will is not valid regards should be had on the law enforced at the time of the execution of
the will in determining the validity of the will as to its forms further, the New Civil Code upon its
promulgation only now allows the holographic will thus, the law governing the form of the will subject
of this case executed in 1943 is the law governing at that time thee old Civil Code which disallowed
making of holographic will)

The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the
handwriting of the testator and that although at the time it was executed and at the time of the
testator's death, holographic wills were not permitted by law still, because at the time of the hearing
and when the case was to be decided the new Civil Code was already in force, which Code
permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the
testator which according to the trial court is the controlling factor and may override any defect in
form, said trial court by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last
Will and Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and
because only questions of law are involved in the appeal, the case was certified to us by the Court of
Appeals.

The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may
execute a holographic will which must be entirely written, dated and signed by the testator himself
and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in
1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and the
law at the time imposed certain requirements for the execution of wills, such as numbering
correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the
testator and by the three attesting witnesses, requirements which were not complied with in Exhibit
"A" because the back pages of the first two folios of the will were not signed by any one, not even by
the testator and were not numbered, and as to the three front pages, they were signed only by the
testator.
Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41
Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand
margin of every page, said:

. . . . This defect is radical and totally vitiates the testament. It is not enough that the
signatures guaranteeing authenticity should appear upon two folios or leaves; three pages
having been written on, the authenticity of all three of them should be guaranteed by the
signature of the alleged testatrix and her witnesses.

And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court
declared:
 From an examination of the document in question, it appears that the left margins of the six
pages of the document are signed only by Ventura Prieto. The noncompliance with section 2
of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left
margin of each of the five pages of the document alleged to be the will of Ventura Prieto, is a
fatal defect that constitutes an obstacle to its probate.
What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil
Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the
appellee-petitioner and applied by the lower court? But article 795 of this same new Civil Code
expressly provides: "The validity of a will as to its form depends upon the observance of the law in
force at the time it is made." The above provision is but an expression or statement of the weight of
authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the
testator's death or at the time the supposed will is presented in court for probate or when the petition
is decided by the court but at the time the instrument was executed. One reason in support of the
rule is that although the will operates upon and after the death of the testator, the wishes of the
testator about the disposition of his estate among his heirs and among the legatees is given solemn
expression at the time the will is executed, and in reality, the legacy or bequest then becomes a
completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil.,
23. It is a wholesome doctrine and should be followed.
Of course, there is the view that the intention of the testator should be the ruling and controlling
factor and that all adequate remedies and interpretations should be resorted to in order to carry out
said intention, and that when statutes passed after the execution of the will and after the death of the
testator lessen the formalities required by law for the execution of wills, said subsequent statutes
should be applied so as to validate wills defectively executed according to the law in force at the time
of execution. However, we should not forget that from the day of the death of the testator, if he
leaves a will, the title of the legatees and devisees under it becomes a vested right, protected under
the due process clause of the constitution against a subsequent change in the statute adding new
legal requirements of execution of wills which would invalidate such a will. By parity of reasoning,
when one executes a will which is invalid for failure to observe and follow the legal requirements at
the time of its execution then upon his death he should be regarded and declared as having died
intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more
liberal requirements or which dispenses with such requirements as to execution should be allowed to
validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate
succession. The general rule is that the Legislature can not validate void wills

In the matter Estate of Edward Randolph Hix, deceased.

A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee. (It is necessary for a testator to prove his domicile to
effectuate which law would govern the administration of the estate proceedings as when this csase
for probate was filed in this country’s legal jurisdiction earlier than the West Virginia in just fraction of
months reveals the intention that parties intended the Philippine courts to be the principal
administration and West Virginia as ancillary administration; A will remained to be unsubstantiated
by evidence complying with the legal formalities, instrumental witnesses and notary cannot be
allowed to be probated

The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of
First Instance Tuason denying the probate of the document alleged to by the last will and testament
of the deceased. Appellee is not authorized to carry on this appeal. We think, however, that the
appellant, who appears to have been the moving party in these proceedings, was a "person
interested in the allowance or disallowance of a will by a Court of First Instance," and so should be
permitted to appeal to the Supreme Court from the disallowance of the will (Code of Civil Procedure,
sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil., 780).
It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November
3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of West Verginia Code,
Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the
National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction
do not prove themselves in our courts. the courts of the Philippine Islands are not authorized to take
American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.)
Here the requirements of the law were not met. There was no was printed or published under the
authority of the State of West Virginia, as provided in section 300 of the Code of Civil Procedure. Nor
was the extract from the law attested by the certificate of the officer having charge of the original,
under the sale of the State of West Virginia, as provided in section 301 of the Code of Civil
Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was
in force at the time the alleged will was executed.
In addition, the due execution of the will was not established. The only evidence on this point is to be
found in the testimony of the petitioner. Aside from this, there was nothing to indicate that the will
was acknowledged by the testator in the presence of two competent witnesses, of that these
witnesses subscribed the will in the presence of the testator and of each other as the law of West
Virginia seems to require. On the supposition that the witnesses to the will reside without the
Philippine Islands, it would then the duty of the petitioner to prove execution by some other means
(Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia
and not establish this fact consisted of the recitals in the CATHY will and the testimony of the
petitioner. Also in beginning administration proceedings orginally in the Philippine Islands, the
petitioner violated his own theory by attempting to have the principal administration in the Philippine
Islands.
While the appeal pending submission in this court, the attorney for the appellant presented an
unverified petition asking the court to accept as part of the evidence the documents attached to the
petition. One of these documents discloses that a paper writing purporting to be the was presented
for probate on June 8, 1929, to the clerk of Randolph Country, State of West Virginia, in vacation,
and was duly proven by the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing
witnesses thereto , and ordered to be recorded and filed. It was shown by another document that, in
vacation, on June 8, 1929, the clerk of court of Randolph Country, West Virginia, appointed Claude
W. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix,
deceased. In this connection, it is to be noted that the application for the probate of the will in the
Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have
been initiated on June 8, 1929. These facts are strongly indicative of an intention to make the
Philippines the principal administration and West Virginia the ancillary administration. However this
may be, no attempt has been made to comply with Civil Procedure, for no hearing on the question of
the allowance of a will said to have been proved and allowed in West Virginia has been requested.
There is no showing that the deceased left any property at any place other than the Philippine
Islands and no contention that he left any in West Virginia.
Reference has been made by the parties to a divorce purported to have been awarded Edward
Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of West specific
pronouncements on the validity or validity of this alleged divorce.
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents. (The probate of joint will by petitioner spouses who is still presently living is
invalid for being prohibited by law)

The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of
First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his
last will and testament despite the fact that even then the Civil Code already decreed the invalidity of
joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the probate court was an error of law, that should have
been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the
conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for
the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates
of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional
errors judgment of courts should become final at some definite date fixed by law. Interest rei
publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran,
Comments on the Rules of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939
decree admitting his will to probate. The contention that being void the will cannot be validated,
overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here
they have spoken with finality when the will was probated in 1939. On this court, the dismissal of
their action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that
the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la
Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then
still alive, and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to
the new Civil Code, a will could not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be,
on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of
each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is
one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the
properties in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87
Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common usage could not
make them valid when our Civil Codes consistently invalidated them, because laws are only
repealed by other subsequent laws, and no usage to the contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees. (The law of nationality of the deceased who left a
will devising and legating his properties in US and Philippines to his children from the first and
second marriage being Texas shall govern the will respecting the renvoi doctrine in case of conflict
in nationality and domicile arose; thus, the law on legitime in the Philippines cannot be applied in
thus case to legate money shares in the will as legitime being illegitimate children becoming
compulsory heirs)
Issue: Whether or not the law of the Philippines shall govern?

In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied
by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually
pertinent where the decedent is a national of one country, and a domicile of another. In the present
case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the
time of his death.2 So that even assuming Texas has a conflict of law rule providing that the
domiciliary system (law of the domicile) should govern, the same would not result in a reference
back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a
conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place
where the properties are situated, renvoi would arise, since the properties here involved are found in
the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not
be presumed different from ours.3 Appellants' position is therefore not rested on the doctrine of
renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue
that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation
to Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent,
in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b)
the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed. They provide that —

ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may he the nature of the property and
regardless of the country wherein said property may be found.

ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that —

Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.
Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil
Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil
Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art.
16 a specific provision in itself which must be applied in testate and intestate succession. As further
indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees
that capacity to succeed is to be governed by the national law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our System of
legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For
it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's
national law. Specific provisions must prevail over general ones.

Appellants would also point out that the decedent executed two wills — one to govern his Texas
estate and the other his Philippine estate — arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such was the decedent's intention in executing a
separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil.
867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in
accordance with Philippine law and not with his national law, is illegal and void, for his national law
cannot be ignored in regard to those matters that Article 10 — now Article 16 — of the Civil Code
states said national law should govern.

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and
that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the amount of successional rights are to be determined under
Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.

II. Testamentary Succession

A. Concept of Wills;Testamentary Capacity and Intent; Notarial Wills; Witnesses to Wills

A SUBSECTION 1. Wills in General

Article 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of this estate, to take effect after his death. (667a)
Article 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the
discretion of a third person, or accomplished through the instrumentality of an agent or attorney.
(670a)
Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the
determination of the portions which they are to take, when referred to by name, cannot be left to the
discretion of a third person. (670a)
Article 786. The testator may entrust to a third person the distribution of specific property or sums of
money that he may leave in general to specified classes or causes, and also the designation of the
persons, institutions or establishments to which such property or sums are to be given or applied.
(671a)
Article 787. The testator may not make a testamentary disposition in such manner that another
person has to determine whether or not it is to be operative. (n)
Article 788. If a testamentary disposition admits of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative shall be preferred. (n)
Article 789. When there is an imperfect description, or when no person or property exactly answers
the description, mistakes and omissions must be corrected, if the error appears from the context of
the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention;
and when an uncertainty arises upon the face of the will, as to the application of any of its provisions,
the testator's intention is to be ascertained from the words of the will, taking into consideration the
circumstances under which it was made, excluding such oral declarations. (n)
Article 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a
clear intention to use them in another sense can be gathered, and that other can be ascertained.

Technical words in a will are to be taken in their technical sense, unless the context clearly indicates
a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator,
and that he was unacquainted with such technical sense. (675a)
Article 791. The words of a will are to receive an interpretation which will give to every expression
some effect, rather than one which will render any of the expressions inoperative; and of two modes
of interpreting a will, that is to be preferred which will prevent intestacy. (n)
Article 792. The invalidity of one of several dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been made. (n)
Article 793. Property acquired after the making of a will shall only pass thereby, as if the testator
had possessed it at the time of making the will, should it expressly appear by the will that such was
his intention. (n)
Article 794. Every devise or legacy shall cover all the interest which the testator could device or
bequeath in the property disposed of, unless it clearly appears from the will that he intended to
convey a less interest. (n)

Article 795. The validity of a will as to its form depends upon the observance of the law in force at
the time it is made. (n)

SUBSECTION 2. Testamentary Capacity and Intent

Article 796. All persons who are not expressly prohibited by law may make a will. (662)
Article 797. Persons of either sex under eighteen years of age cannot make a will. (n)
Article 798. In order to make a will it is essential that the testator be of sound mind at the time of its
execution. (n)
Article 799. To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease,
injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature of the
estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.
(n)
Article 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.
The burden of proof that the testator was not of sound mind at the time of making his dispositions is
on the person who opposes the probate of the will; but if the testator, one month, or less, before
making his will was publicly known to be insane, the person who maintains the validity of the will
must prove that the testator made it during a lucid interval. (n)
Article 801. Supervening incapacity does not invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity. (n)

Article 802. A married woman may make a will without the consent of her husband, and without the
authority of the court. (n)
Article 803. A married woman may dispose by will of all her separate property as well as her share
of the conjugal partnership or absolute community property. (n)
SUBSECTION 3. Forms of Wills

Article 804. Every will must be in writing and executed in a language or dialect known to the
testator. (n)
Article 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
(n)
Article 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another with the
office of the Clerk of Court.(n)

Article 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so;
otherwise, he shall designate two persons to read it and communicate to him, in some practicable
manner, the contents thereof. (n)
Article 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged. (n)
Article 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805. (n)
SUBSECTION 4. - Witnesses to Wills
Article 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf
or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article
805 of this Code. (n)
Article 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document, perjury or false testimony.
(n)
Article 822. If the witnesses attesting the execution of a will are competent at the time of attesting,
their becoming subsequently incompetent shall not prevent the allowance of the will. (n)
Article 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or
child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns
such person, or spouse, or parent, or child of such person, or any one claiming under such person or
spouse, or parent, or child, be void, unless there are three other competent witnesses to such will.
However, such person so attesting shall be admitted as a witness as if such devise or legacy had
not been made or given. (n)
Article 824. A mere charge on the estate of the testator for the payment of debts due at the time of
the testator's death does not prevent his creditors from being competent witnesses to his will. (n)
SUBSECTION 6. Revocation of Wills and Testamentary Dispositions
Article 828. A will may be revoked by the testator at any time before his death. Any waiver or
restriction of this right is void. (737a)
Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of
its execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should be
his will at the time of affixing his signature thereto. (n)

Article 930. The legacy or devise of a thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if the thing bequeathed, though not
belonging to the testator when he made the will, afterwards becomes his, by whatever title, the
disposition shall take effect. (862a)

NENITA DE VERA SUROZA, complainant,

vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents (A will executed in English
language not known to the Igorot testator an illiterate purported by the guardian in favor of the latter
manifesting undue influence is void and thus, disallowance of the will is proper)

Should disciplinary action be taken against respondent judge for having admitted to probate a will,
which on its face is void because it is written in English, a language not known to the illiterate
testatrix, and which is probably a forged will because she and the attesting witnesses did not appear
before the notary as admitted by the notary himself?

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

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents. (A cross line appearing on the will in Ilocano dialect
cannot be likened as thumbmark of the decedent sufficient to satisfy the legal formalities required by
law)

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the
end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the
testator and each and every one of the witnesses; (2) to certify that after the signing of the name of
the testator by Atty. Javier at the former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end thereof; (3)
to certify that the three witnesses signed the will in all the pages thereon in the presence of the
testator and of each other.

In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as required by
section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado
or even one of the ways by which he signed his name. After mature reflection, we are not prepared
to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.
AUREA MATIAS, petitioner,
vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents. (An administrator brought by old age
cannot perform the office of testate estate administratrix of the decedent may be substituted by other
co-administrator to perform the duties of the same; thus, the office of the administratrix can be
performed conjunctively in peculiar cases wherein the function of one in certain property is different
from the other)

The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special administrator
may be appointed to administrator temporarily" the estate of the deceased, must be considered in
the light of the facts obtaining in said case. The lower court appointed therein one special
administrator for some properties forming part of said estate, and a special administratrix for other
properties thereof. Thus, there were two (2) separate and independent special administrators. In the
case at bar there is only one (1) special administration, the powers of which shall be exercised jointly
by two special co-administrators. In short, the Roxas case is not squarely in point. Moreover, there
are authorities in support of the power of courts to appoint several special co-administrators

Matias vs. Salud

The CFI denied probate of the will of Gabina Raquel. It must be noted that
Gabina Raquel was suffering from herpes zoster that afflicted the right arm and shoulder
of the testatrix, which made writing difficult and a painful act. Thus, upon the insistence
of the attorney, Gabina attempted to sign, but since it was so painful she just managed to
thumbmarked the foot of the document and the left margin at each page. The parties
opposing the probate of the will contended that the will was void due to the irregularities
in the execution thereof.

One of the points raised by the oppositors was that the finger mark can not be regarded as
the decedent’s valid signature as it does not show distinct identifying ridgelines. And since
the finger mark was an invalid signature, there must appear in the attestation clause that
another person wrote the testator’s name at his request.

ISSUE:

W/N the will was valid.

HELD:

YES. As to the clarity of the ridge impressions, it is so dependent on aleatory requirements

as to require dexterity that can be expected of very few persons; testators should not be
required to possess the skill of trained officers.

And as to the validity of the thumbprints as signature, the SC held that it has been held in
a long line of cases that a thumbprint is always a valid and sufficient signature for the
purpose of complying with the requirement of the article.
Furthermore, the validity of thumbprints should not be limited in cases of illness or
infirmity. A thumbprint is considered as a valid and sufficient signature in complying with
the requirements of the article.

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant. (A witness to the due execution of will as legal
formalities who is ten foot away from the subscribing officer is sufficient to have witnessed the due
execution unless otherwise, the contrary is proved)

The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was present in
the small room where it was executed at the time when the testator and the other subscribing
witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet
away, in a large room connecting with the smaller room by a doorway, across which was hung a
curtain which made it impossible for one in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small
room with the testator and the other subscribing witnesses at the time when they attached their
signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate as the last will and testament of the
deceased.

The trial judge does not appear to have considered the determination of this question of fact of vital
importance in the determination of this case, as he was of opinion that under the doctrine laid down
in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing
witnesses was in the outer room when the testator and the other describing witnesses signed the
instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the
execution of the will. But we are unanimously of opinion that had this subscribing witness been
proven to have been in the outer room at the time when the testator and the other subscribing
witnesses attached their signatures to the instrument in the inner room, it would have been invalid as
a will, the attaching of those signatures under circumstances not being done "in the presence" of the
witness in the outer room. This because the line of vision from this witness to the testator and the
other subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might have been seen each
other sign, had they chosen to do so, considering their mental and physical condition and
position with relation to each other at the moment of inscription of each signature.

But it is especially to be noted that the position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that they may see each other sign if
they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses
may be held to have executed the instrument in the presence of each other if it appears that they
would not have been able to see each other sign at that moment, without changing their relative
positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that
"at the moment when the witness Javellana signed the document he was actually and physically
present and in such position with relation to Jaboneta that he could see everything that took place by
merely casting his eyes in the proper direction and without any physical obstruction to prevent his
doing so." And the decision merely laid down the doctrine that the question whether the testator and
the subscribing witnesses to an alleged will sign the instrument in the presence of each other does
not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of
its subscription by each of them, but that at that moment existing conditions and their position with
relation to each other were such that by merely casting the eyes in the proper direction they could
have seen each other sign. To extend the doctrine further would open the door to the possibility of all
manner of fraud, substitution, and the like, and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument propounded therein to probate as
the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance
against the appellant.

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants. (A will’s page remained
unauthenticated by signature of the testatrix composing two original copies while the other is
completed by signature and the one presented was not, a defense of the oppositor-respondents in
the probate initiated by petitioner, due to overlooking in flipping the page by two instead of one an
honest mistake does not negate the validity of the will where it substantially complied with the
acknowledgement of both the original and duplicate copies of the will, notarized and witnessed by
three instrumental witnesses)

We have examined the record and are satisfied, as the trial court was, that the testatrix signed both
original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the
same in the presence of the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and
read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that
the attestation clause is also in a language known to and spoken by the testatrix and the witnesses.
The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing
in the duplicate original were not written by the same had which wrote the signatures in the original
will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for
the proponents, but principally because of the paucity of the standards used by him to support the
conclusion that the differences between the standard and questioned signatures are beyond the
writer's range of normal scriptural variation. The expert has, in fact, used as standards only three
other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and
we feel that with so few standards the expert's opinion and the signatures in the duplicate could not
be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the
charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right the original. These,
factors were not discussed by the expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering the standard and challenged writings were affixed to different
kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find
the testimony of the oppositor's expert sufficient to overcome that of the notary and the two
instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did
not testify).

Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more
favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163;
Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that
the heirs should not inquire into other property and that they should respect the distribution made in
the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or
undue influence. They appear motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the
hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated
on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs.
Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other;
their joining as grounds for opposing probate shows absence of definite evidence against the validity
of the will.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to
one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not
per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not
only the fact that the testatrix and two other witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose conduct she
had no control, where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated
in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses
may sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is
shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set
of signatures in every page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of
a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs.
Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the
legal requirements in order to guard against fraud and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in existence and available, the
duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a
dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed
carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated,
then the objection to the signed duplicate need not be considered, being superfluous and irrelevant.
At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third
page of the original testament was inadvertent and not intentional.

That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does
not affect the jurisdiction of the probate court, already conferred by the original publication of the
petition for probate. The amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing is made that new
interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants
were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no error in admitting the amended
petition.

AGAPITA N. CRUZ, petitioner,

vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First Instance
of Cebu, and MANUEL B. LUGAY, respondents. (Notary public does not act as witness in
subscribing and acknowledging a will as the same would be contrary to the clear intention of the law
to observe the acknowledgement of the will by testator and two witnesses)

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the probate
of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the
surviving spouse of the said decease opposed the allowance of the will (Exhibit "E"), alleging the will
was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument
was execute without the testator having been fully informed of the content thereof, particularly as to
what properties he was disposing and that the supposed last will and testament was not executed in
accordance with law. Notwithstanding her objection, the Court allowed the probate of the said last
will and testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges, is whether
the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in accordance
with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring at least three
credible witnesses to attest and subscribe to the will, and the second requiring the testator and the
witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr. Francisco
Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same time the Notary
Public before whom the will was supposed to have been acknowledged. Reduced to simpler terms,
the question was attested and subscribed by at least three credible witnesses in the presence of the
testator and of each other, considering that the three attesting witnesses must appear before the
notary public to acknowledge the same. As the third witness is the notary public himself, petitioner
argues that the result is that only two witnesses appeared before the notary public to acknowledge
the will. On the other hand, private respondent-appellee, Manuel B. Lugay, who is the supposed
executor of the will, following the reasoning of the trial court, maintains that there is substantial
compliance with the legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.
After weighing the merits of the conflicting claims of the parties, We are inclined to sustain that of the
appellant that the last will and testament in question was not executed in accordance with law. The
notary public before whom the will was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before himself his having signed the will. To
acknowledge before means to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100
Phil. 239, 247); to own as genuine, to assent, to admit; and "before" means in front or preceding in
space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language, p. 72; Funk
& Wagnalls New Standard Dictionary of the English Language, p. 252; Webster's New International
Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he would
have to avow assent, or admit his having signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or immoral
arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the notary public
were one of the attesting instrumental witnesses. For them he would be interested sustaining the
validity of the will as it directly involves him and the validity of his own act. It would place him in
inconsistent position and the very purpose of acknowledgment, which is to minimize fraud (Report of
Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as a
witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64 0. G.
4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his signing merely as
notary in a will nonetheless makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346;
In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So.
496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in this
jurisdiction or are not decisive of the issue herein because the notaries public and witnesses referred
to aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not
as acknowledging witnesses. He the notary public acted not only as attesting witness but also
acknowledging witness, a situation not envisaged by Article 805 of the Civil Code which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the will
or file another with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging witnesses,
would have the effect of having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 80 be requiring at least three credible witnesses to act as
such and of Article 806 which requires that the testator and the required number of witnesses must
appear before the notary public to acknowledge the will. The result would be, as has been said, that
only two witnesses appeared before the notary public for or that purpose. In the circumstances, the
law would not be duly in observed.

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee,

vs.
DOÑA MATEA LEDESMA, oppositor-appellant. (A will acknowledged before the notary and
instrumental witnesses is a sufficient requirement to validate the will)

The contestant argues that the Court below erred in refusing credence to her witnesses Maria
Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma.
Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the
will) inform the deceased that he had brought the "testamento" and urge her to go to attorney
Tabiana's office to sign it; that Da. Apolinaria manifested that she could not go, because she was not
feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and
not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and
returned it with the statement that no one would question it because the property involved was
exclusively hers.

Our examination of the testimony on record discloses no grounds for reversing the trial Court's
rejection of the improbable story of the witnesses. It is squarely contradicted by the concordant
testimony of the instrumental witnesses, Vicente Yap, Atty. Ramon Tabiana, and his wife Gloria
Montinola, who asserted under oath that the testament was executed by testatrix and witnesses in
the presence of each other, at the house of the decedent on General Hughes St., Iloilo City, on
March 30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap should
have insisted that Da. Apolinaria, an infirm lady then over 80 years old, should leave her own house
in order to execute her will, when all three witnesses could have easily repaired thither for the
purpose. Moreover, the cross-examination has revealed fatal flaws in the testimony of Contestant's
witnesses. Both claim to have heard the word "testamento" for the first time when Yap used it; and
they claimed ability to recall that word four years later, despite the fact that the term meant nothing to
either. It is well known that what is to be remembered must first be rationally conceived and
assimilated (II Moore on Facts, p. 884). Likewise, Maria Paderogao was positive that Yap brought
the will, and that the deceased alone signed it, precisely on March 30, 1950; but she could
remember no other date, nor give satisfactory explanation why that particular day stuck in her mind.
Worse still, Allado claimed to have heard what allegedly transpired between Yap and Da. Apolinaria
from the kitchen of the house, that was later proved to have been separated from the deceased's
quarters, and standing at a much lower level, so that conversations in the main building could not be
distinctly heard from the kitchen. Later, on redirect examination, Allado sought to cure his testimony
by claiming that he was upstairs in a room where the servants used to eat when he heard Yap
converse with his mistress; but this correction is unavailing, since it was plainly induced by two
highly leading questions from contestant's counsel that had been previously ruled out by the trial
Court. Besides, the contradiction is hardly consonant with this witness' 18 years of service to the
deceased.

Upon the other hand, the discrepancies in the testimony of the instrumental witnesses urged upon
us by the contestant-appellant, concerning the presence or absence of Aurelio Montinola at the
signing of the testament or of the codicil, and the identity of the person who inserted the date therein,
are not material and are largely imaginary, since the witness Mrs. Tabiana confessed inability to
remember all the details of the transaction. Neither are we impressed by the argument that the use
of some Spanish terms in the codicil and testament (like legado, partes iguales, plena propiedad) is
proof that its contents were not understood by the testatrix, it appearing in evidence that those terms
are of common use even in the vernacular, and that the deceased was a woman of wide business
interests.

The most important variation noted by the contestants concerns that signing of the certificate of
acknowledgment (in Spanish) appended to the Codicil in Visayan, Exhibit E. Unlike the testament,
this codicil was executed after the enactment of the new Civil Code, and, therefore, had to be
acknowledged before a notary public (Art. 806). Now, the instrumental witnesses (who happen to be
the same ones who attested the will of 1950) asserted that after the codicil had been signed by the
testatrix and the witnesses at the San Pablo Hospital, the same was signed and sealed by notary
public Gimotea on the same occasion. On the other hand, Gimotea affirmed that he did not do so,
but brought the codicil to his office, and signed and sealed it there. The variance does not
necessarily imply conscious perversion of truth on the part of the witnesses, but appears rather due
to a well-established phenomenon, the tendency of the mind, in recalling past events, to substitute
the usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The Ellen
McGovern, 27 Fed. 868, 870).

At any rate, as observed by the Court below, whether or not the notary signed the certification of
acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the
codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of
the testator, witnesses and notary should be accomplished in one single act. A comparison of
Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the
presence of each other, all that is thereafter required is that "every will must be acknowledged before
a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the
certifying officer the authenticity of their signatures and the voluntariness of their actions in executing
the testamentary disposition. This was done in the case before us. The subsequent signing and
sealing by the notary of his certification that the testament was duly acknowledged by the
participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their
separate execution out of the presence of the testatrix and her witnesses can not be said to violate
the rule that testaments should be completed without interruption (Andalis vs. Pulgueras, 59 Phil.
643), or, as the Roman maxim puts it, "uno codem die ac tempore in eadem loco", and no reversible
error was committed by the Court in so holding. It is noteworthy that Article 806 of the new Civil
Code does not contain words requiring that the testator and the witnesses should acknowledge the
testament on the same day or occasion that it was executed.

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN CABALLERO, AUREA

CABALLERO, OSCAR LAROSA, HELEN CABALLERO, SANTOS CABALLERO, PABLO
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA * ABAPO VELANO, and CONSESO
CANEDA, represented herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA and
ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special Administrator of the Estate
of Mateo Caballero, respondents.

(A will made by the testator who filed for probate of his estate himself before his demise succeeded
by his heirs does not comply with substantial compliance as required by law on legal formalities thus,
intestate estate is reinstituted)

We find the present petition to be meritorious, as we shall shortly hereafter, after some prefatory
observations which we feel should be made in aid of the rationale for our resolution of the
controversy.

1. A will has been defined as a species of conveyance whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his estate after his
death. 13 Under the Civil Code, there are two kinds of wills which a testator may execute.14 the first
kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the
Code. Article 805 requires that:

Art. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by three
or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
 except the last, on the left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.

The attestation should state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witness, it shall be

interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by a testator and the
attesting witness. 15hence it is likewise known as notarial will. Where the attestator is deaf or deaf-
mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he
should designate two persons who would read the will and communicate its contents to him in a
practicable manner. On the other hand, if the testator is blind, the will should be read to him twice;
once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is
acknowledged. 16

The other kind of will is the holographic will, which Article 810 defines as one that is entirely written,
dated, and signed by the testator himself. This kind of will, unlike the ordinary type, requires no
attestation by witnesses. A common requirement in both kinds of will is that they should be in writing
and must have been executed in a language or dialect known to the testator. 17

However, in the case of an ordinary or attested will, its attestation clause need not be written in a
language or dialect known to the testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise need not even be known to the
attesting witnesses. 18 The last paragraph of Article 805 merely requires that, in such a case, the
attestation clause shall be interpreted to said witnesses.

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify
that the instrument has been executed before them and to the manner of the execution the
same. 19 It is a separate memorandum or record of the facts surrounding the conduct of execution
and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential
formalities required by law has been observed. 20 It is made for the purpose of preserving in a
permanent form a record of the facts that attended the execution of a particular will, so that in case
of failure of the memory of the attesting witnesses, or other casualty, such facts may still be
proved. 21

Under the third paragraph of Article 805, such a clause, the complete lack of which would result in
the invalidity of the will, 22 should state (1) the number of the pages used upon which the will is
written; (2) that the testator signed, or expressly caused another to sign, the will and every page
thereof in the presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the
signing by the testator of the will and all its pages, and that said witnesses also signed the will and
every page thereof in the presence of the testator and of one another.

The purpose of the law in requiring the clause to state the number of pages on which the will is
written is to safeguard against possible interpolation or omission of one or some of its pages and to
prevent any increase or decrease in the pages;23 whereas the subscription of the signature of the
testator and the attesting witnesses is made for the purpose of authentication and identification, and
thus indicates that the will is the very same instrument executed by the testator and attested to by
the witnesses.24

Further, by attesting and subscribing to the will, the witnesses thereby declare the due execution of
the will as embodied in the attestation clause.25 The attestation clause, therefore, provide strong legal
guaranties for the due execution of a will and to insure the authenticity thereof.26 As it appertains only
to the witnesses and not to the testator, it need be signed only by them.27 Where it is left unsigned, it
would result in the invalidation of the will as it would be possible and easy to add the clause on a
subsequent occasion in the absence of the testator and its witnesses.28

In its report, the Code Commission commented on the reasons of the law for requiring the formalities
to be followed in the execution of wills, in the following manner:

The underlying and fundamental objectives permeating the provisions on the law on
wills in this Project consists in the liberalization of the manner of their execution with
the end in view of giving the testator more freedom in expressing his last wishes, but
with sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills. . . .29

2. An examination of the last will and testament of Mateo Caballero shows that it is comprised of
three sheets all of which have been numbered correlatively, with the left margin of each page thereof
bearing the respective signatures of the testator and the three attesting witnesses. The part of the
will containing the testamentary dispositions is expressed in the Cebuano-Visayan dialect and is
signed at the foot thereof by the testator. The attestation clause in question, on the other hand, is
recited in the English language and is likewise signed at the end thereof by the three attesting
witnesses hereto.30 Since it is the proverbial bone of contention, we reproduce it again for facility of
reference:

We, the undersigned attesting Witnesses, whose Residences and postal addresses
appear on the Opposite of our respective names, we do hereby certify that the
Testament was read by him and the testator, MATEO CABALLERO; has published
unto us the foregoing Will consisting of THREE PAGES, including the
Acknowledgment, each page numbered correlatively in the letters on the upper part
of each page, as his Last Will and Testament and he has the same and every page
thereof, on the spaces provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all of us.

It will be noted that Article 805 requires that the witness should both attest and subscribe to the will
in the presence of the testator and of one another. "Attestation" and "subscription" differ in meaning.
Attestation is the act of senses, while subscription is the act of the hand. The former is mental, the
latter mechanical, and to attest a will is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe a paper published as a will is
only to write on the same paper the names of the witnesses, for the sole purpose of identification.31

In Taboada vs. Rizal,32 we clarified that attestation consists in witnessing the testator's execution of
the will in order to see and take note mentally that those things are done which the statute requires
for the execution of a will and that the signature of the testator exists as a fact. On the other hand,
subscription is the signing of the witnesses' names upon the same paper for the purpose of
identification of such paper as the will which was executed by the testator. As it involves a mental
act, there would be no means, therefore, of ascertaining by a physical examination of the will
whether the witnesses had indeed signed in the presence of the testator and of each other unless
this is substantially expressed in the attestation.

It is contended by petitioners that the aforequoted attestation clause, in contravention of the express
requirements of the third paragraph of Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses the testator sign the will and all its pages in
their presence and that they, the witnesses, likewise signed the will and every page thereof in the
presence of the testator and of each other. We agree.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is the fact that
while it recites that the testator indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were used, the same does not
expressly state therein the circumstance that said witnesses subscribed their respective signatures
to the will in the presence of the testator and of each other.

The phrase "and he has signed the same and every page thereof, on the spaces provided for his
signature and on the left hand margin," obviously refers to the testator and not the instrumental
witnesses as it is immediately preceded by the words "as his Last Will and Testament." On the other
hand, although the words "in the presence of the testator and in the presence of each and all of us"
may, at first blush, appear to likewise signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the presence of the witnesses since said
phrase immediately follows the words "he has signed the same and every page thereof, on the
spaces provided for his signature and on the left hand margin." What is then clearly lacking, in the
final logical analysis , is the statement that the witnesses signed the will and every page thereof in
the presence of the testator and of one another.

It is our considered view that the absence of that statement required by law is a fatal defect or
imperfection which must necessarily result in the disallowance of the will that is here sought to be
admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the
attestation clause obviously cannot be characterized as merely involving the form of the will or the
language used therein which would warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil Code, to wit:

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is not proved that the will
was in fact executed and attested in substantial compliance with all the requirements
of article 805" (Emphasis supplied.)

While it may be true that the attestation clause is indeed subscribed at the end thereof and at the left
margin of each page by the three attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witness affixed their respective signatures in the presence of the testator and
of each other since, as petitioners correctly observed, the presence of said signatures only
establishes the fact that it was indeed signed, but it does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and of each other. The execution of a will is
supposed to be one act so that where the testator and the witnesses sign on various days or
occasions and in various combinations, the will cannot be stamped with the imprimatur of effectivity.33

We believe that the further comment of former Justice J.B.L. Reyes34 regarding Article 809, wherein
he urged caution in the application of the substantial compliance rule therein, is correct and should
be applied in the case under consideration, as well as to future cases with similar questions:
 . . . The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered;
whether the signatures appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are facts that the will itself
can reveal, and defects or even omissions concerning them in the attestation clause
can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate proceedings.
(Emphasis ours.)

3. We stress once more that under Article 809, the defects and imperfections must only be with
respect to the form of the attestation or the language employed therein. Such defects or
imperfections would not render a will invalid should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard, however, the manner of proving the due
execution and attestation has been held to be limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the will in the presence of the testator and of
each other.35 In such a situation, the defect is not only in the form or language of the attestation
clause but the total absence of a specific element required by Article 805 to be specifically stated in
the attestation clause of a will. That is precisely the defect complained of in the present case since
there is no plausible way by which we can read into the questioned attestation clause statement, or
an implication thereof, that the attesting witness did actually bear witness to the signing by the
testator of the will and all of its pages and that said instrumental witnesses also signed the will and
every page thereof in the presence of the testator and of one another.

Furthermore, the rule on substantial compliance in Article 809 cannot be revoked or relied on by
respondents since it presupposes that the defects in the attestation clause can be cured or supplied
by the text of the will or a consideration of matters apparent therefrom which would provide the data
not expressed in the attestation clause or from which it may necessarily be gleaned or clearly
inferred that the acts not stated in the omitted textual requirements were actually complied within the
execution of the will. In other words, defects must be remedied by intrinsic evidence supplied by the
will itself.

In the case at bar, contrarily, proof of the acts required to have been performed by the attesting
witnesses can be supplied by only extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from with such facts may be plausibly deduced. What
private respondent insists on are the testimonies of his witnesses alleging that they saw the
compliance with such requirements by the instrumental witnesses, oblivious of the fact that he is
thereby resorting to extrinsic evidence to prove the same and would accordingly be doing by the
indirection what in law he cannot do directly.

4. Prior to the advent of the Civil Code on August 30, 1950, there was a divergence of views as to
which manner of interpretation should be followed in resolving issues centering on compliance with
the legal formalities required in the execution of wills. The formal requirements were at that time
embodied primarily in Section 618 of Act No. 190, the Code of Civil Procedure. Said section was
later amended by Act No. 2645, but the provisions respecting said formalities found in Act. No. 190
and the amendment thereto were practically reproduced and adopted in the Civil Code.

One view advance the liberal or substantial compliance rule. This was first laid down in the case
of Abangan vs. Abangan,36 where it was held that the object of the solemnities surrounding the
execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity. Therefore, the laws on this subject should
be interpreted in such a way as to attain these primordial ends. Nonetheless, it was also emphasized
that one must not lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will, hence when an interpretation already given assures such ends,
any other interpretation whatsoever that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded. The subsequent
cases of Avera vs. Garcia,37 Aldaba vs. Roque,38 Unson vs. Abella,39 Pecson vs. Coronel,40 Fernandez
vs. Vergel de Dios, et al.,41 and Nayve vs. Mojal, et al.42 all adhered to this position.

The other view which advocated the rule that statutes which prescribe the formalities that should be
observed in the execution of wills are mandatory in nature and are to be strictly construed was
followed in the subsequent cases of In the Matter of the Estate of Saguinsin,43 In re Will of
Andrada,44 Uy Coque vs. Sioca,45 In re Estate of Neumark, 46 and Sano vs. Quintana.47

Gumban vs. Gorecho, et al.,48 provided the Court with the occasion to clarify the seemingly
conflicting decisions in the aforementioned cases. In said case of Gumban, the attestation clause
had failed to state that the witnesses signed the will and each and every page thereof on the left
margin in the presence of the testator. The will in question was disallowed, with these reasons
therefor:

In support of their argument on the assignment of error above-mentioned, appellants

rely on a series of cases of this court beginning with (I)n the Matter of the (E)state of
Saguinsin ([1920], 41 Phil., 875), continuing with In re Will of Andrada [1921], 42
Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil.,
506). Appellee counters with the citation of a series of cases beginning with Abangan
vs. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs. Roque ([1922], 43
Phil., 378), and Fernandez vs. Vergel de Dios ([1924], 46 Phil., 922), and culminating
in Nayve vs. Mojal and Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is
to contrast and, if possible, conciliate the last two decisions cited by opposing
counsel, namely, those of Sano vs. Quintana, supra, and Nayve vs. Mojal and
Aguilar, supra.

In the case of Sano vs. Quintana, supra, it was decided that an attestation clause
which does not recite that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs. Sioca, supra, was cited, but the
case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In contrast, is the
decision in Nayve vs. Mojal and Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the testator and the witnesses reciprocally
saw the signing of the will, for such an act cannot be proved by the mere exhibition of
the will, if it is not stated therein. It was also held that the fact that the testator and the
witnesses signed each and every page of the will can be proved also by the mere
examination of the signatures appearing on the document itself, and the omission to
state such evident facts does not invalidate the will.

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit

inconsistency in doctrine. Yet here, unless aided impossible to reconcile the Mojal
and Quintana decisions. They are fundamentally at variance. If we rely on one, we
affirm. If we rely on the other, we reverse.
 In resolving this puzzling question of authority, three outstanding points may be
mentioned. In the first place, the Mojal, decision was concurred in by only four
members of the court, less than a majority, with two strong dissenting opinions; the
Quintana decision was concurred in by seven members of the court, a clear majority,
with one formal dissent. In the second place, the Mojal decision was promulgated in
December, 1924, while the Quintana decision was promulgated in December, 1925;
the Quintana decision was thus subsequent in point of time. And in the third place,
the Quintana decision is believed more nearly to conform to the applicable provisions
of the law.

The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure as amended by Act
No. 2645, and in section 634 of the same Code, as unamended. It is in part provided
in section 61, as amended that "No will . . . shall be valid . . . unless . . .." It is further
provided in the same section that "The attestation shall state the number of sheets or
pages used, upon which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to write his name, under
his express direction, in the presence of three witnesses, and the latter witnessed
and signed the will and all pages thereof in the presence of the testator and of each
other." Codal section 634 provides that "The will shall be disallowed in either of the
following case: 1. If not executed and attested as in this Act provided." The law not
alone carefully makes use of the imperative, but cautiously goes further and makes
use of the negative, to enforce legislative intention. It is not within the province of the
courts to disregard the legislative purpose so emphatically and clearly expressed.

We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to
the extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the Court that once more
appeared to revive the seeming diversity of views that was earlier threshed out therein. The cases
of Quinto vs. Morata,49Rodriguez vs. Alcala,50 Enchevarria vs. Sarmiento,51 and Testate Estate of
Toray52 went the way of the ruling as restated in Gumban. But De Gala vs. Gonzales, et al.,53 Rey vs.
Cartagena,54 De Ticson vs. De Gorostiza,55 Sebastian vs. Panganiban,56 Rodriguez vs. Yap,57 Grey vs.
Fabia,58 Leynez vs. Leynez,59 Martir vs. Martir,60 Alcala vs. De Villa,61Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered away from the strict interpretation
rule and established a trend toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of views and of the undeniable
inclination towards a liberal construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the modern tendency to give a liberal
approach to the interpretation of wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will, and that is, in
accordance with the formalities prescribed by Section 618 of the Code of Civil
Procedure as amended by Act No. 2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the legal formalities and had even said
that the provisions of Section 618 of the Code of Civil Procedure, as amended
regarding the contents of the attestation clause were mandatory, and non-
compliance therewith invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These
 decisions necessarily restrained the freedom of the testator in disposing of his
property.

However, in recent years the Supreme Court changed its attitude and has become
more liberal in the interpretation of the formalities in the execution of wills. This liberal
view is enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18,
1939; Leynez vs. Leynez, G.R. No. 46097, October 18, 1939; Martir vs. Martir, G.R.
No. 46995, June 21, 1940; and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.

In the above mentioned decisions of our Supreme Court, it has practically gone back
to the original provisions of Section 618 of the Code of Civil Procedure before its
amendment by Act No. 2645 in the year 1916. To turn this attitude into a legislative
declaration and to attain the main objective of the proposed Code in the liberalization
of the manner of executing wills, article 829 of the Project is recommended, which
reads:

"Art. 829. In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects and imperfections in the
form of attestation or in the language used therein shall not render
the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article
829."65

The so-called liberal rule, the Court said in Gil vs. Murciano,66 "does not offer any puzzle or difficulty,
nor does it open the door to serious consequences. The later decisions do tell us when and where to
stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in
any part of the document or supply missing details that should appear in the will itself. They only
permit a probe into the will, an exploration into its confines, to ascertain its meaning or to determine
the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates
uncertainty and ought to banish any fear of dire results."

It may thus be stated that the rule, as it now stands, is that omissions which can be supplied by an
examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However,
those omissions which cannot be supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of the will itself.67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of respondent court is
hereby REVERSED and SET ASIDE. The court a quo is accordingly directed to forthwith DISMISS
its Special Proceeding No. 3899-R (Petition for the Probate of the Last Will and Testament of Mateo
Caballero) and to REVIVE Special Proceeding No. 3965-R (In the matter of the Intestate Estate of
Mateo Caballero) as an active case and thereafter duly proceed with the settlement of the estate of
the said decedent.

SO ORDERED.

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ,
(deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte, (Branch III,
Maasin), respondent. (The attestation of signature on the last page of the will is not a condition
precedent for the validity of the will; Thus, in the absence of fraud or forgery the will cannot be
invalidated by the mere fact that the will is not authenticated on the last page of the will)

In the petition for probate filed with the respondent court, the petitioner attached the alleged last will
and testament of the late Dorotea Perez. Written in the Cebuano-Visayan dialect, the will consists of
two pages. The first page contains the entire testamentary dispositions and is signed at the end or
bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental
witnesses. The second page which contains the attestation clause and the acknowledgment is
signed at the end of the attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of publication,
the trial court commissioned the branch clerk of court to receive the petitioner's evidence.
Accordingly, the petitioner submitted his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying
the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the
petitioner was also required to submit the names of the intestate heirs with their corresponding
addresses so that they could be properly notified and could intervene in the summary settlement of
the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or
motion, ex partepraying for a thirty-day period within which to deliberate on any step to be taken as a
result of the disallowance of the will. He also asked that the ten-day period required by the court to
submit the names of intestate heirs with their addresses be held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be acted upon
by the Honorable Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The said
motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed
the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation
and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special
administrator was likewise denied because of the petitioner's failure to comply with the order
requiring him to submit the names of' the intestate heirs and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix
and all the three instrumental and attesting witnesses sign at the end of the will and in the presence
of the testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his
 presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered correlatively
in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the lacier witnesses and signed the will and the
pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be

interpreted to the witnesses, it shall be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will
to be valid, it is not enough that only the testatrix signs at the "end" but an the three subscribing
witnesses must also sign at the same place or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not merely the will itself but also the
signature of the testator. It is not sufficient compliance to sign the page, where the end of the will is
found, at the left hand margin of that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a
condition precedent or a matter of absolute necessity for the extrinsic validity of the wig that the
signatures of the subscribing witnesses should be specifically located at the end of the wig after the
signature of the testatrix. He contends that it would be absurd that the legislature intended to place
so heavy an import on the space or particular location where the signatures are to be found as long
as this space or particular location wherein the signatures are found is consistent with good faith and
the honest frailties of human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by
the testator himself or by the testator's name written by another person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

It must be noted that the law uses the terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those things
are, done which the statute requires for the execution of a will and that the signature of the testator
exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the
same paper for the purpose of Identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the will in this
case was subscribed in a manner which fully satisfies the purpose of Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will attested
not only to the genuineness of the signature of the testatrix but also the due execution of the will as
embodied in the attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual
forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v.
Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating the
provisions on the law on wills in this project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing his last wishes but
with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator. This objective is in accord with the
modern tendency in respect to the formalities in the execution of a will" (Report of the Code
commission, p. 103).

Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not for the
defect in the place of signatures of the witnesses, he would have found the testimony sufficient to
establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present case when
the instrumental witnesses signed at the left margin of the sole page which contains all the
testamentary dispositions, especially so when the will was properly Identified by subscribing witness
Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or
substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire wig that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end
or at the bottom while the instrumental witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that "This Last Will and Testament consists of two pages including this
page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with
respect to the purpose of the requirement that the attestation clause must state the number of pages
used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act
No. 2645, which requires that the attestation clause shall state the number of pages
or sheets upon which the win is written, which requirement has been held to be
mandatory as an effective safeguard against the possibility of interpolation or
omission of some of the pages of the will to the prejudice of the heirs to whom the
property is intended to be bequeathed (In re will of Andrada, 42 Phil., 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto
vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a
statement of the number of sheets or pages composing the will and that if this is
missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination
of the will itself. But here the situation is different. While the attestation clause does
not state the number of sheets or pages upon which the will is written, however, the
last part of the body of the will contains a statement that it is composed of eight
pages, which circumstance in our opinion takes this case out of the rigid rule of
 construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated
by purely technical considerations.

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach:

... Impossibility of substitution of this page is assured not only (sic) the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing
the coincident imprint of the seal of the notary public before whom the testament was
ratified by testatrix and all three witnesses. The law should not be so strictly and
literally interpreted as to penalize the testatrix on account of the inadvertence of a
single witness over whose conduct she had no control where the purpose of the law
to guarantee the Identity of the testament and its component pages is sufficiently
attained, no intentional or deliberate deviation existed, and the evidence on record
attests to the fun observance of the statutory requisites. Otherwise, as stated in Vda.
de Gil. Vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration)
'witnesses may sabotage the will by muddling or bungling it or the attestation clause.

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado,
CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and
HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First
Division (Civil Cases), and BAYANI MA. RINO, respondents. (The Huling Habilin will executed in
the presence of three instrumental witnesses, testator and notary public by reading aloud due to
impaired vision of the decedent is a substantial compliance with the legal solemnities of a will and
codicil to avoid fraud and undue influence as the law intends not the frustrate the making of a will in
line with the wishes of the testator and it should not be applied so strictly so as to defeat the purpose
of making a will as in reading the will twice to the testator and witnesses when it was read aloud both
in their simultaneous presence)

This Court has held in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14

In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only
then did the signing and acknowledgement take place. There is no evidence, and petitioner does not
so allege, that the contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth and authenticity of the contents of
the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged
that the will was drafted in accordance with his expressed wishes even prior to 5 November 1977
when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity
to the draft. 15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three instrumental witnesses
likewise read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the notary public)
and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician)
asked the testator whether the contents of the document were of his own free will. Brigido answered
in the affirmative. 16 With four persons following the reading word for word with their own copies, it
can be safely concluded that the testator was reasonably assured that what was read to him (those
which he affirmed were in accordance with his instructions), were the terms actually appearing on
the typewritten documents. This is especially true when we consider the fact that the three
instrumental witnesses were persons known to the testator, one being his physician (Dr. Evidente)
and another (Potenciano C. Ranieses) being known to him since childhood.

The spirit behind the law was served though the letter was not. Although there should be strict
compliance with the substantial requirements of the law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator's will. 17

As a final word to convince petitioner of the propriety of the trial court's Probate Order and its
affirmance by the Court of Appeals, we quote the following pronouncement in Abangan
v. Abangan, 18 to wit:

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the
testator's will, must be disregarded (emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling
Habilin" and the codicil attached thereto. We are unwilling to cast these aside fro the mere reason
that a legal requirement intended for his protection was not followed strictly when such compliance
had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already been accomplished. To
reiterate, substantial compliance suffices where the purpose has been served.

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS AND
DR. JAIME ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge of the Court of First
Instance of Manila, Branch and CONSUELO GONZALES VDA. DE PRECILLA, Respondents. (A
testator who could barely see distant objects cannot be deemed to have executed a will which
she had read and scriptures embedded on a will with typographical errors manifesting haste
negate the legal formalities set forth by law thus, the will was invalidated)

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR DISALLOWANCE; TESTATRIX’S
DEFECTIVE EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF LATER WILL.— The declarations in
court of the opthalmologist as to the condition of the testatrix’s eyesight fully establish the fact that her
vision remained mainly for viewing distant objects and not for reading print; that she was, at the time of the
execution of the second will on December 29, 1960, incapable of reading and could not have read the
provisions of the will supposedly signed by her.

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL; CASE AT BAR.— Upon its
face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into
a single sheet of paper, apparently to save on space. Plainly, the testament was not prepared with any
regard for the defective vision of Dña. Gliceria, the typographical errors remained uncorrected thereby
indicating that the execution thereof must have been characterized by haste. It is difficult to understand that
so important a document containing the final disposition of one’s worldly possessions should be embodied in
an informal and untidy written instrument; or that the glaring spelling errors should have escaped her notice
if she had actually retained the ability to read the purported will and had done so.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808, NEW CIVIL CODE —
READING OF THE WILL TWICE TO A BLIND TESTATOR; PURPOSE.— The rationale behind the requirement of
reading the will to the testator if he is blind or incapable of reading the will himself is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with his wishes.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.— Where as in the 1960 will there is
nothing in the record to show that the requisites of Art. 808 of the Civil Code of the Philippines that "if the
testator is blind, the will shall be read to him twice," have not been complied with, the said 1960 will suffer
from infirmity that affects its due execution.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS; ADMINISTRATORS; GROUNDS FOR

REMOVAL; ACQUISITION OF INTEREST ADVERSE TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR
UNSUITABLE TO DISCHARGE THE TRUST; CASE AT BAR.— Considering that the alleged deed of sale was
executed when Gliceria del Rosario was already practically blind and that the consideration given seems
unconscionably small for the properties, there was likelihood that a case for annulment might be filed
against the estate or heirs of Alfonso Precilla. And the administratrix being the widow and heir of the alleged
transferee, cannot be expected to sue herself in an action to recover property that may turn out to belong to
the estate. This, plus her conduct in securing new copies of the owner’s duplicate of titles without the court’s
knowledge and authority and having the contract bind the land through issuance of new titles in her
husband’s name, cannot but expose her to the charge of unfitness or unsuitability to discharge the trust,
justifying her removal from the administration of the estate.

6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE TITLE OR THE RIGHT OF
POSSESSION OF REAL PROPERTY." — On the matter of lis pendens, the provisions of the Rules of Court are
clear: notice of the pendency of an action may be recorded in the office of the register of deeds of the
province in which the property is situated, if the action affects "the title or the right of possession of (such)
real property."cra law virt ua1aw lib ra ry

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.— The issue in controversy here is simply the fitness
or unfitness of said special administratrix to continue holding the trust, it does not involve or affect at all the
title to, or possession of, the properties covered by TCT Nos. 81735, 81736 and 81737. Clearly, the
pendency of such case (L-26615) is not an action that can properly be annotated in the record of the titles
to the properties.

The foregoing testimony of the ophthalmologist who treated the deceased and, therefore, has first hand
knowledge of the actual condition of her eyesight from August, 1960 up to 1963, fully establish the fact that
notwithstanding the operation and removal of the cataract in her left eye and her being fitted with aphakic
lens (used by cataract patients), her vision remained mainly for viewing distant objects and not for reading
print. Thus, the conclusion is inescapable that with the condition of her eyesight in August, 1960, and there
is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable f reading, and
could not have read the provisions of the will supposedly signed by her on 29 December 1960. It is worth
noting that the instrumental witnesses stated that she read the instrument "silently" (t.s.n., pages 164-
165). which is a conclusion and not a fact.

Against the background of defective eyesight of the alleged testatrix, the appearance of the will, Exhibit "D",
acquires striking significance. Upon its face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper, to much so that the words had to be
written very close on the top, bottom and two sides of the paper, leaving no margin whatsoever; the word
"and" had to be written by the symbol" &", apparently to save on space. Plainly, the testament was not
prepared with any regard for the defective vision of Doña Gliceria. Further, typographical errors like
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental" for
"Instrumental", and "acknowledged" for "acknowledge’’, remained uncorrected, thereby indicating that
execution thereof must have been characterized by haste. It is difficult to understand that so important a
document containing the final disposition of one’s worldly possessions should be embodied in an informal
and untidily written instrument; or that the glaring spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had done so. The record is thus convincing that
the supposed testatrix could not have physically read or understood the alleged testament, Exhibit "D", and
that its admission to probate was erroneous and should be reversed.
That Doña Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to kitchen
tasks shortly prior to the alleged execution of the testament Exhibit "D", as appears from the photographs,
Exhibits "E" to "E-1", in no way proves; that she was able to read a closely typed page, since the acts shown
do not require vision at close range. It must be remembered that with the natural lenses removed, her eyes
had lost the power of adjustment to near vision, the substituted glass lenses being rigid and uncontrollable
by her. Neither is the signing of checks (Exhibits "G" to "G-3") by her indicative of ability to see at normal
reading distances. Writing or signing of one’s name, when sufficiently practiced, becomes automatic, so that
one need only to have a rough indication of the place where the signature is to be affixed in order to be able
to write it. Indeed, a close examination of the checks, amplified in the photograph, Exhibit "O", et seq.,
reinforces the contention of oppositors that the alleged testatrix could not see at normal reading distance:
the signatures in the checks are written far above the printed base, lines, and the names of the payees as
well as the amounts written do not appear to be in the handwriting of the alleged testatrix, being in a much
firmer and more fluid hand than hers.

Thus, for all intents and purpose of the rules on probate, the deceased Gliceria del Rosario was, as appellant
oppositors contend, not unlike a blind testator, and the due execution of her will would have required
observance of the provisions of Article 808 of the Civil Code.

"ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged." cralaw vi rtua 1aw lib rary

The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading
the will himself (as when he is illiterate), 18 is to make the provisions thereof known to him, so that he may
be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that the
dispositions of the will are properly communicated to and understood by the handicapped testator, thus
making them truly reflective of his desire, is evidenced by the requirement that the will should be read to
the latter, not only once but twice, by two different persons, and that the witnesses have to act within the
range of his (the testator’s) other senses. 19

In connection with the will here in question, there is nothing in the records to show that the above requisites
have been complied with. Clearly, as already stated, the 1960 will sought to be probated suffers from
infirmity that affects its due execution.9

G.R. No. L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner,

vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents

We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification
from being a witness to a win. These Articles state:

Art. 820. Any person of sound mind and of the age of eighteen years or more, and
not blind, deaf or dumb, and able to read and write, may be a witness to the
execution of a will mentioned in article 806 of this Code. "Art. 821. The following are
disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a document, perjury or false
testimony.

Under the law, there is no mandatory requirement that the witness testify initially or at any time
during the trial as to his good standing in the community, his reputation for trustworthythiness and
reliableness, his honesty and uprightness in order that his testimony may be believed and accepted
by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced from his answers
to the questions propounded to him, that his age (18 years or more) is shown from his appearance,
testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb
and that he is able to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first
be established in the record the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because such attributes are
presumed of the witness unless the contrary is proved otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible" as used in the Civil
Code should be given the same meaning it has under the Naturalization Law where the law is
mandatory that the petition for naturalization must be supported by two character witnesses who
must prove their good standing in the community, reputation for trustworthiness and reliableness,
their honesty and uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the petitioner to be a
resident of the Philippines for the period of time required by the Act and a person of good repute and
morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to
become a citizen of the Philippines and is not in any way disqualified under the provisions of the
Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).

In probate proceedings, the instrumental witnesses are not character witnesses for they merely
attest the execution of a will or testament and affirm the formalities attendant to said execution. And
We agree with the respondent that the rulings laid down in the cases cited by petitioner concerning
character witnesses in naturalization proceedings are not applicable to instrumental witnesses to
wills executed under the Civil Code of the Philippines.

In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that anyone of them is
below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.

It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another, While the petitioner
submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to
his qualifications under the first Article and none of the disqualifications under the second Article,
whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes
that the term credible requires something more than just being competent and, therefore, a witness
in addition to being competent under Articles 820 and 821 must also be a credible witness under
Article 805.

Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses are credible
in themselves, that is, that they are of good standing in the community since one was a family driver
by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya
was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde
Orobia was a piano teacher to a grandchild of the testatrix But the relation of employer and
employee much less the humble or financial position of a person do not disqualify him to be a
competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344;
Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).

Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this
being obvious from that portion of Article 820 which says "may be Q witness to the execution of a will
mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as
witnesses to a will are concerned simply means " competent." Thus, in the case of Suntay vs.
Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it
was in existence at the time of, and not revoked before, the death of the testator, still the provisions
of the lost wig must be clearly and distinctly proved by at least two credible witnesses. 'Credible
witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay.
" emphasis supplied).

In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that
"Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of
the age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a
witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950,
under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a
win, does not disqualify one to be a witness to a will. The main qualification of a witness in the
attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that
said witness must be credible, that is to say, his testimony may be entitled to credence. There is a
long line of authorities on this point, a few of which we may cite:

A 'credible witness is one who is not is not to testify by mental incapacity, crime, or
other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134
Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).

As construed by the common law, a 'credible witness' to a will means a 'competent

witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p.
341).

Expression 'credible witness' in relation to attestation of wins means 'competent

witness that is, one competent under the law to testify to fact of execution of will.
Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App.
60 S.W. 2nd 888, 889. (Ibid, p. 342)

The term 'credible', used in the statute of wills requiring that a will shall be attested by
two credible witnesses means competent; witnesses who, at the time of attesting the
will, are legally competent to testify, in a court of justice, to the facts attested by
subscribing the will, the competency being determined as of the date of the execution
of the will and not of the timr it is offered for probate, Smith vs. Goodell 101 N.E. 255,
256, 258 111. 145. (Ibid.)

Credible witnesses as used in the statute relating to wills, means competent

witnesses — that is, such persons as are not legally disqualified from testifying in
courts of justice, by reason of mental incapacity, interest, or the commission of
crimes, or other cause excluding them from testifying generally, or rendering them
incompetent in respect of the particular subject matter or in the particular suit. Hill vs.
Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined
by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends On the
appreciation of his testimony and arises from the belief and conclusion of the Court that said witness
is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de
Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness
is one thing, and it is another to be a credible witness, so credible that the Court must accept what
he says. Trial courts may allow a person to testify as a witness upon a given matter because he is
competent, but may thereafter decide whether to believe or not to believe his testimony." In fine, We
state the rule that the instrumental witnesses in Order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821
and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not
mandatory that evidence be first established on record that the witnesses have a good standing in
the community or that they are honest and upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is established otherwise. In other words, the
instrumental witnesses must be competent and their testimonies must be credible before the court
allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was
fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses
were "credible witnesses that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.

Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution of
the will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to type such data into
the document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten
words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have
dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and
the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed, and in holding that
the grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary)
presented by the petitioner had been explained away.

Since the above errors are factual We must repeat what We have previously laid down that the
findings of fact of the appellate court are binding and controlling which We cannot review, subject to
certain exceptions which We win consider and discuss hereinafter. We are convinced that the
appellate court's findings are sufficiently justified and supported by the evidence on record. Thus, the
alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing
all the witnesses without previous appointment for the preparation and execution of the win and that
it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of
Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his
office on April 15, 1961 was unexpected as there was no prior appointment with him, but he
explained that he was available for any business transaction on that day and that Isabel Gabriel had
earlier requested him to help her prepare her will. The finding of the appellate court is amply based
on the testimony of Celso Gimpaya that he was not only informed on the morning of the day that he
witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to
witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her
husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said
house, they left in a car to the lawyer's office, which testimonies are recited in the respondent Court's
decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria
Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso
Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while
Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14,
1961. The respondent Court correctly observed that there was nothing surprising in these facts and
that the securing of these residence certificates two days and one day, respectively, before the
execution of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the
spouses were earlier notified that they would be witnesses to the execution of Isabel Gabriel's will.

We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso
was planned by the deceased, which conclusion was correctly drawn from the testimony of the
Gimpaya spouses that they started from the Navotas residence of the deceased with a photographer
and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife,
Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed
by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco
before they proceeded to Atty. Cipriano Paraiso's office.

It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the
will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of
her will and that he told her that if she really wanted to execute her will, she should bring with her at
least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso)
wanted a medical certificate from a physician notwithstanding the fact that he believed her to be of
sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is,
therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso
Gimpaya and Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not
coincidental as their gathering was pre-arranged by Isabel Gabriel herself."

As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit '
L which the petitioner assails as contradictory and irreconcilable with the statement of the Court that
Atty. Paraiso was handed a list (containing the names of the witnesses and their respective
residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received
such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction
for the, respondent Court held that on the occasion of the will making on April 15, 1961, the list was
given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous
occasion or date prior to April 15, 1961.

But whether Atty. Paraiso was previously furnished with the names and residence certificates of the
witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the
attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit
"F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the
same is a public document executed and attested through the intervention of the notary public and
as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It
has in its favor the presumption of regularity. To contradict all these, there must be evidence that is
clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find
no such evidence pointed by petitioner in the case at bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten
lines under the typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil
that the three attesting witnesses were all present in the same occasion merits Our approval
because tills conclusion is supported and borne out by the evidence found by the appellate court,
thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date issued"
and place issued the only name of Isabel Gabriel with Residence Tax certificate No. A-5113274
issued on February 24, 1961 at Navotas Rizal appears to be in typewritten form while the names,
residence tax certificate numbers, dates and places of issuance of said certificates pertaining to the
three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty.
Paraiso's even the sale must be made to close relatives; and the seventh was the appointment of
the appellant Santiago as executrix of the will without bond. The technical description of the
properties in paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were
only supplied by Atty. Paraiso. "

It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the
docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were
supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have
dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel
Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a
brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after
the execution of Exhibit "F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamentary capacity of the
testatrix and is, therefore, beyond Our power to revise and review, We nevertheless hold that the
conclusion reached by the Court of Appeals that the testatrix dictated her will without any note or
memorandum appears to be fully supported by the following facts or evidence appearing on record.
Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she actively
managed the affairs of the movie business ISABELITA Theater, paying the aparatistas herself until
June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor
of Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband
Eligio Naval. The text of the win was in Tagalog, a dialect known and understood by her and in the
light of all the circumstances, We agree with the respondent Court that the testatrix dictated her will
without any note or memorandum, a fact unanimously testified to by the three attesting witnesses
and the notary public himself.

Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses,
Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus:
"On the contrary, the record is replete with proof that Matilde Orobia was physically present when
the will was signed by Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso Gimpaya
and Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons
to the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a
Saturday for which reason Orobia could not have been present to witness the will on that — day is
purely conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child
every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a
Saturday, she gave no piano lessons on that day for which reason she could have witnessed the
execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to
make up for the same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of
April 15, 1961 and there was nothing to preclude her from giving piano lessons on the afternoon of
the same day in Navotas, Rizal."

In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was
present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand
margin of each of the pages of the will, the documentary evidence which is the will itself, the
attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove such
fact that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by
signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of
signing because it preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which is made for the purpose
of preserving in permanent form a record of the facts attending the execution of the will, so that in
case of failure in the memory of the subscribing witnesses, or other casualty they may still be
proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).

As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial
court gave undue importance to the picture-takings as proof that the win was improperly executed,
We agree with the reasoning of the respondent court that: "Matilde Orobia's Identification of the
photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor
mistake attributable to lapse of time. The law does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia mistakenly Identified the photographer as Cesar
Mendoza scarcely detracts from her testimony that she was present when the will was signed
because what matters here is not the photographer but the photograph taken which clearly portrays
Matilde Orobia herself, her co-witnesses Celso Gimpaya. " Further, the respondent Court correctly
held: "The trial court gave undue importance to the picture takings, jumping therefrom to the
conclusion that the will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke
of this occasion. Hence, their Identification of some photographs wherein they all appeared along
with Isabel Gabriel and Atty. Paraiso was superfluous."

Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at
the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment
of the first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia
was admittedly no longer present was wholly unnecessary if not pointless. What was important was
that the will was duly executed and witnessed on the first occasion on April 15, 1961 , " and We
agree with the Court's rationalization in conformity with logic, law and jurisprudence which do not
require picture-taking as one of the legal requisites for the execution or probate of a will.

Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in

their respective testimonies before the trial court. On the other hand, the respondent Court of
Appeals held that said contradictions, evasions and misrepresentations had been explained away.
Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he described
as "elite" which to him meant big letters which are of the type in which the will was typewritten but
which was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the
name of the photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin
Cifra, Jr.— these are indeed unimportant details which could have been affected by the lapse of time
and the treachery of human memory such that by themselves would not alter the probative value of
their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every person win be Identical and coinciding with each
other with regard to details of an incident and that witnesses are not expected to remember all
details. Human experience teach us "that contradictions of witnesses generally occur in the details of
certain incidents, after a long series of questionings, and far from being an evidence of falsehood
constitute a demonstration of good faith. In as much as not all those who witness an incident are
impressed in like manner, it is but natural that in relating their impressions, they should not agree in
the minor details; hence the contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by
the respondent appellate court because the trial court was in a better position to weigh and evaluate
the evidence presented in the course of the trial. As a general rule, petitioner is correct but it is
subject to well-established exceptions. The right of the Court of Appeals to review, alter and reverse
the findings of the trial court where the appellate court, in reviewing the evidence has found that
facts and circumstances of weight and influence have been ignored and overlooked and the
significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of
facts made by trial courts particularly when they are based on conflicting evidence whose evaluation
hinges on questions of credibility of contending witnesses hes peculiarly within the province of trial
courts and generally, the appellate court should not interfere with the same. In the instant case,
however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts
and circumstances established in the record. Whereas the appellate court said that "Nothing in the
record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or
document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have
witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and
Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion
based not on facts but on inferences; that the trial court gave undue importance to the picture-
takings, jumping therefrom to the conclusion that the will was improperly executed and that there is
nothing in the entire record to support the conclusion of the court a quo that the will signing occasion
was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to
witness the signing of her will, then it becomes the duty of the appellate court to reverse findings of
fact of the trial court in the exercise of its appellate jurisdiction over the lower courts.

Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the
Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again
We agree with the petitioner that among the exceptions are: (1) when the conclusion is a finding
grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the
presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the
testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya,
and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I.
Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical
certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office
and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to
dictate what she wanted to be written in the will and the attorney wrote down the dictation of Isabel
Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what
he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after
finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel
Gabriel signed her name at the end of the will in the presence of the three witnesses Matilde Orobia,
Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested
the will by signing her name at the end of the attestation clause and at the left-hand margin of pages
1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses, Celso
Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the
attestation clause and at the left-hand margin of the other pages of the document in the presence of
Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her
name at the foot of the attestation clause and at the left-hand margin of every page in the presence
of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will
as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the
execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde
Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing
testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a
Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of the
three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15,
1961. Atty. Paraiso's claim which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the
will on the date in question."

It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel
could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by
the evidence on record as stated in the decision under review, thus: "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said
lawyer she had no note or document. This fact jibes with the evidence — which the trial court itself
believed was unshaken — that Isabel Gabriel was of sound disposing memory when she executed
her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first
was Isabel Gabriel's wish to be interred according to Catholic rites the second was a general
directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda.
de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13
nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee
the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir
mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of her
estate which she willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such
properties to anyone except in extreme situations in which judgment is based on a misapprehension
of facts; (5) when the findings of fact are conflicting, (6) when the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi
Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570;
Sept. 14, 1967).

Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate
court are fully supported by the evidence on record. The conclusions are fully sustained by
substantial evidence. We find no abuse of discretion and We discern no misapprehension of facts.
The respondent Court's findings of fact are not conflicting. Hence, the well-established rule that the
decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be
disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without
qualification or reservation. The above holding simply synthesize the resolutions we have heretofore
made in respect ' to petitioner's previous assignments of error and to which We have disagreed and,
therefore, rejected.

The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and usual
course of judicial proceedings as to call for the exercise of the power of supervision by the Supreme
Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court
and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.

We rule that the respondent Court's factual findings upon its summation and evaluation of the
evidence on record is unassailable that: "From the welter of evidence presented, we are convinced
that the will in question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya signing and witnessing the same in the the will on a table with Isabel
Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the
notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and
notarial register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and
another photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted
another picture taken because the first picture did not turn out good. The lawyer told her that this
cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which incident Matilde Orobia was not present.

Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for
the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case
at bar, the three instrumental witnesses who constitute the best evidence of the will making have
testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law
and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses
who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix
have been identified on the will and there is no claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and
we go back to the rule that the Supreme Court cannot review and revise the findings of facts of the
respondent Court of Appeals.
BELLA A. GUERRERO, PETITIONER, VS. RESURRECCION A.
BIHIS, RESPONDENT. (An acknowledgement to a will made by a notary
public who commissioned as such in Kolookan City outside of its
jurisdiction attesting the will supposedly made in Quezon City is not a
substantial compliance with the legal formalities as required by law thus,
void)

Petitioner admits that the will was acknowledged by the testatrix and the
witnesses at the testatrix's residence in Quezon City before Atty. Directo
and that, at that time, Atty. Directo was a commissioned notary public for
and in Caloocan City. She, however, asserts that the fact that the notary
public was acting outside his territorial jurisdiction did not affect the
validity of the notarial will.

Did the will "acknowledged" by the testatrix and the instrumental witnesses
before a notary public acting outside the place of his commission satisfy the
requirement under Article 806 of the Civil Code? It did not.

Article 806 of the Civil Code provides:

ART. 806. Every will must be acknowledged before a notary public by the
testator and the witnesses. The notary public shall not be required to retain
a copy of the will, or file another with the office of the Clerk of Court.

One of the formalities required by law in connection with the execution of a

notarial will is that it must be acknowledged before a notary public by the
testator and the witnesses.[6] This formal requirement is one of the
indispensable requisites for the validity of a will.[7] In other words, a
notarial will that is not acknowledged before a notary public by the testator
and the instrumental witnesses is void and cannot be accepted for probate.

An acknowledgment is the act of one who has executed a deed in going

before some competent officer and declaring it to be his act or deed.[8] In
the case of a notarial will, that competent officer is the notary public.

The acknowledgment of a notarial will coerces the testator and the

instrumental witnesses to declare before an officer of the law, the notary
public, that they executed and subscribed to the will as their own free act or
deed.[9] Such declaration is under oath and under pain of perjury, thus
paving the way for the criminal prosecution of persons who participate in
the execution of spurious wills, or those executed without the free consent
of the testator.[10] It also provides a further degree of assurance that the
testator is of a certain mindset in making the testamentary dispositions to
the persons instituted as heirs or designated as devisees or legatees in the
will.[11]

Acknowledgment can only be made before a competent officer, that is, a

lawyer duly commissioned as a notary public.

In this connection, the relevant provisions of the Notarial Law provide:

SECTION 237. Form of commission for notary public. -The appointment of

a notary public shall be in writing, signed by the judge, and substantially in
the following form:

GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES
PROVINCE OF ___________

This is to certify that ____________, of the municipality of ________ in

said province, was on the ___ day of __________, anno Domini nineteen
hundred and _______, appointed by me a notary public, within and for the
said province, for the term ending on the first day of January, anno Domini
nineteen hundred and _____.

_________________
Judge of the Court of

irst Instance[12] of said

Province

xxx xxx xxx

SECTION 240. Territorial jurisdiction. - The jurisdiction of a notary public
in a province shall be co-extensive with the province. The jurisdiction of a
notary public in the City of Manila shall be co-extensive with said city. No
notary shall possess authority to do any notarial act beyond the limits of his
jurisdiction. (emphases supplied)

A notary public's commission is the grant of authority in his favor to

perform notarial acts.[13] It is issued "within and for" a particular territorial
jurisdiction and the notary public's authority is co-extensive with it. In
other words, a notary public is authorized to perform notarial acts,
including the taking of acknowledgments, within that territorial jurisdiction
only. Outside the place of his commission, he is bereft of power to perform
any notarial act; he is not a notary public. Any notarial act outside the limits
of his jurisdiction has no force and effect. As this Court categorically
pronounced in Tecson v. Tecson:[14]

An acknowledgment taken outside the territorial limits of the officer's

jurisdiction is void as if the person taking it ware wholly without official
character. (emphasis supplied)

Since Atty. Directo was not a commissioned notary public for and in
Quezon City, he lacked the authority to take the acknowledgment of the
testatrix and the instrumental witnesses. In the same vein, the testatrix and
her witnesses could not have validly acknowledged the will before him.
Thus, Felisa Tamio de Buenaventura's last will and testament was, in effect,
not acknowledged as required by law.

Moreover, Article 5 of the Civil Code provides:

ART. 5. Acts executed against the provisions of mandatory or prohibitory

laws shall be void, except when the law itself authorizes their validity.

The violation of a mandatory or a prohibitory statute renders the act illegal

and void unless the law itself declares its continuing validity. Here,
mandatory and prohibitory statutes were transgressed in the execution of
the alleged "acknowledgment." The compulsory language of Article 806 of
the Civil Code was not complied with and the interdiction of Article 240 of
the Notarial Law was breached. Ineluctably, the acts of the testatrix, her
witnesses and Atty. Directo were all completely void.

The Court cannot turn a blind eye to Atty. Directo's participation in the
preparation, execution and unlawful "acknowledgment" of Felisa Tamio de
Buenaventura's will. Had he exercised his notarial commission properly,
the intent of the law to effectuate the decedent's final statements[15] as
expressed in her will would not have come to naught.[16] Hence, Atty.
Directo should show cause why he should not be administratively
sanctioned as a member of the bar and as an officer of the court.

MANUEL L. LEE, A.C. No. 5281 Complainant, Present: PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ, - v e r s u s - CORONA, AZCUNA and LEONARDO-DE
CASTRO, JJ. ATTY. REGINO B. TAMBAGO, Respondent. Promulgated: February 12,
2008 (A will purportedly executed validly on its face as it turns out several
defectiveness such as forgery, false residence certificate and the like renders the
will void and the lawyer who commissioned such is responsible therefor)

On the issue of whether respondent was under the legal obligation to furnish a
copy of the notarized will to the archives division, Article 806 provides:

Art. 806. Every will must be acknowledged before a notary public by the testator
and the witness. The notary public shall not be required to retain a copy of the will, or
file another with the office of the Clerk of Court. (emphasis supplied)

Respondents failure, inadvertent or not, to file in the archives division a copy of the
notarized will was therefore not a cause for disciplinary action.

Nevertheless, respondent should be faulted for having failed to make the

necessary entries pertaining to the will in his notarial register. The old Notarial Law
required the entry of the following matters in the notarial register, in chronological
order:
 1. nature of each instrument executed, sworn to, or acknowledged before him;

2. person executing, swearing to, or acknowledging the instrument;

3. witnesses, if any, to the signature;

4. date of execution, oath, or acknowledgment of the instrument;

5. fees collected by him for his services as notary;

6. give each entry a consecutive number; and

7. if the instrument is a contract, a brief description of the substance of the

instrument.[27]

In an effort to prove that he had complied with the abovementioned rule,

respondent contended that he had crossed out a prior entry and entered instead
the will of the decedent. As proof, he presented a photocopy of his notarial register.
To reinforce his claim, he presented a photocopy of a certification[28] stating that
the archives division had no copy of the affidavit of Bartolome Ramirez.

A photocopy is a mere secondary evidence. It is not admissible unless it is

shown that the original is unavailable. The proponent must first prove the existence
and cause of the unavailability of the original,[29] otherwise, the evidence presented
will not be admitted. Thus, the photocopy of respondents notarial register was not
admissible as evidence of the entry of the execution of the will because it failed to
comply with the requirements for the admissibility of secondary evidence.

In the same vein, respondents attempt to controvert the certification dated

September 21, 1999[30] must fail. Not only did he present a mere photocopy of the
certification dated March 15, 2000;[31] its contents did not squarely prove the fact
of entry of the contested will in his notarial register.

Notaries public must observe with utmost care[32] and utmost fidelity the
basic requirements in the performance of their duties, otherwise, the confidence
of the public in the integrity of notarized deeds will be undermined.[33]

Defects in the observance of the solemnities prescribed by law render the

entire will invalid. This carelessness cannot be taken lightly in view of the
importance and delicate nature of a will, considering that the testator and the
witnesses, as in this case, are no longer alive to identify the instrument and to
confirm its contents.[34] Accordingly, respondent must be held accountable for his
acts. The validity of the will was seriously compromised as a consequence of his
breach of duty.[35]

In this connection, Section 249 of the old Notarial Law provided:

Grounds for revocation of commission. The following derelictions of duty on the part of a
notary public shall, in the discretion of the proper judge of first instance, be sufficient
ground for the revocation of his commission:

xxx xxx xxx

(b) The failure of the notary to make the proper entry or entries in his notarial register
touching his notarial acts in the manner required by law.
 xxx xxx xxx

(f) The failure of the notary to make the proper notation regarding cedula certificates.

Samaniego-Celada vs. Abena

We find that this case does not involve any of the abovementioned exceptions.

Nonetheless, a review of the findings of the RTC as upheld by the Court of

Appeals, reveal that petitioners arguments lack basis. The RTC correctly held:
With [regard] to the contention of the oppositors [Paz Samaniego-Celada,
et al.] that the testator [Margarita Mayores] was not mentally capable of making a
will at the time of the execution thereof, the same is without merit. The oppositors
failed to establish, by preponderance of evidence, said allegation and contradict the
presumption that the testator was of sound mind (See Article 800 of the Civil
Code). In fact, witness for the oppositors, Dr. Ramon Lamberte, who, in some
occasions, attended to the testator months before her death, testified that Margarita
Mayores could engage in a normal conversation and he even stated that the illness
of the testator does not warrant hospitalization. Not one of the oppositors witnesses
has mentioned any instance that they observed act/s of the testator during her
lifetime that could be construed as a manifestation of mental incapacity. The
testator may be admitted to be physically weak but it does not necessarily follow
that she was not of sound mind. [The] testimonies of contestant witnesses are pure
aforethought.

Anent the contestants submission that the will is fatally defective for the
reason that its attestation clause states that the will is composed of three (3) pages
while in truth and in fact, the will consists of two (2) pages only because the
attestation is not a part of the notarial will, the same is not accurate. While it is true
that the attestation clause is not a part of the will, the court, after examining the
totality of the will, is of the considered opinion that error in the number of pages of
the will as stated in the attestation clause is not material to invalidate the subject
will. It must be noted that the subject instrument is consecutively lettered with
pages A, B, and C which is a sufficient safeguard from the possibility of an
omission of some of the pages. The error must have been brought about by the
honest belief that the will is the whole instrument consisting of three (3) pages
inclusive of the attestation clause and the acknowledgement. The position of the
court is in consonance with the doctrine of liberal interpretation enunciated
in Article 809 of the Civil Code which reads:

In the absence of bad faith, forgery or fraud, or undue [and]

improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not
render the will invalid if it is proved that the will was in fact
 executed and attested in substantial compliance with all the
requirements of Article 805.

The court also rejects the contention of the oppositors that the signatures of
the testator were affixed on different occasions based on their observation that the
signature on the first page is allegedly different in size, texture and appearance as
compared with the signatures in the succeeding pages. After examination of the
signatures, the court does not share the same observation as the oppositors. The
picture (Exhibit H-3) shows that the testator was affixing her signature in the
presence of the instrumental witnesses and the notary. There is no evidence to show
that the first signature was procured earlier than February 2, 1987.

Finally, the court finds that no pressure nor undue influence was exerted on
the testator to execute the subject will. In fact, the picture reveals that the testator
was in a good mood and smiling with the other witnesses while executing the
subject will (See Exhibit H).

In fine, the court finds that the testator was mentally capable of making the
will at the time of its execution, that the notarial will presented to the court is the
same notarial will that was executed and that all the formal requirements (See
Article 805 of the Civil Code) in the execution of a will have been substantially
complied with in the subject notarial will.[14](Emphasis supplied.)

Thus, we find no reason to disturb the abovementioned findings of the

RTC. Since, petitioner and her siblings are not compulsory heirs of the decedent
under Article 887[15] of the Civil Code and as the decedent validly disposed of her
properties in a will duly executed and probated, petitioner has no legal right to claim
any part of the decedents estate.

B. Holographic of Wills; Incorporation of Document by Reference; Codicils;

Revocation of Wills and Testamentary Dispositions; Republication and Revival of
Wills; Allowance and Disallowance of Wills;

A SUBSECTION 3. Forms of Wills

Article 804. Every will must be in writing and executed in a language or dialect known to the
testator. (n)
Article 810. A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be made in or out
of the Philippines, and need not be witnessed. (678, 688a)

Article 811. In the probate of a holographic will, it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly declare that the will and the signature
are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be
required.
In the absence of any competent witness referred to in the preceding paragraph, and if the court
deem it necessary, expert testimony may be resorted to. (619a)
Article 812. In holographic wills, the dispositions of the testator written below his signature must be
dated and signed by him in order to make them valid as testamentary dispositions. (n)
Article 813. When a number of dispositions appearing in a holographic will are signed without being
dated, and the last disposition has a signature and a date, such date validates the dispositions
preceding it, whatever be the time of prior dispositions. (n)
SUBSECTION 5. Codicils and Incorporation by Reference
Article 825. A codicil is supplement or addition to a will, made after the execution of a will and
annexed to be taken as a part thereof, by which disposition made in the original will is explained,
added to, or altered. (n)

Article 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n)
Article 827. If a will, executed as required by this Code, incorporates into itself by reference any
document or paper, such document or paper shall not be considered a part of the will unless the
following requisites are present:
(1) The document or paper referred to in the will must be in existence at the time of the
execution of the will;
(2) The will must clearly describe and identify the same, stating among other things the
number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the document or paper referred to
therein; and
(4) It must be signed by the testator and the witnesses on each and every page, except in
case of voluminous books of account or inventories. (n)
SUBSECTION 6. Revocation of Wills and Testamentary Dispositions
Article 828. A will may be revoked by the testator at any time before his death. Any waiver or
restriction of this right is void. (737a)
Article 829. A revocation done outside the Philippines, by a person who does not have his domicile
in this country, is valid when it is done according to the law of the place where the will was made, or
according to the law of the place in which the testator had his domicile at the time; and if the
revocation takes place in this country, when it is in accordance with the provisions of this Code. (n)
Article 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills; or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by
the testator himself, or by some other person in his presence, and by his express direction. If
burned, torn, cancelled, or obliterated by some other person, without the express direction of
the testator, the will may still be established, and the estate distributed in accordance
therewith, if its contents, and due execution, and the fact of its unauthorized destruction,
cancellation, or obliteration are established according to the Rules of Court. (n)
Article 831. Subsequent wills which do not revoke the previous ones in an express manner, annul
only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the
later wills. (n)
Article 832. A revocation made in a subsequent will shall take effect, even if the new will should
become inoperative by reason of the incapacity of the heirs, devisees or legatees designated
therein, or by their renunciation. (740a)
Article 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n)
Article 834. The recognition of an illegitimate child does not lose its legal effect, even though the will
wherein it was made should be revoked. (741)
SUBSECTION 7. Republication and Revival of Wills
Article 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its form. (n)
Article 836. The execution of a codicil referring to a previous will has the effect of republishing the
will as modified by the codicil. (n)
Article 837. If after making a will, the testator makes a second will expressly revoking the first, the
revocation of the second will does not revive the first will, which can be revived only by another will
or codicil. (739a)
SUBSECTION 8. Allowance and Disallowance of Wills
Article 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 a 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. (n)
Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of
its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be
his will at the time of affixing his signature thereto. (n)
Article 1335. There is violence when in order to wrest consent, serious or irresistible force is
employed.
There is intimidation when one of the contracting parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his person or property, or upon the person or
property of his spouse, descendants or ascendants, to give his consent.
To determine the degree of intimidation, the age, sex and condition of the person shall be borne in
mind.
A threat to enforce one's claim through competent authority, if the claim is just or legal, does not
vitiate consent. (1267a)
Article 1337. There is undue influence when a person takes improper advantage of his power over
the will of another, depriving the latter of a reasonable freedom of choice. The following
circumstances shall be considered: the confidential, family, spiritual and other relations between the
parties, or the fact that the person alleged to have been unduly influenced was suffering from mental
weakness, or was ignorant or in financial distress. (n)
Article 1338. There is fraud when, through insidious words or machinations of one of the contracting
parties, the other is induced to enter into a contract which, without them, he would not have agreed
to. (1269)

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,

CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF
MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents. (The
purported burning of a will does not automatically revoke its validity in the absence of animus
revocandi thus, the intention to revoke the will by burning must be proved otherwise the will
shall subsist)

Significantly, the appellate court while finding as inconclusive the matter on whether or not the
document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de
Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will
had been revoked. The respondent court stated that the presence of animus revocandi in the
destruction of the will had, nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in Adriana's residence, by the
testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the latter's
possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up. For
reasons shortly to be explained, we do not view such facts, even considered collectively, as
sufficient bases for the conclusion that Adriana Maloto's will had been effectively revoked.

There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will.
The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

 (2) By some will, codicil, or other writing executed as provided in case of wills: or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence, and by
his express direction. If burned, torn cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be established, and the
estate distributed in accordance therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not per se
constitute an effective revocation, unless the destruction is coupled with animus revocandi on the
part of the testator. It is not imperative that the physical destruction be done by the testator himself. It
may be performed by another person but under the express direction and in the presence of the
testator. Of course, it goes without saying that the document destroyed must be the will itself.

In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state
of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary
elements for the effective revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried
out by the testator or by another person in his presence and under his express direction. There is
paucity of evidence to show compliance with these requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at all, much less
the will of Adriana Maloto. For another, the burning was not proven to have been done under the
express direction of Adriana. And then, the burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they were the only ones present at the place where
the stove (presumably in the kitchen) was located in which the papers proffered as a will were
burned.

The respondent appellate court in assessing the evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor
of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both
illiterates, were unequivocably positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed was the will only because, according to
her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned
document was the will because Guadalupe told him so, thus, his testimony on this point is double
hearsay.

At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is
not denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its very foundations ...."4

The private respondents in their bid for the dismissal of the present action for probate instituted by
the petitioners argue that the same is already barred by res adjudicata. They claim that this bar was
brought about by the petitioners' failure to appeal timely from the order dated November 16, 1968 of
the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners')
motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow
the last will and testament of the late Adriana Maloto. This is untenable.

The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a
bar to a subsequent case, the following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject
matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is,
between the first and the second action, Identity of parties, of subject matter, and of cause of
action. 5 We do not find here the presence of all the enumerated requisites.

For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana
Maloto's will is concerned. The decision of the trial court in Special Proceeding No. 1736, although
final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not
in any manner be construed to be final with respect to the probate of the subsequently discovered
will of the decedent. Neither is it a judgment on the merits of the action for probate. This is
understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule
on the probate of the contested will . 6 After all, an action for probate, as it implies, is founded on the
presence of a will and with the objective of proving its due execution and validity, something which
can not be properly done in an intestate settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is likewise no Identity between the cause of
action in intestate proceeding and that in an action for probate. Be that as it may, it would be
remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners
instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these
grounds alone, the position of the private respondents on this score can not be sustained.

One last note. The private respondents point out that revocation could be inferred from the fact that
"(a) major and substantial bulk of the properties mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the time of death (of the testatrix); and,
furthermore, more valuable properties have been acquired after the execution of the will on January
3,1940." 7 Suffice it to state here that as these additional matters raised by the private respondents
are extraneous to this special proceeding, they could only be appropriately taken up after the will has
been duly probated and a certificate of its allowance issued.

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants. (Two wills executed at
different time, the later will contained revocatory clause voiding the earlier will, in the absence
of aminus revocandi cannot operate as to revoke the earlier will especially when the later
cannot be produced in court due to its destruction from war)

Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after
the execution of the second will, which revoked the first, could there be any doubt, under this theory,
that said earlier will was destroyed by the testator in the honest belief that it was no longer
necessary because he had expressly revoked it in his will of 1939? In other words, can we not say
that the destruction of the earlier will was but the necessary consequence of the testator's belief that
the revocatory clause contained in the subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate
under the principle of "dependent relative revocation".

This doctrine is known as that of dependent relative revocation, and is usually applied where
the testator cancels or destroys a will or executes an instrument intended to revoke a will
with a present intention to make a new testamentary disposition as a substitute for the old,
and the new disposition is not made or, if made, fails of effect for same reason. The doctrine
is n limited to the existence of some other document, however, and has been applied where
a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799).
 The rule is established that where the act of destruction is connected with the making of
another will so as fairly to raise the inference that the testator meant the revocation of the old
to depend upon the efficacy of a new disposition intended to be substituted, the revocation
will be conditional and dependent upon the efficacy of the new disposition; and if, for any
reason, the new will intended to be made as a substitute is inoperative, the revocation fails
and the original will remains in full force. (Gardner, pp. 232, 233.)

This is the doctrine of dependent relative revocation. The failure of a new testamentary
disposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of
a suspensive conditions, and hence prevents the revocation of the original will. But a mere
intent to make at some time a will in the place of that destroyed will not render the
destruction conditional. It must appear that the revocation is dependent upon the valid
execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the testator
could be presumed from the failure of the petitioner to produce it in court, such destruction cannot
have the effect of defeating the prior will of 1918 because of the fact that it is founded on the
mistaken belief that the will of 1939 has been validly executed and would be given due effect. The
theory on which this principle is predicated is that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills on two different occasion and instituted his
wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.

The remaining question to be determined refers to the sufficiency of the evidence to prove the due
execution of the will.

The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino
Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present
proceedings. So the only instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner
presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the
notary public who prepared and notarized the will upon the express desire and instruction of the
testator, The testimony of these witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed by their readiness and
sincerity. We are convinced that they told the truth.

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA

deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor. (A xerox copy of the will may be admitted in court to be probated)
The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been
proved. The probate may be uncontested or not. If uncontested, at least one Identifying
witness is required and, if no witness is available, experts may be resorted to. If contested, at
least three Identifying witnesses are required. However, if the holographic will has been lost
or destroyed and no other copy is available, the will can not be probated because the best and
only evidence is the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the testator. In the case of Gam vs.
Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen and/or
read such will. The will itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even
a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity
of the handwriting of the deceased may be exhibited and tested before the probate court,"
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined
by the probate court.

FEDERICO AZAOLA, petitioner-appellant, vs. CESARIO SINGSON, oppositor-appellee. (A

witness attesting the authenticity of the signature of the testator to effect his will is necessary
if the Court is not convinced, it may call the expert witness to certify such in its discretion; Thus,
the remand of the case to the court of origin is proper to aptly determine the authenticity of the
signature in the said will as instrumental witnesses are not necessary if the signature is not
contested)

The proponent appealed, urging: first, that he was not bound to produce more than one witness
because the will's authenticity was not questioned; and second, that Article 811 does not mandatorily
require the production of three witnesses to identify the handwriting and signature of a holographic
will, even if its authenticity should be denied by the adverse party.

Article 811 of the Civil Code of the Philippines is to the following effect:

ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. If the will is contested, at least three of
such witnesses shall be required.

In the absence of any competent witnesses referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to. (691a).

We agree with the appellant that since the authenticity of the will was not contested, he was not
required to produce more than one witness; but even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as
to require the compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of having the probate denied. Since no witness may have been present at the
execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witness possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and signature of the testator" and
who can declare (truthfully, of course, even if the law does not so express) "that the will and the
signature are in the handwriting of the testator". There may be no available witness of the testator's
hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is
evidently the reason why the second paragraph of Article 811 prescribes that —
 in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to.

As can be seen, the law foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the authenticity of
the will), and provides for resort to expert evidence to supply the deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if the will is
contested and only one if no contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can
not be ignored that the requirement can be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three witnesses at the execution of ordinary
wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness
need be present (Art. 10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.

Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem
it necessary", which reveal that what the law deems essential is that the Court should be convinced
of the will's authenticity. Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the ill is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the
Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.

And because the law leaves it to the trial court if experts are still needed, no unfavourable inference
can be drawn from a party's failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.

Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely
directory and is not mandatory.

Considering, however, that this is the first occasion in which this Court has been called upon to
construe the import of said article, the interest of justice would be better served, in our opinion, by
giving the parties ample opportunity to adduce additional evidence, including expert witnesses,
should the Court deem them necessary.

ROSA CAYETANO CUENCO, petitioners,

vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO,
LOURDES CUENCO, CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO,
CONSUELO CUENCO REYES, and TERESITA CUENCO GONZALEZ, respondents. (A
testate proceedings of the estate of the late Senator decedent was properly filed in Quezon
City as the court therein acquired the jurisdiction over the res thus, preliminary injunction and
prohibition were erroneously granted against the petitioner)
The Court finds under the above-cited facts that the appellate court erred in law in issuing the
writ of prohibition against the Quezon City court from proceeding with the testate proceedings
and annulling and setting aside all its orders and actions, particularly its admission to probate
of the deceased's last will and testament and appointing petitioner-widow as executrix thereof
without bond pursuant to the deceased testator's express wish, for the following
considerations: —

8. If the question of jurisdiction were to be made to depend only on who of the decedent's relatives
gets first to file a petition for settlement of the decedent's estate, then the established jurisprudence
of the Court that Rule 73, section 1 provides only a rule of venue in order to preclude different courts
which may properly assume jurisdiction from doing so and creating conflicts between them to the
detriment of the administration of justice, and that venue is waivable, would be set at naught. As
between relatives who unfortunately do not see eye to eye, it would be converted into a race as to
who can file the petition faster in the court of his/her choice regardless of whether the decedent is
still in cuerpo presente and in disregard of the decedent's actual last domicile, the fact that he left a
last will and testament and the right of his surviving widow named as executrix thereof. Such dire
consequences were certainly not intended by the Rule nor would they be in consonance with public
policy and the orderly administration of justice.

9. It would finally be unjust and inequitable that petitioner-widow, who under all the applicable rules
of venue, and despite the fact that the Cebu court (where respondent Lourdes Cuenco had filed
an intestate petition in the Cebu court earlier by a week's time on 5 March 1964) deferred to the
Quezon City court where petitioner had within fifteen days (on March 12, 1964) after the decedent's
death (on February 25, 1964) timely filed the decedent's last will and petitioned for letters
testamentary and is admittedly entitled to preference in the administration of her husband's
estate, 20 would be compelled under the appealed decision to have to go all the way to Cebu and
submit anew the decedent's will there for probate either in a new proceeding or by asking that the
intestate proceedings be converted into a testate proceeding — when under the Rules, the
proper venue for the testate proceedings, as per the facts of record and as already affirmed by the
Quezon City court is Quezon City, where the decedent and petitioner-widow had their conjugal
domicile.

It would be an unfair imposition upon petitioner as the one named and entitled to be executrix of the
decedent's last will and settle his estate in accordance therewith, and a disregard of her rights under
the rule on venue and the law on jurisdiction to require her to spend much more time, money and
effort to have to go from Quezon City to the Cebu court everytime she has an important matter of the
estate to take up with the probate court.

It would doubly be an unfair imposition when it is considered that under Rule 73, section 2, 21 since
petitioner's marriage has been dissolved with the death of her husband, their community property
and conjugal estate have to be administered and liquidated in the estate proceedings of the
deceased spouse. Under the appealed decision, notwithstanding that petitioner resides in Quezon
City, and the proper venue of the testate proceeding was in Quezon City and the Quezon City court
properly took cognizance and exercised exclusive jurisdiction with the deference in comity and
consent of the Cebu court, such proper exercise of jurisdiction would be nullified and petitioner
would have to continually leave her residence in Quezon City and go to Cebu to settle and liquidate
even her own community property and conjugal estate with the decedent.

10. The Court therefore holds under the facts of record that the Cebu court did not act without
jurisdiction nor with grave abuse of discretion in declining to take cognizance of the intestate petition
and instead deferring to the testate proceedings filed just a week later by petitioner as surviving
widow and designated executrix of the decedent's last will, since the record before it (the petitioner's
opposition and motion to dismiss) showed the falsity of the allegation in the intestate petition that the
decedent had died without a will. It is noteworthy that respondents never challenged by certiorari or
prohibition proceedings the Cebu court's order of 10 April 1964 deferring to the probate proceedings
before the Quezon City court, thus leaving the latter free (pursuant to the Cebu court's order of
deference) to exercise jurisdiction and admit the decedent's will to probate.

For the same reasons, neither could the Quezon City court be held to have acted without jurisdiction
nor with grave abuse of discretion in admitting the decedent's will to probate and appointing
petitioner as executrix in accordance with its testamentary disposition, in the light of the settled
doctrine that the provisions of Rule 73, section 1 lay down only a rule of venue, not of jurisdiction.

Since respondents undisputedly failed to appeal from the Quezon City court's order of May 15, 1964
admitting the will to probate and appointing petitioner as executrix thereof, and said court
concededly has jurisdiction to issue said order, the said order of probate has long since become final
and can not be overturned in a special civic action of prohibition.

11. Finally, it should be noted that in the Supreme Court's exercise of its supervisory authority over
all inferior courts, 22 it may properly determine, as it has done in the case at bar,
that venue was properly assumed by and transferred to the Quezon City court and that it is the
interest of justice and in avoidance of needless delay that the Quezon City court's exercise of
jurisdiction over the testate estate of the decedent (with the due deference and consent of the Cebu
court) and its admission to probate of his last will and testament and appointment of petitioner-widow
as administratrix without bond in pursuance of the decedent's express will and all its orders and
actions taken in the testate proceedings before it be approved and authorized rather than to annul all
such proceedings regularly had and to repeat and duplicate the same proceedings before the Cebu
court only to revert once more to the Quezon City court should the Cebu court find that indeed and in
fact, as already determined by the Quezon City court on the strength of incontrovertible documentary
evidence of record, Quezon City was the conjugal residence of the decedent.

EUGENIA RAMONAL CODOY, and MANUEL

RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE
SALCEDO, and EUFEMIA PATIGAS, respondents. (The authenticity of the
signature of the testator must be proved with certainty not only with
familiarity to satisfy the burden prescribed by law)
From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and
disregard the requirement of three witnesses in case of contested holographic will, citing the
decision in Azaola vs. Singson,[31] ruling that the requirement is merely directory and not
mandatory.
In the case of Ajero vs. Court of Appeals,[32] we said that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws
on this subject should be interpreted in such a way as to attain these primordial ends. But, on the
other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will
of the testator, which is why if the holographic will is contested, that law requires three witnesses
to declare that the will was in the handwriting of the deceased.
 The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay,
she revealed that the will was in her possession as early as 1985, or five years before the death of
the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the
deceased with other documents signed and executed by her during her lifetime. The only chance
at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners
asked Ms. Binanay to compare the documents which contained the signature of the deceased with
that of the holographic will and she is not a handwriting expert. Even the former lawyer of the
deceased expressed doubts as to the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different when
compared with other documents written by the testator. The signature of the testator in some of
the disposition is not readable. There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,[33] and the signatures
in several documents such as the application letter for pasture permit dated December 30,
1980,[34] and a letter dated June 16, 1978,[35] the strokes are different. In the letters, there are
continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that the holographic will was in the handwriting
by the deceased.
ETHEL GRIMM ROBERTS, petitioner, vs. JUDGE TOMAS R. LEONIDAS, Branch 38, Court
of First Instance of Manila; MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and
LINDA GRIMM, respondents. (A decedent who died in US wherein two wills were executed
thereat one will disposed of the property in the Philippines and US property in the other shall
be proved and probated)

We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack of
jurisdiction, in denying Ethel's motion to dismiss.

A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass
either real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule
75, Rules of Court).

The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot
vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who
died testate should be settled in an intestate proceeding. Therefore, the intestate case should be
consolidated with the testate proceeding and the judge assigned to the testate proceeding should
continue hearing the two cases.

Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer
to the petition unless she considers her motion to dismiss and other pleadings sufficient for the
purpose. Juanita G. Morris, who appeared in the intestate case, should be served with copies of
orders, notices and other papers in the testate case.

SOFIA J. NEPOMUCENO, petitioner, vs. THE HONORABLE COURT OF APPEALS,

RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA JUGO, respondents (Void donation
inter vivos also applies to succession where the will favors the concubine such is void; Thus,
a concubine-petitioner cannot be made an heir to succeed the estate of the decedent).
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed
by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the
presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their
signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was acknowledged before
the Notary Public Romeo Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole
and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a
certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952,
he had been estranged from his lawfully wedded wife and had been living with petitioner as husband
and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J.
Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised
to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his
entire estate and the free portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned legal wife,
Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo,
whom I declare and admit to be legally and properly entitled to inherit from me; that
while I have been estranged from my above-named wife for so many years, I cannot
deny that I was legally married to her or that we have been separated up to the
present for reasons and justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all
the things which she has done for me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and consent, did comport and represent
myself as her own husband, in truth and in fact, as well as in the eyes of the law, I
could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of
the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and
asked for the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition
alleging inter alia that the execution of the Will was procured by undue and improper influence on the
part of the petitioner; that at the time of the execution of the Will, the testator was already very sick
and that petitioner having admitted her living in concubinage with the testator, she is wanting in
integrity and thus, letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16,
1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the
invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal
denying the probate of the will. The respondent court declared the Will to be valid except that the
devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of
the Civil Code of the Philippines. The dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question declared
valid except the devise in favor of the appellant which is declared null and void. The
properties so devised are instead passed on in intestacy to the appellant in equal
shares, without pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of
Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the
decision be changed to "appellees" so as to read: "The properties so devised are instead passed on
intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was
granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the
respondent court in a resolution dated December 28, 1982.

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees. (A will naming the
petitioner sister of the decedent as the only universal heir to succeed the entire estate of the latter
without any declaration as to testator’s parents and siblings a legitime and neither they were
disinherited in the disposition of the will was properly declared a nullity for being a clear case of
pretirition depriving successional rights of legitime by institution of the universal heir as legitime
ascending line were neither mentioned as heirs in the will nor are declared disinherited)

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. " 17 In Manresa's own
words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la
misma se denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be
"involuntaria". 19 Express as disinheritance should be, the same must be supported by a legal cause
specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their
names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which
the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution
of heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions
in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code,
such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the
person disinherited", which last phrase was omitted in the case of preterition. 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
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their
legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so
instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case
heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in 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.
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.
ROSA K. KALAW, petitioner, vs. HON. JUDGE BENJAMIN RELOVA, Presiding Judge of
the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
(Without the authentication by testator’s full signature of alterations, corrections, cancellations,
insertions or erasures, the holographic will cannot be admitted for probate proceedings thus,
the dismissal of the will for probate containing erasures without proper authentication is proper
because the will of the decedent and her real intention cannot be determined with proper
certitude)
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as her sole heir.
Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate alleging, in substance,
that the holographic Will contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814 of the Civil Code
reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic

will the testator must authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be given effect and probated
so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions
and/or additions and the initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting of the decedent, Natividad K. Kalaw.
The only question is whether the win, Exhibit 'C', should be admitted to probate
although the alterations and/or insertions or additions above-mentioned were not
authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil
Code. The petitioner contends that the oppositors are estopped to assert the
provision of Art. 814 on the ground that they themselves agreed thru their counsel to
submit the Document to the NBI FOR EXAMINATIONS. This is untenable. The
parties did not agree, nor was it impliedly understood, that the oppositors would be in
estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit
"C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw,
the Court will deny the admission to probate of Exhibit "C".

WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad
K. Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
insertions were the testatrix, the denial to probate of her holographic Will would be contrary to her
right of testamentary disposition. Reconsideration was denied in an Order, dated November 2, 1973,
on the ground that "Article 814 of the Civil Code being , clear and explicit, (it) requires no necessity
for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order dated November 2,
1973 denying reconsideration, ROSA filed this Petition for Review on certiorari on the sole legal
question of whether or not the original unaltered text after subsequent alterations and insertions
were voided by the Trial Court for lack of authentication by the full signature of the testatrix, should
be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined.1 Manresa gave
an Identical commentary when he said "la omision de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895." 2

However, when as in this case, the holographic Will in dispute had only one substantial provision,
which was altered by substituting the original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator, the effect must be that the entire
Will is voided or revoked for the simple reason that nothing remains in the Will after that which could
remain valid. To state that the Will as first written should be given efficacy is to disregard the
seeming change of mind of the testatrix. But that change of mind can neither be given effect
because she failed to authenticate it in the manner required by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves but
not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be determined with certitude.

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA

ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent. (The date (Feb./16) appearing on the will is a substantial
compliance with legal formalities in the absence of fraud, bad faith and undue influence)

This will not be the first time that this Court departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not overlook the liberal trend of the
Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to prevent
intestacy —

The underlying and fundamental objectives permeating the provisions of the law on
wigs in this Project consists in the liberalization of the manner of their execution with
the end in view of giving the testator more freedom in expressing his last wishes, but
with sufficien safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.

This objective is in accord with the modem tendency with respect to the formalities in
the execution of wills. (Report of the Code Commission, p. 103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that:

xxx xxx xxx

... The law has a tender regard for the will of the testator expressed in his last will
and testament on the ground that any disposition made by the testator is better than
that which the law can make. For this reason, intestate succession is nothing more
than a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard
against fraud and bad faith but without undue or unnecessary curtailment of testamentary
privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance
with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is
obviated, said Win should be admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,

xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding circumstances
point to a regular execution of the wilt and the instrument appears to have been
executed substantially in accordance with the requirements of the law, the inclination
should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards
its admission to probate, although the document may suffer from some imperfection
of language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is
not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court
in Abangan v. Abanga 40 Phil. 476, where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. ...

In particular, a complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on the day on which a
Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in
its execution nor was there any substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no question as to its genuineness
and due execution. All the children of the testatrix agree on the genuineness of the holographic Will
of their mother and that she had the testamentary capacity at the time of the execution of said Will.
The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61 " appearing on the holographic Will is not sufficient
compliance with Article 810 of the Civil Code. This objection is too technical to be entertained.

As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is whether or
not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the
Civil Code, probate of the holographic Will should be allowed under the principle of substantial
compliance

[G.R. No. 133359. January 31, 2000]

OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES

PHILLIPS, respondent.

OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON.

FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding Judge of
RTC-Makati, Branch 61, and PACITA PHILLIPS as the alleged executrix of the
alleged will of the late Dr. Arturo de Santos, respondents. (The probate of the will
initiated by the testator himself who bequeathed his entire estate to his very own
charitable foundation Arturo de Santos Foundation, Inc. as sole legatee and
devisee is allowed as it reduces malice and probes the real intent on the will of the
decedent; The nephew of the decedent nearest kin of blood who intervened in the
testate proceeding is not a compulsory heir as prescribed by law nor a devisee
nor legatee unless called upon to succeed in the will provided has capacity to
succeed)
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.[9]

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.[10]

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 testators 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 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
testators life, therefore, will lessen the number of contest upon wills. Once a will
is probated during the lifetime of the testator, the only questions that may remain
for the courts to decide after the testators 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 testators death would be in order.[11]

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 latters
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.[12]

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:[13]

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.[14]

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
taking cognizance of the settlement of the estate of the testator after his death. As held in the
leading case of Bacalso v. Ramolote:[15]

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 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 decedents 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 respondents 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.[16]

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.[17]
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 testators -

(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.[18]

Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in
the testators 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:[19]

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.[20] None of these circumstances is present in
this case

SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF APPEALS
AND CLEMENTE SAND, respondents. (A holographic will executed by Annie Sand brought
for probate by her petitioner-devisees opposed by private respondent-heir widow due to its
execution with different handwriting not by the decedent, alterations, interlineations and
corrections remained unsigned by the decedent, co-owned property subject of the will with
private respondent and the holographic will being executed with duress and undue pressure
and influence was allowed notwithstanding the alleged alterations, corrections and
interlineations remaining unauthenticated as these grounds set forth in law and procedural law
being exclusive to disallow a will and no other grounds can be made a basis unless such was
made on the very date of holographic will or on testator’s signature changes do not invalidate
the holographic will. Further, holographic will is not subject to any other formalities as differed
from ordinary wills its corrections and alterations do not render the will void and the same will
not result in disallowance for such failure to observe other formalities but the same only affects
the validity of dispositions on the will which these corrections were made on the will not its
probate cannot be effectuated. Thus, the disposition of the property co-owned by decedent
with private respondent was properly held to be invalidated)

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following
cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the
time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary, or of some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of

making a will, at the time of its execution;

(3) If it was executed through force or under duress, or the influence

of fear, or threats;

(4) If it was procured by undue and improper pressure and influence,

on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

 (6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit
a holographic will to probate, the only issues to be resolved are: (1) whether the instrument
submitted is, indeed, the decedent's last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent had the necessary
testamentary capacity at the time the will was executed; and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedent. 6

In the case at bench, respondent court held that the holographic will of Anne Sand was not executed
in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New
Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is
erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include the subscription,
attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the requirement that
they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of
the New Civil Code, thus:

A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed. (Emphasis supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a holographic
will that is unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the
provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:
 Ordinarily, when a number of erasures, corrections, and interlineations made by the
testator in a holographic Will have not been noted under his signature, . . . the Will is
not thereby invalidated as a whole, but at most only as respects the particular words
erased, corrected or interlined. Manresa gave an identical commentary when he said
"la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of
the holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The
lack of authentication will only result in disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article 810). The distinction can be
traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering
holographic wills are taken. They read as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form
and with the requisites required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper corresponding to
the year of its execution, written in its entirety by the testator and signed by him, and
must contain a statement of the year, month and day of its execution.

If it should contain any erased, corrected, or interlined words, the testator must
identify them over his signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of Article
810 of the New Civil Code — and not those found in Articles 813 and 814 of the same Code — are
essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house
and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of
the will sought to be probated. However, in exceptional instances, courts are not powerless to do
what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the case at
bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in
the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot
validly dispose of the whole property, which she shares with her father's other heirs.

LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D.

QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and
JOSE DOROTHEO, respondents (The decision on the probate of the will had
become final and executory making it binding on the whole world no
matter how erroneous the decision may be; Thus, the rules on intestacy
apply when the will was found to be extrinsically valid and its provisions or
dispositions were void)
It should be noted that probate proceedings deals generally with the extrinsic
validity of the will sought to be probated,[7] particularly on three aspects:

whether the will submitted is indeed, the decedents last will and testament;

compliance with the prescribed formalities for the execution of wills;

the testamentary capacity of the testator;[8]

and the due execution of the last will and testament.[9]

Under the Civil Code, due execution includes a determination of whether the
testator was of sound and disposing mind at the time of its execution, that he had freely
executed the will and was not acting under duress, fraud, menace or undue influence
and that the will is genuine and not a forgery,[10] that he was of the proper testamentary
age and that he is a person not expressly prohibited by law from making a will.[11]
The intrinsic validity is another matter and questions regarding the same may still
be raised even after the will has been authenticated.[12] Thus, it does not necessarily
follow that an extrinsically valid last will and testament is always intrinsically
valid. Even if the will was validly executed, if the testator provides for dispositions that
deprives or impairs the lawful heirs of their legitime or rightful inheritance according
to the laws on succession,[13] the unlawful provisions/dispositions thereof cannot be
given effect. This is specially so when the courts had already determined in a final and
executory decision that the will is intrinsically void. Such determination having attained
that character of finality is binding on this Court which will no longer be disturbed. Not
that this Court finds the will to be intrinsically valid, but that a final and executory
decision of which the party had the opportunity to challenge before the higher tribunals
must stand and should no longer be reevaluated. Failure to avail of the remedies
provided by law constitutes waiver. And if the party does not avail of other remedies
despite its belief that it was aggrieved by a decision or court action, then it is deemed
to have fully agreed and is satisfied with the decision or order. As early as 1918, it has
been declared that public policy and sound practice demand that, at the risk of
occasional errors, judgments of courts must at some point of time fixed by
law[14] become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit
litium - the very object of which the courts were constituted was to put an end to
controversies.[15] To fulfill this purpose and to do so speedily, certain time limits, more
or less arbitrary, have to be set up to spur on the slothful. [16] The only instance where a
party interested in a probate proceeding may have a final liquidation set aside is when
he is left out by reason of circumstances beyond his control or through mistake or
inadvertence not imputable to negligence,[17]which circumstances do not concur herein.
Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity
of the will, as she precisely appealed from an unfavorable order therefrom. Although
the final and executory Order of January 30, 1986 wherein private respondents were
declared as the only heirs do not bind those who are not parties thereto such as the
alleged illegitimate son of the testator, the same constitutes res judicata with respect to
those who were parties to the probate proceedings. Petitioner cannot again raise those
matters anew for relitigation otherwise that would amount to forum-shopping. It should
be remembered that forum shopping also occurs when the same issue had already been
resolved adversely by some other court.[18] It is clear from the executory order that the
estates of Alejandro and his spouse should be distributed according to the laws of
intestate succession.
Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it
can still be set aside by the trial court. In support thereof, petitioner argues that an order
merely declaring who are heirs and the shares to which set of heirs is entitled cannot be
the basis of execution to require delivery of shares from one person to another
particularly when no project of partition has been filed. [19] The trial court declared in the
January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only
heirs are his three legitimate children (petitioners herein), and at the same time it
nullified the will. But it should be noted that in the same Order, the trial court also said
that the estate of the late spouses be distributed according to the laws of
intestacy. Accordingly, it has no option but to implement that order of intestate
distribution and not to reopen and again re-examine the intrinsic provisions of the same
will.
It can be clearly inferred from Article 960 of the Civil Code, on the law of
successional rights that testacy is preferred to intestacy.[20] But before there could be
testate distribution, the will must pass the scrutinizing test and safeguards provided by
law considering that the deceased testator is no longer available to prove the
voluntariness of his actions, aside from the fact that the transfer of the estate is usually
onerous in nature and that no one is presumed to give - Nemo praesumitur donare.[21] No
intestate distribution of the estate can be done until and unless the will had failed to
pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of
intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the
next test is to determine its intrinsic validity that is whether the provisions of the will
are valid according to the laws of succession. In this case, the court had ruled that the
will of Alejandro was extrinsically valid but the intrinsic provisions thereof were
void. Thus, the rules of intestacy apply as correctly held by the trial court.
 Furthermore, Alejandros disposition in his will of the alleged share in the conjugal
properties of his late spouse, whom he described as his only beloved wife, is not a valid
reason to reverse a final and executory order. Testamentary dispositions of properties
not belonging exclusively to the testator or properties which are part of the conjugal
regime cannot be given effect. Matters with respect to who owns the properties that
were disposed of by Alejandro in the void will may still be properly ventilated and
determined in the intestate proceedings for the settlement of his and that of his late
spouses estate.
Petitioners motion for appointment as administratrix is rendered moot considering
that she was not married to the late Alejandro and, therefore, is not an heir.

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND
TESTAMENT OF ENRIQUE S. LOPEZ RICHARD B. LOPEZ, Petitioner,
vs.
DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L. TUAZON, Respondents.
(A will purportedly made by the deceased upon probate of the same at the instance of the son
opposed by the latter’s sister due to lack of formal requirements as required by law was
properly disallowed by the court because the will omitted the necessary indication of the
number of 8 pages showing only 7 pages on the portion of the attestation clause in the will as
prescribed by law; the failure to substantiate the number of pages of the will on the attesting
clause by the parties is fatal to one’s cause rendering the will invalid for not observing the legal
solemnities of the will)

In the Decision dated August 26, 2005,5 the RTC disallowed the probate of the will for failure to
comply with Article 805 of the Civil Code which requires a statement in the attestation clause of the
number of pages used upon which the will is written. It held that while Article 809 of the same Code
requires mere substantial compliance of the form laid down in Article 805 thereof, the rule only
applies if the number of pages is reflected somewhere else in the will with no evidence aliunde or
extrinsic evidence required. While the acknowledgment portion stated that the will consists of 7
pages including the page on which the ratification and acknowledgment are written, the RTC
observed that it has 8 pages including the acknowledgment portion. As such, it disallowed the will for
not having been executed and attested in accordance with law.

Aggrieved, Richard filed a Notice of Appeal which the RTC granted in the Order dated October 26,
2005.6

Ruling of the Court of Appeals

On March 30, 2009,7 the CA issued the assailed decision dismissing the appeal. It held that the RTC
erroneously granted Richard's appeal as the Rules of Court is explicit that appeals in special
proceedings, as in this case, must be made through a record on appeal. Nevertheless, even on the
merits, the CA found no valid reason to deviate from the findings of the RTC that the failure to state
the number of pages of the will in the attestation clause was fatal. It noted that while Article 809 of
the Civil Code sanctions mere substantial compliance with the formal requirements set forth in
Article 805 thereof, there was a total omission of such fact in the attestation clause. Moreover, while
the acknowledgment of the will made mention of "7 pages including the page on which the
ratification and acknowledgment are written," the will had actually 8 pages including the
acknowledgment portion thus, necessitating the presentation of evidence aliunde to explain the
discrepancy. Richard's motion for reconsideration from the decision was likewise denied in the
second assailed Resolution8 dated October 22, 2009.

Hence, the instant petition assailing the propriety of the CA's decision.

Ruling of the Court

The petition lacks merit.

The provisions of the Civil Code on Forms of Wills, particularly, Articles 805 and 809 of the Civil
Code provide:

ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them. (underscoring supplied)
1âwphi 1

ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of Article 805.

The law is clear that the attestation must state the number of pages used upon which the will is
written. The purpose of the law is to safeguard against possible interpolation or omission of one or
some of its pages and prevent any increase or decrease in the pages.9

While Article 809 allows substantial compliance for defects in the form of the attestation clause,
Richard likewise failed in this respect. The statement in the Acknowledgment portion of the subject
last will and testament that it "consists of 7 pages including the page on which the ratification and
acknowledgment are written"10 cannot be deemed substantial compliance. The will actually consists
of 8 pages including its acknowledgment which discrepancy cannot be explained by mere
examination of the will itself but through the presentation of evidence aliund.11 On this score is the
comment of Justice J.B.L. Reyes regarding the application of Article 809, to wit:

x x x The rule must be limited to disregarding those defects that can be supplied by an examination
of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in
each and every page; whether the subscribing witnesses are three or the will was notarized. All
these are facts that the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages, and whether all persons
required to sign did so in the presence of each other must substantially appear in the attestation
clause, being the only check against perjury in the probate proceedings.12 (Emphasis supplied)

Hence, the CA properly sustained the disallowance of the will. Moreover, it correctly ruled that
Richard pursued the wrong mode of appeal as Section 2(a), Rule 41 of the Rules of Court explicitly
provides that in special proceedings, as in this case, the appeal shall be made by record on appeal.

JOSE RIVERA petitioner, vs. INTERMEDIATE APPELLATE COURT and ADELAIDO J.

RIVERA, respondents. (A purported legitimate son petitioner who cannot controvert by
material evidence his filiation to the deceased by merely a baptismal certificate manifesting
different names of the decedent (Florencio and Magno) is not entitled to inherit as the law
presumes in favor of solidarity of the family thus, the holographic wills submitted for probate
by petitioner opposed by the respondent heirs has no effect Jose is not the son of the
deceased)

It is true that Adelaido could not present his parents' marriage certificate because, as he
explained it, the marriage records for 1942 in the Mabalacat civil registry were burned during
the war. Even so, he could still rely on the presumption of marriage, since it is not denied that
Venancio Rivera and Maria Jocson lived together as husband and wife for many years,
begetting seven children in all during that time.

According to Article 220 of the Civil Code:

In case of doubt, all presumptions favor the solidarity of the family. Thus every
intendment of the law or fact leans toward the validity of marriage, the indissolubility
of the marriage bonds, the legitimacy of children, ... .

The Rules of Court, in Rule 131, provides:

SEC. 3. Disputable presumptions. — The following presumptions are satisfactory if

uncontradicted, but may be contradicted and overcome by other evidence:

xxx xxx xxx

(aa) That a man and woman deporting themselves as husband and wife have
entered into a lawful contract of marriage.

By contrast, although Jose did present his parents' marriage certificate, Venancio was described
therein as the son of Florencio Rivera. Presumably, he was not the same Venancio Rivera described
in Exhibit 4, his baptismal certificate, as the son of Magno Rivera. While we realize that such
baptismal certificate is not conclusive evidence of Venancio's filiation (which is not the issue here) it
may nonetheless be considered to determine his real identity. Jose insists that Magno and Florencio
are one and the same person, arguing that it is not uncommon for a person to be called by different
names. The Court is not convinced. There is no evidence that Venancio's father was called either
Magno or Florencio. What is more likely is that two or more persons may live at the same time and
bear the same name, even in the same community. That is what the courts below found in the cases
at bar.
What this Court considers particularly intriguing is why, if it is true that he was the legitimate son of
Venancio Rivera, Jose did not assert his right as such when his father was still alive. By his own
account, Jose supported himself — and presumably also his mother Maria Vital — as a gasoline
attendant and driver for many years. All the time, his father was residing in the same town — and
obviously prospering — and available for support. His alleged father was openly living with another
woman and raising another family, but this was apparently accepted by Jose without protest, taking
no step whatsoever to invoke his status. If, as he insists, he and Venancio Rivera were on cordial
terms, there is no reason why the father did not help the son and instead left Jose to fend for himself
as a humble worker while his other children by Maria Jocson enjoyed a comfortable life. Such
paternal discrimination is difficult to understand, especially if it is considered — assuming the claims
to be true — that Jose was the oldest and, by his own account, the only legitimate child of Venancio
Rivera.

And there is also Maria Vital, whose attitude is no less incomprehensible. As Venancio's legitimate
wife — if indeed she was — she should have objected when her husband abandoned her and
founded another family by another woman, and in the same town at that. Seeing that the children of
Maria Jocson were being raised well while her own son Jose was practically ignored and neglected,
she nevertheless did not demand for him at least support, if not better treatment, from his legitimate
father. It is unnatural for a lawful wife to say nothing if she is deserted in favor of another woman and
for a caring mother not to protect her son's interests from his wayward father's neglect. The fact is
that this forsaken wife never demanded support from her wealthy if errant husband. She did not file a
complaint for bigamy or concubinage against Venancio Rivera and Maria Jocson, the alleged
partners in crime and sin. Maria Vital was completely passive and complaisant.

Significantly, as noted by the respondent court, Maria Vital was not even presented at the trial to
support her son's allegations that she was the decedent's lawful wife. Jose says this was not done
because she was already old and bedridden then. But there was no impediment to the taking of her
deposition in her own house. No effort was made toward this end although her testimony was vital to
the petitioner's cause. Jose dismisses such testimony as merely "cumulative," but this Court does
not agree. Having alleged that Maria Jocson's marriage to Venancio Rivera was null and void, Jose
had the burden of proving that serious allegation.

We find from the evidence of record that the respondent court did not err in holding that the
Venancio Rivera who married Maria Jocson in 1942 was not the same person who married Maria
Vital, Jose's legitimate mother, in 1928. Jose belonged to a humbler family which had no relation
whatsoever with the family of Venancio Rivera and Maria Vital. This was more prosperous and
prominent. Except for the curious Identity of names of the head of each, there is no evidence linking
the two families or showing that the deceased Venancio Rivera was the head of both.

Now for the holographic wills. The respondent court considered them valid because it found them to
have been written, dated and signed by the testator himself in accordance with Article 810 of the
Civil Code. It also held there was no necessity of presenting the three witnesses required under
Article 811 because the authenticity of the wills had not been questioned.

The existence and therefore also the authenticity of the holographic wills were questioned by Jose
Rivera. In his own petition in SP No. 1076, he declared that Venancio Rivera died intestate; and in
SP No. 1091, he denied the existence of the holographic wills presented by Adelaido Rivera for
probate. In both proceedings, Jose Rivera opposed the holographic wills submitted by Adelaido
Rivera and claimed that they were spurious. Consequently, it may be argued, the respondent court
should have applied Article 811 of the Civil Code, providing as follows:
 In the probate of a holographic will, it shall be necessary that at least one witness
who knows the handwriting and signature of the testator explicitly declare that the will
and the signature are in the handwriting of the testator. If the will is contested, at
least three of such witnesses shall be required.

The flaw in this argument is that, as we have already determined, Jose Rivera is not the son of the
deceased Venancio Rivera whose estate is in question. Hence, being a mere stranger, he had no
personality to contest the wills and his opposition thereto did not have the legal effect of requiring the
three witnesses. The testimony of Zenaida and Venancio Rivera, Jr., who authenticated the wills as
having been written and signed by their father, was sufficient.

III. LEGITIME AND COLLATION

Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the
legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.
(813a)

SECTION 4
Conditional Testamentary Dispositions and Testamentary Dispositions With a Term

Article 871. The institution of an heir may be made conditionally, or for a certain purpose or cause.
(790a)

Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the
legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.
(813a)

Article 873. Impossible conditions and those contrary to law or good customs shall be considered as
not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide.
(792a)

Article 874. An absolute condition not to contract a first or subsequent marriage shall be considered
as not written unless such condition has been imposed on the widow or widower by the deceased
spouse, or by the latter's ascendants or descendants.

Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or
bequeathed to any person for the time during which he or she should remain unmarried or in
widowhood. (793a)

Article 875. Any disposition made upon the condition that the heir shall make some provision in his
will in favor of the testator or of any other person shall be void. (794a)

Article 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon
as he learns of the testator's death.

This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (795a)

Article 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any
time before or after the death of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the will was executed and the
testator was unaware thereof, it shall be deemed as complied with.

If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a
nature that it can no longer exist or be complied with again. (796)

Article 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring
his rights and transmitting them to his heirs even before the arrival of the term. (799a)

Article 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or
not giving something, he shall comply by giving a security that he will not do or give that which has
been prohibited by the testator, and that in case of contravention he will return whatever he may
have received, together with its fruits and interests. (800a)

Article 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed
under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled,
or until the arrival of the term.

The same shall be done if the heir does not give the security required in the preceding article. (801a)

Article 881. The appointment of the administrator of the estate mentioned in the preceding article,
as well as the manner of the administration and the rights and obligations of the administrator shall
be governed by the Rules of Court. (804a)

Article 882. The statement of the object of the institution, or the application of the property left by the
testator, or the charge imposed by him, shall not be considered as a condition unless it appears that
such was his intention.

That which has been left in this manner may be claimed at once provided that the instituted heir or
his heirs give security for compliance with the wishes of the testator and for the return of anything he
or they may receive, together with its fruits and interests, if he or they should disregard this
obligation. (797a)

Article 883. When without the fault of the heir, an institution referred to in the preceding article
cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner
most analogous to and in conformity with his wishes.

If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the
condition shall be deemed to have been complied with. (798a)

Article 884. Conditions imposed by the testator upon the heirs shall be governed by the rules
established for conditional obligations in all matters not provided for by this Section. (791a)

Article 885. The designation of the day or time when the effects of the institution of an heir shall
commence or cease shall be valid.

In both cases, the legal heir shall be considered as called to the succession until the arrival of the
period or its expiration. But in the first case he shall not enter into possession of the property until
after having given sufficient security, with the intervention of the instituted heir. (805)
 SECTION 5
Legitime

Article 886. Legitime is that part of the testator's property which he cannot dispose of because the
law has reserved it for certain heirs who are, therefore, called compulsory heirs. (806)

Article 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2;
neither do they exclude one another.

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

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in
the manner and to the extent established by this Code. (807a)

Article 888. The legitime of legitimate children and descendants consists of one-half of the
hereditary estate of the father and of the mother.

The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of
the surviving spouse as hereinafter provided. (808a)

Article 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary
estates of their children and descendants.

The children or descendants may freely dispose of the other half, subject to the rights of illegitimate
children and of the surviving spouse as hereinafter provided. (809a)

Article 890. The legitime reserved for the legitimate parents shall be divided between them equally;
if one of the parents should have died, the whole shall pass to the survivor.

If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the
paternal and maternal lines, the legitime shall be divided equally between both lines. If the
ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of
either line. (810)
EXCLUDED Article 891. The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged
to reserve such property as he may have acquired by operation of law for the benefit of relatives who
are within the third degree and who belong to the line from which said property came. (871)

Article 892. If only one legitimate child or descendant of the deceased survives, the widow or
widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the
surviving spouse may inherit if it was the deceased who had given cause for the same.

If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to
a portion equal to the legitime of each of the legitimate children or descendants.

In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely
disposed of by the testator. (834a)

Article 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the
surviving spouse shall have a right to one-fourth of the hereditary estate.

This fourth shall be taken from the free portion of the estate. (836a)

Article 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-
third of the hereditary estate of the deceased and the illegitimate children to another third. The
remaining third shall be at the free disposal of the testator. (n)

Article 895. The legitime of each of the acknowledged natural children and each of the natural
children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or
descendants.

The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by
legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural
child.

The legitime of the illegitimate children shall be taken from the portion of the estate at the free
disposal of the testator, provided that in no case shall the total legitime of such illegitimate children
exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied.
(840a)

Article 896. Illegitimate children who may survive with legitimate parents or ascendants of the
deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the
free disposal of the testator. (841a)

Article 897. When the widow or widower survives with legitimate children or descendants, and
acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be
entitled to a portion equal to the legitime of each of the legitimate children which must be taken from
that part of the estate which the testator can freely dispose of. (n)

Article 898. If the widow or widower survives with legitimate children or descendants, and with
illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of
the surviving spouse shall be the same as that provided in the preceding article. (n)
Article 899. When the widow or widower survives with legitimate parents or ascendants and with
illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of
the deceased which must be taken from the free portion, and the illegitimate children shall be
entitled to one-fourth of the estate which shall be taken also from the disposable portion. The
testator may freely dispose of the remaining one-eighth of the estate. (n)

Article 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the
hereditary estate of the deceased spouse, and the testator may freely dispose of the other half.
(837a)

If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and
the testator died within three months from the time of the marriage, the legitime of the surviving
spouse as the sole heir shall be one-third of the hereditary estate, except when they have been
living as husband and wife for more than five years. In the latter case, the legitime of the surviving
spouse shall be that specified in the preceding paragraph. (n)

Article 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such
illegitimate children shall have a right to one-half of the hereditary estate of the deceased.

The other half shall be at the free disposal of the testator. (842a)

Article 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon
their death to their descendants, whether legitimate or illegitimate. (843a)

Article 903. The legitime of the parents who have an illegitimate child, when such child leaves
neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the
hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the
parents are not entitled to any legitime whatsoever. If only the widow or widower survives with
parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of
the child, and that of the surviving spouse also one-fourth of the estate. (n)

Article 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases
expressly specified by law.

Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any
kind whatsoever. (813a)

Article 905. Every renunciation or compromise as regards a future legitime between the person
owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the
former; but they must bring to collation whatever they may have received by virtue of the
renunciation or compromise. (816)

Article 906. Any compulsory heir to whom the testator has left by any title less than the legitime
belonging to him may demand that the same be fully satisfied. (815)

Article 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs
shall be reduced on petition of the same, insofar as they may be inofficious or excessive. (817)

Article 908. To determine the legitime, the value of the property left at the death of the testator shall
be considered, deducting all debts and charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all donations by the testator
that are subject to collation, at the time he made them. (818a)

Article 909. Donations given to children shall be charged to their legitime.

Donations made to strangers shall be charged to that part of the estate of which the testator could
have disposed by his last will.

Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced
according to the rules established by this Code. (819a)

Article 910. Donations which an illegitimate child may have received during the lifetime of his father
or mother, shall be charged to his legitime.

Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner
prescribed by this Code. (847a)

Article 911. After the legitime has been determined in accordance with the three preceding articles,
the reduction shall be made as follows:

(1) Donations shall be respected as long as the legitime can be covered, reducing or
annulling, if necessary, the devises or legacies made in the will;

(2) The reduction of the devises or legacies shall be pro rata, without any distinction
whatever.

If the testator has directed that a certain devise or legacy be paid in preference to others, it
shall not suffer any reduction until the latter have been applied in full to the payment of the
legitime.

(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be
considered greater than that of the disposable portion, the compulsory heirs may choose
between complying with the testamentary provision and delivering to the devisee or legatee
the part of the inheritance of which the testator could freely dispose. (820a)

Article 912. If the devise subject to reduction should consist of real property, which cannot be
conveniently divided, it shall go to the devisee if the reduction does not absorb one-half of its value;
and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each
other in cash for what respectively belongs to them.

The devisee who is entitled to a legitime may retain the entire property, provided its value does not
exceed that of the disposable portion and of the share pertaining to him as legitime. (821)

Article 913. If the heirs or devisees do not choose to avail themselves of the right granted by the
preceding article, any heir or devisee who did not have such right may exercise it; should the latter
not make use of it, the property shall be sold at public auction at the instance of any one of the
interested parties. (822)

Article 914. The testator may devise and bequeath the free portion as he may deem fit. (n)
Article 1347. All things which are not outside the commerce of men, including future things, may be
the object of a contract. All rights which are not intransmissible may also be the object of contracts.

No contract may be entered into upon future inheritance except in cases expressly authorized by
law.

All services which are not contrary to law, morals, good customs, public order or public policy may
likewise be the object of a contract. (1271a)

THE CHILD AND YOUTH WELFARE CODE (PD 603)

Article 39. Effects of Adoption. - The adoption shall:

1. Give to the adopted person the same rights and duties as if he were a legitimate child of
the adopter: Provided, That an adopted child cannot acquire Philippine citizenship by virtue
of such adoption; lawphi1.net

2. Dissolve the authority vested in the natural parent or parents, except where the adopter is
the spouse of the surviving natural parent;

3. Entitle the adopted person to use the adopter's surname; and

4. Make the adopted person a legal heir of the adopter: Provided, That if the adopter is
survived by legitimate parents or ascendants and by an adopted person, the latter shall not
have more successional rights than an acknowledged natural child: Provided, further, That
any property received gratuitously by the adopted from the adopter shall revert to the adopter
should the former predecease the latter without legitimate issue unless the adopted has,
during his lifetime, alienated such property: Provided, finally, That in the last case, should the
adopted leave no property other than that received from the adopter, and he is survived by
illegitimate issue or a spouse, such illegitimate issue collectively or the spouse shall receive
one-fourth of such property; if the adopted is survived by illegitimate issue and a spouse,
then the former collectively shall receive one-fourth and the latter also one-fourth, the rest in
any case reverting to the adopter, observing in the case of the illegitimate issue the
proportion provided for in Article 895 of the Civil Code.

The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit
from him, except that if the latter are both dead, the adopting parent or parents take the place of the
natural parents in the line of succession, whether testate or interstate.

G.R. No. L-40789 February 27, 1987

INTESTATE ESTATE OF PETRA V. ROSALES, IRENEA C. ROSALES, petitioner,

vs.
FORTUNATO ROSALES, MAGNA ROSALES ACEBES, MACIKEQUEROX ROSALES and
ANTONIO ROSALES, respondents.

(PETITIONER NOT INTESTATE HEIR; A surviving wife of a husband who predeceased his mother
is not an intestate heir being a third person in the eyes of the law with respect to succession for the
former to enable her to inherit from her mother-in-law in her intestacy as gleaned from the Civil Code
indicating no shadow of a widow as intestate heir either by way of her own right or by right of
representation as proper classifications of legal or intestate heirs as the compulsory heir
contemplated by law is the estate of a deceased spouse not the estate of the parent-in-law as in the
present case; The respresentation of Macikequerox as son of the deceased husband of the
petitioner is proper due to blood relation with the latter, which factor does not appear to the
petitioner, called to succession by law due to his blood relationship with the deceased decedent but
not to succeed the deceased father whom the former represented)

In sum, the petitioner poses two (2) questions for Our resolution petition. First — is a widow
(surviving spouse) an intestate heir of her mother-in-law? Second — are the Orders of the trial court
which excluded the widow from getting a share of the estate in question final as against the said
widow?

Our answer to the first question is in the negative.

Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own
right, and those who inherit by the right of representation. 1 Restated, an intestate heir can only
inherit either by his own right, as in the order of intestate succession provided for in the Civil
Code, 2 or by the right of representation provided for in Article 981 of the same law. The relevant
provisions of the Civil Code are:

Art. 980. The children of the deceased shall always inherit from him in their own right,
dividing the inheritance in equal shares.

Art. 981. Should children of the deceased and descendants of other children who are
dead, survive, the former shall inherit in their own right, and the latter by right of
representation.

Art. 982. The grandchildren and other descendants shag inherit by right of
representation, and if any one of them should have died, leaving several heirs, the
portion pertaining to him shall be divided among the latter in equal portions.

Art. 999. When the widow or widower survives with legitimate children or their
descendants and illegitimate children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the same share as that of a
legitimate child.

There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate
heir of her mother-in-law. The entire Code is devoid of any provision which entitles her to inherit from
her mother-in- law either by her own right or by the right of representation. The provisions of the
Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate with
meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate heir. The
conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the
deceased all the more confirms Our observation. If the legislature intended to make the surviving
spouse an intestate heir of the parent-in-law, it would have so provided in the Code.

Petitioner argues that she is a compulsory heir in accordance with the provisions of Article 887 of the
Civil Code which provides that:

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
 (2) In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287;

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1
and 2; neither do they exclude one another.

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

The father or mother of illegitimate children of the three classes mentioned, shall
inherit from them in the manner and to the extent established by this Code.

The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the
surviving spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-
in-law.

Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in-law.
We had occasion to make this observation in Lachenal v. Salas, 4 to Wit:

We hold that the title to the fishing boat should be determined in Civil Case No. 3597
(not in the intestate proceeding) because it affects the lessee thereof, Lope L.
Leoncio, the decedent's son-in-law, who, although married to his daughter or
compulsory heir, is nevertheless a third person with respect to his estate. ...
(Emphasis supplied).

By the same token, the provision of Article 999 of the Civil Code aforecited does not support
petitioner's claim. A careful examination of the said Article confirms that the estate contemplated
therein is the estate of the deceased spouse. The estate which is the subject matter of the intestate
estate proceedings in this case is that of the deceased Petra V. Rosales, the mother-in-law of the
petitioner. It is from the estate of Petra V. Rosales that Macikequerox Rosales draws a share of the
inheritance by the right of representation as provided by Article 981 of the Code.

The essence and nature of the right of representation is explained by Articles 970 and 971 of the
Civil Code, viz —

Art. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented, and
acquires the rights which the latter would have if he were living or if he could have
inherited.

Art. 971. The representative is called to the succession by the law and not by the
person represented. The representative does not succeed the person
represented but the one whom the person represented would have succeeded.
(Emphasis supplied.)
Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of
his blood relationship. He does not succeed his father, Carterio Rosales (the person represented)
who predeceased his grandmother, Petra Rosales, but the latter whom his father would have
succeeded. Petitioner cannot assert the same right of representation as she has no filiation by blood
with her mother-in-law.

Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an
inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may,
said right of her husband was extinguished by his death that is why it is their son Macikequerox
Rosales who succeeded from Petra Rosales by right of representation. He did not succeed from his
deceased father, Carterio Rosales.

On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon
the second question posed by the petitioner.

G.R. No. L-24561 June 30, 1970

MARINA DIZON-RIVERA, executrix-appellee,

vs.
ESTELA DIZON, TOMAS V. DIZON, BERNARDITA DIZON, JOSEFINA DIZON, ANGELINA
DIZON and LILIA DIZON, oppositors-appellants.

(The partition of the estate in contravention with the will of the decedent whereby the bequeathed
properties for the grandchildren will be diminished considering them only as legatees and devisees
so as to pave way for the legitimes of children in their own favor by partitioning half of the entire
estate shall be struck down for the same does not espouse the interpretation of the will of the
testator which is the life and soul of the will)

From the lower court's orders of approval, oppositors-appellants have filed this appeal, and raise
anew the following issues: .

1. Whether or not the testamentary dispositions made in the testatrix' will are in the nature of devises
imputable to the free portion of her estate, and therefore subject to reduction;

2. Whether the appellants are entitled to the devise plus their legitime under Article 1063, or merely
to demand completion of their legitime under Article 906 of the Civil Code; and

3. Whether the appellants may be compelled to accept payment in cash on account of their legitime,
instead of some of the real properties left by the Testatrix;

which were adversely decided against them in the proceedings below.

The issues raised present a matter of determining the avowed intention of the testatrix which is "the
life and soul of a will."5 In consonance therewith, our Civil Code included the new provisions found in
Articles 788 and 791 thereof that "(I)f a testamentary disposition admits of different interpretations, in
case of doubt, that interpretation by which the disposition is to be operative shall be preferred" and
"(T)he words of a will are to receive an interpretation which will give to every expression some effect,
rather than one which will render any of the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will prevent intestacy." In Villanueva vs. Juico6 for
violation of these rules of interpretation as well as of Rule 123, section 59 of the old Rules of
Court, 7 the Court, speaking through Mr. Justice J.B.L. Reyes, overturned the lower court's
decision and stressed that "the intention and wishes of the testator, when clearly expressed in
his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to
its execution and fulfillment, must be settled in accordance therewith, following the plain and
literal meaning of the testator's words, unless it clearly appears that his intention was
otherwise." 8

The testator's wishes and intention constitute the first and principal law in the matter of testaments,
and to paraphrase an early decision of the Supreme Court of Spain, 9 when expressed clearly and
precisely in his last will amount to the only law whose mandate must imperatively be faithfully
obeyed and complied with by his executors, heirs and devisees and legatees, and neither these
interested parties nor the courts may substitute their own criterion for the testator's will. Guided
and restricted by these fundamental premises, the Court finds for the appellee.

1. Decisive of the issues at bar is the fact that the testatrix' testamentary disposition was in the
nature of a partition of her estate by will. Thus, in the third paragraph of her will, after commanding
that upon her death all her obligations as well as the expenses of her last illness and funeral and the
expenses for probate of her last will and for the administration of her property in accordance with
law, be paid, she expressly provided that "it is my wish and I command that my property be divided"
in accordance with the dispositions immediately thereafter following, whereby she specified each
real property in her estate and designated the particular heir among her seven compulsory heirs and
seven other grandchildren to whom she bequeathed the same. This was a valid partition 10 of her
estate, as contemplated and authorized in the first paragraph of Article 1080 of the Civil Code,
providing that "(S)hould a person make a partition of his estate by an act inter vivos or by will, such
partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs."
This right of a testator to partition his estate is subject only to the right of compulsory heirs to their
legitime. The Civil Code thus provides the safeguard for the right of such compulsory heirs:

ART. 906. Any compulsory heir to whom the testator has left by any title less than the
legitime belonging to him may demand that the same be fully satisfied.

ART. 907. Testamentary dispositions that impair or diminish the legitime of the
compulsory heirs shall be reduced on petition of the same, insofar as they may be
inofficious or excessive.

This was properly complied with in the executrix-appellee's project of partition,

wherein the five oppositors-appellants namely Estela, Bernardita, Angelina, Josefina
and Lilia, were adjudicated the properties respectively distributed and assigned to
them by the testatrix in her will, and the differential to complete their respective
legitimes of P129,362.11 each were taken from the cash and/or properties of the
executrix-appellee, Marina, and their co-oppositor-appellant, Tomas, who admittedly
were favored by the testatrix and received in the partition by will more than their
respective legitimes.

2. This right of a testator to partition his estate by will was recognized even in Article 1056 of the old
Civil Code which has been reproduced now as Article 1080 of the present Civil Code. The only
amendment in the provision was that Article 1080 "now permits any person (not a testator, as under
the old law) to partition his estate by act inter vivos." 11 This was intended to repeal the then
prevailing doctrine 12 that for a testator to partition his estate by an act inter vivos, he must first make
a will with all the formalities provided by law. Authoritative commentators doubt the efficacy of the
amendment 13 but the question does not here concern us, for this is a clear case of partition by will,
duly admitted to probate, which perforce must be given full validity and effect. Aside from the
provisions of Articles 906 and 907 above quoted, other codal provisions support the executrix-
appellee's project of partition as approved by the lower court rather than the counter-project of
partition proposed by oppositors-appellants whereby they would reduce the testamentary disposition
or partition made by the testatrix to one-half and limit the same, which they would consider as mere
devises or legacies, to one-half of the estate as the disposable free portion, and apply the other half
of the estate to payment of the legitimes of the seven compulsory heirs. Oppositors' proposal would
amount substantially to a distribution by intestacy and pro tanto nullify the testatrix' will, contrary to
Article 791 of the Civil Code. It would further run counter to the provisions of Article 1091 of the Civil
Code that "(A) partition legally made confers upon each heir the exclusive ownership of the property
adjudicated to him."

3. In Habana vs. Imbo, 14 the Court upheld the distribution made in the will of the deceased testator
Pedro Teves of two large coconut plantations in favor of his daughter, Concepcion, as against
adverse claims of other compulsory heirs, as being a partition by will, which should be respected
insofar as it does not prejudice the legitime of the compulsory heirs, in accordance with Article 1080
of the Civil Code. In upholding the sale made by Concepcion to a stranger of the plantations thus
partitioned in her favor in the deceased's will which was being questioned by the other compulsory
heirs, the Court ruled that "Concepcion Teves by operation of law, became the absolute owner of
said lots because 'A partition legally made confers upon each heir the exclusive ownership of the
property adjudicated to him' (Article 1091, New Civil Code), from the death of her ancestors, subject
to rights and obligations of the latter, and, she can not be deprived of her rights thereto except by the
methods provided for by law (Arts. 657, 659, and 661, Civil Code). 15 Concepcion Teves could, as
she did, sell the lots in question as part of her share of the proposed partition of the properties,
especially when, as in the present case, the sale has been expressly recognized by herself and her
co-heirs ..."

4. The burden of oppositors' contention is that the testamentary dispositions in their favor are in the
nature of devises of real property, citing the testatrix' repeated use of the words "I bequeath" in her
assignment or distribution of her real properties to the respective heirs. From this erroneous
premise, they proceed to the equally erroneous conclusion that "the legitime of the compulsory heirs
passes to them by operation of law and that the testator can only dispose of the free portion, that is,
the remainder of the estate after deducting the legitime of the compulsory heirs ... and all
testamentary dispositions, either in the nature of institution of heirs or of devises or legacies, have to
be taken from the remainder of the testator's estate constituting the free portion." 16

Oppositors err in their premises, for the adjudications and assignments in the testatrix' will of specific
properties to specific heirs cannot be considered all devises, for it clearly appear from the whole
context of the will and the disposition by the testatrix of her whole estate (save for some small
properties of little value already noted at the beginning of this opinion) that her clear intention was to
partition her whole estate through her will. The repeated use of the words "I bequeath" in her
testamentary dispositions acquire no legal significance, such as to convert the same into devises to
be taken solely from the free one-half disposable portion of the estate. Furthermore, the testatrix'
intent that her testamentary dispositions were by way of adjudications to the beneficiaries as heirs
and not as mere devisees, and that said dispositions were therefore on account of the respective
legitimes of the compulsory heirs is expressly borne out in the fourth paragraph of her will,
immediately following her testamentary adjudications in the third paragraph in this wise: "FOURTH: I
likewise command that in case any of those I named as my heirs in this testament any of them shall
die before I do, his forced heirs under the law enforced at the time of my death shall inherit the
properties I bequeath to said deceased." 17

Oppositors' conclusions necessarily are in error. The testamentary dispositions of the testatrix, being
dispositions in favor of compulsory heirs, do not have to be taken only from the free portion of the
estate, as contended, for the second paragraph of Article 842 of the Civil Code precisely provides
that "(O)ne who has compulsory heirs may dispose of his estate provided he does not contravene
the provisions of this Code with regard to the legitime of said heirs." And even going by oppositors'
own theory of bequests, the second paragraph of Article 912 Civil Code covers precisely the case of
the executrix-appellee, who admittedly was favored by the testatrix with the large bulk of her estate
in providing that "(T)he devisee who is entitled to a legitime may retain the entire property, provided
its value does not exceed that of the disposable portion and of the share pertaining to him as
legitime." For "diversity of apportionment is the usual reason for making a testament; otherwise, the
decedent might as well die intestate." 18 Fundamentally, of course, the dispositions by the testatrix
constituted a partition by will, which by mandate of Article 1080 of the Civil Code and of the other
cited codal provisions upholding the primacy of the testator's last will and testament, have to be
respected insofar as they do not prejudice the legitime of the other compulsory heirs.

Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty left by will is not deemed
subject to collation, if the testator has not otherwise provided, but the legitime shall in any case
remain unimpaired" and invoking of the construction thereof given by some authorities that "'not
deemed subject to collation' in this article really means not imputable to or chargeable against the
legitime", while it may have some plausibility 19 in an appropriate case, has no application in the
present case. Here, we have a case of a distribution and partition of the entire estate by the testatrix,
without her having made any previous donations during her lifetime which would require collation to
determine the legitime of each heir nor having left merely some properties by will which would call
for the application of Articles 1061 to 1063 of the Civil Code on collation. The amount of the legitime
of the heirs is here determined and undisputed.

5. With this resolution of the decisive issue raised by oppositors-appellants, the secondary issues
are likewise necessarily resolved. Their right was merely to demand completion of their legitime
under Article 906 of the Civil Code and this has been complied with in the approved project of
partition, and they can no longer demand a further share from the remaining portion of the estate, as
bequeathed and partitioned by the testatrix principally to the executrix-appellee.

Neither may the appellants legally insist on their legitime being completed with real properties of the
estate instead of being paid in cash, per the approved project of partition. The properties are not
available for the purpose, as the testatrix had specifically partitioned and distributed them to her
heirs, and the heirs are called upon, as far as feasible to comply with and give effect to the intention
of the testatrix as solemnized in her will, by implementing her manifest wish of transmitting the real
properties intact to her named beneficiaries, principally the executrix-appellee. The appraisal report
of the properties of the estate as filed by the commissioner appointed by the lower court was
approved in toto upon joint petition of the parties, and hence, there cannot be said to be any
question — and none is presented — as to fairness of the valuation thereof or that the legitime of the
heirs in terms of cash has been understated. The plaint of oppositors that the purchasing value of
the Philippine peso has greatly declined since the testatrix' death in January, 1961 provides no legal
basis or justification for overturning the wishes and intent of the testatrix. The transmission of rights
to the succession are transmitted from the moment of death of the decedent (Article 777, Civil Code)
and accordingly, the value thereof must be reckoned as of then, as otherwise, estates would never
be settled if there were to be a revaluation with every subsequent fluctuation in the values of the
currency and properties of the estate. There is evidence in the record that prior to November 25,
1964, one of the oppositors, Bernardita, accepted the sum of P50,000.00 on account of her
inheritance, which, per the parties' manifestation, 20"does not in any way affect the adjudication made
to her in the projects of partition of either party as the same is a mere advance of the cash that she
should receive in both projects of partition." The payment in cash by way of making the proper
adjustments in order to meet the requirements of the law on non-impairment of legitimes as well as
to give effect to the last will of the testatrix has invariably been availed of and sanctioned. 21 That her
co-oppositors would receive their cash differentials only now when the value of the currency has
declined further, whereas they could have received them earlier, like Bernardita, at the time of
approval of the project of partition and when the peso's purchasing value was higher, is due to their
own decision of pursuing the present appeal.

G.R. No. L-46903 July 23, 1987

BUHAY DE ROMA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and FELICIDAD CARINGAL, as Guardian of
Rosalinda de Roma, respondents.

(A donation by the testator made in her lifetime in favor of the petitioner though indicating the same
as irrevocable does not amount to prohibition against collation to compute the whole mass of the
latter’s estate for purposes of succession unless expressly stated thus, the collation of the donated
property in favor of the petitioner is proper)

We agree with the respondent court that there is nothing in the above provisions expressly
prohibiting the collation of the donated properties. As the said court correctly observed, the phrase
"sa pamamagitan ng pagbibigay na di na mababawing muli" merely described the donation as
"irrevocable" and should not be construed as an express prohibition against collation.6 The fact that a
donation is irrevocable does not necessarily exempt the subject thereof from the collation required
under Article 1061.

We surmise from the use of such terms as "legitime" and "free portion" in the deed of donation that it
was prepared by a lawyer, and we may also presume he understood the legal consequences of the
donation being made. It is reasonable to suppose, given the precise language of the document, that
he would have included therein an express prohibition to collate if that had been the donor's
intention.

Anything less than such express prohibition will not suffice under the clear language of Article
1062. The suggestion that there was an implied prohibition because the properties donated were
1awphil

imputable to the free portion of the decedent's estate merits little consideration. Imputation is not the
question here, nor is it claimed that the disputed donation is officious The sole issue is whether or
not there was an express prohibition to collate, and we see none.

The intention to exempt from collation should be expressed plainly and unequivocally as an
exception to the general rule announced in Article 1062. Absent such a clear indication of that
intention, we apply not the exception but the rule, which is categorical enough.

There is no need to dwell long on the other error assigned by the petitioner regarding the decision of
the appealed case by the respondent court beyond the 12-month period prescribed by Article X,
Section 11 (1) of the 1973 Constitution. As we held in Marcelino v. Cruz,7 the said provision was
merely directory and failure to decide on time would not deprive the corresponding courts of
jurisdiction or render their decisions invalid.

It is worth stressing that the aforementioned provision has now been reworded in Article VIII, Section
15, of the 1987 Constitution, which also impresses upon the courts of justice, indeed with greater
urgency, the need for the speedy disposition of the cases that have been clogging their dockets
these many years. Serious studies and efforts are now being taken by the Court to meet that need.

G.R. No. 89783 February 19, 1992

MARIANO B. LOCSIN, JULIAN J. LOCSIN, JOSE B. LOCSIN, AUREA B. LOCSIN, MATILDE L.
CORDERO, SALVADOR B. LOCSIN and MANUEL V. DEL ROSARIO, petitioners,
vs.
THE HON. COURT OF APPEALS, JOSE JAUCIAN, FLORENTINO JAUCIAN, MERCEDES
JAUCIAN ARBOLEDA, HEIRS OF JOSEFINA J. BORJA, HEIRS OF EDUARDO JAUCIAN and
HEIRS OF VICENTE JAUCIAN, respondents.

(The sales and donations made by the decedents who were childless in favor of the closest nieces
and nephews and other relatives as gleaned from their will to transfer their respective properties to
the latter do not taint any undue pressure and vitiation so as to call for annulment or collation
prejudicial to the successional rights of the respondents and for being the same prescribed as these
transactions occurred more than four years ago thus, there is no need to annul the transactions
made in the lifetime of the decedents in the absence of undue pressure or force)

The trial court and the Court of Appeals erred in declaring the private respondents, nephews and
nieces of Doña Catalina J. Vda. de Locsin, entitled to inherit the properties which she had already
disposed of more than ten (10) years before her death. For those properties did not form part of her
hereditary estate, i.e., "the property and transmissible rights and obligations existing at the time of
(the decedent's) death and those which have accrued thereto since the opening of the
succession." 10 The rights to a person's succession are transmitted from the moment of his death,
and do not vest in his heirs until such time.11 Property which Doña Catalina had transferred or
conveyed to other persons during her lifetime no longer formed part of her estate at the time of her
death to which her heirs may lay claim. Had she died intestate, only the property that remained in
her estate at the time of her death devolved to her legal heirs; and even if those transfers were, one
and all, treated as donations, the right arising under certain circumstances to impugn and compel the
reduction or revocation of a decedent's gifts inter vivos does not inure to the respondents since
neither they nor the donees are compulsory (or forced) heirs. 12

There is thus no basis for assuming an intention on the part of Doña Catalina, in transferring the
properties she had received from her late husband to his nephews and nieces, an intent to
circumvent the law in violation of the private respondents' rights to her succession. Said respondents
are not her compulsory heirs, and it is not pretended that she had any such, hence there were no
legitimes that could conceivably be impaired by any transfer of her property during her lifetime. All
that the respondents had was an expectancy that in nowise restricted her freedom to dispose of
even her entire estate subject only to the limitation set forth in Art. 750, Civil Code which, even if it
were breached, the respondents may not invoke:

Art. 750. The donation may comprehend all the present property of the donor or part
thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the
support of himself, and of all relatives who, at the time of the acceptance of the
donation, are by law entitled to be supported by the donor. Without such reservation,
the donation shall be reduced on petition of any person affected. (634a)

The lower court capitalized on the fact that Doña Catalina was already 90 years old when she died
on July 6, 1977. It insinuated that because of her advanced years she may have been imposed
upon, or unduly influenced and morally pressured by her husband's nephews and nieces (the
petitioners) to transfer to them the properties which she had inherited from Don Mariano's estate.
The records do not support that conjecture.

For as early as 1957, or twenty-eight (28) years before her death, Doña Catalina had already begun
transferring to her Locsin nephews and nieces the properties which she received from Don Mariano.
She sold a 962-sq.m. lot on January 26, 1957 to his nephew and namesake Mariano Locsin II. 13 On
April 7, 1966, or 19 years before she passed away, she also sold a 43 hectare land to another
Locsin nephew, Jose R. Locsin.14 The next year, or on March 22, 1967, she sold a 5,000-sq.m.
portion of Lot 2020 to Julian Locsin.15

On March 27, 1967, Lot 2020 16 was partitioned by and among Doña Catalina, Julian Locsin, Vicente
Jaucian and Agapito Lorete.17 At least Vicente Jaucian, among the other respondents in this case, is
estopped from assailing the genuineness and due execution of the sale of portions of Lot 2020 to
himself, Julian Locsin, and Agapito Lorete, and the partition agreement that he (Vicente) concluded
with the other co-owners of Lot 2020.

Among Doña, Catalina's last transactions before she died in 1977 were the sales of property which
she made in favor of Aurea Locsin and Mariano Locsin in 1975.18

There is not the slightest suggestion in the record that Doña Catalina was mentally incompetent
when she made those dispositions. Indeed, how can any such suggestion be made in light of the
fact that even as she was transferring properties to the Locsins, she was also contemporaneously
disposing of her other properties in favor of the Jaucians? She sold to her nephew, Vicente Jaucian,
on July 16, 1964 (21 years before her death) one-half (or 5,000 sq.m.) of Lot 2020. Three years
later, or on March 22, 1967, she sold another 5000 sq.m. of the same lot to Julian Locsin.19

From 1972 to 1973 she made several other transfers of her properties to her relatives and other
persons, namely: Francisco Maquiniana, Ireneo Mamia, Zenaida Buiza, Feliza Morjella, Inocentes
Motocinos, Casimiro Mondevil, Juan Saballa and Rogelio Marticio. 20 None of those transactions was
impugned by the private respondents.

In 1975, or two years before her death, Doña Catalina sold some lots not only to Don Mariano's
niece, Aurea Locsin, and his nephew, Mariano Locsin
II, 21 but also to her niece, Mercedes Jaucian Arboleda. 22 If she was competent to make that
conveyance to Mercedes, how can there be any doubt that she was equally competent to transfer
her other pieces of property to Aurea and Mariano II?

The trial court's belief that Don Mariano Locsin bequeathed his entire estate to his wife, from a
"consciousness of its real origin" which carries the implication that said estate consisted of properties
which his wife had inherited from her parents, flies in the teeth of Doña Catalina's admission in her
inventory of that estate, that "items 1 to 33 are the private properties of the deceased (Don Mariano)
and forms (sic) part of his capital at the time of the marriage with the surviving spouse, while items
34 to 42 are conjugal properties, acquired during the marriage." She would have known better than
anyone else whether the listing included any of her paraphernal property so it is safe to assume that
none was in fact included. The inventory was signed by her under oath, and was approved by the
probate court in Special Proceeding No. 138 of the Court of First Instance of Albay. It was prepared
with the assistance of her own nephew and counsel, Atty. Salvador Lorayes, who surely would not
have prepared a false inventory that would have been prejudicial to his aunt's interest and to his
own, since he stood to inherit from her eventually.

This Court finds no reason to disbelieve Attorney Lorayes' testimony that before Don Mariano died,
he and his wife (Doña Catalina), being childless, had agreed that their respective properties should
eventually revert to their respective lineal relatives. As the trusted legal adviser of the spouses and a
full-blood nephew of Doña Catalina, he would not have spun a tale out of thin air that would also
prejudice his own interest.

Little significance, it seems, has been attached to the fact that among Doña Catalina's nephews and
nieces, those closest to her: (a) her lawyer-nephew Attorney Salvador Lorayes; (b) her niece and
companion Elena Jaucian: (c) her nieces Maria Olbes-Velasco and Maria Lorayes-Cornelio and their
respective husbands, Fernando Velasco and Hostilio Cornelio, did not join the suit to annul and
undo the dispositions of property which she made in favor of the Locsins, although it would have
been to their advantage to do so. Their desistance persuasively demonstrates that Doña Catalina
acted as a completely free agent when she made the conveyances in favor of the petitioners. In fact,
considering their closeness to Doña Catalina it would have been well-nigh impossible for the
petitioners to employ "fraud, undue pressure, and subtle manipulations" on her to make her sell or
donate her properties to them. Doña Catalina's niece, Elena Jaucian, daughter of her brother,
Eduardo Jaucian, lived with her in her house. Her nephew-in-law, Hostilio Cornelio, was the
custodian of the titles of her properties. The sales and donations which she signed in favor of the
petitioners were prepared by her trusted legal adviser and nephew, Attorney Salvador Lorayes. The
(1) deed of donation dated November 19,
197423 in favor of Aurea Locsin, (2) another deed of donation dated February 4, 1975 24 in favor of
Matilde Cordero, and (3) still another deed dated September 9, 1975 25 in favor of Salvador Lorayes,
were all witnessed by Hostilio Cornelio (who is married to Doña Catalina's niece, Maria Lorayes) and
Fernando Velasco who is married to another niece, Maria Olbes.26 The sales which she made in
favor of Aurea Locsin on July 15, 1974 27 were witnessed by Hostilio Cornelio and Elena Jaucian.
Given those circumstances, said transactions could not have been anything but free and voluntary
acts on her part.

Apart from the foregoing considerations, the trial court and the Court of Appeals erred in not
dismissing this action for annulment and reconveyance on the ground of prescription. Commenced
decades after the transactions had been consummated, and six (6) years after Doña Catalina's
death, it prescribed four (4) years after the subject transactions were recorded in the Registry of
Property,28 whether considered an action based on fraud, or one to redress an injury to the rights of
the plaintiffs. The private respondents may not feign ignorance of said transactions because the
registration of the deeds was constructive notice thereof to them and the whole world.29

[G. R. No. 136773. June 25, 2003]

MILAGROS MANONGSONG, joined by her husband, CARLITO

MANONGSONG, petitioners, vs. FELOMENA JUMAQUIO ESTIMO,
EMILIANA JUMAQUIO, NARCISO ORTIZ, CELESTINO ORTIZ,
RODOLFO ORTIZ, ERLINDA O. OCAMPO, PASTOR ORTIZ, JR.,
ROMEO ORTIZ BENJAMIN DELA CRUZ, SR., BENJAMIN DELA
CRUZ, JR., AURORA NICOLAS, GLORIA RACADIO, ROBERTO
DELA CRUZ, JOSELITO DELA CRUZ and LEONCIA S.
LOPEZ, respondents.
(A real property evidenced by sale passing the ownership through
If Navarro were not the mother of Guevarra, it would only further undermine
petitioners case. Absent any hereditary relationship between Guevarra and Navarro, the
Property would not have passed from Navarro to Guevarra, and then to the latters
children, including petitioners, by succession. There would then be no basis for petitioners
claim of co-ownership by virtue of inheritance from Guevarra. On the other hand, this
would not undermine respondents position since they anchor their claim on the sale under
the Kasulatan and not on inheritance from Guevarra.
Since the notarized Kasulatan is evidence of greater weight which petitioners failed
to refute by clear and convincing evidence, this Court holds that petitioners were not able
to prove by preponderance of evidence that the Property belonged to Guevarras
estate. There is therefore no legal basis for petitioners complaint for partition of the
Property.

SPOUSES BERNARDO BUENAVENTURA and CONSOLACION

JOAQUIN, SPOUSES JUANITO EDRA and NORA JOAQUIN, SPOUSES
RUFINO VALDOZ and EMMA JOAQUIN, and NATIVIDAD
JOAQUIN, petitioners, vs. COURT OF APPEALS, SPOUSES
LEONARDO JOAQUIN and FELICIANA LANDRITO, SPOUSES FIDEL
JOAQUIN and CONCHITA BERNARDO, SPOUSES TOMAS JOAQUIN
and SOLEDAD ALCORAN, SPOUSES ARTEMIO JOAQUIN and
SOCORRO ANGELES, SPOUSES ALEXANDER MENDOZA and
CLARITA JOAQUIN, SPOUSES TELESFORO CARREON and
FELICITAS JOAQUIN, SPOUSES DANILO VALDOZ and FE JOAQUIN,
and SPOUSES GAVINO JOAQUIN and LEA ASIS, respondents.

(Petitioners are not real party in interest in the deed of sale executed by their parents
who are still alive at the time having the right to freely dispose the property to annul the
sale clothed with the intention of dividing the legitime once the property has been declared
void and reverted back to their parents which by time will be dead enabling them to inherit
the property as their legitime thus, the sale is valid)
Petitioners Complaint betrays their motive for filing this case. In their Complaint,
petitioners asserted that the purported sale of the properties in litis was the result of a
deliberate conspiracy designed to unjustly deprive the rest of the compulsory heirs
(plaintiffs herein) of their legitime. Petitioners strategy was to have the Deeds of Sale
declared void so that ownership of the lots would eventually revert to their respondent
parents. If their parents die still owning the lots, petitioners and their respondent siblings
will then co-own their parents estate by hereditary succession.[11]
It is evident from the records that petitioners are interested in the properties subject
of the Deeds of Sale, but they have failed to show any legal right to the properties. The
trial and appellate courts should have dismissed the action for this reason alone. An
action must be prosecuted in the name of the real party-in-interest.[12]

[T]he question as to real party-in-interest is whether he is the party who would be benefitted or
injured by the judgment, or the party entitled to the avails of the suit.

xxx
In actions for the annulment of contracts, such as this action, the real parties are those who are
parties to the agreement or are bound either principally or subsidiarily or are prejudiced in their
rights with respect to one of the contracting parties and can show the detriment which would
positively result to them from the contract even though they did not intervene in it (Ibaez v.
Hongkong & Shanghai Bank, 22 Phil. 572 [1912]) xxx.

These are parties with a present substantial interest, as distinguished from a mere expectancy or
future, contingent, subordinate, or consequential interest. The phrase present substantial interest
more concretely is meant such interest of a party in the subject matter of the action as will entitle
him, under the substantive law, to recover if the evidence is sufficient, or that he has the legal
title to demand and the defendant will be protected in a payment to or recovery by him.[13]

Petitioners do not have any legal interest over the properties subject of the Deeds of
Sale. As the appellate court stated, petitioners right to their parents properties is merely
inchoate and vests only upon their parents death. While still living, the parents of
petitioners are free to dispose of their properties. In their overzealousness to safeguard
their future legitime, petitioners forget that theoretically, the sale of the lots to their siblings
does not affect the value of their parents estate. While the sale of the lots reduced the
estate, cash of equivalent value replaced the lots taken from the estate.

AMELIA P. ARELLANO, represented by her duly appointed guardians, AGNES P.

ARELLANO and NONA P. ARELLANO, Petitioner, - versus - FRANCISCO PASCUAL
and MIGUEL PASCUAL, Respondents. G.R. No. 189776 Present: CARPIO MORALES,
J., Chairperson, PERALTA,* BERSAMIN, MENDOZA,** and SERENO, JJ.
Promulgated: December 15, 2010

(A donation made by the decedent in favor of his sibling petitioner is not subject to
collation as the latter is merely considered as collateral relative who is not entitled
to a legitime and there appears no primary, secondary or concurring compulsory
heirs; collation only applies to compulsory heirs which is not subject of the present
case because the petitioner is decedent’s sibling not entitled to legitime for being
not compulsory heir)

Petitioners thus raise the issues of whether the property donated to petitioner is
subject to collation; and whether the property of the estate should have been
ordered equally distributed among the parties.

On the first issue:

 The term collation has two distinct concepts: first, it is a mere mathematical
operation by the addition of the value of donations made by the testator to the
value of the hereditary estate; and second, it is the return to the hereditary estate
of property disposed of by lucrative title by the testator during his lifetime.[13]

The purposes of collation are to secure equality among the compulsory heirs
in so far as is possible, and to determine the free portion, after finding the legitime,
so that inofficious donations may be reduced.[14]

Collation takes place when there are compulsory heirs, one of its purposes
being to determine the legitime and the free portion. If there is no compulsory heir,
there is no legitime to be safeguarded.[15]

The records do not show that the decedent left any primary, secondary, or
concurring compulsory heirs. He was only survived by his siblings, who are
his collateral relatives and, therefore, are not entitled to any legitime that part of
the testators property which he cannot dispose of because the law has reserved it
for compulsory heirs.[16]

The compulsory heirs may be classified into (1) primary, (2) secondary, and (3) concurring.
The primary compulsory heirs are those who have precedence over and exclude other
compulsory heirs; legitimate children and descendants are primary compulsory heirs. The
secondary compulsory heirs are those who succeed only in the absence of the primary
heirs; the legitimate parents and ascendants are secondary compulsory heirs. The
concurring compulsory heirs are those who succeed together with the primary or the
secondary compulsory heirs; the illegitimate children, and the surviving spouse are
concurring compulsory heirs.[17]

The decedent not having left any compulsory heir who is entitled to any
legitime, he was at liberty to donate all his properties, even if nothing was left for
his siblings-collateral relatives to inherit. His donation to petitioner, assuming that
it was valid,[18] is deemed as donation made to a stranger, chargeable against the
free portion of the estate.[19] There being no compulsory heir, however, the
donated property is not subject to collation.
On the second issue:

The decedents remaining estate should thus be partitioned equally among

his heirs-siblings-collateral relatives, herein petitioner and respondents, pursuant
to the provisions of the Civil Code, viz:

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

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

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they
shall inherit in equal shares. (emphasis and underscoring supplied)

ROLANDO SANTOS, Petitioner, - versus - CONSTANCIA SANTOS ALANA,

Respondent. G.R. No. 154942 Present: PANGANIBAN, J., Chairman, SANDOVAL-
GUTIERREZ, CORONA, CARPIO MORALES, and GARCIA, JJ. Promulgated: August
16, 2005

(A donation of the only property of the decedent during his lifetime

executed in favor of the petitioner depriving the illegitimate sibling-respondent’s
legitime with no property to be inherited at the time of decedent’s death is
properly declared as inofficious as the decedent gives the property by way of
donation more than he may give thus, a disposition of share of one half of the
property in favor of respondent is proper)

The issues which involve questions of law are: (1) whether the donation is
inofficious; and (2) whether the respondents action has prescribed.
 I. Whether the donation is inofficious.

It bears reiterating that under Article 752 of the Civil Code, the donation
is inofficoius if it exceeds this limitation no person may give or receive, by way
of donation, more than he may give or receive by will. In Imperial vs. Court of
Appeals,[6] we held that inofficiousness may arise only upon the death of the
donor as the value of donation may then be contrasted with the net value of the
estate of the donor deceased.

At this point, we emphasize that as found by the trial court, Gregorio did
not sell the lot to petitioner. He donated it. The trial court also found that the
donation is inofficious as it impairs
respondents legitime; that at the time of Gregorios death, he left no property
other than the lot now in controversy he donated to petitioner; and that the
deceased made no reservation for the legitime of respondent, his daughter and
compulsory heir. These findings were affirmed by the Court of Appeals.

Pursuant to Article 752 earlier cited, Gregorio could not donate more than
he may give by will. Clearly, by donating the entire lot to petitioner, we agree
with both lower courts that Gregorios donation is inofficious as it deprives
respondent of her legitime, which, under Article 888 of the Civil Code, consists
of one-half (1/2) of the hereditary estate of the father and the mother. Since the
parents of both parties are already dead, they will inherit the entire lot, each
being entitled to one-half (1/2) thereof.
 II. Whether respondents suit is barred by prescription.

In Imperial vs. Court of Appeals,[7] we held that donations, the reduction of

which hinges upon the allegation of impairment of legitime (as in this case), are
not controlled by a particular prescriptive period, for which reason, we must
resort to the ordinary rules of prescription. Under Article 1144 of the Civil Code,
actions upon an obligation created by law must be brought
within ten years from the time the right of action accrues. Thus, the ten-year
prescriptive period applies to the obligation to reduce inofficious donations,
required under Article 771 of the Civil Code,[8] to the extent that they impair the
legitime of compulsory heirs.

From when shall the ten-year period be reckoned? In Mateo vs.

Lagua,[9] involving the reduction, for inofficiousness, of a donation propter
nuptias, we held that the cause of action to enforce a legitime accrues upon the
death of the donor-decedent. Clearly so, since it is only then that the net estate
may be ascertained and on which basis, the legitimes may be determined.

Here, Gregorio died in 1986. Consequently, respondent had until 1996

within which to file the action. Records show that she filed her suit in 1992, well
within the prescriptive period.

LAURO G. VIZCONDE, petitioner, vs., COURT OF APPEALS, REGIONAL TRIAL

COURT, Branch 120, Caloocan City, and RAMON G. NICOLAS, respondents.

(Petitioner is not a party in the case subjecting the property of his late wife sold from her
by the latter’s father to collation being unwarranted thus, the appellate court collating the
Parañaque property is properly set aside)
 The core issue hinges on the validity of the probate courts Order, which respondent
Court of Appeals sustained, nullifying the transfer of the Valenzuela property from Rafael
to Estrellita and declaring the Paraaque property as subject to collation.
The appeal is well taken.
Basic principles of collation need to be emphasized at the outset. Article 1061 of the
Civil Code speaks of collation. It states:

Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs,
must bring into the mass of the estate any property or right which he may
have received from the decedent, during the lifetime of the latter, by way of
donation, or any other gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of the partition.

Collation is the act by virtue of which descendants or other forced heirs who intervene
in the division of the inheritance of an ascendant bring into the common mass, the
property which they received from him, so that the division may be made according to law
and the will of the testator.[24] Collation is only required of compulsory heirs succeeding
with other compulsory heirs and involves property or rights received by donation or
gratuitous title during the lifetime of the decedent.[25] The purpose for it is presumed that
the intention of the testator or predecessor in interest in making a donation or gratuitous
transfer to a forced heir is to give him something in advance on account of his share in
the estate, and that the predecessors will is to treat all his heirs equally, in the absence
of any expression to the contrary.[26] Collation does not impose any lien on the property or
the subject matter of collationable donation. What is brought to collation is not the
property donated itself, but rather the value of such property at the time it was
donated,[27] the rationale being that the donation is a real alienation which conveys
ownership upon its acceptance, hence any increase in value or any deterioration or loss
thereof is for the account of the heir or donee.[28]
The attendant facts herein do no make a case of collation. We find that the probate
court, as well as respondent Court of Appeals, committed reversible errors.

First: The probate court erred in ordering the inclusion of petitioner in the
intestate estate proceeding.Petitioner, a son-in-law of Rafael, is one of
Rafaels compulsory heirs. Article 887 of the Civil Code is clear on this point:

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the following, legitimate parents and ascendants, with respect to their legitimate
children and ascendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in

Nos 1 and 2; neither do they exclude one another.

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

The father or mother of illegitimate children of the three classes mentioned,

shall inherit from them in the manner and to the extent established by this
Code.

With respect to Rafaels estate, therefore, petitioner who was not even shown to be a
creditor of Rafael is considered a third person or a stranger.[29] As such, petitioner may not
be dragged into the intestate estate proceeding. Neither may he be permitted or allowed
to intervene as he has no personality or interest in the said proceeding,[30] which petitioner
correctly argued in his manifestation.[31]
Second: As a rule, the probate court may pass upon and determine the title or
ownership of a property which may or may not be included in the estate
proceedings.[32] Such determination is provisional in character and is subject to final
decision in a separate action to resolve title.[33] In the case at bench, however, we note
that the probate court went beyond the scope of its jurisdiction when it proceeded to
determine the validity of the sale of the Valenzuela property between Rafael and Estrellita
and ruled that the transfer of the subject property between the concerned parties was
gratuitous. The interpretation of the deed and the true intent of the contracting parties, as
well as the presence or absence of consideration, are matter outside the probate courts
jurisdiction. These issues should be ventilated in an appropriate action. We reiterate:

x x x we are of the opinion and so hold, that a court which takes cognizance of testate
or intestate proceedings has power and jurisdiction to determine whether or not the
properties included therein or excluded therefrom belong prima facie to the deceased,
although such a determination is not final or ultimate in nature, and without prejudice to
the right of the interested parties, in a proper action, to raise the question bearing on the
ownership or existence of the right or credit.[34]

Third: The order of the probate court subjecting the Paraaque property to collation is
premature. Records indicate that the intestate estate proceedings is still in its initiatory
stage. We find nothing herein to indicate that the legitimate of any of Rafaels heirs has
been impaired to warrant collation. We thus advert to our ruling in Udarbe v. Jurado, 59
Phil. 11, 13-14, to wit:

We are of the opinion that this contention is untenable. In accordance with the
provisions of article 1035 of the Civil Code, it was the duty of the plaintiffs to
[35]

allege and prove that the donations received by the defendants were
inofficious in whole or in part and prejudiced the legitimate or hereditary
portion to which they are entitled. In the absence of evidence to that effect, the
collation sought is untenable for lack of ground or basis therefor.

Fourth: Even on the assumption that collation is appropriate in this case the probate
court, nonetheless, made a reversible error in ordering collation of the Paraaque
property. We note that what was transferred to Estrellita, by way of a deed of sale, is the
Valenzuela property. The Paraaque property which Estrellita acquired by using the
proceeds of the sale of the Valenzuela property does not become collationable simply by
reason thereof. Indeed collation of the Paraaque property has no statutory basis. [36] The
order of the probate court presupposes that the Paraaque property was gratuitously
conveyed by Rafael to Estrellita. Records indicate, however, that the Paraaque property
was conveyed for and in consideration of P900,000.00,[37] by Premier Homes, Inc., to
Estrellita. Rafael, the decedent, has no participation therein, and petitioner who
inherited and is now the present owner of the Paraaque property is not one of Rafaels
heirs. Thus, the probate courts order of collation against petitioner is unwarranted for the
obligation to collate is lodged with Estrellita, the heir, and not to herein petitioner who
does not have any interest in Rafaels estate. As it stands, collation of the Paraaque
property is improper for, to repeat, collation covers only properties gratuitously given by
the decedent during his lifetime to his compulsory heirs which fact does not obtain anent
the transfer of the Paraaque property.Moreover, Rafael, in a public instrument, voluntarily
and willfully waived any claims, rights, ownership and participation as heir[38] in the
Paraaque property.
Fifth: Finally, it is futile for the probate court to ascertain whether or not the Valenzuela
property may be brought to collation. Estrellita, it should be stressed, died ahead of
Rafael. In fact, it was Rafael who inherited from Estrellita an amount more than the value
of the Valenzuela property.[39] Hence, even assuming that the Valenzuela property may be
collated collation may not be allowed as the value of the Valenzuela property has long
been returned to the estate of Rafael. Therefore, any determination by the probate court
on the matter serves no valid and binding purpose.

[G.R. No. 94918. September 2, 1992.]

DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE

LEON and REGINIO I. SUAREZ, Petitioners, v. THE COURT OF APPEALS, VALENTE RAYMUNDO,
VIOLETA RAYMUNDO, MA. CONCEPCION VITO and VIRGINIA BANTA, Respondents.

(The properties levied and auctioned against the successional rights of petitioners
due to the judgment debt were properly assailed in real action proceeding
[reinvindicatory action] and annulling the same to protect their rights of the
legitime as the rights to succession are transmitted upon the decedent’s death
therefore, interest as to the properties to be inherited are transferred to the
petitioners acting as co-owners because petitioners are children of their deceased
father not through the mother)

Even without touching on the incidents and issues raised by both petitioner and private respondents and the
developments subsequent to the filing of the complaint, We cannot but notice the glaring error committed
by the trial court.
It would be useless to discuss the procedural issue on the validity of the execution and the manner of
publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of
land should have been the subject of the auction sale.

The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case.

"The rights to the succession are transmitted from the moment of the death of the decedent." cralaw vi rtua1aw l ibra ry

Article 888 further provides:ch anroble s.com.p h : virt ual law l ibra ry

"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the
father and of the mother.

The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided."

Article 892 par. 2 likewise provides: jgc: chan robles .com.p h

"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a
portion equal to the legitime of each of the legitimate children or descendants." cralaw virtua1aw l ibra ry

Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.

The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to
that of their mother. Petitioners became co-owners of the property not because of their mother but through
their own right as children of their deceased father. Therefore, petitioners are not barred in any way from
instituting the action to annul the auction sale to protect their own interest.

Preterition

Article 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.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual,
without prejudice to the right of representation. (814a)

Article 855. The share of a child or descendant omitted in a will must first be taken from the part of
the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary
must be taken proportionally from the shares of the other compulsory heirs. (1080a)

Article 906. Any compulsory heir to whom the testator has left by any title less than the legitime
belonging to him may demand that the same be fully satisfied. (815)

Article 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall
be specified. (849)

G.R. No. L-47799 June 13, 1941

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
(The testator Agripino who had preterited his children by the first marriage due to his lifetime’s
donation given in the latter’s favor disinheriting the children of first marriage in the will paving the
way to state as universal heirs the children of second marriage had clearly engaged in pretirition
because the will state the first children were disinherited without providing for its reasons)

Appellants, on the other hand, maintain that the case is one of voluntary preterition of four of the
children by the first marriage, and of involuntary preterition of the children by the deceased Getulia,
also of the first marriage, and is thus governed by the provisions of article 814 of the Civil Code,
which read in part as follows:

The preterition of one or all of the forced 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 void the institution of
heir; but the legacies and betterments shall be valid, in so far as they are not inofficious.

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.(Cf. 6 Manresa, 346.) In the instant case, while the children of the first
marriage were mentioned in the will, they were not accorded any share in the heriditary property,
without expressly being disinherited. It is, therefore, a clear case of preterition as contended by
appellants. The omission of the forced heirs or anyone of them, whether voluntary or involuntary, is a
preterition if the purpose to disinherit is not expressly made or is not at least manifest.

Except as to "legacies and betterments" which "shall be valid in so far as they are not inofficious"
(art. 814 of the Civil Code), preterition avoids the institution of heirs and gives rise to intestate
succession. (Art. 814, Civil Code; Decisions of the Supreme Court of Spain of June 17, 1908 and
February 27, 1909.) In the instant case, no such legacies or betterments have been made by the
testator. "Mejoras" or betterments must be expressly provided, according to articles 825 and 828 of
the Civil Code, and where no express provision therefor is made in the will, the law would presume
that the testator had no intention to that effect. (Cf. 6 Manresa, 479.) In the will here in question, no
express betterment is made in favor of the children by the second marriage; neither is there any
legacy expressly made in their behalf consisting of the third available for free disposal. The whole
inheritance is accorded the heirs by the second marriage upon the mistaken belief that the heirs by
the first marriage have already received their shares. Were it not for this mistake, the testator's
intention, as may be clearly inferred from his will, would have been to divide his property equally
among all his children.

G.R. No. L-17818 January 25, 1967

TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all surnamed
Reyes y Barretto,plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.

(The testator Bibiano Barretto left all his shares of properties in Manila, Pampanga and Bulacan to
Salud, petitioner’s ward mother and legacies in favor of Rosa and Felisa and nephew and nieces but
ultimately the subject of this case the usufruct over the fishpond property in Hagonoy, Bulacan
reserved to the former’s widow Maria Gerardo which property had been subjected to project of
partition signed in behalf of the respondent the same was lately approved by the court effecting
possession and issuance of new title in their respective shares of heirs including Salud. All is well
since then until the widow Maria, upon her death, executed two wills as discovered declaring in the
first will Salud and Milagros-respondent as heirs to succeed the former’s property and in the second
will revoking the first and declaring only Milagros as heir the latter will was allowed by trial court due
to Salud not being a daughter of Maria the same ruling was affirmed by Supreme Court. Thus, the
present action for recovery to redeem the remnant of the estate of Bibiano given in usufruct which
the trial court declared void ab inito because Salud was not a daughter of Bibiano and Maria hence,
the appeal noting that provision partition in which a person was believed to be an heir without being
so shall be null and void. The disputed fishpond was willed expressly to Salud together with Milagros
in the will therefore, it cannot be inferred that the former was not believed an heir without being so
because the provision does not speak of children or descendants but heirs with no distinction as to
forced, voluntary or intestate ones and Salud not being a daughter is of no moment factor to
preclude her from inheriting as heir Salud may not inherit as a legitime but she can do so as
instituted heir as Bibiano had all the liberty to give to whomsoever his property despite impingement
in the legitime of Milagros due to Bibiano’s will and Milgros’ allotment in the will a smaller share than
her legitime incapacitating Salud’s qualification to be a testamentary heir since there was no here a
pretition so called nor a total omission of first children by the testator Bibiano)

Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been misapplied to
the present case by the court below. The reason is obvious: Salud Barretto admittedly had been
instituted heir in the late Bibiano Barretto's last will and testament together with defendant Milagros;
hence, the partition had between them could not be one such had with a party who was believed to
be an heir without really being one, and was not null and void under said article. The legal precept
(Article 1081) does not speak of children, or descendants, but of heirs (without distinction between
forced, voluntary or intestate ones), and the fact that Salud happened not to be a daughter of the
testator does not preclude her being one of the heirs expressly named in his testament; for Bibiano
Barretto was at liberty to assign the free portion of his estate to whomsoever he chose. While the
share (½) assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason
cease to be a testamentary heir of Bibiano Barretto.

Nor does the fact that Milagros was allotted in her father's will a share smaller than her legitime
invalidate the institution of Salud as heir, since there was here nopreterition, or total ommission of a
forced heir. For this reason, Neri vs. Akutin, 72 Phil. 322, invoked by appellee, is not at all
applicable, that case involving an instance of preterition or omission of children of the testator's
former marriage.

Appellee contends that the partition in question was void as a compromise on the civil status of
Salud in violation of Article 1814 of the old Civil Code. This view is erroneous, since a compromise
presupposes the settlement of a controversy through mutual concessions of the parties (Civil Code
of 1889, Article 1809; Civil Code of the Philippines, Art. 2028); and the condition of Salud as
daughter of the testator Bibiano Barretto, while untrue, was at no time disputed during the settlement
of the estate of the testator. There can be no compromise over issues not in dispute. And while a
compromise over civil status is prohibited, the law nowhere forbids a settlement by the parties over
the share that should correspond to a claimant to the estate.

At any rate, independently of a project of partition which, as its own name implies, is merely a
proposal for distribution of the estate, that the court may accept or reject, it is the court alone that
makes the distribution of the estate and determines the persons entitled thereto and the parts to
which each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of
1940; Rule 91, Revised Rules of Court), and it is that judicial decree of distribution, once final, that
vests title in the distributees. If the decree was erroneous or not in conformity with law or the
testament, the same should have been corrected by opportune appeal; but once it had become final,
its binding effect is like that of any other judgment in rem, unless properly set aside for lack of
jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of distribution of the estate, and the
same has become final, the validity or invalidity of the project of partition becomes irrelevant.

It is, however, argued for the appellee that since the court's distribution of the estate of the late
Bibiano Barretto was predicated on the project of partition executed by Salud Barretto and the
widow, Maria Gerardo (who signed for herself and as guardian of the minor Milagros Barretto), and
since no evidence was taken of the filiation of the heirs, nor were any findings of fact or law made,
the decree of distribution can have no greater validity than that of the basic partition, and must stand
or fall with it, being in the nature of a judgment by consent, based on a compromise. Saminiada vs.
Mata, 92 Phil. 426, is invoked in support of the proposition. That case is authority for the proposition
that a judgment by compromise may be set aside on the ground of mistake or fraud, upon petition
filed in due time, where petition for "relief was filed before the compromise agreement a proceeding,
was consummated" (cas. cit. at p. 436). In the case before us, however, the agreement of partition
was not only ratified by the court's decree of distribution, but actually consummated, so much so that
the titles in the name of the deceased were cancelled, and new certificates issued in favor of the
heirs, long before the decree was attacked. Hence, Saminiada vs. Mata does not apply.

Moreover, the defendant-appellee's argument would be plausible if it were shown that the sole basis
for the decree of distribution was the project of partition. But, in fact, even without it, the distribution
could stand, since it was in conformity with the probated will of Bibiano Barretto, against the
provisions whereof no objection had been made. In fact it was the court's duty to do so. Act 190,
section 640, in force in 1939, provided: .

SEC. 640. Estate, How Administered. — When a will is thus allowed, the court shall grant
letters testamentary, or letters of administration with the will annexed, and such letters
testamentary or of administration, shall extend to all the estate of the testator in the
Philippine Islands. Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such will may operate
upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates
in these Islands belonging to persons who are inhabitants of another state or country.
(Emphasis supplied)

That defendant Milagros Barretto was a minor at the time the probate court distributed the estate of
her father in 1939 does not imply that the said court was without jurisdiction to enter the decree of
distribution. Passing upon a like issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp.
741 and 742:

If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they
would be concluded by the result of the proceedings, not only as to their civil status but as
the distribution of the estate as well. As this Court has held in Manolo vs. Paredes, 47 Phil.
938, "The proceeding for probate is one in rem (40 Cyc., 1265) and the court acquires
jurisdiction over all persons interested, through the publication of the notice prescribed by
section 630 C.P.C.; and any order that any be entered therein is binding against all of them."
(See also in re Estate of Johnson, 39 Phil. 156.) "A final order of distribution of the estate of
a deceased person vests the title to the land of the estate in the distributees". (Santos vs.
Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why, by
analogy, these salutary doctrines should not apply to intestate proceedings.

The only instance that we can think of in which a party interested in a probate proceeding
may have a final liquidation set aside is when he is left out by reason of circumstances
beyond his control or through mistake or inadvertence not imputable to negligence. Even
then, the better practice to secure relief is reopening of the same case by proper motion
 within the reglementary period, instead of an independent action the effect of which, if
successful, would be, as in the instant case, for another court or judge to throw out a
decision or order already final and executed and reshuffle properties long ago distributed and
disposed of.

It is well to observe, at this juncture, as this Court expressly declared in Reyes vs. Barretto Datu, 94
Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:

... It is argued that Lucia Milagros Barretto was a minor when she signed the partition, and
that Maria Gerardo was not her judicially appointed guardian. The claim is not true. Maria
Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The mere
statement in the project of partion that the guardianship proceedings of the minor Lucia
Milagros Barretto are pending in the court, does not mean that the guardian had not yet been
appointed; it meant that the guardianship proceedings had not yet been terminated, and as a
guardianship proceedings begin with the appointment of a guardian, Maria Gerardo must
have been already appointed when she signed the project of partition. There is, therefore, no
irregularity or defect or error in the project of partition, apparent on the record of the testate
proceedings, which shows that Maria Gerardo had no power or authority to sign the project
of partition as guardian of the minor Lucia Milagros Barretto, and, consequently, no ground
for the contention that the order approving the project of partition is absolutely null and void
and may be attacked collaterally in these proceedings.

So that it is now incontestable that appellee Milagros Barretto was not only made a party by
publication but actually appeared and participated in the proceedings through her guardian: she,
therefore, can not escape the jurisdiction of the Manila Court of First Instance which settled her
father's estate.

Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could not have
ignored that the distributee Salud was not her child, the act of said widow in agreeing to the oft-cited
partition and distribution was a fraud on appellees rights and entitles her to relief. In the first place,
there is no evidence that when the estate of Bibiano Barretto was judicially settled and distributed
appellants' predecessor, Salud Lim Boco Barretto to, knew that she was not Bibiano's child: so that if
fraud was committed, it was the widow, Maria Gerardo, who was solely responsible, and neither
Salud nor her minor children, appellants herein, can be held liable therefor. In the second
placegranting that there was such fraud, relief therefrom can only be obtained within 4 years from its
discovery, and the record shows that this period had elapsed long ago.

Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24), she
became of age five years later, in 1944. On that year, her cause of action accrued to contest on the
ground of fraud the court decree distributing her father's estate and the four-year period of limitation
started to run, to expire in 1948 (Section 43, Act. 190). In fact, conceding that Milagros only became
aware of the true facts in 1946 (Appellee's Brief, p. 27), her action still became extinct in 1950.
Clearly, therefore, the action was already barred when in August 31, 1956 she filed her counterclaim
in this case contesting the decree of distribution of Bibiano Barretto's estate.

In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant Tirso
Reyes had induced her to delay filing action by verbally promising to reconvey the properties
received by his deceased wife, Salud. There is no reliable evidence of the alleged promise, which
rests exclusively on the oral assertions of Milagros herself and her counsel. In fact, the trial court
made no mention of such promise in the decision under appeal. Even more: granting arguendo that
the promise was made, the same can not bind the wards, the minor children of Salud, who are the
real parties in interest. An abdicative waiver of rights by a guardian, being an act of disposition, and
not of administration, can not bind his wards, being null and void as to them unless duly authorized
by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).

In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings
for the settlement of the estate of Bibiano Barretto duly approved by the Court of First Instance of
Manila in 1939, in its Civil Case No. 49629, is not void for being contrary to either Article 1081 or
1814 of the, Civil Code of 1889; (2) that Milagros Barretto's action to contest said partition and
decree of distribution is barred by the statute of limitations; and (3) that her claim that plaintiff-
appellant guardian is a possessor in bad faith and should account for the fruits received from the
properties inherited by Salud Barretto (nee Lim Boco) is legally untenable. It follows that the
plaintiffs' action for partition of the fishpond described in the complaint should have been given due
course.

Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed and
set aside in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto Datu the
properties enumeracted in said decision, and the same is affirmed in so far as it denies any right of
said appellee to accounting. Let the records be returned to the court of origin, with instructions to
proceed with the action for partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No.
T-13734 of the Office of the Register of Deeds of Bulacan, and for the accounting of the fruits
thereof, as prayed for in the complaint No costs.

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees. (A will naming the
petitioner sister of the decedent as the only universal heir to succeed the entire estate of the latter
without any declaration therein as to testator’s parents and siblings a legitime and neither they were
disinherited in the disposition of the will was properly declared a nullity for being a clear case of
pretirition depriving successional rights of legitime by institution of the universal heir as legitime
ascending line were neither mentioned as heirs in the will nor are declared disinherited)

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. " 17 In Manresa's own
words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la
misma se denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be
"involuntaria". 19 Express as disinheritance should be, the same must be supported by a legal cause
specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their
names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which
the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution
of heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions
in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code,
such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the
person disinherited", which last phrase was omitted in the case of preterition. 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
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their
legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so
instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case
heretofore cited, viz:

But the theory is advanced that the bequest made by universal title in 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.

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.

G.R. No. L-41971 November 29, 1983

ZONIA ANA T. SOLANO, petitioner,
vs.
THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S. GARCIA, respondents.

(The decedent Dr. Meliton Zolano was challenged to be the father of Bienvinido and Emeteria
Garcias in the paternity suit as illegitimate children sired with their mother Juana as a result of
amorous relations evidenced by acts of support and educational support of the former gleaning them
to be recognized as such which the former denied during his lifetime and the former’s death during
the pendency of the filiation suit gave rise to petitioner’s cause to be declared as substitute
defendant and as executrix in the probated will disposing most of properties in her favor except the
five parcels of land given in petitioner’s mother Trinidad Tuagnon as usufruct being the sole
surviving heir with least interference from Garcias, the latter then impugn petitioner’s status as
acknowledged natural child by virtue of the executed acknowledging as natural child to give right to
use the Solano surname in her favor between her mother and father decedent as adulterous child of
the decedent sired by him with Trinidad Tuagnon together with two children being her as the only
living as proved by her birth certificate bearing illegitimate status indicating PNC or padre no
conocido and impleading them in the estate as supplemental cause of action which the trial granted
effecting the nullification of the will declaring petitioner as sole heir the same ruling and declaring the
parties as illegitimate children by having sired out of wedlock between the decedent and Lily the
French woman was sustained by CA hence, this present petition seeking its reversal. The institution
of petitioner as sole heir is declared as null and void while the usufruct given to Trinidad shall be
respected as legacy insofar as the same is not inofficious. Thus, the sharing of illegitimate children
herein should be one third each of the hereditary estate and the usufruct given to Trinidad shall be
turned over)

Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the facts, the
GARCIAS and ZONIA were in the same category as illegitimate children; that ZONIA's
acknowledgment as a "natural child" in a notarial document executed by SOLANO and Trinidad
Tuagnon on December 22, 1943 was erroneous because at the time of her birth in 1941, SOLANO
was still married to Lilly Gorand, his divorce having been obtained only in 1943, and, therefore, did
not have the legal capacity to contract marriage at the time of ZONIA's conception, 7 that being
compulsory heirs, the GARCIAS were, in fact, pretended from SOLANO's Last' Will and Testament;
and that as a result of said preterition, the institution of ZONIA as sole heir by SOLANO is null and
void pursuant to Article 854 of the Civil Code. têñ.£îhq wâ£

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. ... 8
As provided in the foregoing provision, the disposition in the Will giving the usufruct in favor of
Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a legacy, recognized
in Article 563 of the Civil Code, 9 and should be respected in so far as it is not inofficious. 10
So also did the Trial Court have jurisdiction in resolving the issue of the hereditary shares of the
GARCIAS and ZONIA. However, contrary to the conclusions of the Courts below, holding that the
entire Will is void and intestacy ensues, the pretention of the GARCIAS should annul the institution
of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired. The Will, therefore, is
valid subject to that limitation. 11 It is a plain that the intention of the testator was to favor ZONIA with
certain portions of his property, which, under the law, he had a right to dispose of by Will, so that the
disposition in her favor should be upheld as to the one-half (1/2) portion of the property that the
testator could freely dispose of. 12 Since the legitime of illegitimate children consists of one half (1/2)
of the hereditary estate, 13 the GARCIAS and ZONIA each have a right to participation therein in the
proportion of one-third (1/3) each. ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or
4/6 of the estate, while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of
the estate.
As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties indicated in the
Will is valid and should be respected.
The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin, et al., 15 which
held that where the institution of a universal heir is null and void due to pretention, the Will is a
complete nullity and intestate succession ensues, is not applicable herein because in the Nuguid
case, only a one-sentence Will was involved with no other provision except the institution of the sole
and universal heir; there was no specification of individual property; there were no specific legacies
or bequests. It was upon that factual setting that this Court declared: têñ.£îhq wâ£

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." (at p. 459)
In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of the Civil
Code, supra, applies merely annulling the "institution of heir".
Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate Court was
never questioned before either Court. ZONIA herself had gone, without objection, to trial on the
issues raised and as defined by the Trial Court. Neither had ZONIA assigned lack of jurisdiction of
the Trial Court as an error before the Appellate Court. She should now be held estopped to
repudiate that jurisdiction to which she had voluntarily submitted, after she had received an
unfavorable judgment, The leading case of Tijam vs. Sibonghanoy, 16on this point, declared: têñ.£îhq wâ£

A party cannot invoke the jurisdiction of a court to secure affirmative relief against his
opponent and after failing to obtain such relief, repudiate or question the same
jurisdiction. The question whether the court has jurisdiction either of the subject
matter of the action or of the parties is not because the judgment or order of the court
is valid and conclusive as an adjudication but for the reason that such practice
cannot be tolerated obviously for reasons of public policy. After voluntarily submitting
a cause and encountering an adverse decision on the merits, it is too late for the
loser to question the jurisdiction or power of the court.

WHEREFORE, the judgment under review is hereby modified in that the hereditary share in the
estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be (1/2 + (1/3 of 1/2)
or 4/6 of said estate, while that of private respondents, Bienvenido S. Garcia and Emeteria S.
Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate. The usufruct in favor of Trinidad Tuagnon
shall be respected. The judgment is affirmed in all other respects. No costs.
G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents

(The will declaring the petitioner and his brothers and sisters as instituted heirs and contained
disposition on debts payment, burial rites and appointment of lawyer filed for allowance in the
probated will which the oppositor respondent widow one of them a recognized legally adopted
daughter Virginia Fernandez of the deceased who had been omitted in the will which was denied by
trial court upon appeal, IAC gave due course ordering to dismiss the probate of the will of the
deceased Nemesio Acain hence, the instant petition. The legally adopted child Virginia Fernandez
acquired the same rights and duties as that of a legitimate child of the adopter as adopted child
making her a legal heir was clearly preterited for she was omitted in the will same conclusion goes
with the widow Rosa Diongson as legitime both of them not being expressly disinherited thus, a clear
case of pretirition of adopted child; The dismissal of the case then is proper)
The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code 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 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 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 (.Memorandum for the Petitioner, pp. 8-9). 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 including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o
donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]).
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 iii 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 or 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 j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v.
Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v.
Sarmiento, 138 SCRA 587 [1985]). 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 (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]).
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 (Vda. de Bacang v. Court of Appeals,
125 SCRA 137 [1983]).

Special Proceedings 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 comes 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 (Nuguid v. Nuguid, 17
SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982];
Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206
[1985]).

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
(Nepomuceno v. Court of Appeals, supra). 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 without costs. On appeal the Supreme
Court upheld the decision of the probate court, induced by practical considerations. The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On
the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of
probate or if the court rejects the will, probability exists that the case will come up once again before us
on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will in question. After all there exists a
justiciable controversy crying for solution.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) 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, supra 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. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591
ACEB of the Regional Trial Court 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 (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 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 the merits of the case (Rollo, p. 32). A subsequent
motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will and allowed the case to progress when
on its face 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
(Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. 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 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, (Vda. de Bacang v. Court of Appeals, supra) 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. (Maninang
Court of Appeals, supra).
G.R. Nos. 140371-72 November 27, 2006
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National
Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO,
ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D.
SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D. SEANGIO, Respondents.
(The trial court rendered a decision dismissing the probate proceedings of holographic will purporting
Alfredo one of sons of decedent to be disinherited due to latter’s travesty to the deceased during his
lifetime as the only heirs stated were Alfredo and Virginia while the others are omitted a clear case of
preterition was erroneously declared as dismissed because the compulsory heirs in the direct line
were not preterited in the will and inclusion of Virginia’s name in the will does not operate as
institution as universal heir but merely a witness to altercation between Alfredo and his deceased
father Segundo and the successional law prefer testacy over intestacy)

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected
through a will wherein the legal cause therefor shall be specified. With regard to the reasons for the
disinheritance that were stated by Segundo in his document, the Court believes that the incidents,
taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and
that the matter presents a sufficient cause for the disinheritance of a child or descendant under
Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with the
spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes
the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who disinherit such
child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant;8

(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo can be
considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed.

Segundo’s document, although it may initially come across as a mere disinheritance instrument,
conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by
the hand of Segundo himself. An intent to dispose mortis causa[9] can be clearly deduced from the
terms of the instrument, and while it does not make an affirmative disposition of the latter’s property,
the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words, the
disinheritance results in the disposition of the property of the testator Segundo in favor of those who
would succeed in the absence of Alfredo.10
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form
and within the limits prescribed by law, must be recognized as the supreme law in succession. All
rules of construction are designed to ascertain and give effect to that intention. It is only when the
intention of the testator is contrary to law, morals, or public policy that it cannot be given effect.11
Holographic wills, therefore, being usually prepared by one who is not learned in the law, as
illustrated in the present case, should be construed more liberally than the ones drawn by an expert,
taking into account the circumstances surrounding the execution of the instrument and the intention
of the testator.12 In this regard, the Court is convinced that the document, even if captioned
as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last testamentary act and
was executed by him in accordance with law in the form of a holographic will. Unless the will is
probated,13 the disinheritance cannot be given effect.14

With regard to the issue on preterition,15 the Court believes that the compulsory heirs in the direct
line were not preterited in the will. It was, in the Court’s opinion, Segundo’s last expression to
bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did
not institute an heir16 to the exclusion of his other compulsory heirs. The mere mention of the name
of one of the petitioners, Virginia, in the document did not operate to institute her as the universal
heir. Her name was included plainly as a witness to the altercation between Segundo and his son,
Alfredo.1âwphi 1

Considering that the questioned document is Segundo’s holographic will, and that the law favors
testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code
provides that no will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to
dispose of his property may be rendered nugatory.17
In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be
probated. It is settled that testate proceedings for the settlement of the estate of the decedent take
precedence over intestate proceedings for the same purpose.18

G.R. No. 198994

IRIS MORALES, Petitioner,

vs.
ANA MARIA OLONDRIZ, ALFONSO JUAN OLONDRIZ, JR., ALEJANDRO MORENO
OLONDRIZ, ISABEL ROSA OLONDRIZ and FRANCISCO JAVIER MARIA
OLONDRIZ, Respondents. (The probate of a will believing the decedent died an intestate at first
omitting two illegitimate children in the will favoring legitimate children is a clear case of preterition
because illegitimate children as legitime not included in the testator’s will nor expressly disinherited
are entitled to the portion of their legitime thus, a claim that the illegitimate children had received
donations during the lifetime of the decedent in their favor unsubstantially proving the same for
failure to attend the hearing proved fatal to petitioner’s cause as the pretirition annuls the will
opening the same for intestacy)

Preterition consists in the omission of a compulsory heir from the will, either because he is not
named or, although he is named as a father, son, etc., he is neither instituted as an heir nor
assigned any part of the estate without expressly being disinherited – tacitly depriving the heir of his
legitime.5 Preterition requires that the omission is total, meaning the heir did not also receive any
legacies, devises, or advances on his legitime.6

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

Article 854 of the Civil Code states the legal effects of preterition:

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.

If the omitted compulsory heirs should die before the testator, the institution shall be
effectual, without prejudice to the right of representation. (emphasis supplied)

Under the Civil Code, the preterition of a compulsory heir in the direct line shall annul the institution
of heirs, but the devises and legacies shall remain valid insofar as the legitimes are not impaired.
Consequently, if a will does not institute any devisees or legatees, the preterition of a compulsory
heir in the direct line will result in total intestacy.7

In the present case, the decedent’s will evidently omitted Francisco Olondriz as an heir, legatee, or
devisee. As the decedent’s illegitimate son, Francisco is a compulsory heir in the direct line. Unless
Morales could show otherwise, Francisco’s omission from the will leads to the conclusion of his
preterition.

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

We will not entertain the petitioner’s factual allegation that Francisco was not preterited because this
Court is not a trier of facts. Furthermore, the CA concurred with the RTC’s conclusion. We see no
1âwphi1

cogent reason to deviate from the factual findings of the lower courts.

Reserva Troncal

Article 891. The ascendant who inherits from his descendant any property which the latter may
have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve
such property as he may have acquired by operation of law for the benefit of relatives who are within
the third degree and who belong to the line from which said property came. (871)

G.R. No. L-34395 May 19, 1981

BEATRIZ L. GONZALES, petitioner,

vs.
COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO L.
VALDEZ, ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO LEGARDA
Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y HERNANDEZ,
CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO LEGARDA Y HERNANDEZ, RAMON
LEGARDA Y HERNANDEZ, FILOMENA LEGARDA Y LOBREGAT, JAIME LEGARDA Y
LOBREGAT, CELSO LEGARDA Y LOBREGAT, ALEJANDRO LEGARDA Y LOBREGAT, MA.
TERESA LEGARDA Y LOBREGAT, MA. ANTONIA LEGARDA Y LOBREGAT, JOSE LEGARDA
Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO LEGARDA Y LOBREGAT,
EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA, and the ESTATE OF DONA
FILOMENA ROCES DE LEGARDA, respondents.

(The properties inherited by Filomena acquired from the death of her father Benito, upon former’s
demise, the subject properties were succeeded as sole heir by her mother Filomena Races are
reserva troncal subject to reservation by Filomena Races despite demise in favor of sons and
daughter of Benito, who survived the reservor and who are within third degree relation, from whom
the properties originally rooted thus, the same properties cannot be conveyed thru a holographic will
in favor of her sixteen grandchildren as the disputed properties do not form part of Filomena Races’
estate as the reservees became ipso facto owner of the same by operation of law thus, the granting
of holographic will by trial court is erroneous the decision should have been in line with the rule set
forth in reserva troncal)

The question is whether the disputed properties are reservable properties under article 891 of the
Civil Code, formerly article 811, and whether Filomena Races Vda. de Legarda could dispose of
them in his will in favor of her grandchildren to the exclusion of her six children.

Did Mrs. Legarda have the right to convey mortis causa what she inherited from her daughter
Filomena to the reservees within the third degree and to bypass the reservees in the second
degree or should that inheritance automatically go to the reservees in the second degree, the six
children of Mrs. Legarda?

As will hereinafter be shown that is not a novel issue or a question of first impression. lt was resolved
in Florentino vs. Florentino, 40 Phil. 480. Before discussing the applicability to this case of the
doctrine in the Florentino case and other pertinent rulings, it may be useful to make a brief discourse
on the nature of reserve troncal, also called lineal, familiar, extraordinaria o semi-troncal.

Much time, effort and energy were spent by the parties in their five briefs in descanting on the nature
of reserve troncal which together with the reserva viudal and reversion legal, was abolished by the
Code Commission to prevent the decedent's estate from being entailed, to eliminate the uncertainty
in ownership caused by the reservation (which uncertainty impedes the improvement of the
reservable property) and to discourage the confinement of property within a certain family for
generations which situation allegedly leads to economic oligarchy, and is incompatible with the
socialization of ownership.

The Code Commission regarded the reservas as remnants of feudalism which fomented agrarian
unrest. Moreover, the reserves, insofar as they penalize legitimate relationship, is considered unjust
and inequitable.

However, the lawmaking body, not agreeing entirely with the Code Commission, restored
the reserve troncal, a legal institution which, according to Manresa and Castan Tobenas has
provoked questions and doubts that are difficult to resolve.

Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article 891, which
reads: 1äwphï1.ñët

ART. 811. El ascendiente que heredare de su descendiente bienes que este hubiese
adquirido por titulo lucrative de otro ascendiente, o de un hermano, se halla obligado
a reservas los que hubiere adquirido por ministerio de la ley en favor de los parientes
 que eaten dentro del tercer grade y pertenezcan a la linea de donde los bienes
proceden

ART. 891. The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant, or a brother or
sister, is obliged to reserve such property as he may have acquired by operation of
law for the benefit of relatives who are within the third degree and who belong to the
line from which said property came.

In reserve troncal (1) a descendant inherited or acquired by gratuitous title property from an
ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is
acquired by him by operation of law from the said descendant, and (3) the said ascendant should
reserve the said property for the benefit of relatives who are within the third degree from the
deceased descendant (prepositus) and who belong to the line from which the said property came.

So, three transmissions are involved: (I) a first transmission by lucrative title (inheritance or donation)
from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by
operation of law (intestate succession or legitime) from the deceased descendant (causante de la
reserve) in favor of another ascendant, the reservor or reservista, which two transmissions precede
the reservation, and (3) a third transmissions of the same property (in consequence of the
reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree
from the deceased descendant belonging to the line of the first ascendant, brother or sister of the
deceased descendant (6 Castan Tobenas Derecho Civil, Part l, 1960, 6th Ed., pp. 198-9).

If there are only two transmissions there is no reserve. Thus, where one Bonifacia Lacerna died and
her properties were inherited by her son, Juan Marbebe, upon the death of Juan, those lands should
be inherited by his half-sister, to the exclusion of his maternal first cousins. The said lands are not
reservable property within the meaning of article 811 (Lacerna vs. Vda. de Corcino, l l l Phil. 872).

The persons involved in reserve troncal are (1) the ascendant or brother or sister from whom the
property was received by the descendant by lucrative or gratuitous title, (2) the descendant
or prepositus (prepositus) who received the property, (3) the reservor (reservista) the other
ascendant who obtained the property from the (prepositus) by operation of law and (4) the reserves
(reservatario) who is within the third degree from the prepositus and who belongs to the (line o
tronco) from which the property came and for whom the property should be reserved by the reservor.

The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil. 1098; Chua vs.
Court of First Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412). Fourth
degree relatives are not included (Jardin vs. Villamayor, 72 Phil. 392).

The rationale of reserve troncal is to avoid "el peligro de que bienes poseidos secularmente por una
familia pasen bruscamente a titulo gratuito a manos extrañas por el azar de los enlaces y muertes
prematuras or impeder que, por un azar de la vide personas extranas a una familia puedan adquirir
bienes que sin aquel hubieran quedado en ella (6 Castan Tobenas Derecho Civil, Part l, 6th Ed.,
1980, p. 203; Padura vs. Baldovino, 104 Phil. 1065).

An illustration of reserve troncal is found in Edroso vs. Sablan, 25 Phil. 295. ln that case, Pedro
Sablan inherited two parcels of land from his father Victorians. Pedro died in 1902, single and
without issue. His mother, Marcelina Edroso, inherited from him the two parcels of land.

It was held that the land was reservable property in the hands of Marcelina. The reservees were
Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan, the prepositus. Marcelina
could register the land under the Torrens system in her name but the fact that the land was
reservable property in favor of her two brothers-in-law, should they survive her, should be noted in
the title.

In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share of a parcel
of conjugal land was inherited by her daughter, Juliana Mañalac. When Juliana died intestate in
1920, said one-half share was inherited by her father, Anacleto Mañalac who owned the other one-
half portion.

Anacleto died intestate in 1942, survived by his second wife and their six children. lt was held that
the said one-half portion was reservable property in the hands of Anacleto Mañalac and, upon his
death, should be inherited by Leona Aglibot and Evarista Aglibot, sisters of Maria and materna aunts
of Juliana Mañalac, who belonged to the line from which said one-half portion came (Aglibot vs.
Mañalac 114 Phil. 964).

Other illustrations of reserva troncal are found in Florentino vs Florentino, 40 Phil. 480; Nieva and
Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs. Balcita 46 Phil.
551; Lunsod vs. Ortega, 46 Phil. 664; Dizon vs. Galang, 48 Phil. 601; Riosa vs. Rocha, 48 Phil.
737; Centeno vs. Centeno 52 Phil. 322; Velayo Bernardo vs. Siojo, 58 Phil. 89; Director of Lands vs.
Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39 O.G. 1784.

The person from whom the degree should be reckoned is the descendant, or the one at the end of
the line from which the property came and upon whom the property last revolved by descent. He is
called the prepositus (Cabardo vs. Villanueva. 44 Phil. 186, 190).

In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia Cabardo.
When Cornelia died, her estate passed to her father, Lorenzo Abordo. ln his hands, the property was
reservable property. Upon the death of Lorenzo, the person entitled to the property was Rosa
Cabardo, a maternal aunt of Cornelia, who was her nearest relative within the third degree.

First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even
represent their parents because representation is confined to relatives within the third degree
(Florentino vs. Florentino, 40 Phil. 480).

Within the third degree, the nearest relatives exclude the more remote subject to the rule of
representation. But the representative should be within the third degree from the prepositus (Padura
vs. Baldovino, 104 Phil. 1065).

Reserva troncal contemplates legitimate relationship. illegitimate relationship and relationship by

affinity are excluded.

Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return
such as donacion and succession (Cabardo vs. Villanueva, 44 Phil. 186, 189-190, citing 6 Manresa,
Codigo Civil, 7th Ed., 195 l, p. 360).

The reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to
reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to
the line from which the property came
(Sienes vs. E Esparcia l l l Phil. 349, 353).
The reservor has the legal title and dominion to the reservable property but subject to the resolutory
condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a
usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee
gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked
upon the survival of the reservees at the time of the death of the reservor but become indefeasible
when the reservees predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs.
Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480:
Director of Lands vs. Aguas, 63 Phil. 279.)

The reservor's title has been compared with that of the vendee a retro in a pacta de retro sale or to
a fideicomiso conditional.

The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that
if at the time of the reservor's death, there are reservees, the transferee of the property should
deliver it to the reservees. lf there are no reservees at the time of the reservor's death, the
transferee's title would become absolute. (Lunsod vs. Ortega, 46 Phil. 664; Gueco vs. Lacson, 118
Phil. 944; Mono vs. Nequia 93 Phil. 120).

On the other hand, the reserves has only an inchoate, expectant or contingent right. His expectant
right would disappear if he predeceased the reservor. lt would become absolute should the reservor
predecease the reserves.

The reserves cannot impugn any conveyance made by the reservor but he can require that the
reservable character of the property be recognized by the purchaser (Riosa vs. Rocha 48 Phil. 737;
Edroso vs. Sablan, 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944).

There is a holding that the renunciation of the reservee's right to the reservable property is illegal for
being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96).

And there is a dictum that the reservee's right is a real right which he may alienate and dispose of
conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and
when the reserves survives the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353). 1äw phï1.ñët

The reservatario receives the property as a conditional heir of the descendant

(prepositus) said property merely reverting to the line of origin from which it had
temporarily and accidentally stayed during the reservista's lifetime. The authorities
are all agreed that there being reservatarios that survive the reservists, the latter
must be deemed to have enjoyed no more than a than interest in the reservable
property. (J. J. B. L. Reyes in Cane vs. Director of Lands, 105 Phil. l5.)

Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers
of the property, can already assert the right to prevent the reservista from doing
anything that might frustrate their reversionary right, and, for this purpose, they can
compel the annotation of their right in the registry of property even while the
(reservista) is alive (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs. Sablan,
25 Phil. 295).

This right is incompatible with the mere expectancy that corresponds to the natural
heirs of the reservista lt is likewise clear that the reservable property is no part of the
estate of the reservista who may not dispose of them (it) by will, so long as there are
reservatarios existing (Arroyo vs. Gerona, 58 Phil. 226, 237).
 The latter, therefore, do not inherit from the reservista but from the descendant
(prepositus) of whom the reservatarios are the heirs mortis causa, subject to the
condition that they must survive the reservista. (Sanchez Roman, Vol. VI Tomo 2, p.
286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes
in Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065).

Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes,
"automatically and by operation of law, the owner of the reservable property." (Cane vs. Director of
Lands, 105 Phil. l5.)

In the instant case, the properties in question were indubitably reservable properties in the hands of
Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a certainty when at the
time of her death the reservees or relatives within the third degree of the prepositus Filomena
Legarda were living or they survived Mrs. Legarda.

So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey the reservable
properties by will or mortis causa to the reservees within the third degree (her sixteen grandchildren)
to the exclusion of the reservees in the second degree, her three daughters and three sons. As
indicated at the outset, that issue is already res judicata or cosa juzgada.

We hold that Mrs. Legarda could not convey in her holographic will to her sixteen grandchildren the
reservable properties which she had inherited from her daughter Filomena because the reservable
properties did not form part of her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The reservor
cannot make a disposition mortis causa of the reservable properties as long as the reservees
survived the reservor.

As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties
from the prepositus, not from the reservor.

Article 891 clearly indicates that the reservable properties should be inherited by all the nearest
relatives within the third degree from the prepositus who in this case are the six children of Mrs.
Legarda. She could not select the reservees to whom the reservable property should be given and
deprive the other reservees of their share therein.

To allow the reservor in this case to make a testamentary disposition of the reservable properties in
favor of the reservees in the third degree and, consequently, to ignore the reservees in the second
degree would be a glaring violation of article 891. That testamentary disposition cannot be allowed.

We have stated earlier that this case is governed by the doctrine of Florentino vs. Florentino, 40 Phil.
480, a similar case, where it was ruled: 1äwphï1.ñët

Reservable property left, through a will or otherwise, by the death of ascendant

(reservista) together with his own property in favor of another of his descendants as
forced heir, forms no part of the latter's lawful inheritance nor of the legitime, for the
reason that, as said property continued to be reservable, the heir receiving the same
as an inheritance from his ascendant has the strict obligation of its delivery to the
relatives, within the third degree, of the predecessor in interest (prepositus), without
prejudicing the right of the heir to an aliquot part of the property, if he has at the
same time the right of a reservatario (reserves).

ln the Florentino case, it appears that Apolonio Florentino II and his second wife Severina Faz de
Leon begot two children, Mercedes and Apolonio III. These two inherited properties from their father.
Upon Apolonio III death in 1891, his properties were inherited by his mother, Severina, who died in
1908. ln her will, she instituted her daughter Mercedes as heiress to all her properties, including
those coming from her deceased husband through their son, Apolonio III.

The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon and the
descendants of the deceased children of his first marriage, sued Mercedes Florentino for the
recovery of their share in the reservable properties, which Severina de Leon had inherited from
Apolonio III which the latter had inherited from his father Apolonio II and which Severina willed to her
daughter Mercedes.

Plaintiff's theory was that the said properties, as reservable properties, could not be disposed of in
Severina's will in favor of Mercedes only. That theory was sustained by this Court.

It was held that the said properties, being reservable properties, did not form part of Severina's
estate and could not be inherited from her by her daughter Mercedes alone.

As there were seven reservees, Mercedes was entitled, as a reserves, to one-seventh of the
properties. The other six sevenths portions were adjudicated to the other six reservees.

Under the rule of stare decisis et non quieta movere, we are bound to follow in this case the doctrine
of the Florentino case. That doctrine means that as long as during the reservor's lifetime and upon
his death there are relatives within the third degree of the prepositus regardless of whether those
reservees are common descendants of the reservor and the ascendant from whom the property
came, the property retains its reservable character. The property should go to the nearest reservees.
The reservor cannot, by means of his will, choose the reserves to whom the reservable property
should be awarded.

The alleged opinion of Sanchez Roman that there is no reserva troncal when the only relatives
within the third degree are the common descendants of the predeceased ascendant and the
ascendant who would be obliged to reserve is irrelevant and sans binding force in the light of the
ruling in the Florentino case.

It is contended by the appellees herein that the properties in question are not reservable properties
because only relatives within the third degree from the paternal line have survived and that when
Mrs. Legarda willed the said properties to her sixteen grandchildren, who are third-degree relatives
of Filomena Legarda and who belong to the paternal line, the reason for the reserva troncal has
been satisfied: "to prevent persons outside a family from securing, by some special accident of life,
property that would otherwise have remained therein".

That same contention was advanced in the Florentino case where the reservor willed the reservable
properties to her daughter, a full-blood sister of the prepositus and ignored the other six reservors,
the relatives of the half-blood of the prepositus.

In rejecting that contention, this Court held that the reservable property bequeathed by the reservor
to her daughter does not form part of the reservor's estate nor of the daughter's estate but should be
given to all the seven reservees or nearest relatives of the prepositus within the third degree.

This Court noted that, while it is true that by giving the reservable property to only one reserves it did
not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the
reservor was only one of the reservees and there is no reason founded upon law and justice why the
other reservees should be deprived of their shares in the reservable property (pp. 894-5).
Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in her will the
properties in question even if the disposition is in favor of the relatives within the third degree from
Filomena Legarda. The said properties, by operation of Article 891, should go to Mrs. Legarda's six
children as reservees within the second degree from Filomena Legarda.

It should be repeated that the reservees do not inherit from the reservor but from the reservor but
from the prepositus, of whom the reservees are the heirs mortis causa subject to the condition that
they must survive the reservor (Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil.
1065).

The trial court said that the disputed properties lost their reservable character due to the non-
existence of third-degree relatives of Filomena Legarda at the time of the death of the reservor, Mrs.
Legarda, belonging to the Legarda family, "except third-degree relatives who pertain to both" the
Legarda and Races lines.

That holding is erroneous. The reservation could have been extinguished only by the absence of
reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still
are) reservees belonging to the second and third degrees, the disputed properties did not lose their
reservable character. The disposition of the said properties should be made in accordance with
article 891 or the rule on reserva troncal and not in accordance with the reservor's holographic will.
The said properties did not form part of Mrs. Legarda's estate. (Cane vs. Director of Lands, 105 Phil.
l, 4).

G.R. No. L-29901 August 31, 1977

IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA, petitioners,

vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH V and SUSANA DE
LA TORRE, in her capacity as Administratrix of the Intestate Estate of Consolacion de la
Torre, respondents.

(Petitioners are the reservees of the reservable properties acquired by Consolacion from her son
Juanito which the latter acquired from his father Jose. The only dispute resolved by the Court is the
gratuitous nature of the title to the properties as the same was conditioned upon payment of interest
in favor of Standard Oil of New York as set forth in the decision ordered by trial court not personally
by the deceased out of the pockets of successors, it was resolved regardless of such clause the
gratuitous nature of the property does not change by such fact as long as the same is not imposed
by Jose from whom the property originally came thus, all the requisites in reserva troncal concur in
the present case including the first disputed requisite of gratuitous title for consideration the
properties are subject to reserva troncal)

The crux of the problem in instant petition is focused on the first requisit of reserva troncal
— whether the property in question was acquired by Juanito Frias Chua from his father Jose Frias
Chua, gratuitously or not. In resolving this point, the respondent Court said:

It appears from Exh. "3", which is part of Exh. "D", that the property in question was
not acquired by Consolacion de la Torre and Juanito Frias Chua gratuitously but for a
consideration, namely, that the legatees were to pay the interest and cost and other
fees resulting from Civil Case No. 5300 of this Court. As such it is undeniable that the
lot in question is not subject tot a reserva troncal, under Art. 891 of the New Civil
Code, and as such the plaintiff's complaint must fail.
We are not prepared to sustain the respondent Court's conclusion that the lot in question is not
subject to a reserva troncal under Art. 891 of the New Civil Code. It is, As explained by Manresa
which this Court quoted with approval in Cabardo v. Villanueva, 44 Phil. 186, "The transmission is
gratuitous or by gratuitous title when the recipient does not give anything in return." It matters not
whether the property transmitted be or be not subject to any prior charges; what is essential is that
the transmission be made gratuitously, or by an act of mere liberality of the person making it, without
imposing any obligation on the part of the recipient; and that the person receiving the property gives
or does nothing in return; or, as ably put by an eminent Filipino commentator, 6 "the essential thing is
that the person who transmits it does so gratuitously, from pure generosity, without requiring from the
transferee any prestation." It is evident from the record that the transmission of the property in question to
Juanito Frias Chua of the second marriage upon the death of his father Jose Frias Chua was by means of
a hereditary succession and therefore gratuitous. It is true that there is the order (Exh. "D") of the probate
Court in Intestate Proceeding No. 4816 which estates in express terms;

But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20 is imposed
upon Consolacion de la Torre and Juanito Frias Chua not personally by the deceased Jose Frias
Chua in his last will and testament but by an order of the court in the Testate Proceeding No.4816
dated January 15, 1931. As long as the transmission of the property to the heirs is free from any
condition imposed by the deceased himself and the property is given out of pure generosity, itg is
gratuitous. it does not matter if later the court orders one of the heirs, in this case Juanito Frias
Chua, to pay the Standare oil co. of New York the amount of P3,971.20. This does not change the
gratuitous nature of the transmission of the property to him. This being the case the lot in question is
subject to reserva troncal under Art, 891 of the New Civil Code.

It is contented that the distribution of the shares of the estate of Jose Frias Chua to the respondent
heirs or legatees was agreed upon by the heirs in their project of partition based on the last will and
testament of Jose Frias Chua. But petitioners claim that the supposed Last Will and Testament of
Jose Frias Chua was never probated. The fact that the will was not probated was admitted in
paragraph 6 of the respondents' answer. 7 There is nothing mentioned in the decision of the trial court in
Civil Case No. 7839 A which is the subject of the present appeal nor in the order of January 15, 1931 of
the trial court in the Testate Estate Proceeding No. 4816 nor in the private respondent's brief, that the
Last Will and Testament of Jose Frias Chua has ever been probated. With the foregoing, it is easy to
deduce that if the Last Will and Testament has in fact been probated there would have been no need for
the testamentary heirs to prepare a project of partition among themselves. The very will itself could be
made the basis for the adjudication of the estate as in fact they did in their project of partition with Juanito
Frias Chua getting one-half of Lot 399 by inheritance as a sone of the deceased Jose Frias Chua by the
latter's second marriage.

According to the record, Juanito Frias Chua died on February 27, 1952 without any issue. After his
death his mother Consolation de la Torre succeeded to his one-half pro-indiviso share of Lot 399.
This was, however, subject to the condition that the property was reservable in character under Art.
891 of the Civil Code in favor of relatives within the third degree of Jose Frias Chua from whom the
property came. These relatives are the petitioner herein.

It is claimed that the complaint of petitioners to recover the one-half portion of Lot 399 which
originally belonged to Juanito Frias Chua has already prescribed when it was filed on May 11, 1966.
We do not believe so. It must be remembered that the petitioners herein are claiming as reservees
did not arise until the time the reservor, Consolacion de la Torre, died in March 1966. When the
petitioners therefore filed their complaint to recover the one-half (1/2) portion of Lot 399, they were
very much in time to do so.

G.R. No. 6878 September 13, 1913

MARCELINA EDROSO, petitioner-appellant,
vs.
PABLO and BASILIO SABLAN, opponents-appellees.

The question set up in the first assignment of error of the appellant's brief is this:

What are the rights in the property of the person who holds it subject to the reservation of
article 811 of the Civil Code?

There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the
person in whose favor the reservation is made. If that were so, the person holding the property could
not apply for registration of title, but the person in whose favor it must be reserved, with the former's
consent. This opinion does not seem to be admissible, although it appears to be supported by
decisions of the supreme court of Spain of May 21, 1861, and June 18, 1880, prior to the Civil Code,
and of June 22, 1895, somewhat subsequent to the enforcement thereof.

Another writer says: "This opinion only looks at two salient points — the usufruct and the fee simple;
the remaining features of the arrangement are not perceived, but become obscure in the presence of
that deceptive emphasis which only brings out two things: that the person holding the property will
enjoy it and that he must keep what he enjoys for other persons." (Manresa, VII, 189.)

In another place he says: "We do not believe that the third opinion can now be maintained — that is,
that the surviving spouse (the person obliged by article 968 to make the reservation) can be
regarded as a mere usufructuary and the descendants immediately as the owner; such theory has
no serious foundation in the Code." (Ibid., 238.)

The ascendants who inherits from a descendants, whether by the latter's wish or by operation of law,
requires the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes
of the right of ownership belong to him exclusively — use, enjoyment, disposal and recovery. This
absolute ownership, which is inherent in the hereditary title, is not altered in the least, if there be no
relatives within the third degree in the line whence the property proceeds or they die before the
ascendant heir who is the possessor and absolute owner of the property. If there should be relatives
within the third degree who belong to the line whence the property proceeded, then a limitation to
that absolute ownership would arise. The nature and scope of this limitation must be determined with
exactness in order not to vitiate rights that the law wishes to be effective. The opinion which makes
this limitation consist in reducing the ascendant heir to the condition in of a mere usufructuary,
depriving him of the right of disposal and recovery, does not seem to have any support in the law, as
it does not have, according to the opinion that he has been expressed in speaking of the rights of the
father or mother who has married again. There is a marked difference between the case where a
man's wish institutes two persons as his heirs, one as usufructuary and the other as owner of his
property, and the case of the ascendant in article 811 or of the father or mother in article 968. In the
first case, there is not the slightest doubt that the title to the hereditary property resides in the
hereditary owner and he can dispose of and recover it, while the usufructuary can in no way perform
any act of disposal of the hereditary property (except that he may dispose of the right of usufruct in
accordance with the provisions of article 480 of the Civil Code), or any act of recovery thereof except
the limited one in the form prescribed in article 486 of the Code itself, because he totally lacks the
fee simple. But the ascendants who holds the property required by article 811 to be reserved, and
the father of mother required by article 986 to reserve the right, can dispose of the property they
might itself, the former from his descendant and the latter from his of her child in first marriage, and
recover it from anyone who may unjustly detain it, while the persons in whose favor the right is
required to be reserved in either case cannot perform any act whatsoever of disposal or of recovery.

Article 975 states explicitly that the father or mother required by article 9687 to reserve the right may
dispose of the property itself:

Alienation of the property required by law to be reserved which may be made by the
surviving spouse after contracting a second marriage shall be valid only if at his or her death
no legitimate children or descendants of the first marriage survive, without prejudice to the
provisions of the Mortgage of Law.

It thus appears that the alienation is valid, although not altogether effective, but under a condition
subsequent, to wit: "If at his or her death no legitimate children or descendants of the first marriage
survive."

If the title did not reside in the person holding the property to be reserved, his alienation thereof
would necessarily be null and void, as executed without a right to do so and without a right which he
could transmit to the acquirer. The law says that the alienation subsists (to subject is to continue to
exist) "without prejudice to the provisions of the Mortgage Law." Article 109 of this Law says:

The possessor of property subject to conditions subsequent that are still pending may
mortgage or alienate it, provided always that he preserve the right of the parties interested in
said conditions by expressly reserving that right in the registration.

In such case, the child or legitimate descendants of the first marriage in whose favor the right is
reserved cannot impugn the validity of the alienation so long as the condition subsequent is pending,
that is, so long as the remarried spouse who must reserve the right is alive, because it might easily
happen that the person who must reserve the right should outlive all the person in whose favor the
right is reserved and then there would be no reason for the condition subsequent that they survive
him, and, the object of the law having disappeared, the right required to be reserved would
disappear, and the alienation would not only be valid but also in very way absolutely effective.
Consequently, the alienation is valid when the right required by law to be reserved to the children is
respected; while the effects of the alienation depend upon a condition, because it will or will not
become definite, it will continue to exist or cease to exist, according to circumstances. This is what
the law establishes with reference to the reservation of article 968, wherein the legislator expressly
directs that the surviving spouse who contracts a second marriage shall reserve to the children or
descendants of the first marriage ownership. Article 811 says nothing more than that the ascendants
must make the reservation.

Manresa, with his recognized ability, summarizes the subject under the heading, "Rights and
obligations during the existence of the right required by law to be reserved," in these words:

During the whole period between the constitution in legal form of the right required by law to be
reserved and the extinction thereof, the relatives within the third degree, after the right that in their
turn may pertain to them has been assured, have only an expectation, and therefore they do not
even have the capacity to transmit that expectation to their heirs.

The ascendant is in the first place a usufructuary who should use and enjoy the things according to
their nature, in the manner and form already set forth in commenting upon the article of the Code
referring to use and usufruct.
But since in addition to being the usufructuary he is, even though conditionally, the owner in fee
simple of the property, he can dispose of it in the manner provided in article 974 and 976 of the
same Code. Doubt arose also on this point, but the Direccion General of the registries, in an opinion
of June 25, 1892, declared that articles 974 and 975, which are applicable by analogy, for they refer
to property reserved by law, reveal in the clearest manner the attitude of the legislator on this
subject, and the relatives with the third degree ought not to be more privileged in the right reserved
in article 811 than the children in the right reserved by article 975, chiefly for the reason that the right
required to be reserved carries with it a condition subsequent, and the property subject to those
conditions can validly be alienated in accordance with article 109 of the Mortgage Law, such
alienation to continue, pending fulfillment of the condition." (Civil Code, VI, 270.)

Another commentator corroborates the foregoing in every way. He says:

The ascendants acquires that property with a condition subsequent, to wit, whether or not
there exists at the time of his death relatives within the third degree of the descendants from
whom they inherit in the line whence the property proceeds. If such relatives exist, they
acquire ownership of the property at the death of the ascendants. If they do not exist, the
ascendants can freely dispose thereof. If this is true, since the possessor of property subject
to conditions subsequent can alienate and encumber it, the ascendants may alienate the
property required by law to be reserved, but he will alienate what he has and nothing more
because no one can give what does not belong to him, and the acquirer will therefore
receive a limited and revocable title. The relatives within the third degree will in their turn
have an expectation to the property while the ascendant lives, an expectation that cannot be
transmitted to their heirs, unless these are also within the third degree. After the person who
is required by law to reserve the right has died, the relatives may rescind the alienation of the
realty required by law to be reserved and they will complete ownership, in fee simple,
because the condition and the usufruct have been terminated by the death of the
usufructuary. (Morell, Estudios sobre bienes reservable, 304, 305.)

The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt
at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and
dominion, although under a condition subsequent. Clearly he has, under an express provision of the
law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a
condition. He has the right to recover it, because he is the one who possesses or should possess it
and have title to it, although a limited and revocable one. In a word, the legal title and dominion,
even though under a condition, reside in him while he lives. After the right required by law to be
reserved has been assured, he can do anything that a genuine owner can do.

On the other hand, the relatives within the third degree in whose favor of the right is reserved cannot
dispose of the property, first because it is no way, either actually, constructively or formally, in their
possession; and, moreover, because they have no title of ownership or of the fee simple which they
can transmit to another, on the hypothesis that only when the person who must reserve the right
should die before them will they acquire it, thus creating a fee simple, and only then will they take
their place in the succession of the descendants of whom they are relatives within the third degree,
that it to say, a second contingent place in said legitimate succession in the fashion of aspirants to a
possible future legacy. If any of the persons in whose favor the right is reserved should, after their
rights has been assured in the registry, dare to dispose of even nothing more than the fee simple of
the property to be reserved his act would be null and void, for, as was definitely decided in the
decision on appeal of December 30, 1897, it is impossible to determine the part "that might pertain
therein to the relative at the time he exercised the right, because in view of the nature and scope of
the right required by law to be reserved the extent of his right cannot be foreseen, for it may
disappear by his dying before the person required to reserve it, just as may even become absolute
should that person die."
Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the
person required by law to reserve the right can be impugned by him in whose favor it is reserved,
because such person has all, absolutely all, the rights inherent in ownership, except that the legal
title is burdened with a condition that the third party acquirer may ascertain from the registry in order
to know that he is acquiring a title subject to a condition subsequent. In conclusion, it seems to us
that only an act of disposal mortis causa in favor of persons other than relatives within the third
degree of the descendants from whom he got the property to be reserved must be prohibited to him,
because this alone has been the object of the law: "To prevent persons outside a family from
securing, by some special accident of life, property that would otherwise have remained therein."
(Decision of December 30, 1897.)

Practically, even in the opinion of those who reduce the person reserving the right to the condition of
a mere usufructuary, the person in whose favor it must be reserved cannot attack the alienation that
may be absolutely made of the property the law requires to be reserved, in the present case, that
which the appellant has made of the two parcels of land in question to a third party, because the
conditional alienation that is permitted her is equivalent to an alienation of the usufruct, which is
authorized by article 480 of the Civil Code, and, practically, use and enjoyment of the property
required by law to be reserved are all that the person who must reserve it has during his lifetime, and
in alienating the usufruct all the usefulness of the thing would be transmitted in an incontrovertible
manner. The question as to whether or not she transmits the fee simple is purely academic, sine re,
for it is not real, actual positive, as is the case of the institution of two heirs, one a usufructuary and
the other the owner, by the express wish of the predecessor in interest.

If the person whom article 811 requires to reserve the right has all the rights inherent in ownership,
he can use, enjoy, dispose of and recover it; and if, in addition to usufructuary, he is in fact and in
law the real owner and can alienate it, although under a condition, the whole question is reduced to
the following terms:

Cannot the heir of the property required by law to reserved, merely because a condition subsequent
is annexed to his right of disposal, himself alone register the ownership of the property he has
inherited, when the persons in whose favor the reservation must be made degree thereto, provided
that the right reserved to them in the two parcels of land be recorded, as the law provides?

It is well known that the vendee under pacto de retracto acquires all the rights of the vendor:

The vendee substitutes the vendor in all his rights and actions. (Civil Code, art. 1511.)

If the vendor can register his title, the vendee can also register this same title after he has once
acquired it. This title, however, in its attribute of being disposable, has a condition subsequent
annexed — that the alienation the purchaser may make will be terminated, if the vendor should
exercise the right granted him by article 1507, which says:

Conventional redemption shall take place when the vendor reserves to himself the right to recover
the thing sold, with the obligation to comply with article 1518, and whatever more may have been
agreed upon," that is, if he recovers the thing sold by repaying the vendee the price of the sale and
other expenses. Notwithstanding this condition subsequent, it is a point not at all doubtful now that
the vendee may register his title in the same way as the owner of a thing mortgaged — that is to say,
the latter with the consent of his creditor and the former with the consent of the vendor. He may
alienate the thing bought when the acquirer knows by well from the title entered in the registry that
he acquires a title revocable after a fixed period, a thing much more certain and to be expected than
the purely contingent expectation of the person in whose favor is reserved a right to inherit some day
what another has inherited. The purpose of the law would be defeated in not applying to the person
who must make the reservation the provision therein relative to the vendee under pacto de retracto,
since the argument in his favor is the more power and conclusive; ubi eadem ratio, eadem legis
dispositivo.

Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the
applicant is entitled to register in her own name the two parcels of land which are the subject matter
of the applicants, recording in the registration the right required by article 811 to be reserved to
either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive her; without
special findings as to costs.

G.R. No. L-12957 March 24, 1961

CONSTANCIO SIENES, ET AL., plaintiffs-appellants,

vs.
FIDEL ESPARCIA, ET AL., defendants-appellees.

(The sold property to the appellants Espacia originated from Saturnino Yaesco left to Francisco son
by second marriage together with several parcels of lands with all other siblings upon Saturnino’s
death and through Franccisco’s death his mother Anndrea Gutang acquired the property as sole heir
sold the same to appellants while the property was in possession of Paulina and her husband sister
of Francisco calling for surrender of the title was declared to be a reservable property and the
reservee’s death made Cipriana Yaesco as absolute owner of the same though conditionally made
as resolutory)

Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa Ruales, he had four
children named Agaton, Fernando, Paulina and Cipriana, while with his second wife, Andrea
Gutang, he had an only son named Francisco. According to the cadastral records of Ayuquitan, the
properties left by Saturnino upon his death — the date of which does not clearly appear of record —
were left to his children as follows: Lot 3366 to Cipriana, Lot 3367 to Fernando, Lot 3375 to Agaton,
Lot 3377 (southern portion) to Paulina, and Lot 3368 (western portion) to Francisco. As a result of
the cadastral proceedings, Original Certificate of Title No. 10275 covering Lot 3368 was issued in
the name of Francisco. Because Francisco was a minor at the time, his mother administered the
property for him, declared it in her name for taxation purposes (Exhs A & A-1), and paid the taxes
due thereon (Exhs. B, C, C-1 & C-2). When Francisco died on May 29, 1932 at the age of 20, single
and without any descendant, his mother, as his sole heir, executed the public instrument Exhibit F
entitled EXTRAJUDICIAL SETTLEMENT AND SALE whereby, among other things, for and in
consideration of the sum of P800.00 she sold the property in question to appellants. When thereafter
said vendees demanded from Paulina Yaeso and her husband Jose Esparcia, the surrender of
Original Certificate of Title No. 10275 — which was in their possession — the latter refused, thus
giving rise to the filing of the corresponding motion in the cadastral record No. 507. The same,
however, was denied (Exhs. 8 & 9).

Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the surviving half-
sisters of Francisco, and who as such had declared the property in their name, on January 1, 1951
executed a deed of sale in favor of the spouses Fidel Esparcia and Paulina Sienes (Exh. 2) who, in
turn, declared it in their name for tax purposes and thereafter secured the issuance in their name of
Transfer Certificate of Title No. T-2141 (Exhs. 5 & 5-A).

As held by the trial court, it is clear upon the facts already stated, that the land in question was
reservable property. Francisco Yaeso inherited it by operation of law from his father Saturnino, and
upon Francisco's death, unmarried and without descendants, it was inherited, in turn, by his mother,
Andrea Gutang. The latter was, therefore, under obligation to reserve it for the benefit of relatives
within the third degree belonging to the line from which said property came, if any survived her. The
record discloses in this connection that Andrea Gutang died on December 13, 1951, the lone
reservee surviving her being Cipriana Yaeso who died only on January 13, 1952 (Exh. 10).

In connection with reservable property, the weight of opinion is that the reserve creates two
resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival,
at the time of his death, of relatives within the third degree belonging to the line from which the
property came (6 Manresa 268-269; 6 Sanchez Roman 1934). This Court has held in connection
with this matter that the reservista has the legal title and dominion to the reservable property but
subject to a resolutory condition; that he is like a life usufructuary of the reservable property; that he
may alienate the same but subject to reservation, said alienation transmitting only the revocable and
conditional ownership of the reservists, the rights acquired by the transferee being revoked or
resolved by the survival of reservatarios at the time of the death of the reservista (Edroso vs. Sablan,
25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; and Director of
Lands vs. Aguas, 65 Phil. 279).

The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the condition that
the vendees would definitely acquire ownership, by virtue of the alienation, only if the vendor died
without being survived by any person entitled to the reservable property. Inasmuch much as when
Andrea Gutang died, Cipriana Yaeso was still alive, the conclusion becomes inescapable that the
previous sale made by the former in favor of appellants became of no legal effect and the reservable
property subject matter thereof passed in exclusive ownership to Cipriana.

On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana Yaeso
in favor of the spouses Fidel Esparcia and Paulina Sienes was subject to a similar resolutory
condition. The reserve instituted by law in favor of the heirs within the third degree belonging to the
line from which the reservable property came, constitutes a real right which the reservee may
alienate and dispose of, albeit conditionally, the condition being that the alienation shall transfer
ownership to the vendee only if and when the reservee survives the person obliged to reserve. In the
present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the person
obliged to reserve, died. Thus the former became the absolute owner of the reservable property
upon Andrea's death. While it may be true that the sale made by her and her sister prior to this
event, became effective because of the occurrence of the resolutory condition, we are not now in a
position to reverse the appealed decision, in so far as it orders the reversion of the property in
question to the Estate of Cipriana Yaeso, because the vendees — the Esparcia spouses did — not
appeal therefrom.

G.R. No. L-14856 November 15, 1919

ENCARNACION FLORENTINO, ET AL., plaintiffs-appellants,

vs.
MERCEDES FLORENTINO, ET AL., defendants-appellees

(The properties of the deceased Florentino II made in favor of universal heirs legitimate children of
first and second marriages by will among the latter was the posthumous son Florentino III who
succeeded in his favor as gleaned from the former’s two wills golden rosary, pieces of gold,
agricultural fruits, silver jewelries and so on who lately became demise survived with his mother
Severina widower of Florentino II in his second marriage succeeding all the properties including that
of Florentino II’s legacies, Severina lately met her death as she was survived by defendant
Mercedes legitimate daughter of Severina and sister of Florentino III who is called upon this case to
reserve the subject properties in order to prevent the same from transferring into the hands of
stranger; The properties willed in favor of the posthumous son which have been transferred into the
hand of his mother upon his death and transferred anew by way of succession at the moment of
death of the mother into the hands of the former’s sister as the only legitimate daughter living at the
moment are declared to be a reservable property which the petitioners as children by first marriage
of Florentino II whitin the third civil degree relation are entitled to as reservatarios to avoid the
transfer of the same into the hands of stranger; The right to representation in case of nephews who
are not within the third civil degree relation with the deceased is not impaired by the fact that the
properties are reservable only to the extent of relatives within third civil degree)

In order to decide whether the plaintiffs are or are not entitled to invoke, in their favor, the provisions
of article 811 of the Civil Code, and whether the same article is applicable to the question of law
presented in this suit, it is necessary to determine whether the property enumerated in paragraph 5
of the complaint is of the nature of reservable property; and if so, whether in accordance with the
provision of the Civil Code in article 811, Severina Faz de Leon (the widow of the deceased Apolonio
Isabelo Florentino) who inherited said property from her son Apolonio Florentino III (born after the
death of his father Apolonio Isabelo) had the obligation to preserve and reserve same for the
relatives, within the third degree, of her aforementioned deceased son Apolonio III.

The above mentioned article reads:

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.

During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon two children were
born, namely the defendant Mercedes Florentino and Apolonio Florentino III (born after the death of
his father). At the death of Apolonio Isabelo Florentino under a will, his eleven children succeeded to
the inheritance he left, one of whom, the posthumos son Apolonio III, was given, as his share, the
aforementioned property enumerated in the complaint. In 1891 the said posthumos son Apolonio
Florentino III died and was succeeded by his legitimate mother Severina Faz de Leon, who inherited
the property he left and who on dying, November 18, 1908, instituted by will as her sole heiress her
surviving daughter, Mercedes Florentino, the defendant herein, who took possession of all property
left by her father, same constituting the inheritance. Included in said inheritance is the property,
specified in by the posthumos son Apolonio Florentino III from his father Apolonio Isabelo Florentino,
and which, at the death of the said posthumos son, had in turn been inherited by his mother,
Severina Faz de Leon. Even if Severina left in her will said property, together with her own, to her
only daughter and forced heiress, Mercedes Florentino, nevertheless this property had not lost its
reservable nature inasmuch as it originated from the common ancestor of the litigants, Apolonio
Isabelo; was inherited by his son Apolonio III; was transmitted by same (by operation of law) to his
legitimate mother and ascendant, Severina Faz de Leon.

The posthumos son, Apolonio Florentino III, acquired the property, now claimed by his brothers, by a
lucrative title or by inheritance from his aforementioned legitimate father, Apolonio Isabelo Florentino
II. Although said property was inherited by his mother, Severina Faz de Leon, nevertheless, she was
in duty bound, according to article 811 of the Civil Code, to reserve the property thus acquired for the
benefit of the relatives, within the third degree, of the line from which such property came.

According to the provisions of law, ascendants do not inherit the reservable property, but its
enjoyment, use or trust, merely for the reason that said law imposes the obligation to reserve and
preserve same for certain designated persons who, on the death of the said ascendants reservists,
(taking into consideration the nature of the line from which such property came) acquire the
ownership of said property in fact and by operation of law in the same manner as forced heirs
(because they are also such) — said property reverts to said line as long as the aforementioned
persons who, from the death of the ascendant-reservists, acquire in fact the right
of reservatarios (person for whom property is reserved), and are relatives, within the third degree, of
the descendant from whom the reservable property came.

Any ascendant who inherits from his descendant any property, while there are living, within the third
degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable
property received. He is, however, the legitimate owner of his own property which is not reservable
property and which constitutes his legitime, according to article 809 of the Civil Code. But if,
afterwards, all of the relatives, within the third degree, of the descendant (from whom came the
reservable property) die or disappear, the said property becomes free property, by operation of law,
and is thereby converted into the legitime of the ascendant heir who can transmit it at his death to
his legitimate successors or testamentary heirs. This property has now lost its nature of reservable
property, pertaining thereto at the death of the relatives, called reservatarios, who belonged within
the third degree to the line from which such property came. lawphil.net

Following the order prescribed by law in legitimate succession, when there are relatives of the
descendant within the third degree, the right of the nearest relative, called reservatario, over the
property which the reservista (person holding it subject to reservation) should return to him, excludes
that of the one more remote. The right of representation cannot be alleged when the one claiming
same as a reservatario of the reservable property is not among the relatives within the third degree
belonging to the line from which such property came, inasmuch as the right granted by the Civil
Code in article 811 is in the highest degree personal and for the exclusive benefit of designated
persons who are the relatives, within the third degree, of the person from whom the reservable
property came. Therefore, relatives of the fourth and the succeeding degrees can never be
considered as reservatarios, since the law does not recognize them as such.

In spite of what has been said relative to the right of representation on the part of one alleging his
right as reservatario who is not within the third degree of relationship, nevertheless there is right of
representation on the part of reservatarios who are within the third degree mentioned by law, as in
the case of nephews of the deceased person from whom the reservable property came.
These reservatarios have the right to represent their ascendants (fathers and mothers) who are the
brothers of the said deceased person and relatives within the third degree in accordance with article
811 of the Civil Code.

In this case it is conceded without denial by defendants, that the plaintiffs Encarnacion, Gabriel and
Magdalena are the legitimate children of the first marriage of the deceased Apolonio Isabelo
Florentino II; that Ramon, Miguel, Ceferino, Antonio, and Rosario are both grandchildren of Apolonio
Isabelo Florentino II, and children of his deceased son, Jose Florentino; that the same have the right
to represent their aforementioned father, Jose Florentino; that Emilia, Jesus, Lourdes, Caridad, and
Dolores are the legitimate children of the deceased Espirita Florentino, one of the daughters of the
deceased Apolonio Isabelo Florentino II, and represent the right of their aforementioned mother; and
that the other plaintiffs, Jose and Asuncion, have also the right to represent their legitimate father
Pedro Florentino one of the sons of the aforementioned Apolonio Isabelo Florentino II. It is a fact,
admitted by both parties, that the other children of the first marriage of the deceased Apolonio
Isabelo Florentino II died without issue so that this decision does not deal with them.

There are then seven "reservatarios" who are entitled to the reservable property left at the death of
Apolonio III; the posthumos son of the aforementioned Apolonio Isabelo II, to wit, his three children
of his first marriage — Encarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro
who are represented by their own twelve children respectively; and Mercedes Florentino, his
daughter by a second marriage. All of the plaintiffs are the relatives of the deceased posthumos son,
Apolonio Florentino III, within the third degree (four of whom being his half-brothers and the
remaining twelve being his nephews as they are the children of his three half-brothers). As the first
four are his relatives within the third degree in their own right and the other twelve are such by
representation, all of them are indisputably entitled as reservatarios to the property which came from
the common ancestor, Apolonio Isabelo, to Apolonio Florentino III by inheritance during his life-time,
and in turn by inheritance to his legitimate mother, Severina Faz de Leon, widow of the
aforementioned Apolonio Isabelo Florentino II.

In spite of the provisions of article 811 of the Civil Code already cited, the trial judge refused to
accept the theory of the plaintiffs and, accepting that of the defendants, absolved the latter from the
complaint on the ground that said article is absolutely inapplicable to the instant case, inasmuch as
the defendant Mercedes Florentino survived her brother, Apolonio III, from whom the reservable
property came and her mother, Severina Faz de Leon, the widow of her father, Apolonio Isabelo
Florentino II; that the defendant Mercedes, being the only daughter of Severina Faz de Leon, is
likewise her forced heiress; that when she inherited the property left at the death of her mother,
together with that which came from her deceased brother Apolonio III, the fundamental object of
article 811 of the Code was thereby complied with, inasmuch as the danger that the property coming
from the same line might fall into the hands of strangers had been avoided; and that the hope or
expectation on the part of the plaintiffs of the right to acquire the property of the deceased Apolonio
III never did come into existence because there is a forced heiress who is entitled to such property.

The judgment appealed from is also founded on the theory that article 811 of the Civil Code does not
destroy the system of legitimate succession and that the pretension of the plaintiffs to apply said
article in the instant case would be permitting the reservable right to reduce and impair the forced
legitimate which exclusively belongs to the defendant Mercedes Florentino, in violation of the
precept of article 813 of the same Code which provides that the testator cannot deprive his heirs of
their legitime, except in the cases expressly determined by law. Neither can he impose upon it any
burden, condition, or substitution of any kind whatsoever, saving the provisions concerning the
usufruct of the surviving spouse, citing the decision of the Supreme Court of Spain of January 4,
1911.

The principal question submitted to the court for decision consists mainly in determining whether
they property left at the death of Apolonio III, the posthumos son of Apolonio Isabelo II, was or was
not invested with the character of reservable property when it was received by his mother, Severina
Faz de Leon.

The property enumerated by the plaintiffs in paragraph 5 of their complaint came, without any doubt
whatsoever, from the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III
without issue the same passed by operation of law into the hands of his legitimate mother, Severina
Faz de Leon, it became reservable property, in accordance with the provision of article 811 of the
Code, with the object that the same should not fall into the possession of persons other than those
comprehended within the order of person other than those comprehended within the order of
succession traced by the law from Apolonio Isabelo II, the source of said property. If this property
was in fact clothed with the character and condition of reservable property when Severina Faz de
Leon inherited same from her son Apolonio III, she did not thereby acquire the dominion or right of
ownership but only the right of usufruct or of fiduciary with the necessary obligation to preserve and
to deliver or return it as such reservable property to her deceased son's relatives within the third
degree, among whom is her daughter, Mercedes Florentino.

Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who
inherits and receives same from his descendant, therefore it does not form part of his own property
nor become the legitimate of his forced heirs. It becomes his own property only in case that all the
relatives of his descendant shall have died (reservista) in which case said reservable property losses
such character.

With full right Severina Faz de Leon could have disposed in her will of all her own property in favor of
her only living daughter, Mercedes Florentino, as forced heiress. But whatever provision there is in
her will concerning the reservable property received from her son Apolonio III, or rather, whatever
provision will reduce the rights of the other reservatarios, the half brothers and nephews of her
daughter Mercedes, is unlawful, null and void, inasmuch as said property is not her own and she has
only the right of usufruct or of fiduciary, with the obligation to preserve and to deliver same to
the reservatarios, one of whom is her own daughter, Mercedes Florentino.

It cannot reasonably be affirmed, founded upon an express provision of law, that by operation of law
all of the reservable property, received during lifetime by Severina Faz de Leon from her son,
Apolonio III, constitutes or forms parts of the legitime pertaining to Mercedes Florentino. If said
property did not come to be the legitimate and exclusive property of Severina Faz de Leon, her only
legitimate and forced heiress, the defendant Mercedes, could not inherit all by operation of law and
in accordance with the order of legitimate succession, because the other relatives of the deceased
Apolonio III, within the third degree, as well as herself are entitled to such reservable property.

For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino, coming
from the inheritance of her mother Severina Faz de Leon, has been reduced and impaired; and the
application of article 811 of the Code to the instant case in no way prejudices the rights of the
defendant Mercedes Florentino, inasmuch as she is entitled to a part only of the reservable property,
there being no lawful or just reason which serves as real foundation to disregard the right to
Apolonio III's other relatives, within the third degree, to participate in the reservable property in
question. As these relatives are at present living, claiming for it with an indisputable right, we cannot
find any reasonable and lawful motive why their rights should not be upheld and why they should not
be granted equal participation with the defendant in the litigated property.

The claim that because of Severina Faz de Leon's forced heiress, her daughter Mercedes, the
property received from the deceased son Apolonio III lost the character, previously held, of
reservable property; and that the mother, the said Severina, therefore, had no further obligation to
reserve same for the relatives within the third degree of the deceased Apolonio III, is evidently
erroneous for the reason that, as has been already stated, the reservable property, left in a will by
the aforementioned Severina to her only daughter Mercedes, does not form part of the inheritance
left by her death nor of the legitimate of the heiress Mercedes. Just because she has a forced
heiress, with a right to her inheritance, does not relieve Severina of her obligation to reserve the
property which she received from her deceased son, nor did same lose the character of reservable
property, held before the reservatarios received same.

It is true that when Mercedes Florentino, the heiress of the reservista Severina, took possession of
the property in question, same did not pass into the hands of strangers. But it is likewise true that the
said Mercedes is not the only reservataria. And there is no reason founded upon law and upon the
principle of justice why the other reservatarios, the other brothers and nephews, relatives within the
third degree in accordance with the precept of article 811 of the Civil Code, should be deprived of
portions of the property which, as reservable property, pertain to them.

From the foregoing it has been shown that the doctrine announced by the Supreme Court of Spain
on January 4, 1911, for the violation of articles 811, 968 and consequently of the Civil Code is not
applicable in the instant case.
Following the provisions of article 813, the Supreme Court of Spain held that the legitime of the
forced heirs cannot be reduced or impaired and said article is expressly respected in this decision.

However, in spite of the efforts of the appellee to defend their supposed rights, it has not been
shown, upon any legal foundation, that the reservable property belonged to, and was under the
absolute dominion of, the reservista, there being relatives within the third degree of the person from
whom same came; that said property, upon passing into the hands of the forced heiress of the
deceased reservista, formed part of the legitime of the former; and that the said forced heiress, in
addition to being a reservataria, had an exclusive right to receive all of said property and to deprive
the other reservatarios, her relatives within the third degree of certain portions thereof.

Concerning the prayer in the complaint relative to the indemnity for damages and the delivery of the
fruits collected, it is not proper to grant the first for there is no evidence of any damage which can
give rise to the obligation of refunding same. As to the second, the delivery of the fruits produced by
the land forming the principal part of the reservable property, the defendants are undoubtedly in duty
bound to deliver to the plaintiffs six-sevenths of the fruits or rents of the portions of land claimed in
the complaint, in the quantity expressed in paragraph 11 of the same, from January 17, 1918, the
date the complaint was filed; and the remaining seventh part should go to the defendant Mercedes.

For the foregoing reasons it follows that with the reversal of the order of decision appealed from we
should declare, as we hereby do, that the aforementioned property, inherited by the deceased
Severina Faz de Leon from her son Apolonio Florentino III, is reservable property; that the plaintiffs,
being relatives of the deceased Apolonio III within the third degree, are entitled to six-sevenths of
said reservable property; that the defendant Mercedes is entitled to the remaining seventh part
thereof; that the latter, together with her husband Angel Encarnacion, shall deliver to the plaintiffs,
jointly, six-sevenths of the fruits or rents, claimed from said portion of the land and of the quantity
claimed, from January 17, 1918, until fully delivered; and that the indemnity for one thousand pesos
(P1,000) prayed for in the complaint is denied, without special findings as to the costs of both
instances. So ordered.

G.R. No. L-10701 January 16, 1959

MARIA CANO, applicant-appellee,

vs.
DIRECTOR OF LANDS, EUSTAQUIA GUERRERO, ET AL., oppositors-appellants.
JOSE FERNANDEZ, ET AL., oppositors-

(The granted land registration of cadastral land by the CFI that became final and
executory after the lapse of 30 days for lack of appeal in the name of Cano subject to
reserva troncal in favor of private respondent Guerrero the only living daughter of
Evaristo from whom the property originated was properly transferred into the name and
possession of reservotorio Guerrero upon latter’s motion to register it in her name and
call for possession of the same by operation of law upon the death of petitioner Cano
regardless of the institution of opposition of the latter’s sons and grandchildren of
Evaristo whose degree of relationship is remoter with objection to factual determination
of civil degree relation in trial who merely endeavoring to prolong their enjoyment of the
subject property to the precarious effect on the part of Guerrero who is lawfully entitled
to the disputed property because Guerrero is the nearest degree of kin to the prepositus
Cano as the land was inherited by Cano from her daughter which the latter in turn
inherited from her father Evaristo and considering that the order became final and
executory all persons are barred including the oppositors herein to contest the
concurrence of requisites in reservista thus, the death of reservista and reservatario
survived the reservista in order to validly transfer the property subject to reserva troncal)

We find the appeal untenable. The requisites enumerated by appellants have already been declared
to exist by the decree of registration wherein the rights of the appellee as reservatario troncal were
expressly recognized:

From the above-quoted agreed stipulation of facts, it is evident that Lot No. 1799 was
acquired by the Appellant Maria Cano by inheritance from her deceased daughter, Lourdes
Guerrero who, in turn, inherited the same from her father Evaristo Guerrero and, hence, falls
squarely under the provisions of Article 891 of the Civil Code; and that each and everyone of
the private oppositors are within the third degree of consaguinity of the decedent Evaristo
Guerrero, and who belonging to the same line from which the property came.

It appears however, from the agreed stipulation of facts that with the exception of Eustaquia
Guerrero, who is the only living daughter of the decedent Evaristo Guerrero, by his former
marriage, all the other oppositors are grandchildren of the said Evaristo Guerrero by his
former marriages. Eustaquia Guerrero, being the nearest of kin, excludes all the other private
oppositors, whose decree of relationship to the decedent is remoter (Article 962, Civil Code;
Director of Lands vs. Aguas, 62 Phil., 279). (Rec. App. pp. 16-17)

This decree having become final, all persons (appellees included) are bared thereby from contesting
the existence of the constituent elements of the reserva. The only requisites for the passing of the
title from the reservista to the appellee are: (1) the death of the reservista; and (2) the fact that
the reservatario has survived the reservista. Both facts are admitted, and their existence is nowhere
questioned.

The contention that an intestacy proceeding is still necessary rests upon the assumption that
the reservatario will succeed in, or inherit, the reservable property from the reservista. This is not
true. The reservatario is not the reservista's successor mortis causa nor is the reservable property
part of the reservista's estate; the reservatarioreceives the property as a conditional heir of the
descendant ( prepositus), said property merely reverting to the line of origin from which it had
temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed
that there being reservatarios that survive the reservista, the latter must be deemed to have enjoined
no more than a life interest in the reservable property.

It is a consequence of these principles that upon the death of the reservista, the reservatario nearest
to theprepositus (the appellee in this case) becomes, automatically and by operation of law, the
owner of the reservable property. As already stated, that property is no part of the estate of
the reservista, and does not even answer for the debts of the latter. Hence, its acquisition by
the reservatario may be entered in the property records without necessity of estate proceedings,
since the basic requisites therefor appear of record. It is equally well settled that the reservable
property can not be transmitted by a reservista to her or his own successors mortis causa,(like
appellants herein) so long as a reservatario within the third degree from the prepositus and
belonging to the line whence the property came, is in existence when the reservista dies.

Of course, where the registration decree merely specifies the reservable character of the property,
without determining the identity of the reservatario (as in the case of Director of Lands vs. Aguas, 63
Phil., 279) or where several reservatarios dispute the property among themselves, further
proceedings would be unavoidable. But this is not the case. The rights of the reservataria Eustaquia
Guerrero have been expressly recognized, and it is nowhere claimed that there are
other reservatarios of equal or nearer degree. It is thus apparent that the heirs of the reservista are
merely endeavoring to prolong their enjoyment of the reservable property to the detriment of the
party lawfully entitled thereto.

We find no error in the order appealed from and therefore, the same is affirmed with costs against
appellants in both instances. So ordered.

G.R. No. 176422 March 20, 2013

MARIA MENDOZA, in her own capacity and as Attorney-in-fact of DEOGRACIAS, MARCELA,

DIONISIA, ADORA CION, all surnamed MENDOZA, REMEDIOS MONTILLA, FELY BAUTISTA,
JULIANA GUILALAS and ELVIRA MENDOZA, Petitioners,
vs.
JULIA POLl CARPIO DELOS SANTOS, substituted by her heirs, CARMEN P. DELOS SANTOS,
ROSA BUENA VENTURA, ZENAIDA P. DELOS SANTOS VDA. DE MATEO, LEONILA P. DELOS
SANTOS, ELVIRA P. DELOS SANTOS VDA. DE JOSE, TERESITA P. DELOS SANTOS-
CABUHAT, MERCEDITA P. DELOS SANTOS, LYDIA P. DELOS SANTOS VDA. DE HILARIO,
PERFECTO P. DELOS SANTOS, JR., and CECILIA M. MENDOZA, Respondents.

(The first cousins claiming to be reservatarios are not deemed as such because petitioners are the
fourth civil degree relative of the alleged reservista squarely does not fall within the purview of
reserva troncal even granting the same as reservable property requires reservee to be within the
third civil degree of relation with the prepositus)

Reserva troncal is a special rule designed primarily to assure the return of a reservable property to
the third degree relatives belonging to the line from which the property originally came, and avoid its
being dissipated into and by the relatives of the inheriting ascendant.1

This petition is one for review on certiorari under Rule 45 of the Rules of Court. The general rule in
this regard is that it should raise only questions of law. There are, however, admitted exceptions to
this rule, one of which is when the CA’s findings are contrary to those of the trial court.14 This being
the case in the petition at hand, the Court must now look into the differing findings and conclusion of
the RTC and the CA on the two issues that arise – one, whether the properties in dispute are
reservable properties and two, whether petitioners are entitled to a reservation of these properties.
Article 891 of the Civil Code on reserva troncal
The principle of reserva troncal is provided in Article 891 of the Civil Code:

Art. 891. The ascendant who inherits from his descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such
property as he may have acquired by operation of law for the benefit of relatives who are within the
third degree and belong to the line from which said property came. (Emphasis ours)

There are three (3) lines of transmission in reserva troncal. The first transmission is by gratuitous
title, whether by inheritance or donation, from an ascendant/brother/sister to a descendant called the
prepositus. The second transmission is by operation of law from the prepositus to the other
ascendant or reservor, also called the reservista. The third and last transmission is from the
reservista to the reservees or reservatarios who must be relatives within the third degree from which
the property came.15
The lineal character of the
reservable property is reckoned
from the ascendant from whom the
prepositus received the property by
gratuitous title
Based on the circumstances of the present case, Article 891 on reserva troncal is not applicable.

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

The persons involved in reserva troncal are:

(1) The ascendant or brother or sister from whom the property was received by the
descendant by lucrative or gratuitous title;
(2) The descendant or prepositus (propositus) who received the property;
(3) The reservor (reservista), the other ascendant who obtained the property from the
prepositus by operation of law; and
(4) The reservee (reservatario) who is within the third degree from the prepositus and who
belongs to the (linea o tronco) from which the property came and for whom the property
should be reserved by the reservor.16
It should be pointed out that the ownership of the properties should be reckoned only from
Exequiel’s as he is the ascendant from where the first transmission occurred, or from whom
Gregoria inherited the properties in dispute. The law does not go farther than such
ascendant/brother/sister in determining the lineal character of the property.17 It was also immaterial
for the CA to determine whether Exequiel predeceased Placido and Dominga or whether Gregoria
predeceased Exequiel. What is pertinent is that Exequiel owned the properties and he is the
ascendant from whom the properties in dispute originally came. Gregoria, on the other hand, is the
descendant who received the properties from Exequiel by gratuitous title.
Moreover, Article 891 simply requires that the property should have been acquired by the
descendant or prepositus from an ascendant by gratuitous or lucrative title. A transmission is
gratuitous or by gratuitous title when the recipient does not give anything in return.18 At risk of being
repetitious, what was clearly established in this case is that the properties in dispute were owned by
Exequiel (ascendant). After his death, Gregoria (descendant/prepositus) acquired the properties as
inheritance.
Ascendants, descendants and
collateral relatives under Article
964 of the Civil Code
Article 891 provides that the person obliged to reserve the property should be an ascendant (also
known as the reservor/reservista) of the descendant/prepositus. Julia, however, is not Gregoria’s
ascendant; rather, she is Gregoria’s collateral relative.
Article 964 of the Civil Code provides for the series of degrees among ascendants and descendants,
and those who are not ascendants and descendants but come from a common ancestor, viz:

Art. 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is
1âwphi1

that constituted by the series of degrees among ascendants and descendants.

A collateral line is that constituted by the series of degrees among persons who are not ascendants
and descendants, but who come from a common ancestor. (Emphasis and italics ours)
Gregoria’s ascendants are her parents, Exequiel and Leonor, her grandparents, great-grandparents
and so on. On the other hand, Gregoria’s descendants, if she had one, would be her children,
grandchildren and great-grandchildren. Not being Gregoria’s ascendants, both petitioners and Julia,
therefore, are her collateral relatives. In determining the collateral line of relationship, ascent is made
to the common ancestor and then descent to the relative from whom the computation is made. In the
case of Julia’s collateral relationship with Gregoria, ascent is to be made from Gregoria to her
mother Leonor (one line/degree), then to the common ancestor, that is, Julia and Leonor’s parents
(second line/degree), and then descent to Julia, her aunt (third line/degree). Thus, Julia is Gregoria’s
collateral relative within the third degree and not her ascendant.
First cousins of the
descendant/prepositus are fourth
degree relatives and cannot be
considered reservees/reservatarios
Moreover, petitioners cannot be considered reservees/reservatarios as they are not relatives within
the third degree of Gregoria from whom the properties came. The person from whom the degree
should be reckoned is the descendant/prepositus―the one at the end of the line from which the
property came and upon whom the property last revolved by descent.19 It is Gregoria in this case.
Petitioners are Gregoria’s fourth degree relatives, being her first cousins. First cousins of the
prepositus are fourth degree relatives and are not reservees or reservatarios.20
They cannot even claim representation of their predecessors Antonio and Valentin as Article 891
grants a personal right of reservation only to the relatives up to the third degree from whom the
reservable properties came. The only recognized exemption is in the case of nephews and nieces of
the prepositus, who have the right to represent their ascendants (fathers and mothers) who are the
brothers/sisters of the prepositus and relatives within the third degree.21 In Florentino v.
Florentino,22 the Court stated:
Following the order prescribed by law in legitimate succession, when there are relatives of the
descendant within the third degree, the right of the nearest relative, called reservatario, over the
property which the reservista (person holding it subject to reservation) should return to him, excludes
that of the one more remote. The right of representation cannot be alleged when the one claiming
same as a reservatario of the reservable property is not among the relatives within the third degree
belong to the line from which such property came, inasmuch as the right granted by the Civil Code in
Article 811 now Article 891 is in the highest degree personal and for the exclusive benefit of the
designated persons who are the relatives, within the third degree, of the person from whom the
reservable property came. Therefore, relatives of the fourth and the succeeding degrees can never
be considered as reservatarios, since the law does not recognize them as such.
x x x Nevertheless there is right of representation on the part of reservatarios who are within the third
degree mentioned by law, as in the case of nephews of the deceased person from whom the
reservable property came. x x x.23 (Emphasis and underscoring ours)
The conclusion, therefore, is that while it may appear that the properties are reservable in character,
petitioners cannot benefit from reserva troncal. First, because Julia, who now holds the properties in
dispute, is not the other ascendant within the purview of Article 891 of the Civil Code and second,
because petitioners are not Gregoria’s relatives within the third degree. Hence, the CA’s disposition
that the complaint filed with the RTC should be dismissed, only on this point, is correct. If at all, what
should apply in the distribution of Gregoria’s estate are Articles 1003 and 1009 of the Civil Code,
which provide:
Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the
collateral relatives shall succeed to the entire estate of the deceased in accordance with the
following articles.
Art. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other
collateral relatives shall succeed to the estate.

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

Nevertheless, the Court is not in the proper position to determine the proper distribution of
Gregoria’s estate at this point as the cause of action relied upon by petitioners in their complaint filed
with the RTC is based solely on reserva troncal. Further, any determination would necessarily entail
reception of evidence on Gregoria’s entire estate and the heirs entitled thereto, which is best
accomplished in an action filed specifically for that purpose.
A reservista acquires ownership of
the reservable property until the
reservation takes place or is
extinguished
Before concluding, the Court takes note of a palpable error in the RTC’s disposition of the case. In
upholding the right of petitioners over the properties, the RTC ordered the reconveyance of the
properties to petitioners and the transfer of the titles in their names. What the RTC should have
done, assuming for argument’s sake that reserva troncal is applicable, is have the reservable nature
of the property registered on respondent’s titles. In fact, respondent, as reservista, has the duty to
reserve and to annotate the reservable character of the property on the title.24 In reserva troncal, the
reservista who inherits from a prepositus, whether by the latter’s wish or by operation of law,
acquires the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes
of ownership belong to him exclusively.25
The reservor has the legal title and dominion to the reservable property but subject to the resolutory
condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a
usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee
gets the revocable and conditional ownership of the reservor. The transferee’s rights are revoked
upon the survival of the reservees at the time of the death of the reservor but become indefeasible
when the reservees predecease the reservor.26 (Citations omitted)

It is when the reservation takes place or is extinguished,27 that a reservatario becomes, by operation
of law, the owner of the reservable property.28 In any event, the foregoing discussion does not
detract from the fact that petitioners are not entitled to a reservation of the properties in dispute.
WHEREFORE, the petition is DENIED. The Decision dated November 16, 2006 and Resolution
dated January 17, 2007 of the Court of Appeals in CA-G.R. CV No. 77694 insofar as it dismissed the
Third Amended Complaint in Civil Case No. 609-M-92 are AFFIRMED. This Decision is without
prejudice to any civil action that the heirs of Gregoria Mendoza may file for the settlement of her
estate or for the determination of ownership of the properties in question.

G.R. No. 68843-44 September 2, 1991

MARIQUITA O. SUMAYA and LAGUNA AGRO-INDUSTRIAL COCONUT COOPERATIVE,

INC., petitioners,

vs.

THE HON. INTERMEDIATE APPELLATE COURT, and AMADEO, SANCHO, DONATO, LUIS,
ERASTO, LUISA, JOSE and DOLORES, all surnamed BALANTAKBO, respondents.

(The disputed property inherited by Consolacion from his son Raul from whom the latter inherited
from his father Jose, Sr. is subject to reserva troncal which property shall be annotated on its title in
the Registry of Deeds at the instance of Consolacion who sold the same upon her initiative of self-
adjudication of the property and the petitioner who sold the same cannot shelter their claim from
being an innocent purchaser for value as these corporations intimate with Sumaya as the first
vendee of the property have constructive knowledge of the reservable nature of the property as
indicated on its Deed of Sale regardless of its omitted annotation on the title of its reserva viudal
character)

The court a quo found otherwise. Upon the death of the propositus, Raul Balantakbo, the reservista,
Consuelo vda. de Balantakbo caused the registration of an affidavit of self-adjudication of the estate
of Raul, wherein it was clearly stated that the properties were inherited by Raul from his father Jose,
Sr., as regards the subject matter of Civil Case No. SC-956 and from his maternal grandmother,
Luisa Bautista, as regards the subject matter of Civil Case No. SC-957. The court a quo further ruled
that said affidavit was, in its form, declaration and substance, a recording with the Registry of Deeds
of the reservable character of the properties. In Spanish language, the affidavit clearly stated that the
affiant, Consuelo, was a lone-ascendant and heir to Raul Balantakbo, her son, who died leaving
properties previously inherited from other ascendants and which properties were inventoried in the
said affidavit.
It was admitted that the certificates of titles covering the properties in question show that they were
free from any liens and encumbrances at the time of the sale. The fact remains however, that the
affidavit of self-adjudication executed by Consuelo stating the source of the properties thereby
showing the reservable nature thereof was registered with the Register of Deeds of Laguna, and this
is sufficient notice to the whole world in accordance with Section 52 of the Property Registration
Decree (formerly Sec. 51 of R.A. 496) which provides:

Sec. 52. CONSTRUCTIVE NOTICE UPON REGISTRATION. — Every conveyance,

mortgage, lease, lien attachment, order, judgment, instrument or entry affecting registered
land shall, if registered, filed or entered in the Office of the Register of Deeds for the province
or city where the land to which it relates lies, be constructive notice to all persons from the
time of such registering, filing or entering.

Thus, in Gatioan v. Gaffud, G.R. No. L-21953, March 28, 1969, 27 SCRA 706, 712-713, cited
in People v. Reyes, G.R. Nos. 74226-27, July 27, 1989, 175 SCRA 597; Garcia v. CA and PNB v.
CA, et al., G.R. Nos. L-48971 and L-40911, both dated January 22, 1980, 95 SCRA 380
and Legarda and Prieto v. Saleeby, 31 Phil. 590, 600, We held:

When a conveyance has been properly recorded such record is constructive notice of its
contents and all interests, legal and equitable, included therein . . .

Under the rule of notice, it is presumed that the purchaser has examined every instrument of
record affecting the title. Such presumption is irrebuttable. He is charged with notice of every
fact shown by the record and is presumed to know every fact which an examination of the
record would have disclosed. This presumption cannot be overcome by proof of innocence
or good faith. Otherwise, the very purpose and object of the law requiring a record would be
destroyed. Such presumption cannot be defeated by proof of want of knowledge of what the
record contains any more than one may be permitted to show that he was ignorant of the
provisions of the law. The rule that all persons must take notice of the facts which the public
record contains is a rule of law. The rule must be absolute, any variation would lead to
endless confusion and useless litigation. . . .

In the case of Bass v. De la Rama, 73 Phil. 682, 685, the rule was laid down that the mere entry of a
document in the day book without noting it on the certificate of title is not sufficient registration.
However, that ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil.
420. As explained in Garcia v. CA, et al., G.R. Nos. L-48971 and 49011, January 20, 1980, 95
SCRA 380, 388, which is the prevailing doctrine in this jurisdiction.

That ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil.
420, where a distinction was made between voluntary and involuntary registration, such as
the registration of an attachment, levy upon execution, notice of lis pendens, and the like. In
cases of involuntary registration, an entry thereof in the day book is a sufficient notice to all
persons even if the owner's duplicate certificate of title is not presented to the register of
deeds.

On the other hand, according to the said cases of Levin v. Bass, in case of voluntary
registration of documents an innocent purchaser for value of registered land becomes the
registered owner, and, in contemplation of law the holder of a certificate of title, the moment
he presents and files a duly notarized and valid deed of sale and the same is entered in the
day book and at the same time he surrenders or presents the owner's duplicate certificate of
title covering the land sold and pays the registration fees, because what remains to be done
 lies not within his power to perform. The register of deeds is duty bound to perform it.
(See Potenciano v. Dineros, 97 Phil. 196).

In this case, the affidavit of self adjudication executed by Consuelo vda. de Balantakbo which
contained a statement that the property was inherited from a descendant, Raul, which has likewise
inherited by the latter from another ascendant, was registered with the Registry of Property. The
failure of the Register of Deeds to annotate the reservable character of the property in the certificate
of title cannot be attributed to Consuelo.

Moreover, there is sufficient proof that the petitioners had actual knowledge of the reservable
character of the properties before they bought the same from Consuelo. This matter appeared in the
deed of sale (Exhibit "C") executed by Consuelo in favor of Mariquita Sumaya, the first vendee of the
property litigated in Civil Case No. SC-956, as follows:

xxx xxx xxx

That, I (Consuelo, vendor) am the absolute and exclusive owner of the one-third (1/3) portion
of the above described parcel of land by virtue of the Deed of Extra-judicial Partition
executed by the Heirs of the deceased Jose Balantakbo dated December 10, 1945 and said
portion in accordance with the partition above-mentioned was adjudicated to Raul
Balantakbo, single, to (sic) whom I inherited after his death and this property is entirely free
from any encumbrance of any nature or kind whatsoever, . . . (p. 42, Rollo)

It was admitted though that as regards the properties litigated in Civil Case SC-957, no such
admission was made by Consuelo to put Villa Honorio Development on notice of the reservable
character of the properties. The affidavit of self-adjudication executed by Consuelo and registered
with the Registry would still be sufficient notice to bind them.

Moreover, the Court a quo found that the petitioners and private respondents were long time
acquaintances; that the Villa Honorio Development Corporation and its successors, the Laguna
Agro-Industrial Coconut Cooperative Inc., are family corporations of the Sumayas and that the
petitioners knew all along that the properties litigated in this case were inherited by Raul Balantakbo
from his father and from his maternal grandmother, and that Consuelo Vda. de Balantakbo inherited
these properties from his son Raul.

The obligation to reserve rests upon the reservor, Consuelo Joaquin vda. de Balantakbo. Article 891
of the New Civil Code on reserva troncal provides:

Art. 891. The ascendant who inherits from his descendant any property which the latter may
have acquired by gratuitous title from another ascendant or a brother or sister, is obliged to
reserve such property as he may have acquired by operation of law for the benefit of
relatives who are within the third degree and who belong to the line from which said property
came. (Emphasis supplied)

We do not agree, however, with the disposition of the appellate court that there is no need to register
the reservable character of the property, if only for the protection of the reservees, against innocent
third persons. This was suggested as early as the case of Director of Lands v. Aguas, G.R. No.
42737, August 11, 1936, 63 Phil. 279. The main issue submitted for resolution therein was whether
the reservation established by Article 811 (now Art. 891 of the New Civil Code) of the Civil Code, for
the benefit of the relatives within the third degree belonging to the line of the descendant from whom
the ascendant reservor received the property, should be understood as made in favor of all the
relatives within said degree and belonging to the line above-mentioned, without distinction legitimate,
natural and illegitimate ones not having the legal status of natural children. However, in an obiter
dictum this Court stated therein:

The reservable character of a property is but a resolutory condition of the ascendant

reservor's right of ownership. If the condition is fulfilled, that is, if upon the ascendant
reservor's death there are relatives having the status provided in Article 811 (Art. 891, New
Civil Code), the property passes, in accordance with this special order of succession, to said
relatives, or to the nearest of kin among them, which question not being pertinent to this
case, need not now be determined. But if this condition is not fulfilled, the property is
released and will be adjudicated in accordance with the regular order of succession. The
fulfillment or non-fulfillment of the resolutory condition, the efficacy or cessation of the
reservation, the acquisition of rights or loss of the vested ones, are phenomena which have
nothing to do with whether the reservation has been noted or not in the certificate of title to
the property. The purpose of the notation is nothing more than to afford to the persons
entitled to the reservation, if any, due protection against any act of the reservor, which may
make it ineffective . . . (p. 292, Ibid)

Likewise, in Dizon and Dizon v. Galang, G.R. No. 21344, January 14, 1926, 48 Phil. 601, 603, this
Court ruled that the reservable character of a property may be lost to innocent purchasers for value.
Additionally, it was ruled therein that the obligation imposed on a widowed spouse to annotate the
reservable character of a property subject of reserva viudal is applicable to reserva troncal. (See
also Edrozo v. Sablan, G.R. No. 6878, September 13, 1913, 25 Phil. 295).

Since these parcels of land have been legally transferred to third persons, Vicente Galang
has lost ownership thereof and cannot now register nor record in the Registry of Deeds their
reservable character; neither can he effect the fee simple, which does not belong to him, to
the damage of Juan Medina and Teodoro Jurado, who acquired the said land in good faith,
free of all incumbrances. An attempt was made to prove that when Juan Medina was advised
not to buy the land he remarked, "Why did he (Vicente Galang) not inherit it from his son?"
Aside from the fact that it is not clear whether this conservation took place in 1913 or 1914,
that is, before or after the sale, it does not arise that he had any knowledge of the
reservation. This did not arise from the fact alone that Vicente Galang had inherited the land
from his son, but also from the fact that, by operation of law, the son had inherited it from his
mother Rufina Dizon, which circumstance, so far as the record shows, Juan Medina had not
been aware of. We do not decide, however, whether or not Juan Medina and Teodoro
Jurado are obliged to acknowledge the reservation and to note the same in their deeds, for
the reason that there was no prayer to this effect in the complaint and no question raised in
regard thereto.

Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed spouse)
had the obligation to annotate in the Registry of Property the reservable character of the property,
in reserva troncal, the reservor (the ascendant who inherited from a descendant property which the
latter inherited from another descendant) has the duty to reserve and therefore, the duty to annotate
also.

The jurisprudential rule requiring annotation in the Registry of Property of the right reserved in real
property subject of reserva viudal insofar as it is applied to reserva troncal stays despite the abolition
of reserva viudal in the New Civil Code. This rule is consistent with the rule provided in the second
paragraph of Section 51 of P.D. 1529, which provides that: "The act of registration shall be the
operative act to convey or affect the land insofar as third persons are concerned . . ." (emphasis
supplied)
The properties involved in this case are already covered by a Torrens title and unless the registration
of the limitation is effected (either actual or constructive), no third persons shall be prejudiced
thereby.

The respondent appellate court did not err in finding that the cause of action of the private
respondents did not prescribe yet. The cause of action of the reservees did not commence upon the
death of the propositus Raul Balantakbo on June 13, 1952 but upon the death of the reservor
Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within the third degree in whose favor the
right (or property) is reserved have no title of ownership or of fee simple over the reserved property
during the lifetime of the reservor. Only when the reservor should die before the reservees will the
latter acquire the reserved property, thus creating a fee simple, and only then will they take their
place in the succession of the descendant of whom they are relatives within the third degree
(See Velayo Bernardo v. Siojo, G.R. No. 36078, March 11, 1933, 58 Phil. 89). The reserva is
extinguished upon the death of the reservor, as it then becomes a right of full ownership on the part
of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right if not
exercised within the time for recovery may prescribe in ten (10) years under the old Code of Civil
Procedure (see Carillo v. De Paz, G.R. No. L-22601, October 28, 1966, 18 SCRA 467, 473) or in
thirty years under Article 1141 of the New Civil Code. The actions for recovery of the reserved
property was brought by herein private respondents on March 4, 1970 or less than two (2) years
from the death of the reservor. Therefore, private respondents' cause of action has not prescribed
yet.

Finally, the award of one thousand pesos (P1,000.00) for actual litigation expenses and two
thousand pesos (P2,000.00) for attorney's fees is proper under Article 2208(2) of the New Civil
Code. Private respondents were compelled to go to court to recover what rightfully belongs to them.

G.R. No. 83484 February 12, 1990

CELEDONIA SOLIVIO, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA
VILLANUEVA, respondents

(The properties inherited by the very first post-war author of Without Seeing the Dawn in the country
Esteban Javellana, Jr. from his mother Salustia who, in turn, inherited paraphernal properties from
the latter’s mother Gregoria Celo upon the death of the former’s mother who desired to put up a
foundation during his lifetime which later on formed as SALUSTIA SOLIVIO VDA. DE JAVELLANA
FOUNDATION which the defendant freely agreed to create in honor of his mother to help deserving
indigent students to finish college studies are not subject of reserva troncal as the properties were
acquired from the descendant Esteban, not an ascendant, passed through her collateral relative
Celadonia maternal aunt as sister of the former’s mother making the provision in reserva troncal
inapplicable in this case thus, the properties do not hold as reservable in favor of Celadonia but a
collateral relative substituted in the absence of legitimes or brothers, sisters or their children; The
disputed property for partition in favor of defendant lodged previously in RTC which court held the
declaration of petitioner as sole heir in forming a foundation, after reaching that decision instead of
appealing to an appellate court petitioner belatedly a year instituted this civil proceeding in a co-
equal court on grounds of defendant being an heir as well shall be instituted as such, damages for
such, partition thereof, recovery of possession and other prayers which granted her relief prayed for,
the SC held that the court herein had no jurisdiction as the estate proceeding for being in rem by
nature jurisdiction of which is acquired through publication as constructive notice to the whole world
and after having acquired jurisdiction thru publication the court where it was filed had exclusive
jurisdiction in the estate proceeding and contrary to defendant’s assertion she had actual more than
constructive knowledge of the hearing’s place and time therefore, the court herein had no
jurisdiction; Thus, the defendant is bound to honor her freely agreed share to form part of the assets
of the foundation notwithstanding her right to her share not being subject to waiver)

III. On the question of reserva troncal—

We find no merit in the petitioner's argument that the estate of the deceased was subject to reserva
troncal and that it pertains to her as his only relative within the third degree on his mother's side.
The reserva troncal provision of the Civil Code is found in Article 891 which reads as follows:

ART. 891. The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant, or a brother or
sister, is obliged to reserve such property as he may have acquired by operation of
law for the benefit of relatives who are within the third degree and who belong to the
line from which said property came.

The persons involved in reserva troncal are:

1. The person obliged to reserve is the reservor (reservista)—the ascendant who

inherits by operation of law property from his descendants.

2. The persons for whom the property is reserved are the reservees (reservatarios)—
relatives within the third degree counted from the descendant (propositus), and
belonging to the line from which the property came.

3. The propositus—the descendant who received by gratuitous title and died without
issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by
Padilla, Vol. II, 1956 Ed.)

Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for
Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom
he inherited the properties in question. Therefore, he did not hold his inheritance subject to a
reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his
mother's side. The reserva troncal applies to properties inherited by an ascendant from a
descendant who inherited it from another ascendant or 9 brother or sister. It does not apply to
property inherited by a descendant from his ascendant, the reverse of the situation covered by
Article 891.

Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate
children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the distribution
of his estate are Articles 1003 and 1009 of the Civil Code which provide:

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

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

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

The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood.
Therefore, the Court of Appeals correctly held that:

Both plaintiff-appellee and defendant-appellant being relatives of the decedent within

the third degree in the collateral line, each, therefore, shall succeed to the subject
estate 'without distinction of line or preference among them by reason of relationship
by the whole blood,' and is entitled one-half (1/2) share and share alike of the estate.

C. Reserva/Reversion Adoptiva

THE CHILD AND YOUTH WELFARE CODE (PD 603)

Article 39. Effects of Adoption. - The adoption shall:

1. Give to the adopted person the same rights and duties as if he were a legitimate child of
the adopter: Provided, That an adopted child cannot acquire Philippine citizenship by virtue
of such adoption; lawphi1.net

2. Dissolve the authority vested in the natural parent or parents, except where the adopter is
the spouse of the surviving natural parent;

3. Entitle the adopted person to use the adopter's surname; and

4. Make the adopted person a legal heir of the adopter: Provided, That if the adopter is
survived by legitimate parents or ascendants and by an adopted person, the latter shall not
have more successional rights than an acknowledged natural child: Provided, further, That
any property received gratuitously by the adopted from the adopter shall revert to the adopter
should the former predecease the latter without legitimate issue unless the adopted has,
during his lifetime, alienated such property: Provided, finally, That in the last case, should the
adopted leave no property other than that received from the adopter, and he is survived by
illegitimate issue or a spouse, such illegitimate issue collectively or the spouse shall receive
one-fourth of such property; if the adopted is survived by illegitimate issue and a spouse,
then the former collectively shall receive one-fourth and the latter also one-fourth, the rest in
any case reverting to the adopter, observing in the case of the illegitimate issue the
proportion provided for in Article 895 of the Civil Code.

The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit
from him, except that if the latter are both dead, the adopting parent or parents take the place of the
natural parents in the line of succession, whether testate or interstate.

G.R. No. L-24750 May 16, 1980

DOROTEO BANAWA, JULIANA MENDOZA, CASIANO AMPONIN and GLICERIA

ABRENICA, petitioners,

vs.

PRIMITIVA MIRANO, GREGORIA MIRANO, JUANA MIRANO and MARCIANO

MIRANO, respondents.
(Maria Mirano who had been adopted, reared and raised by respondent spouses as if like their own
child without the benefit of legal adoption cannot be considered within the purview of reversion
adoptiva for purposes of succeeding the disputed properties when the law specifically provides for
clear rule that one must be judicially adopted such lucid enunciation ordered by law must be upheld)
It is no longer necessary to discuss the third error assigned because of the holding that Article 1448
of the New Civil Code has no retroactive application to the instant case.
Anent the fourth error assigned, the petitioners urge that the donor spouses are entitled to the land
in question by virtue of Section 5, Rule 100 of the Old Rules of Court, the pertinent portion of which
reads: têñ.£îhq wâ£

... In case of the death of the child, his parents and relatives by nature, and not by
adoption, shall be his legal heirs, except as to property received or inherited by the
adopted child from either of his parents by adoption, which shall become the property
of the latter or their legitimate relatives who shall participate in the order established
by the Civil Code for intestate estates.

The submission of the petitioners is that extrajudicial adoption is within the contemplation and spirit
of this rule of reversion adoptive. However, the rule involved specifically provides for the case of the
judicially adopted child. It is an elementary rule of construction that when the language of the law is
clear and unequivocal, the law must be taken to mean exactly what it says.

G.R. Nos. 140371-72 November 27, 2006

DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, Petitioners,

vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National
Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D.
SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D.
SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS and JAMES D.
SEANGIO, Respondents

(The provision of disinheritance in the holographic will expressly declaring testator’s son
Aflredo to be disinherited in his will because the latter was a travesty to the former’s life during
his lifetime which greatly caused to the former huge animosity with the latter resulting from his
disinheritance is declared to be sufficient cause for Alfredo’s disinheritance due to maltreatment
the deceased sustained during his lifetime from Alfredo.)

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be
effected through a will wherein the legal cause therefor shall be specified. With regard to the
reasons for the disinheritance that were stated by Segundo in his document, the Court believes
that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his
son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or
descendant under Article 919 of the Civil Code:

Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation has been found groundless;

(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of
the testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the
testator to make a will or to change one already made;

(5) A refusal without justifiable cause to support the parents or ascendant who disinherit such
child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant;8

(7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction.

Now, the critical issue to be determined is whether the document executed by Segundo can be
considered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.

Segundo’s document, although it may initially come across as a mere disinheritance instrument,
conforms to the formalities of a holographic will prescribed by law. It is written, dated and
signed by the hand of Segundo himself. An intent to dispose mortis causa[9] can be clearly
deduced from the terms of the instrument, and while it does not make an affirmative disposition
of the latter’s property, the disinheritance of Alfredo, nonetheless, is an act of disposition in
itself. In other words, the disinheritance results in the disposition of the property of the testator
Segundo in favor of those who would succeed in the absence of Alfredo.10

Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the
form and within the limits prescribed by law, must be recognized as the supreme law in
succession. All rules of construction are designed to ascertain and give effect to that intention. It
is only when the intention of the testator is contrary to law, morals, or public policy that it cannot
be given effect.11

Holographic wills, therefore, being usually prepared by one who is not learned in the law, as
illustrated in the present case, should be construed more liberally than the ones drawn by an
expert, taking into account the circumstances surrounding the execution of the instrument and the
intention of the testator.12 In this regard, the Court is convinced that the document, even if
captioned as Kasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last
testamentary act and was executed by him in accordance with law in the form of a holographic
will. Unless the will is probated,13 the disinheritance cannot be given effect.14

With regard to the issue on preterition,15 the Court believes that the compulsory heirs in the
direct line were not preterited in the will. It was, in the Court’s opinion, Segundo’s last
expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo.
Also, Segundo did not institute an heir16 to the exclusion of his other compulsory heirs. The
mere mention of the name of one of the petitioners, Virginia, in the document did not operate to
institute her as the universal heir. Her name was included plainly as a witness to the altercation
between Segundo and his son, Alfredo.1âwphi1

Considering that the questioned document is Segundo’s holographic will, and that the law favors
testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil
Code provides that no will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a
person to dispose of his property may be rendered nugatory.17

In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be
probated. It is settled that testate proceedings for the settlement of the estate of the decedent take
precedence over intestate proceedings for the same purpose.18

G.R. No. L-57848 June 19, 1982

RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners,
vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of First
Instance of Rizal and BERNARDO S. ASENETA, respondents

(Testatrix Clemencia Anseta of holographic will made successional dispositions solely in

favor of petitioners for being kind to the former during her lifetime resulting to her peace
and happiness even in troubled times effected by her nephew and niece respondents
claiming to be the sole heir by instituting intestate case despite existence of the probate
testate case which the latter filed for its dismissal anchored on pretirition prejudicial to
Bernardo as adopted son and the same was granted by the trial court upon appeal, CA
sustained the dismissal thus, the present action for certiorari where the Supreme Court
nullified the order of respondent because as a general rule probate of a will is
mandatory; Thus, the remand of the case to the court of origin together with testate
case is proper for the determination of effects of disinheritance and pretirition as
different successional concepts)

We find that the Court a quo a quo acted in excess of its jurisdiction when it dismissed the
Testate Case. Generally, the probate of a Will is mandatory.

No will shall pass either real or personal property unless it is proved and allowed in accordance
with the Rules of Court. 4

The law enjoins the probate of the Will and public policy requires it, because unless the Will is
probated and notice thereof given to the whole world, the right of a person to dispose of his
property by Will may be rendered nugatory. 5

Normally, the probate of a Will does not look into its intrinsic validity.

... The authentication of a will decides no other question than such as touch upon the capacity of
the testator and the compliance with those requisites or solemnities which the law prescribes for
the validity of wills. It does not determine nor even by implication prejudge the validity or
efficiency (sic) of the provisions, these may be impugned as being vicious or null,
notwithstanding its authentication. The que0stions relating to these points remain entirely
unaffected, and may be raised even after the will has been authenticated .... 6

Opposition to the intrinsic validity or legality of the provisions of the will cannot be entertained
in Probate proceeding because its only purpose is merely to determine if the will has been
executed in accordance with the requirements of the law. 7

Respondent Bernardo, however, relies on the pronouncement in Nuguid vs. Nuguid 8, reading:

In a proceeding for the probate of a will, the Court's area of inquiry is limited to an examination
of, and resolution on, the extrinsic validity of the will, the due execution thereof, the testatrix's
testamentary capacity and the compliance with the requisites or solemnities prescribed by law.
The intrinsic validity of the will normally comes only after the court has declared that the will
has been duly authenticated. However, where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the Court should meet that
issue. (Emphasis supplied)

Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:

The trial court acted correctly in passing upon the will's intrinsic validity even before its formal
validity had been established. The probate of a will might become an Idle ceremony if on its face
it appears to be intrinsically void. Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the issue.

The Nuguid and the Balanay cases provide the exception rather than the rule. The intrinsic
validity of the Wills in those cases was passed upon even before probate because "practical
considerations" so demanded. Moreover, for the parties in the Nuguid case, the "meat of the
controversy" was the intrinsic validity of the Will; in fact, the parties in that case "shunted aside
the question of whether or not the Will should be allowed probate." Not so in the case before us
now where the probate of the Will is insisted on by petitioners and a resolution on the extrinsic
validity of the Will demanded.

Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid as it
completely preterited the parents of the testator. In the instant case, a crucial issue that calls for
resolution is whether under the terms of the decedent's Will, private respondent had been
preterited or disinherited, and if the latter, whether it was a valid disinheritance. Preterition and
disinheritance are two diverse concepts.
... Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them,
either because they are not mentioned therein, or, though mentioned, they are neither instituted
as heirs nor are expressly disinherited." (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn,
"is a testamentary disposition depriving any compulsory heirs of his share in the legitimate for a
cause authorized by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil
Law", 1956 ed., Vol. III, p. 8, citing cases) Disinheritance is always "voluntary", preterition upon
the other hand, is presumed to be "involuntary" (Sanchez Roman, Estudios de Derecho Civil 2nd
edition, Volume 2.o p. 1131). 10

The effects of preterition and disinheritance are also totally different.

... The effects flowing from preterition are totally different from those of disinheritance.
Pretention under Article 854 of the New Civil Code shall annul the institution of heir. This
annulment is in toto, unless in the wail there are, in addition, testamentary dispositions in the
form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code,
such disinheritance shall also "annul the institution of heirs", but only "insofar as it may
prejudice the person disinherited", which last phrase was omitted in the case of preterition (III
Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs
have been illegally deprived. 11

By virtue of the dismissal of the Testate Case, the determination of that controversial issue has
not been thoroughly considered. We gather from the assailed Order of the trial Court that its
conclusion was that respondent Bernardo has been preterited We are of opinion, however, that
from the face of the Will, that conclusion is not indubitable.

As held in the case of Vda. de Precilla vs. Narciso 12

... it is as important a matter of public interest that a purported will is not denied legalization on
dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its
foundation, ...

Coming now to the procedural aspect, suffice it to state that in view of our finding that
respondent Judge had acted in excess of his jurisdiction in dismissing the Testate Case, certiorari
is a proper remedy. An act done by a Probate Court in excess of its jurisdiction may be corrected
by Certiorari. 13 And even assuming the existence of the remedy of appeal, we harken to the rule
that in the broader interests of justice, a petition for certiorari may be entertained, particularly
where appeal would not afford speedy and adequate relief.

V Principles Affecting Freely the Disposable Portion

A. Institution of Heirs

SECTION 2
Institution of Heir
Article 840. Institution of heir is an act by virtue of which a testator designates in his will the person
or persons who are to succeed him in his property and transmissible rights and obligations. (n)
Article 841. A will shall be valid even though it should not contain an institution of an heir, or such
institution should not comprise the entire estate, and even though the person so instituted should not
accept the inheritance or should be incapacitated to succeed.
In such cases the testamentary dispositions made in accordance with law shall be complied with and
the remainder of the estate shall pass to the legal heirs. (764)
Article 842. 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 legitime of said heirs. (763a)

Article 843. The testator shall designate the heir by his name and surname, and when there are two
persons having the same names, he shall indicate some circumstance by which the instituted heir
may be known.
Even though the testator may have omitted the name of the heir, should he designate him in such
manner that there can be no doubt as to who has been instituted, the institution shall be valid. (772)
Article 844. An error in the name, surname, or circumstances of the heir shall not vitiate the
institution when it is possible, in any other manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity of circumstances in
such a way that, even with the use of other proof, the person instituted cannot be identified, none of
them shall be an heir. (773a)
Article 845. Every disposition in favor of an unknown person shall be void, unless by some event or
circumstance his identity becomes certain. However, a disposition in favor of a definite class or
group of persons shall be valid. (750a)

Article 846. Heirs instituted without designation of shares shall inherit in equal parts. (765)
Article 847. When the testator institutes some heirs individually and others collectively as when he
says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be
considered as individually instituted, unless it clearly appears that the intention of the testator was
otherwise. (769a)
Article 848. If the testator should institute his brothers and sisters, and he has some of full blood
and others of half blood, the inheritance shall be distributed equally unless a different intention
appears. (770a)
Article 849. When the testator calls to the succession a person and his children they are all deemed
to have been instituted simultaneously and not successively. (771)
Article 850. The statement of a false cause for the institution of an heir shall be considered as not
written, unless it appears from the will that the testator would not have made such institution if he
had known the falsity of such cause. (767a)

Article 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part
of the inheritance, legal succession takes place with respect to the remainder of the estate.
The same rule applies if the testator has instituted several heirs, each being limited to an aliquot
part, and all the parts do not cover the whole inheritance. (n)
Article 852. If it was the intention of the testator that the instituted heirs should become sole heirs to
the whole estate, or the whole free portion, as the case may be, and each of them has been
instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole
inheritance, or the whole free portion, each part shall be increased proportionally. (n)
Article 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the
parts together exceed the whole inheritance, or the whole free portion, as the case may be, each
part shall be reduced proportionally. (n)
Article 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.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual,
without prejudice to the right of representation. (814a)
Article 855. The share of a child or descendant omitted in a will must first be taken from the part of
the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary
must be taken proportionally from the shares of the other compulsory heirs. (1080a)
Article 856. A voluntary heir who dies before the testator transmits nothing to his heirs.

A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who
renounces the inheritance, shall transmit no right to his own heirs except in cases expressly
provided for in this Code. (766a)

In relation to

Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the
determination of the portions which they are to take, when referred to by name, cannot be left to the
discretion of a third person. (670a)
Article 786. The testator may entrust to a third person the distribution of specific property or sums of
money that he may leave in general to specified classes or causes, and also the designation of the
persons, institutions or establishments to which such property or sums are to be given or applied.
(671a)
Article 787. The testator may not make a testamentary disposition in such manner that another
person has to determine whether or not it is to be operative. (n)
Article 788. If a testamentary disposition admits of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative shall be preferred. (n)
Article 789. When there is an imperfect description, or when no person or property exactly answers
the description, mistakes and omissions must be corrected, if the error appears from the context of
the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention;
and when an uncertainty arises upon the face of the will, as to the application of any of its provisions,
the testator's intention is to be ascertained from the words of the will, taking into consideration the
circumstances under which it was made, excluding such oral declarations. (n)
G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA
CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents.

(Testatrix Basilia filed for probate of her will ante mortem in favor of respondents giving bulk of
the states in their favor as legally adopted children which was opposed by petitioners nephews
and nieces of the former who lately died after will’s probate effecting Perfecto to be the executor
as appointed judicially without bond despite blocking attempt employed by Ruben claiming that
petitioners were not adopted legally by decedent rendering them as strangers and respondents are
nearest of kin by way of intervention which was allowed by trial court resulting from
examination of the genuineness and authenticity of adoption papers by NBI and Philippine
Constabulary which documents turned out to be legitimate subsequently moving the same for
hearing and a motion of alternative relief delimiting and confining petitioner’s intervention to
estate properties which were not dispose of by Basilia testatrix as separate motion intervened and
appeared by petitioner’s sister Benita which the trial court granted and denied the same upon
reconsideration thus, the present action for certiorari. The respondents, granting arguendo the
fact that they were not legally adopted, do not negate them to succeed the by way of testamentary
heirs because respondents were instituted by way of institution of heirs not as legitime as it finds
support in successional provision espousing that one who has no compulsory heir may dispose of
by will all his estate or part of it to any person having capacity to succeed and contrary to
petitioner’s claim they were not deemed as compulsory heirs being as such petitioners were not
prejudiced in their interest and on the falsity of the will where the cause for institution of heirs
was not stated it cannot be annulled on mere guesswork to speculate on what was on the mind of
the testatrix because the interpretation which prevents intestacy prevails in this situation even if
the testatrix had been mistaken in treating respondents as legally adopted children in the will as
the same is mute on that concern as it only addressed them as sapilitang tagapagmmana and
sapilitang mana)

The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate
of the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Benta
and Lauro Austria Mozo, three of a number of nephews and nieces who are concededly the nearest
surviving blood relatives of the decedent. On the other side are the respondents brothers and
sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of
whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the decedent by
virtue of legal adoption. At the heart of the controversy is Basilia's last will — immaculate in its
extrinsic validity since it bears the imprimatur of duly conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of the tie which the
respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. 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 apparently finds
support in article, 842 of the Civil Code which reads:
 One who has no compulsory heirs may dispose of by will all his estate or any part of
it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs.
The lower court must have assumed that since the petitioners nephews and niece are not
compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling
testamentary disposition. The petitioners' interest is confined to properties, if any, that have not been
disposed of in the will, for to that extent intestate succession can take place and the question of the
veracity of the adoption acquires relevance.
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 of 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.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
The statement of a false cause for the institution of an heir shall be considered as not
written, unless it appears from the will that the testator would not have made such
institution if he had known the falsity of such cause.
Coming closer to the center of the controversy, the petitioners have called the attention of the lower
court and this Court to the following pertinent portions of the will of the deceased which recite:
III

Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing
na mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz,
Benita at Isagani, na pawang may apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-
ariang maiiwan, sa kaparaanang sumusunod:
A.—Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto,
Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang
kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang
sapilitang mana (legiti[ma]), ang kalahati (½) ng aking kaparti sa lahat ng aming ari-
ariang gananciales ng aking yumaong asawang Pedro Cruz na napapaloob sa
Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa
No. 1 ng parafo IV ng testamentong ito, ang kalahati (½) ng mga lagay na lupa at
palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama
na si Calixto Austria, at ang kalahati (½) ng ilang lagay na lupa na nasa Tinejeros,
Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria.

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 entire estate to
the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had
the deceased known the adoption to be spurious, she would not have instituted the respondents at
all — the basis of the institution being solely her belief that they were compulsory heirs. Proof
therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening
of the estate wide to intestacy. Did the lower court then abuse its discretion or act in violation of the
rights of the parties in barring the petitioners nephews and niece from registering their claim even to
properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following
requisites must concur: First, the cause for the institution of heirs must be stated in the will; second,
the cause must be shown to be false; and third, 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, "sapilitang tagapagmana"
(compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix'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 succession to the legitime takes place by operation of
law, independent of her own wishes, 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 guesswork or uncertain implications.

And even if we should accept the petitioners' theory that the decedent instituted the respondents
Perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false
assumption that her adoption of these respondents was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause
the testator may have written in his will for the institution of heirs. Such institution may be annulled
only when one is satisfied, after an examination of the will, that the testator clearly would not have
made the institution if he had known the cause for it to be false. Now, would the late Basilia have
caused the revocation of the institution of heirs if she had known that she was mistaken in treating
these heirs as her legally adopted children? Or would she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this point or at best is vague
and uncertain. The phrases, "mga sapilitang tagapagmana"and "sapilitang mana," were borrowed
from the language of the law on succession and were used, respectively, to describe the class of
heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the
decedent would have willed her estate other than the way she did if she had known that she was not
bound by law to make allowance for legitimes. Her disposition of the free portion of her estate (libre
disposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and the
children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the
respondents more than what she thought the law enjoined her to give to them. Compare this with the
relatively small devise of land which the decedent had left for her blood relatives, including the
petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben Austria.
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.
Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the
Civil Code: "The words of a will are to receive an interpretation which will give to every expression
some effect, rather than one which will render any of the expressions inoperative; and of two modes
of interpreting a will, that is to be preferred which will prevent intestacy." 1
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,2as 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. 3 A
probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was possessed of
testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence.
In this situation, it becomes our duty to give full expression to her will.4

At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a
separate action brought for that purpose, and cannot be the subject of a collateral attack.5

To the petitioners' charge that the lower court had no power to reverse its order of December 22,
1959, suffice it to state that, as borne by the records, the subsequent orders complained of served
merely to clarify the first — an act which the court could legally do. Every court has the inherent
power to amend and control its processes and orders so as to make them conformable to law and
justices.6 That the court a quo has limited the extent of the petitioners' intervention is also within its
powers as articulated by the Rules of Court.7

B Kinds of Institution
Article 777. The rights to the succession are transmitted from the moment of the death of the
decedent. (657a)

SECTION 4
Conditional Testamentary Dispositions and Testamentary Dispositions With a Term
Article 871. The institution of an heir may be made conditionally, or for a certain purpose or cause.
(790a)
Article 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the
legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.
(813a)

Article 873. Impossible conditions and those contrary to law or good customs shall be considered as
not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide.
(792a)
Article 874. An absolute condition not to contract a first or subsequent marriage shall be considered
as not written unless such condition has been imposed on the widow or widower by the deceased
spouse, or by the latter's ascendants or descendants.

Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or
bequeathed to any person for the time during which he or she should remain unmarried or in
widowhood. (793a)
Article 875. Any disposition made upon the condition that the heir shall make some provision in his
will in favor of the testator or of any other person shall be void. (794a)

Article 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon
as he learns of the testator's death.
This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (795a)
Article 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any
time before or after the death of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the will was executed and the
testator was unaware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a
nature that it can no longer exist or be complied with again. (796)
Article 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring
his rights and transmitting them to his heirs even before the arrival of the term. (799a)
Article 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or
not giving something, he shall comply by giving a security that he will not do or give that which has
been prohibited by the testator, and that in case of contravention he will return whatever he may
have received, together with its fruits and interests. (800a)
Article 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed
under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled,
or until the arrival of the term.
The same shall be done if the heir does not give the security required in the preceding article. (801a)
Article 881. The appointment of the administrator of the estate mentioned in the preceding article,
as well as the manner of the administration and the rights and obligations of the administrator shall
be governed by the Rules of Court. (804a)
Article 882. The statement of the object of the institution, or the application of the property left by the
testator, or the charge imposed by him, shall not be considered as a condition unless it appears that
such was his intention.
That which has been left in this manner may be claimed at once provided that the instituted heir or
his heirs give security for compliance with the wishes of the testator and for the return of anything he
or they may receive, together with its fruits and interests, if he or they should disregard this
obligation. (797a)
Article 883. When without the fault of the heir, an institution referred to in the preceding article
cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner
most analogous to and in conformity with his wishes.
If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the
condition shall be deemed to have been complied with. (798a)
Article 884. Conditions imposed by the testator upon the heirs shall be governed by the rules
established for conditional obligations in all matters not provided for by this Section. (791a)
Article 885. The designation of the day or time when the effects of the institution of an heir shall
commence or cease shall be valid.

In both cases, the legal heir shall be considered as called to the succession until the arrival of the
period or its expiration. But in the first case he shall not enter into possession of the property until
after having given sufficient security, with the intervention of the instituted heir. (805)
Article 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the
time of the death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of article 1032, it shall be necessary to wait until final judgment
is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional, the time of the compliance with the condition
shall also be considered. (758a)
Article 1183. Impossible conditions, those contrary to good customs or public policy and those
prohibited by law shall annul the obligation which depends upon them. If the obligation is divisible,
that part thereof which is not affected by the impossible or unlawful condition shall be valid.
The condition not to do an impossible thing shall be considered as not having been agreed upon.
(1116a)
G.R. No. 45425 March 27, 1992
CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE PANLILIO and REMEDIOS L. VDA.
DE GUINTO, petitioners,
vs.
HON. JUDGE ERNESTO TENGCO of the Court of First Instance of Negros Occidental,
Bacolod City, Branch IV and RODOLFO LIZARES and AMELO LIZARES, as Judicial
Administrators of the Estate of the late EUSTAQUIA LIZARES, respondents.
G.R. No. 45965 March 27, 1992

ROLDOFO LIZARES and AMELO LIZARES, as Judicial Administrators of the ESTATE OF

EUSTAQUIA LIZARES, petitioners,
vs.
HON. JUDGE ERNESTO TENGCO, CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE
PANLILIO and REMEDIOS VDA. DE GUINTO, respondents.
(The late Maria Lizares executed a will containing legacies, devises, usufructuaries in possession
and custody of her niece Eustaquia which was admitted probate the latter being the executrix moved
for the project of partition of the same bearing the names therein as the only heirs which motion was
granted by the probate court ordering the Negros Occidental and Bacolod Register of Deeds to
effect the transfer of real properties as well as the shares, stocks and dividends in different
companies, corporations and partnerships to said heirs and testate’s closure. Eustaquia then filed an
urgent motion to reopen the testate proceeding after its closure to adjudicate the remaining omitted
properties of shares of stocks, revolving fund certificate, plantation credits and sugar quota
allocations and real or personal properties in her favor. A year later, Eustaquia died without any
descendant Rodolfo and Amelo Lizares as joint administrators of the former’s intestate estate. The
will of Maria allegedly contained a provision of simple substitution in favor of Kilaykos as the latter
prayed on this testamentary strength to reopen Maria’s testate proceeding together with other
favorable prayers which the Court denied ratiocinating the in rem nature of settlement proceeding
being binding against the whole world upon denial of reconsideration Kilaykos filed for recovery of
the properties in possession of joint administrators before the CFI Negros and declaration of lis
pendens of said properties with Register of Deed of Negros which the respondent court granted the
cancellation of lis pendens which Kilaykos moved for reconsideration unfortunately the same was
denied because notice of lis pendens is notice to stranger that a particular property was under
litigation and in custodia legis. Upon receipt of the order the extension of time to file certiorari
docketed as the first case and the joint administrators filed for certiorari prohibition to order cease of
any adjudication on the merits of the resolution held in abeyance while the same was on the trial
court docket as the second case as the trial court had no jurisdiction over the said civil case which
SC enjoined further proceeding. The petitioners cannot in the guise of reconveyance recover the
properties that had been subject of project of partition long time which had a concomitant effect of
final and executory judgment when the same had been finally disposed of therefore, its validity or
invalidity cannot be made an issue in this case because the purpose of court is to finally adjudge a
case at some definite time to end the litigation thus, filing the relief beyond reglementary period is
fatal to petitioners’ cause the same with motion to reopen the case as it was filed beyond such time
and the requisites of res judicata are equally present in the case; Even Kilaykos contention as
fideicommissary substitution is baseless as no clear obligation on the part of Eustaquia to preserve
the estate in their favor nor the same be considered as simple substitution)
The petition in G.R. No. L-45965 is impressed with merit.
In testate succession, there can be no valid partition among the heirs until after the will has been
probated. 30 The law enjoins the probate of a will and the public requires it, because unless a will is
probated and notice thereof given to the whole world, the right of a person to dispose of his property
by will may be rendered nugatory. 31 The authentication of a will decides no other question than such
as touch upon the capacity of the testator and the compliance with those requirements or
solemnities which the law prescribes for the validity of a will. 32
Pertinent to the issue interposed by the petitioners in G.R. No. L-45965 is Section 1, Rule 90 of the
Rules of Court which reads:
Sec. 1. When order for distribution of residue made. — When the debts, funeral
charges, and expenses of administration, the allowance to the widow, and
inheritance tax, if any, chargeable to the estate in accordance with law, have been
paid, the court, on application of the executor or administrator, or of a person
interested in the estate, and after hearing upon notice, shall assign the residue of the
estate to the persons entitled to the same, naming them and the proportions or parts,
to which each is entitled, and such persons may demand and recover their
respective shares from the executor or administrator, or any other person having the
same in his possession. If there is a controversy before the court as to who are the
lawful heirs of the deceased person or as to the distributive shares to which each
person is entitled under the law, the controversy shall be heard and decided as in
ordinary cases.
No distribution shall be allowed until the payment of the obligations above-mentioned
has been made orprovided for, unless the distributees, or any of them give a bond, in
a sum to be fixed by the court, conditioned for the payment of said obligations within
such time as the court directs.
Applying this rule, in the cases of De Jesus v. Daza, 33 and Torres v. Encarnacion, 34 the Court said:
. . . (T)he probate court, having the custody and control of the entire estate, is the
most logical authority to effectuate this provision, within the estate proceeding, said
proceeding being the most convenient one in which this power and function of the
court can be exercised and performed without the necessity of requiring the parties
to undergo the incovenience and litigate an entirely different action.

Some decisions of the Court pertinent to the issue that the probate court has the jurisdiction to settle
the claims of an heir and the consequent adjudication of the properties, are worth mentioning. In the
cases of Arroyo v. Gerona, 35 and Benedicto v. Javellana, 36 this Court said:
 . . . any challenge to the validity of a will, any objection to the authentication thereof,
and every demand or claim which any heir, legatee or party interested in a testate or
intestate succession may make, must be acted upon and decided within the same
special proceedings, not in a separate action, and the same judge having jurisdiction
in the administration of the estate shall take cognizance of the question raised,
inasmuch as when the day comes he will be called upon to make distribution and
adjudication of the property to the interested parties. . . . (Emphasis supplied)

The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to
determine the proportion or parts to which each distributee is entitled . . .. 37A project of partition is
merely a proposal for the distribution of the heredity estate which the court may accept or reject. It is
the court that makes that distribution of the estate and determines the persons entitled thereto. 38

In the instant case, the records will show that in the settlement of the testate estate of Maria Lizares,
the executrix, Eustaquia Lizares submitted on January 8, 1971, a project of partition in which the
parcels of land, subject matters of the complaint for reconveyance, were included as property of the
estate and assigned exclusively to Eustaquia as a devisee of Maria Lizares. In accordance with said
project of partition which was approved by the probate court, Encarnacion Lizares Vda. de Panlilio,
Remedios Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza and
Eustaquia Lizares executed an Agreement of Partition and Subdivision on November 28, 1972,
whereby they agreed to terminate their co-ownership over Lots Nos. 550, 514, 553, 1287-C of SWO-
7446 and 552 covered by Transfer Certificates of Title Nos. T-65004, T-65005, T-65006, T-65007
and T-65008. These facts taken altogether show that the Lizares sisters recognized the decree of
partition sanctioned by the probate court and in fact reaped the fruits thereof.
Hence, they are now precluded from attacking the validity of the partition or any part of it in the guise
of a complaint for reconveyance. A party cannot, in law and in good conscience be allowed to reap
the fruits of a partition, agreement or judgment and repudiate what does not suit him. 39 Thus, where
a piece of land has been included in a partition and there is no allegation that the inclusion was
affected through improper means or without petitioner's knowledge, the partition barred any further
litigation on said title and operated to bring the property under the control and jurisdiction of the court
for its proper disposition according to the tenor of the partition. 40 The question of private respondents
title over the lots in question has been concluded by the partition and became a closed matter.
The admission made by Celsa L. Vda. de Kilayko, et al. in their complaint, Civil Case No. 11639, that
Eustaquia had been in possession of the questioned lots since March 2, 1971 up to the time of her
death indicates that the distribution pursuant to the decree of partition has already been carried out.
Moreover, it cannot be denied that when Celsa L. Vda. de Kilayko, et al. moved for the reopening of
the testate estate proceedings of Maria Lizares, the judicial decree of partition and order of closure
of such proceedings was already final and executory, then reglementary period of thirty (30) days
having elapsed from the time of its issuance, with no timely appeal having been filed by them.
Therefore, they cannot now be permitted to question the adjudication of the properties left by will of
Maria Lizares, by filing an independent action for the reconveyance of the very same properties
subject of such partition.

A final decree of distribution of the estate of a deceased person vests the title to the land of the
estate in the distributees. If the decree is erroneous, it should be corrected by opportune appeal, for
once it becomes final, its binding effect is like any other judgment in rem, unless properly set aside
for lack of jurisdiction or fraud. Where the court has validly issued a decree of distribution and the
same has become final, the validity or invalidity of the project of partition becomes irrelevant. 41
It is a fundamental concept in the origin of every jural system, a principle of public policy, that at the
risk of occasional errors, judgments of courts should become final at some definite time fixed by
law, interest rei publicae ut finis sit litum. "The very object of which the courts were constituted was
to put an end to controversies." 42 The only instance where a party interested in a probate proceeding
may have a final liquidation set aside is when he is left out by reason of circumstances beyond his
control or through mistake or inadvertence not imputable to negligence. Even then, the better
practice to secure relief is the opening of the same by proper motion within the reglementary period,
instead of an independent action, the effect of which if successful, would be for another court or
judge to throw out a decision or order already final and executed and reshuffle properties long ago
distributed and disposed of. 43
The fundamental principle upon which the doctrine of res judicata rests is that parties ought not to be
permitted to litigate the same issue more than once, that, when a right or fact has been judicially
tried and determined by a court of competent jurisdiction, or an opportunity for such trial has been
given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the
parties and those in privity with them in law or estate. 44
All the requisites for the existence of res judicata are present. Thus, the order approving the
distribution of the estate of Maria Lizares to the heirs instituted in said will has become final and
unappealable; the probate court that rendered judgment had jurisdiction over the subject matter and
over the parties; the judgment or orders had been rendered on the merits; the special proceedings
for the settlement of the estate of Maria Lizares was a proceeding in rem that was directed against
the whole world including Celsa L. Vda. de Kilayko, et al., so that it can be said that there is a
similarity of parties in Special Proceedings No. 8452 and Civil Case No. 11639, the judicial
administrators of Eustaquia being privy to Celsa L. Vda. de Kilayko, et al.; there is identity of subject
matter involved in both actions, namely, the properties left by Maria Lizares; there is identity of
causes of action because in the first action there was a declaration of the probate court in its order
dated April 6, 1974 that although the testatrix intended a fideicommissary substitution in paragraphs
10 and 11 of her will, the substitution can have no effect because the requisites for it to be valid, had
not been satisfied. 45
Granting that res judicata has not barred the institution of Civil Case No. 11639, the contention of
Celsa L. Vda. de Kilayko, et al. that they are conditional substitute heirs of Eustaquia in the testate
estate of Maria Lizares 46 is not meritorious. While the allegation of the joint administrators that
paragraphs 10 and 11 of Maria Lizares' last will and testament conceives of a fideicommissary
substitution under Article 863 of the Civil Code is also baseless as said paragraphs do not impose
upon Eustaquia a clear obligation to preserve the estate in favor of Celsa L. Vda. de Kilayko, et al.,
neither may said paragraphs be considered as providing for a vulgar or simple substitution.
It should be remembered that when a testator merely names an heir and provides that if such heir
should die a second heir also designated shall succeed, there is no fideicommissary substitution.
The substitution should then be construed as a vulgar or simple substitution under Art. 859 of the
Civil Code but it shall be effective only if the first heir dies before the testator. 47 In this case, the
instituted heir, Eustaquia, survived the testatrix, Maria Lizares. Hence, there can be no substitution
of heirs for, upon Maria Lizares' death, the properties involved unconditionally devolved upon
Eustaquia. Under the circumstances, the sisters of Maria Lizares could only inherit the estate of
Eustaquia by operation of the law of intestacy.
With respect to the cancellation of the notice of lis pendenson the properties involved, there is no
merit in the contention of Celsa L. Vda. de Kilayko, et al., that the lower court acted contrary to law
and/or gravely abused its discretion in cancelling the notice of lis pendens. The cancellation of such
a precautionary notice, being a mere incident in an action, may be ordered by the court having
jurisdiction over it at any given time. 48 Under Sec. 24, Rule 14 of the Rules of Court, a notice of lis
pendens may be cancelled "after proper showing that the notice is for the purpose of molesting the
adverse party, or that it is not necessary to protect the rights of the party who caused it to be
recorded." 49 In this case, the lower court ordered the cancellation of said notice on the principal
reason that the administrators of the properties involved are subject to the supervision of the court
and the said properties are under custodia legis. Therefore, such notice was not necessary to
protect the rights of Celsa L. Vda. de Kilayko, et al. More so in this case where it turned out that their
claim to the properties left by Eustaquia is without any legal basis.
C Substitution of Heirs
SECTION 3
Substitution of Heirs
Article 857. Substitution is the appointment of another heir so that he may enter into the inheritance
in default of the heir originally instituted. (n)
Article 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;

(3) Reciprocal; or
(4) Fideicommissary. (n)
Article 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. (774)
Article 860. Two or more persons may be substituted for one; and one person for two or more heirs.
(778)
Article 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute
shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears
that the intention of the testator was otherwise. If there are more than one substitute, they shall have
the same share in the substitution as in the institution. (779a)
Article 862. The substitute shall be subject to the same charges and conditions imposed upon the
instituted heir, unless and testator has expressly provided the contrary, or the charges or conditions
are personally applicable only to the heir instituted. (780)

Article 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 the
inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the
second heir are living at the time of the death of the testator. (781a)
Article 864. A fideicommissary substitution can never burden the legitime. (782a)
Article 865. Every fideicommissary substitution must be expressly made in order that it may be
valid.
The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions
than those which arise from legitimate expenses, credits and improvements, save in the case where
the testator has provided otherwise. (783)
Article 866. The second heir shall acquire a right to the succession from the time of the testator's
death, even though he should die before the fiduciary. The right of the second heir shall pass to his
heirs. (784)

Article 867. The following shall not take effect:

(1) Fideicommissary substitutions which are not made in an express manner, either by giving
them this name, or imposing upon the fiduciary the absolute obligation to deliver the property
to a second heir;
(2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one,
beyond the limit fixed in article 863;
(3) Those which impose upon the heir the charge of paying to various persons successively,
beyond the limit prescribed in article 863, a certain income or pension;
(4) Those which leave to a person the whole or part of the hereditary property in order that
he may apply or invest the same according to secret instructions communicated to him by
the testator. (785a)
Article 868. The nullity of the fideicommissary substitution does not prejudice the validity of the
institution of the heirs first designated; the fideicommissary clause shall simply be considered as not
written. (786)
Article 869. A provision whereby the testator leaves to a person the whole or part of the inheritance,
and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not
simultaneously, but successively, the provisions of article 863 shall apply. (787a)
Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more
than twenty years are void. (n)
G.R. No. L-27952 February 15, 1982
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,
Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.
(The testator a Filipino national died in Spain with his widow as compulsory heir to probate his will
subject to project of partition instituted by administratrix in satisfaction of widow’s legitime, part of
free portion shall go to Jorge and Roberto and the remaining two thirds as usufructuary in favor of
Austrian Wanda. Jorge and Roberto opposed the project of partition on the ground of vulgar
substitution in favor of Wanda with respect to widow’s usufruct and in favor of Juan Pablo and
Horacio with respect to Wanda’s usufruct are invalid because the first heirs survived the testator and
the same with fideocommissary substitutions due to non-relation of first and second heirs within first
degree, grant of usufruct to Wanda is unconstitutional lasltly the proposed partition of Escolta
property designated to give the same to them violates testator’s express will despite such
oppositions the trial court granted the partition said order is the reason for appeal to SC. The vulgar
substitution in connection with on third usufruct given in favor of widow Marcelle is valid and the
same having become moot as ruled that Marcelle is not entitled to any usufruct; The
fideicommissary substitution in this case is void because the substitutes are not related to Wanda as
heir originally instituted validating the provision providing such substitution does not go beyond one
degree from the heir originally instituted and there is no absolute duty to transmit the usufruct to the
substitutes on the part of Wanda appellee’s submission runs counter to the principle enunciated
when the selling of the properties was permitted upon mutual agreement of usufructuaries and
naked owners as correctly claimed by appellants)
1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership.
They admit that the testator's dispositions impaired his widow's legitime. Indeed, 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 pleno dominio" as her legitime and which is more than what
she is given under the will is not entitled to have any additional share in the estate. To give Marcelle
more than her legitime will run counter to the testator's intention for as stated above his dispositions
even impaired her legitime and tended to favor Wanda.

2. The substitutions.
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 sus respectivos
descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.
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 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.)
(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. The usufruct of Wanda.

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.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed
as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership
and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski
and Horace V. Ramirez.

The distribution herein ordered supersedes that of the court a quo. No special pronouncement as to
costs.

G.R. No. L-13876 February 28, 1962

CONSOLACION FLORENTINO DE CRISOLOGO, ET AL.,plaintiffs-appellees,
vs.
DR. MANUEL SINGSON, defendant-appellant.
Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo
against Manuel Singson in connection with a residential lot located a Plaridel St., Vigan, Ilocos Sur,
with an area of approximately 193 square meters, and the improvements existing thereon, covered
by Tax No. 10765-C. Their complaint alleged that Singson owned one-half pro-indiviso of said
property and that Consolacion Florentino owned the other half by virtue of the provisions of the duly
probated last will of Dña. Leona Singson, the original owner, and the project of partition submitted to,
and approved by the Court of First Instance of Ilocos Sur in special Proceeding No. 453; that
plaintiffs had made demands for the partition of said property, but defendant refused to accede
thereto, thus compelling them to bring action.
Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of
one-half pro-indiviso of the property in question, and that, therefore, she was not entitled to demand
partition thereof. The lower court’s decision disposed plaintiff as co-owner of the pro-indiviso share
of the house and lot, ordering the execution of partition of said property and failure to effect its
decision will result to appointment of commissioners to make the partition. The same was appealed
before this Court.
It is admitted that Dña. Leona Singson, who died single on January 13, 1948, was the owner of the
property in question at the time of her death. On July 31, 1951 she executed her last will which was
admitted to probate in Special Proceeding No. 453 of the lower court whose decision was affirmed
by the Court of Appeals in G.R. No. 3605-R. At the time of the execution of the will, her nearest living
relatives were her brothers Evaristo, Manuel and Dionisio Singson, her nieces Rosario, Emilia and
Trinidad, and her grandniece Consolation, all surnamed Florentino.
The issue to be decided is whether the testamentary disposition above-quoted provided for what is
called sustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe, controlled by
the pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the New
Civil Code, in view of the fact that the testatrix died on January 13, 1948. They are the following: .
Art. 774. The testator may designate one or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die before him, or should not wish or should be
unable to accept the inheritance.
A simple substitution, without a statement of the cases to which it is to apply, shall include
the three mentioned in the next preceeding paragraph, unless the testator has otherwise
provided:
Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to preserve
and transmit to a third person the whole or part of the inheritance shall be valid and effective,
provided they do not go beyond the second degree, or that they are made in favor of persons
living at the time of the death of the testator." .
Art. 785. The following shall be inoperative: .
1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing
upon the fiduciary the absolute obligation of delivering the property to a second heir." ....
In accordance with the first legal provision quoted above, the testator may not only designate the
heirs who will succeed him upon his death, but also provide for substitutes in the event that said
heirs do not accept or are in no position to accept the inheritance or legacies, or die ahead of him.
The testator may also bequeath his properties to a particular person with the obligation, on the part
of the latter, to deliver the same to another person, totally or partially, upon the occurrence of a
particular event (6 Manresa, p. 1112).

It is clear that the particular testamentary clause under consideration provides for a substitution of
the heir named therein in this manner: that upon the death of Consolacion Florentino — whether this
occurs before or after that of the testatrix — the property bequeathed to her shall be delivered ("se
dara") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio,
or their forced heirs, should anyone of them die ahead of Consolacion Florentino. If this clause
created what is known as sustitucion vulgar, the necessary result would be that Consolacion
Florentino, upon the death of the testatrix, became the owner of one undivided half of the property,
but if it provided for a sustitution fideicomisaria, she would have acquired nothing more than
usufructuary rights over the same half. In the former case, she would undoubtedly be entitled to
partition, but not in the latter. As Manresa says, if the fiduciary did not acquire full ownership of the
property bequeathed by will, but mere usufructuary rights thereon until the time came for him to
deliver said property to the fideicomisario, it is obvious that the nude ownership over the property,
upon the death of the testatrix, passed to and was acquired by another person, and the person
cannot be other than the fideicomisario (6 Manresa p. 145).
It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed
upon the first heir to preserve and transmit to another the whole or part of the estate bequeathed to
him, upon his death or upon the happening of a particular event. For this reason, Art. 785 of the old
Civil Code provides that a fideicommissary substitution shall have no effect unless it is made
expressly ("de una manera expresa") either by giving it such name, or by imposing upon the first heir
the absolute obligation ("obligacion terminante") to deliver the inheritance to a substitute or second
heir.

A careful perusal of the testamentary clause under consideration shows that the substitution of heirs
provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear
statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the
property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As
already stated, it merely provides that upon appellee's death — whether this happens before or after
that of the testatrix — her share shall belong to the brothers of the testatrix.
In the light of the foregoing, we believe, and so hold, that the last will of the deceased Dña. Leona
Singson, established a mere sustitucion vulgar, the substitution Consolacion Florentino by the
brothers of the testatrix to be effective or to take place upon the death of the former, whether it
happens before or after that of the testatrix.

D. Legacies and Devises

SECTION 7
Legacies and Devises

Article 924. All things and rights which are within the commerce of man be bequeathed or devised.
(865a)

Article 925. A testator may charge with legacies and devises not only his compulsory heirs but also
the legatees and devisees.

The latter shall be liable for the charge only to the extent of the value of the legacy or the devise
received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the
free portion given them. (858a)

Article 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be
bound.

Should he not charge anyone in particular, all shall be liable in the same proportion in which they
may inherit. (859)

Article 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the
loss or destruction of a thing devised or bequeathed, even though only one of them should have
been negligent. (n)

Article 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction,
if the thing is indeterminate and is indicated only by its kind. (860)
Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing
bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the
testator expressly declares that he gives the thing in its entirety. (864a)

Article 930. The legacy or devise of a thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if the thing bequeathed, though not
belonging to the testator when he made the will, afterwards becomes his, by whatever title, the
disposition shall take effect. (862a)

Article 931. If the testator orders that a thing belonging to another be acquired in order that it be
given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must
acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to
alienate the same, or demands an excessive price therefor, the heir or the estate shall only be
obliged to give the just value of the thing. (861a)

Article 932. The legacy or devise of a thing which at the time of the execution of the will already
belonged to the legatee or devisee shall be ineffective, even though another person may have some
interest therein.

If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy
or devise shall be valid to that extent. (866a)

Article 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution
of the will, the legacy or devise shall be without effect, even though it may have subsequently
alienated by him.

If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the
legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the
heir or the estate. (878a)

Article 934. If the testator should bequeath or devise something pledged or mortgaged to secure a
recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the
contrary intention appears.

The same rule applies when the thing is pledged or mortgaged after the execution of the will.

Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with
it to the legatee or devisee. (867a)

Article 935. The legacy of a credit against a third person or of the remission or release of a debt of
the legatee shall be effective only as regards that part of the credit or debt existing at the time of the
death of the testator.

In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of
action it may have against the debtor. In the second case, by giving the legatee an acquittance,
should he request one.

In both cases, the legacy shall comprise all interests on the credit or debt which may be due the
testator at the time of his death. (870a)
Article 936. The legacy referred to in the preceding article shall lapse if the testator, after having
made it, should bring an action against the debtor for the payment of his debt, even if such payment
should not have been effected at the time of his death.

The legacy to the debtor of the thing pledged by him is understood to discharge only the right of
pledge. (871)

Article 937. A generic legacy of release or remission of debts comprises those existing at the time of
the execution of the will, but not subsequent ones. (872)

Article 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the
testator so expressly declares.

In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the
legacy or devise. (837a)

Article 939. If the testator orders the payment of what he believes he owes but does not in fact owe,
the disposition shall be considered as not written. If as regards a specified debt more than the
amount thereof is ordered paid, the excess is not due, unless a contrary intention appears.

The foregoing provisions are without prejudice to the fulfillment of natural obligations. (n)

Article 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon
whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of
the estate if no particular heir is so obliged.

If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right
shall pass to the respective heirs.

Once made, the choice is irrevocable.

In the alternative legacies or devises, except as herein provided, the provisions of this Code
regulating obligations of the same kind shall be observed, save such modifications as may appear
from the intention expressed by the testator. (874a)

Article 941. A legacy of generic personal property shall be valid even if there be no things of the
same kind in the estate.

A devise of indeterminate real property shall be valid only if there be immovable property of its kind
in the estate.

The right of choice shall belong to the executor or administrator who shall comply with the legacy by
the delivery of a thing which is neither of inferior nor of superior quality. (875a)

Article 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee
or devisee, the former may give or the latter may choose whichever he may prefer. (876a)

Article 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him,
his right shall pass to his heirs; but a choice once made shall be irrevocable. (877a)
Article 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in
order that the legatee may finish some professional, vocational or general course, provided he
pursues his course diligently.

A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise
provided.

If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the
social standing and the circumstances of the legatee and the value of the estate.

If the testator or during his lifetime used to give the legatee a certain sum of money or other things
by way of support, the same amount shall be deemed bequeathed, unless it be markedly
disproportionate to the value of the estate. (879a)

Article 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed,
the legatee may petition the court for the first installment upon the death of the testator, and for the
following ones which shall be due at the beginning of each period; such payment shall not be
returned, even though the legatee should die before the expiration of the period which has
commenced. (880a)

Article 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall
respect such right until it is legally extinguished. (868a)

Article 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from
the death of the testator, and transmits it to his heirs. (881a)

Article 948. If the legacy or devise is of a specific and determinate thing pertaining to the testator,
the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any
growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was
due and unpaid before the latter's death.

From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or
devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or
improvement, without prejudice to the responsibility of the executor or administrator. (882a)

Article 949. If the bequest should not be of a specific and determinate thing, but is generic or of
quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee
or devisee if the testator has expressly so ordered. (884a)

Article 950. If the estate should not be sufficient to cover all the legacies or devises, their payment
shall be made in the following order:

(1) Remuneratory legacies or devises;

(2) Legacies or devises declared by the testator to be preferential;

(3) Legacies for support;

(4) Legacies for education;

(5) Legacies or devises of a specific, determinate thing which forms a part of the estate;
 (6) All others pro rata. (887a)

Article 951. The thing bequeathed shall be delivered with all its accessories and accessories and in
the condition in which it may be upon the death of the testator. (883a)

Article 952. The heir, charged with a legacy or devise, or the executor or administrator of the estate,
must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by
paying its value.

Legacies of money must be paid in cash, even though the heir or the estate may not have any.

The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir
or the estate, but without prejudice to the legitime. (886a)

Article 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own
authority, but shall request its delivery and possession of the heir charged with the legacy or devise,
or of the executor or administrator of the estate should he be authorized by the court to deliver it.
(885a)

Article 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the
other, if the latter be onerous.

Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter
may accept and the others may repudiate the share respectively belonging to them in the legacy or
devise. (889a)

Article 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot
renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to
accept or renounce both, or to renounce either. But if the testator intended that the two legacies or
devises should be inseparable from each other, the legatee or devisee must either accept or
renounce both.

Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and
accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both.
(890a)

Article 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the
legacy or devise for any reason should become ineffective, it shall be merged into the mass of the
estate, except in cases of substitution and of the right of accretion. (888a)

Article 957. The legacy or devise shall be without effect:

(1) If the testator transforms the thing bequeathed in such a manner that it does not retain
either the form or the denomination it had;

(2) If the testator by any title or for any cause alienates the thing bequeathed or any part
thereof, it being understood that in the latter case the legacy or devise shall be without effect
only with respect to the part thus alienated. If after the alienation the thing should again
belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise
shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the
exercise of the right of repurchase;
 (3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death
without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be
liable for eviction if the thing bequeathed should not have been determinate as to its kind, in
accordance with the provisions of article 928. (869a)

Article 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it
is possible to identify the thing which the testator intended to bequeath or devise. (n)

Article 959. A disposition made in general terms in favor of the testator's relatives shall be
understood to be in favor of those nearest in degree. (751)

G.R. No. L-23638 October 12, 1967

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners,

vs.
ISMAELA DIMAGIBA, respondent.

----------------------------------------

G.R. No. L-23662 October 12, 1967

MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent. (The probate of the purported will executed by Benedicta de los
Reyes instituting petitioners Fernandez as sole heir whilst the same was set for hearing other
intestate heirs of the decedent claimed their status on the wall as such their grounds are anchored
on forgery, vices of consent, estoppel by laches of the proponent and revocation of the will by two
deeds of conveyance of major portion of the estate during his lifetime in favor of the proponent
legatee Dimagiba as it found by the trial as genuine and properly executed. On appeal, the appellate
court affirmed the decision thus, the instant action.

The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of
1950 (Art. 869 of the Code of 1889), which recites:

Art. 957. The legacy or devise shall be without effect:

(1) . . . .

(2) If the testator by any title or for any cause alienates the thing bequeathed or any part
thereof, it being understood that in the latter case the legacy or devise shall be without effect
only with respect to the part thus alienated. If after the alienation the thing should again
belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise
shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the
exercise of the right of repurchase;

xxx xxx xxx

It is well to note that, unlike in the French and Italian Codes, the basis of the quoted provision
is a presumed change of intention on the part of the testator.
As observed by the Court of Appeals, the existence of any such change or departure from the
original intent of the testatrix, expressed in her 1930 testament, is rendered doubtful by the
circumstance that the subsequent alienations in 1943 and 1944 were executed in favor of the
legatee herself, appellee Dimagiba. In fact, as found by the Court of Appeals in its decision annulling
these conveyances (affirmed in that point by this Supreme Court in Reyes vs. Court of Appeals and
Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no consideration whatever was paid
by respondent Dimagiba" on account of the transfers, thereby rendering it even more doubtful
whether in conveying the property to her legatee, the testatrix merely intended to comply in advance
with what she had ordained in her testament, rather than an alteration or departure
therefrom.1 Revocation being an exception, we believe, with the Courts below, that in the
circumstances of the particular case, Article 957 of the Civil Code of the Philippines, does not apply
to the case at bar.

Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily
result in the revocation of the legacies, if we bear in mind that the findings made in the decision
decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also that

it was the moral influence, originating from their confidential relationship, which was the only
cause for the execution of Exhs. A and B (the 1943 and 1944 conveyances). (Decision, L-
5618 and L-5620).

If the annulment was due to undue influence, as the quoted passage implies, then the transferor was
not expressing her own free will and intent in making the conveyances. Hence, it can not be
concluded, either, that such conveyances established a decision on her part to abandon the original
legacy.

True it is that the legal provision quoted prescribes that the recovery of the alienated property "even
if it be by reason of the nullity of the contract" does not revive the legacy; but as pointed out by
Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not be taken in
an absolute sense.2 Certainly, it could not be maintained, for example, that if a testator's subsequent
alienation were avoided because the testator was mentally deranged at the time, the revocatory
effect ordained by the article should still ensue. And the same thing could be said if the alienation
(posterior to the will) were avoided on account of physical or mental duress. Yet, an alienation
through undue influence in no way differs from one made through violence or intimidation. In either
case, the transferor is not expressing his real intent,3 and it can not be held that there was in fact an
alienation that could produce a revocation of the anterior bequest.

G.R. No. L-14474 October 31, 1960

ONESIMA D. BELEN, petitioner-appellant,

vs.
BANK OF THE PHILIPPINE ISLANDS and MILAGROS BELEN DE OLAGUERA, oppositors-
appellees.
VI. Legal or Intestate Succession

Article 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon
their death to their descendants, whether legitimate or illegitimate. (843a) G.R. No. L-
14474 October 31, 1960

ONESIMA D. BELEN, petitioner-appellant,

vs.
BANK OF THE PHILIPPINE ISLANDS and MILAGROS BELEN DE OLAGUERA, oppositors-
appellees. (The testator Benigno Diaz executed a codicil giving portions of legacies in percentage by
wording of descendientes legitimos (legitimate descendants) in the legatee Filomena Diaz’s favor
that was admitted before the court upon the former’s death it was resolved to be put under
administration of BPI for the benefit of the legatees. Subsequently the latter died and survived by two
legitimate children with other seven legitimate children of Milagros the other is Onesima who filed for
petition to order the BPI to deliver equally divide the legacies mentioned in codicil between herself
and her sister Milagros as surviving children to the exclusion of the latter’s children the same prayer
was initially denied by the trial court to which petitioner grounded her appeal which was disposed of
by supreme court. The existence of the will naming the legatees and their substitute reveals that the
testator did not intend to die intestate anchored on this predication, the original legacy instituted in
favor of Filomena must be divided equally to all surviving children and grandchildren.

From this order Onesima D. Belen has appealed to this Court, insisting that (1) the Court below was
in error in holding that its former resolution of September 16, 1955 had been affirmed by our decision
of February 28, 1958 in the case of Arguelles vs. Belen de Olaguera, G.R. No. L-10164 Feb. 28,
1958; and (2) that the term "sus descendeintes legitimos," as used in the codicil, should be
interpreted to mean descendants nearest in the degree to the original legatee Filomena Diaz. In the
present case, they are her two daughters (Milagros and Onesima Belen), thereby excluding the
seven grandchildren of said legatee.

As to her first point, the appellant is the correct ion her view that the trial court's interpretation of
clause 10 of the codicil to the will of Benigno Diaz has not been affirmed in our previous decision
(G.R. No. L-10164). Perusal of that judgment will show that this Court left the issue open at the time,
contenting itself with pointing out that the then appellant Administrator of the estate of Folimena Diaz
was not the proper party to the raise the particular issue.

As the actual meaning of the provision —

El restro se distribuira a las siguientes personas que aun viven, o a sus descendientes
legitimos,

it is undeniable that but this cluase the testator ordained a simple substitution (sustitucion vulgar)
with a plurality of substitutes for each legatee. This form of substitution authorized by the first poart
of Article 860 of the Civil Code (Art. 778 of the Code of 1889):

Two or more persons may be substituted for one and one person for two or more heirs.
The issue is now squarely before us : do the words "sus descendientes legitimos" refer conjointly to
all living descendant (children and grandchildren) of the legatee, as a class; or they refer to the
descendants nearest in degree?

Appellant Onesima Belen contends that the phrase should be taken to mean the relatives nearest in
degree to Filomena Diaz; and that the legacy should be therefore divided equally between her and
her sister Milagros Belen de Olaguera, to the exclusion of the latter's sons and daughters, grand
children of the original legatee, Filomena Diaz. As authority in support of her thesis, appellant
invokes Article 959 of the Civil Code of the Philippines (reproducing ne varieter Article 751 of the
Code of 1889):

A distribution made in general terms in favor of the testator's relatives shall be understood as
made in favor of those nearest in degree.

The argument fails to note that this article is specifically limited in its application to the case where
the beneficiaries are relatives of the testator, not those of the legatee. In such an event, the law
assumes that the testator intended to refer to the rules of intestacy, in order to benefit the relatives
closest to him, because, as Manresa observes, —

la razon y la logica ha cen fundadamente suponer que, al procurar este favorecer a sus
parientes, habria de ajustarse mas a ligadas al mismo (testador) por los vinculos de la
sanger y de la familia (6 Manresa, Comm., 7th Ed., p. 72).

But the ratios legis (that among a testator's relative the closest are dearest) obviously does not
supply where the beneficiaries are relatives of another person (the legatee) and noot of the testator .
There is no logical reason in this case to presume that the testator intended to refer to the rules of
intestacy, for he precisely made a testament and provided substitutes for each legatee; nor can it be
said that his affections would prefer the nearest relatives of the legatee to those more distant, since
he envisages all of them in a group, and only as mere substitutes for a preferred beneficiary.

Should Article 959 (old Art. 751) be applied by anology? There are various reasons against
this. The most important one is that under this article, as recognized by the principal
commentators on the Code of 1889, the nearest of exclude all the farther relatives and right
of representation does not operate.

In the second place, the history of Article 751 (of the 1889 Code) shown that the right of
representation was deliberately suppressed.

The result would be that by applying to the descendants of Filorema Diaz the "nearest relatives" rule
of Article 959, the inheritance would be limited to her children, or anyone of them, excluding the
grandchildren altogether. This could hardly be the intention of the testator who, in the selfsame
clause 10 of his council (ante), speaks of "cuatro hijos de mi difunto hermano Fabian" and of
"los hijos de Domingo Legarda," as well as of "descendientes legitimos" of the other legates, to us
indicating clearly that he understood well that hijos and descendientes are not synonymous terms.
Observe that, in referring to the substitutes of Filomena Diaz, Nestor Santiago and Isabel M. de
Santiago, the testator, does not even use the description "sus hijos o descendientes," but only
"descendientes".

It is suggested that "descendientes legitimos" could mean the nearest descendant but with the right
of representation in favor of the more distant relatives. Unquestionably, the testator was at liberty to
provide a series of successive substitutions in the order of proximity of relationship to the original
legatee. And he, likewise, was free to ordain that the more distant descendants should enjoy the
right of representation as in intestate succession. But to arrive at such conclusion, we must declare
that the testator had:.

(a) Rejected, or intended to reject, the right of accretionamong co-heirs and co-legatees, as
established for testamentary successions by Articles 10016 (old Art. 982) and 1019, and intended to
replace such accretion with representation;

ART. 1016. In order that the right of accretion may take place in a testamentary succession,
it shall be necessary:

(1) That two or more persons be called to the same inheritance, or to the same portion
thereof, pro indiviso; and

(2) That one of the persons thus called die before the testator or renounce the inheritance, or
be incapacitated to receive it.

xxx xxx xxx

ART. 1019. The heirs to whom the petition goes by the right of accretion take it in the same
proportion that they inherit.

(b) Refused, likewise, the rule of Article 846 (reproduced from Article 765 of the Code of 1889)
providing that:

Heirs instituted without designation of shares shall inherit in equal parts,

which would not obtain if the right of representation were to apply;

(c) Rejected finally the rule of Article 1022 (old Art. 986), that vacancies in the free part should be
filed according to the rules of accretion or substitution (not representation); and in default of these
two, ultimately inherited by the testator's own heirs intestate:

ART. 1022. In testamentary succession, when the right of accretion does not take place, the
vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the
legal heirs of the testator, who shall receive it with the same charges and obligations.

There is no doubt that, the testator's intention being the cardinal rule of succession in the absence of
compulsory (forced) heirs, he could have rendered inoperative all the articles mentioned, if he had
so desired. But without any other supporting circumstances, we deem expression "o a sus
desecendientes legitimos," the testator Benigno Diaz did intend to circumvent all the legal provisions
heretofore quoted. It was incumbent upon appellant to prove such intention on the part of the
testator; yet she has not done so.

It is interesting to note that even under the Anglo-Saxon doctrine, the courts are divided on the
question whether a bequest to "relatives" or "issue," made in general terms, gives rise to
succession per capita or per stripes. In Wyeth, et al., vs. Crane, 174 N.E. 871, the Supreme Court of
Illinois said;

The meaning of the word "descendants", when used in a will or deed to designate a class to
take property passing by the will or deed, has been frequently considered and decided by the
Court of England and the United States. They established rule in England from an early date
 was that the word "descendants" or the word "issued" unexplained by anything in the context
of the instrument, means all persons descending lineally from another, to the remotest
degree, and includes persons descended, even though their parents are living, and that such
descendants take per capita stripes.

The courts of this country are divided on the question of whether in case of a gift or
conveyance to "descendants" or "issue", children take concurrently with their parents. The
so- called English rule has been adhered to in New York, New Jersey, and Tenessee. . . . On
the other hand, the courts of Massachusetts, Maine, Rhode Island and South Carolina have
held that, in case of a gift or conveyance to descendants or issue, unexplained by anything in
the context of instrument, children do not take currently with their parents.

We conclude that in the absence of other indications of contrary intent, the proper rule to apply in the
instant case is that the testator, by designating a class or group of legatees, intended all members
thereof to succeed per capita, in consonance with article 846. So that the original legacy to Filomena
Diaz should be equally divided among her surviving children and grandchidren.

INTESTATE ESTATE OF PETRA V. ROSALES, IRENEA C. ROSALES, petitioner,

vs.
FORTUNATO ROSALES, MAGNA ROSALES ACEBES, MACIKEQUEROX ROSALES and
ANTONIO ROSALES, respondents.

(PETITIONER NOT INTESTATE HEIR; A surviving wife of a husband who predeceased his mother
is not an intestate heir being a third person in the eyes of the law with respect to succession for the
former to enable her to inherit from her mother-in-law in her intestacy as gleaned from the Civil Code
indicating no shadow of a widow as intestate heir either by way of her own right or by right of
representation as proper classifications of legal or intestate heirs as the compulsory heir
contemplated by law is the estate of a deceased spouse not the estate of the parent-in-law as in the
present case; The respresentation of Macikequerox as son of the deceased husband of the
petitioner is proper due to blood relation with the latter, which factor does not appear to the
petitioner, called to succession by law due to his blood relationship with the deceased decedent but
not to succeed the deceased father whom the former represented)

In sum, the petitioner poses two (2) questions for Our resolution petition. First — is a widow
(surviving spouse) an intestate heir of her mother-in-law? Second — are the Orders of the trial court
which excluded the widow from getting a share of the estate in question final as against the said
widow?

Our answer to the first question is in the negative.

Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own
right, and those who inherit by the right of representation. 1 Restated, an intestate heir can only
inherit either by his own right, as in the order of intestate succession provided for in the Civil
Code, 2 or by the right of representation provided for in Article 981 of the same law. The relevant
provisions of the Civil Code are:

Art. 980. The children of the deceased shall always inherit from him in their own right,
dividing the inheritance in equal shares.

Art. 981. Should children of the deceased and descendants of other children who are
dead, survive, the former shall inherit in their own right, and the latter by right of
representation.
 Art. 982. The grandchildren and other descendants shag inherit by right of
representation, and if any one of them should have died, leaving several heirs, the
portion pertaining to him shall be divided among the latter in equal portions.

Art. 999. When the widow or widower survives with legitimate children or their
descendants and illegitimate children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the same share as that of a
legitimate child.

There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate
heir of her mother-in-law. The entire Code is devoid of any provision which entitles her to inherit from
her mother-in- law either by her own right or by the right of representation. The provisions of the
Code which relate to the order of intestate succession (Articles 978 to 1014) enumerate with
meticulous exactitude the intestate heirs of a decedent, with the State as the final intestate heir. The
conspicuous absence of a provision which makes a daughter-in-law an intestate heir of the
deceased all the more confirms Our observation. If the legislature intended to make the surviving
spouse an intestate heir of the parent-in-law, it would have so provided in the Code.

Petitioner argues that she is a compulsory heir in accordance with the provisions of Article 887 of the
Civil Code which provides that:

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in article 287;

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1
and 2; neither do they exclude one another.

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

The father or mother of illegitimate children of the three classes mentioned, shall
inherit from them in the manner and to the extent established by this Code.

The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the
surviving spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-
in-law.

Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in-law.
We had occasion to make this observation in Lachenal v. Salas, 4 to Wit:
 We hold that the title to the fishing boat should be determined in Civil Case No. 3597
(not in the intestate proceeding) because it affects the lessee thereof, Lope L.
Leoncio, the decedent's son-in-law, who, although married to his daughter or
compulsory heir, is nevertheless a third person with respect to his estate. ...
(Emphasis supplied).

By the same token, the provision of Article 999 of the Civil Code aforecited does not support
petitioner's claim. A careful examination of the said Article confirms that the estate contemplated
therein is the estate of the deceased spouse. The estate which is the subject matter of the intestate
estate proceedings in this case is that of the deceased Petra V. Rosales, the mother-in-law of the
petitioner. It is from the estate of Petra V. Rosales that Macikequerox Rosales draws a share of the
inheritance by the right of representation as provided by Article 981 of the Code.

The essence and nature of the right of representation is explained by Articles 970 and 971 of the
Civil Code, viz —

Art. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented, and
acquires the rights which the latter would have if he were living or if he could have
inherited.

Art. 971. The representative is called to the succession by the law and not by the
person represented. The representative does not succeed the person
represented but the one whom the person represented would have succeeded.
(Emphasis supplied.)

Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of
his blood relationship. He does not succeed his father, Carterio Rosales (the person represented)
who predeceased his grandmother, Petra Rosales, but the latter whom his father would have
succeeded. Petitioner cannot assert the same right of representation as she has no filiation by blood
with her mother-in-law.

Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an
inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may,
said right of her husband was extinguished by his death that is why it is their son Macikequerox
Rosales who succeeded from Petra Rosales by right of representation. He did not succeed from his
deceased father, Carterio Rosales.

On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon
the second question posed by the petitioner.

Article 903. The legitime of the parents who have an illegitimate child, when such child leaves
neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the
hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the
parents are not entitled to any legitime whatsoever. If only the widow or widower survives with
parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of
the child, and that of the surviving spouse also one-fourth of the estate. (n)

Article 960. Legal or intestate succession takes place:

(1) If a person dies without a will, or with a void will, or one which has subsequently lost its
validity;
 (2) When the will does not institute an heir to, or dispose of all the property belonging to the
testator. In such case, legal succession shall take place only with respect to the property of
which the testator has not disposed;

(3) If the suspensive condition attached to the institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no
substitution, and no right of accretion takes place;

(4) When the heir instituted is incapable of succeeding, except in cases provided in this
Code. (912a)

Article 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the
rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving
spouse, and in the State. (913a)

Article 962. In every inheritance, the relative nearest in degree excludes the more distant ones,
saving the right of representation when it properly takes place.

Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006
with respect to relatives of the full and half blood, and of article 987, paragraph 2, concerning
division between the paternal and maternal lines. (912a)

SUBSECTION 2. Right of Representation

Article 970. Representation is a right created by fiction of law, by virtue of which the representative
is raised to the place and the degree of the person represented, and acquires the rights which the
latter would have if he were living or if he could have inherited. (942a)

Article 971. The representative is called to the succession by the law and not by the person
represented. The representative does not succeed the person represented but the one whom the
person represented would have succeeded. (n)

Article 972. The right of representation takes place in the direct descending line, but never in the
ascending.

In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be
of the full or half blood. (925)

Article 973. In order that representation may take place, it is necessary that the representative
himself be capable of succeeding the decedent. (n)

Article 974. Whenever there is succession by representation, the division of the estate shall be
made per stirpes, in such manner that the representative or representatives shall not inherit more
than what the person they represent would inherit, if he were living or could inherit. (926a)

Article 975. When children of one or more brothers or sisters of the deceased survive, they shall
inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone
survive, they shall inherit in equal portions. (927)

Article 976. A person may represent him whose inheritance he has renounced. (928a)
Article 977. Heirs who repudiate their share may not be represented. (929a)

Article 982. The grandchildren and other descendants shall inherit by right of representation, and if
any one of them should have died, leaving several heirs, the portion pertaining to him shall be
divided among the latter in equal portions. (933)

Article 983. If illegitimate children survive with legitimate children, the shares of the former shall be
in the proportions prescribed by article 895. (n)

Article 984. In case of the death of an adopted child, leaving no children or descendants, his
parents and relatives by consanguinity and not by adoption, shall be his legal heirs. (n)

SUBSECTION 2. Ascending Direct Line

Article 985. In default of legitimate children and descendants of the deceased, his parents and
ascendants shall inherit from him, to the exclusion of collateral relatives. (935a)

Article 986. The father and mother, if living, shall inherit in equal shares.

Should one only of them survive, he or she shall succeed to the entire estate of the child. (936)

Article 987. In default of the father and mother, the ascendants nearest in degree shall inherit.

Should there be more than one of equal degree belonging to the same line they shall divide the
inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the
paternal and the other half to the maternal ascendants. In each line the division shall be made per
capita. (937)

SUBSECTION 3. Illegitimate Children

Article 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall
succeed to the entire estate of the deceased. (939a)

Article 989. If, together with illegitimate children, there should survive descendants of another
illegitimate child who is dead, the former shall succeed in their own right and the latter by right of
representation. (940a)

Article 990. The hereditary rights granted by the two preceding articles to illegitimate children shall
be transmitted upon their death to their descendants, who shall inherit by right of representation from
their deceased grandparent. (941a)

Article 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with
them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate
children. (942, 841a)

Article 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and
relatives of his father or mother; nor shall such children or relatives inherit in the same manner from
the illegitimate child. (943a)
Article 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father
or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both
parents, who are both living, they shall inherit from him share and share alike. (944a)

Article 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her
surviving spouse who shall be entitled to the entire estate.

If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he
shall inherit one-half of the estate, and the latter the other half. (945a)

SUBSECTION 4. Surviving Spouse

Article 995. In the absence of legitimate descendants and ascendants, and illegitimate children and
their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire
estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be
any, under article 1001. (946a)

Article 996. If a widow or widower and legitimate children or descendants are left, the surviving
spouse has in the succession the same share as that of each of the children. (834a)

Article 997. When the widow or widower survives with legitimate parents or ascendants, the
surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants
to the other half. (836a)

Article 998. If a widow or widower survives with illegitimate children, such widow or widower shall be
entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether
legitimate or illegitimate, to the other half. (n)

Article 999. When the widow or widower survives with legitimate children or their descendants and
illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower
shall be entitled to the same share as that of a legitimate child. (n)

Article 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the
ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided
between the surviving spouse and the illegitimate children so that such widow or widower shall have
one-fourth of the estate, and the illegitimate children the other fourth. (841a)

Article 1001. Should brothers and sisters or their children survive with the widow or widower, the
latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to
the other half. (953, 837a)

Article 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he
or she shall not have any of the rights granted in the preceding articles. (n)

SUBSECTION 5. Collateral Relatives

Article 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse,
the collateral relatives shall succeed to the entire estate of the deceased in accordance with the
following articles. (946a)
Article 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in
equal shares. (947)

Article 1005. Should brothers and sisters survive together with nephews and nieces, who are the
children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita,
and the latter per stirpes. (948)

Article 1006. Should brother and sisters of the full blood survive together with brothers and sisters of
the half blood, the former shall be entitled to a share double that of the latter. (949)

Article 1007. In case brothers and sisters of the half blood, some on the father's and some on the
mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the
origin of the property. (950)

Article 1008. Children of brothers and sisters of the half blood shall succeed per capita or per
stirpes, in accordance with the rules laid down for brothers and sisters of the full blood. (915)

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

The latter shall succeed without distinction of lines or preference among them by reason of
relationship by the whole blood. (954a)

Article 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship
in the collateral line. (955a)

SUBSECTION 6. The State

Article 1011. In default of persons entitled to succeed in accordance with the provisions of the
preceding Sections, the State shall inherit the whole estate. (956a)

Article 1012. In order that the State may take possession of the property mentioned in the preceding
article, the pertinent provisions of the Rules of Court must be observed. (958a)

Article 1013. After the payment of debts and charges, the personal property shall be assigned to the
municipality or city where the deceased last resided in the Philippines, and the real estate to the
municipalities or cities, respectively, in which the same is situated.

If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective
municipalities or cities where the same is located.

Such estate shall be for the benefit of public schools, and public charitable institutions and centers,
in such municipalities or cities. The court shall distribute the estate as the respective needs of each
beneficiary may warrant.

The court, at the instance of an interested party, or on its own motion, may order the establishment
of a permanent trust, so that only the income from the property shall be used. (956a)

Article 1014. If a person legally entitled to the estate of the deceased appears and files a claim
thereto with the court within five years from the date the property was delivered to the State, such
person shall be entitled to the possession of the same, or if sold, the municipality or city shall be
accountable to him for such part of the proceeds as may not have been lawfully spent. (n)

G.R. No. L-29192 February 22, 1971

GERTRUDES DE LOS SANTOS, plaintiff-appellee,
vs.
MAXIMO DE LA CRUZ, defendant-appellant

(The present action for specific performance of the obligation to fulfill the undertaking to develop the
property extrajudicially partitioned after giving 3 lots corresponding share for the undertaking given to
Maximo, who still refused to observe the obligation even after the same was soled, from several co-
heirs as hereditary share

The seven (7) errors assigned by defendant-appellant in his brief boil down to the following:
1. The court a quo erred in not holding that the extrajudicial partition agreement is
null and void with respect to plaintiff-appellee, and, consequently, that plaintiff-
appellee has no cause of action against defendant-appellant.
2. The court a quo erred in holding that defendant-appellant is estopped from
questioning plaintiff-appellee's right to have the agreement enforced.
3. The court a quo erred in ordering defendant-appellant to pay actual damages to
plaintiff-appellee, and, on the other hand, in not granting the relief prayed for by
defendant-appellant in his counterclaim.
We shall discuss seriatim these errors as thus condensed.

1. In the stipulation of facts submitted to the court below, the parties admit that the owner of the
estate, subject matter of the extrajudicial partition agreement, was Pelagia de la Cruz, who died
intestate on October 16, 1962; that defendant-appellant is a nephew of the said decedent; that
plaintiff-appellee is a grandniece of Pelagia de la Cruz, her mother, Marciana de la Cruz, being a
niece of the said Pelagia de la Cruz; that plaintiff-appellee's mother died on September 22, 1935,
thus predeceasing Pelagia de la Cruz; and that the purpose of the extrajudicial partition agreement
was to divide and distribute the estate among the heirs of Pelagia de la Cruz.
The pivotal question is whether, in the premises, plaintiff-appellee is a heir of the decedent. We are
convinced that she is not. Plaintiff-appellee being a mere grandniece of Pelagia de la Cruz, she
could not inherit from the latter by right of representation.
ART. 972. The right of representation takes place in the direct descending line, but
never in the ascending.

In the collateral line, it takes place only in favor of the children of brothers or sisters,
whether they be of the full or half blood.

Much less could plaintiff-appellee inherit in her own right.

ART. 962. In every inheritance, the relative nearest in degree excludes the more
distant ones, saving the right of representation when it properly takes place. ... .

Applying these two (2) provisions, this Court, in Linart y Pavia vs. Ugarte y Iturralde, 5 Phil., 176
(1905), said,
 ... [I]n an intestate succession a grandniece of the deceased and not participate with
a niece in the inheritance, because the latter being a nearer relative, the more distant
grandniece is excluded. In the collateral line the right of representation does not
obtain beyond sons and daughters of the brothers and sisters, which would have
been the case if Pablo Linart, the father of the plaintiff, had survived his deceased
uncle.
In the present case, the relatives "nearest in degree" to Pelagia de la Cruz are her nephews and
nieces, one of whom is defendant-appellant. Necessarily, plaintiff-appellee, a grandniece is excluded
by law from the inheritance.

But what is the legal effect of plaintiff-appellee's inclusion and participation in the extrajudicial
partition agreement insofar as her right to bring the present action is concerned? They did not confer
upon her the right to institute this action. The express purpose of the extrajudicial partition
agreement, as admitted by the parties in the stipulation of facts, was to divide the estate among the
heirs of Pelagia de la Cruz. Indeed, the said agreement itself states that plaintiff-appellee was
participating therein in representation of her deceased mother. The pertinent portion of the
agreement is herein quoted, thus:
NOW, THEREFORE, we ... and Diego de los Santos, married to Anastasia de la
Cruz; Mariano delos Santos married to Andrea Ramoy; Gertrudes delos Santos,
married to Pascual Acuna; Alejo delos Santos, married to Leonila David; and Sotera
delos Santos, married to Narciso Ramota; all in representation of our mother,
MARCIANA DELA CRUZ, ..., do hereby by these presents, mutually, voluntarily and
amicably agree among ourselves to equitably divide the property left by the
deceased PELAGIA DELA CRUZ, and adjudicate unto ourselves definite and
independent portions of the estate in the following manner ... .

It is quite apparent that in executing the partition agreement, the parties thereto were laboring under
the erroneous belief that plaintiff-appellee was one of the legal heirs of Pelagia de la Cruz. Plaintiff-
appellee not being such a heir, the partition is void with respect to her, pursuant to Article 1105 of
the Civil Code, which reads:

ART. 1105. A partition which includes a person believed to be a heir, but who is not,
shall be void only with respect to such person.
Partition of property affected between a person entitled to inherit from the deceased owner thereof
and another person who thought he was an heir, when he was not really and lawfully such, to the
prejudice of the rights of the true heir designated by law to succeed the deceased, is null and void
(De Torres vs. De Torres, et al., 28 Phil. 49). A fortiori, plaintiff-appellee could hardly derive from the
agreement the right to have its terms

G.R. No. L-22469 October 23, 1978

TOMAS CORPUS, plaintiff-appellant, vs. ADMINISTRATOR and/or EXECUTOR of the Estate

of Teodoro R. Yangco, RAFAEL CORPUS, AMALIA CORPUS, JOSE A. V. CORPUS, RAMON
L. CORPUS, ENRIQUE J. CORPUS, S. W. STAGG, SOLEDAD ASPRER and CIPRIANO
NAVARRO, defendants-appellees.

(The testator had no forced heirs but nearest relative consisting of half-brother, half-sister and
their cheildren including Juanita child of half-brother Jose Corpus probated the former's will
pursuant thereto, project of partition was approved
RESTITUTA LEONARDO, assisted by JOSE T. RAMOS, petitioners, vs. COURT OF
APPEALS, and TEODORO SEBASTIAN, VICENTE SEBASTIAN, CORAZON SEBASTIAN,
assisted by ANDRES MARCELO; PEDAD SEBASTIAN, HEIRS OF EDUVIGIS SEBASTIAN,
namely: EDUARDO S. TENORLAS, ABELARDO J. TENORLAS, ADELA S. and SOLEDAD S.
TENORLAS, represented by EDUARDO S. TENORLAS, and HEIRS OF DOMINADOR,
namely: NAPOLEON SEBASTIAN, RUPERTO SEBASTIAN, ADORACION SEBASTIAN,
PRISCILLA SEBASTIAN, LITA SEBASTIAN, TITA SEBASTIAN and GLORIA SEBASTIAN,
represented by NAPOLEON SEBASTIAN; EVELYN SEBASTIAN; AURORA SEBASTIAN; and
JULIETA SEBASTIAN, respondents

(The extrajudicial settlement of the estate of Tomasino Paul and Jose Sebastian made by
respondents children of respondent-wife of decedent was signedby petitioner the only legitimate
child of the decedent after the former persuaded the latter upon the signing the latter waited for
the husband so he can read the document and translate the same which was written in english
while at it the private respondents left without leaving a copy it is only after the petitioner hired a
lawyer that they obtained a copy thereof. The extrajudicial settlement was annulled due to
mistake materially indicating diminution of substantial shares in the estate from 19.2 square
meters to 7.6 square meters to the prejudice of the petitioner)

G.R. No. L-19281 June 30, 1965 IN THE MATTER OF THE INTESTATE ESTATE OF PEDRO
SANTILLON, CLARO SANTILLON, petitioner-appellant, vs. PERFECTA MIRANDA, BENITO U.
MIRANDA and ROSARIO CORRALES, oppositors- appellees.

(Santillon died intestate left one son Claro and his wife Perfecta, Claro filed administration for
the properties upon his death acquired by the former respondents as oppositors on grounds of
conjugal status of properties, most share in heridetary estate, pending partition case and
Perfecta as qualified adminstratrix subsequently, Perfect appeared to be the appointed estate's
administratix. The court then appointed commissioners to drafe the partition Claro then file a
motion to declares share of heirs to clear their respective shares 1/2 for Perfect as she claimed
opposing the 3/4 share due her claimed by Claro the trial court rendered in Perfecta's favor
effecting appeal in the present case.)

G.R. No. L-37365 November 29, 1977 GAUDENCIO BICOMONG, et al., plaintiffs-appellees, vs.
GERONIMO ALMANZA, et al., defendant. FLORENTINO CARTENA, defendant- appellant.

(The children of Simeon Bagsic by first and second marriage had several nephews and nieces
particularly the former's daughter Maura who had been subsequently deceased with no heir or
surviving spouse and the latter's one- half undivided share from her deceased mother Silvestra
the second marriage in the 5 pacels of land is the subject of this complaint, Maura's nephews
and nieces from her sister Perpetua the Bicomongs, nephews and nieces by Igmedia the
Tolentinos, brother Francisco, niece by brother Ignacio asked for the recovery of their lawful
shares in the properties left by Maura and petitioners approcached the administrator of the
estate Cristela Almanza for the partition of their aunt's properties which initially agreed not to
divide the same as expenses in burial and illness treatment were not paid yet while debts had
already been paid and acceded to petitioner's desire Cristela died without dision of the
properties having been effect leaving the same its possession to defendants. It was ruled that
the properties were succeeded by the surviving collateral relatives to succeed the entire estate
of Maura as she died without any legitimate issue having her husband and descendant died
ahead of her it is but proper to adjudicate the distribution in favor of her niece the daughter of
her full blood sister and ten children of her brother and two half-blood sisters in accordance with
975 as the collateral relatives as instituted in law do not have any distinction as to whether the
same be in paternal or materline or relationship to the deceased whether full or half blood either
does not exclude one another)

G.R. No. L-19382 August 31, 1965 IN RE SUMMARY SETTLEMENT OF THE ESTATE OF
MELODIA FERRARIS. FILOMENA ABELLANA DE BACAYO, petitioner-appellant, vs.
GAUDENCIA FERRARIS DE BORROMEO, CATALINA FERARIS DE VILLEGAS, JUANITO
FERRARIS and CONCHITA FERRARIS, oppositors-appellees.

(Melodia Ferraris previously a resident of Cebu subsequently then transferred to Intramuros

where she had been declared presumptively dead after lapse of ten years having been
unheeded of her situation and whereabouts for purposes of opening her succession and
distributing her estate among the heirs. Properties subject of the instituted special proceeding
are her left properties in Cebu 1/3 share in the estate of her aunt she had no surviving direct
descendant, ascendant or spouse but survived only by collateral relatives of aunt, half-blood
sister, predeceased only full blood brother, nieces and nephews with the brother. The collateral
relatives are deemed to be the nephews and nieces of the decedent with her full blood brother
who predeceased her excluding the other collateral relatives uncles and aunts applying the
rules on proximity that nearest relatives in deegree exclude the more distant ones. The
nephews and nieces being the closest ones with the decedent exclude the uncles nad aunts
being the distant ones as they inherit ab intestato. Thus, the children of Mario the predeceased
full borther whether full blood or not shall suceed the estate of Melodia Ferraris in the absence
of brothers or sisters nor surviving spouse)

G.R. No. 208928 July 8, 2015 ANDY ANG, Petitioner, vs. SEVERINO PACUNIO, TERESITA P.
TORRALBA, SUSANA LOBERANES, CHRISTOPHER N. PACUNIO, and PEDRITO P.
AZARCON, represented by their attorney-in-fact, GALILEO P. TORRALBA, Respondents.
(The parties in the selling real property sold to respondents by one dupely representing the true
owner Udiaan as such to effect its sale by virtue of the questioned deed of sale subject to
inheritance by the true owner reserved the same in favor of the grandchildren and the same was
disbruted among different parties one of them petitioner who used the real property for livestock
business were declared as not real party-in-interest because the parties herein are not
representative by way of right representation for purposes of succession this right is not
indicated in the record corollary such right is the requisites that respondents' mother: a)
predeceased Undiaan; b) is incapacitated to inherit; or c) was disinherited, if Udiaan died
intestate)

HEIRS OF IGNACIO CONTI and ROSARIO CUARIO, petitioners, vs. COURT OF APPEALS
and LYDIA S. REYES as Attorney-in-Fact of JOSEFINA S. REYES, BERNARDITA S. PALILIO,
HERMINIA S. PALILIO, REMEDIOS A. SAMPAYO, ILUMINADA A. SAMPAYO, ENRICO A.
SAMPAYO, CARLOS A. SAMPAYO, GENEROSO C. SAMPAYO, MYRNA C. SAMPAYO,
ROSALINO C. SAMPAYO, MANUEL C. SAMPAYO, DELIA A. SAMPAYO, CORAZON C.
SAMPAYO, NILO C. SAMPAYO, and LOLITA A. SAMPAYO in her own behalf and as Attorney-
in-Fact of NORMA A. SAMPAYO, respondents. (The decedent Lourdes Sampayo, represented
by collateral relatives [sister, nephew and niece] and her Attorney-in-Fact claimed to be
collateral heirs of the decedent to ascend to the successional rights for the partition of the
disputed properties on the strength of birth certificate, baptismal, and other proofs of filiation
which were co-owned with Ignacio Conti held in trust . Upon institution of the claim, Conti
assailed the same by failing to prove their standing as rightful heirs by virtue of documentary
evidence. It was ruled that the settlement of the estate is not essential before the heirs can
commence any action originally pertaining to the deceased as private respondents proved by
preponderance of evidence their co-owners status by way of succession as collateral heirs by
virtue of the adduced documentary evidence of filiation)

CHAPTER 4
Provisions Common to Testate and Intestate Successions

SECTION 1
Right of Accretion

Article 1015. Accretion is a right by virtue of which, when two or more persons are called to the
same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive
his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-
devisees, or co-legatees. (n)

Article 1016. In order that the right of accretion may take place in a testamentary succession, it shall
be necessary:

(1) That two or more persons be called to the same inheritance, or to the same portion
thereof, pro indiviso; and
 (2) That one of the persons thus called die before the testator, or renounce the inheritance,
or be incapacitated to receive it. (928a)

Article 1017. The words "one-half for each" or "in equal shares" or any others which, though
designating an aliquot part, do not identify it by such description as shall make each heir the
exclusive owner of determinate property, shall not exclude the right of accretion.

In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right
of accretion. (983a)

Article 1018. In legal succession the share of the person who repudiates the inheritance shall
always accrue to his co-heirs. (981)

Article 1019. The heirs to whom the portion goes by the right of accretion take it in the same
proportion that they inherit. (n)

Article 1020. The heirs to whom the inheritance accrues shall succeed to all the rights and
obligations which the heir who renounced or could not receive it would have had. (984)

Article 1021. Among the compulsory heirs the right of accretion shall take place only when the free
portion is left to two or more of them, or to any one of them and to a stranger.

Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right,
and not by the right of accretion. (985)

Article 1022. In testamentary succession, when the right of accretion does not take place, the
vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal
heirs of the testator, who shall receive it with the same charges and obligations. (986)

Article 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the
same conditions established for heirs. (987a

SECTION 6
Partition and Distribution of the Estate

SUBSECTION 1. Partition

Article 1078. Where there are two or more heirs, the whole estate of the decedent is, before its
partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n)

Article 1079. Partition, in general, is the separation, division and assignment of a thing held in
common among those to whom it may belong. The thing itself may be divided, or its value. (n)

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

A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering
that the legitime of the other children to whom the property is not assigned, be paid in cash. (1056a)
Article 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make
the partition after his death to any person who is not one of the co-heirs.

The provisions of this and of the preceding article shall be observed even should there be among the
co-heirs a minor or a person subject to guardianship; but the mandatary, in such case, shall make an
inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or
devisees. (1057a)

Article 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or
devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a
compromise, or any other transaction. (n)

Article 1083. Every co-heir has a right to demand the division of the estate unless the testator
should have expressly forbidden its partition, in which case the period of indivision shall not exceed
twenty years as provided in article 494. This power of the testator to prohibit division applies to the
legitime.

Even though forbidden by the testator, the co-ownership terminates when any of the causes for
which partnership is dissolved takes place, or when the court finds for compelling reasons that
division should be ordered, upon petition of one of the co-heirs. (1051a)

Article 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a
partition until the condition has been fulfilled; but the other co-heirs may demand it by giving
sufficient security for the rights which the former may have in case the condition should be complied
with, and until it is known that the condition has not been fulfilled or can never be complied with, the
partition shall be understood to be provisional. (1054a)

Article 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the
property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind.
(1061)

Article 1086. Should a thing be indivisible, or would be much impaired by its being divided, it may be
adjudicated to one of the heirs, provided he shall pay the others the excess in cash.

Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that
strangers be allowed to bid, this must be done. (1062)

Article 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which
each one of them may have received from any property of the estate, for any useful and necessary
expenses made upon such property, and for any damage thereto through malice or neglect. (1063)

Article 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any
or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the
price of the sale, provided they do so within the period of one month from the time they were notified
in writing of the sale by the vendor. (1067a)

Article 1089. The titles of acquisition or ownership of each property shall be delivered to the co-heir
to whom said property has been adjudicated. (1065a)

Article 1090. When the title comprises two or more pieces of land which have been assigned to two
or more co-heirs, or when it covers one piece of land which has been divided between two or more
co-heirs, the title shall be delivered to the one having the largest interest, and authentic copies of the
title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-
heir should be the same, the oldest shall have the title. (1066a)

SUBSECTION 2. Effects of Partition

Article 1091. A partition legally made confers upon each heir the exclusive ownership of the
property adjudicated to him. (1068)

Article 1092. After the partition has been made, the co-heirs shall be reciprocally bound to warrant
the title to, and the quality of, each property adjudicated. (1069a)

Article 1093. The reciprocal obligation of warranty referred to in the preceding article shall be
proportionate to the respective hereditary shares of the co-heirs, but if any one of them should be
insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part
corresponding to the one who should be indemnified.

Those who pay for the insolvent heir shall have a right of action against him for reimbursement,
should his financial condition improve. (1071)

Article 1094. An action to enforce the warranty among heirs must be brought within ten years from
the date the right of action accrues. (n)

Article 1095. If a credit should be assigned as collectible, the co-heirs shall not be liable for the
subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition
is made.

The warranty of the solvency of the debtor can only be enforced during the five years following the
partition.

Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts
are not assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall
be distributed proportionately among the heirs. (1072a)

Article 1096. The obligation of warranty among co-heirs shall cease in the following cases:

(1) When the testator himself has made the partition, unless it appears, or it may be
reasonably presumed, that his intention was otherwise, but the legitime shall always remain
unimpaired;

(2) When it has been so expressly stipulated in the agreement of partition, unless there has
been bad faith;

(3) When the eviction is due to a cause subsequent to the partition, or has been caused by
the fault of the distributee of the property. (1070a)

SUBSECTION 3. Rescission and Nullity of Partition

Article 1097. A partition may be rescinded or annulled for the same causes as contracts. (1073a)
Article 1098. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when
any one of the co-heirs received things whose value is less, by at least one-fourth, than the share to
which he is entitled, considering the value of the things at the time they were adjudicated. (1074a)

Article 1099. The partition made by the testator cannot be impugned on the ground of lesion, except
when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may
reasonably be presumed, that the intention of the testator was otherwise. (1075)

Article 1100. The action for rescission on account of lesion shall prescribe after four years from the
time the partition was made. (1076)

Article 1101. The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or
consenting to a new partition.

Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and
quality as that awarded to the plaintiff.

If a new partition is made, it shall affect neither those who have not been prejudiced nor those have
not received more than their just share. (1077a)

Article 1102. An heir who has alienated the whole or a considerable part of the real property
adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have
a right to be indemnified in cash. (1078a)

Article 1103. The omission of one or more objects or securities of the inheritance shall not cause
the rescission of the partition on the ground of lesion, but the partition shall be completed by the
distribution of the objects or securities which have been omitted. (1079a)

Article 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded,
unless it be proved that there was bad faith or fraud on the part of the other persons interested; but
the latter shall be proportionately obliged to pay to the person omitted the share which belongs to
him. (1080)

Article 1105. A partition which includes a person believed to be an heir, but who is not, shall be void
only with respect to such person. (1081a)

SECTION 4
Executors and Administrators

Article 1058. All matters relating to the appointment, powers and duties of executors and
administrators and concerning the administration of estates of deceased persons shall be governed
by the Rules of Court. (n)

Article 1059. If the assets of the estate of a decedent which can be applied to the payment of debts
are not sufficient for that purpose, the provisions of articles 2239 to 2251 on Preference of Credits
shall be observed, provided that the expenses referred to in article 2244, No. 8, shall be those
involved in the administration of the decedent's estate. (n)

Article 1060. A corporation or association authorized to conduct the business of a trust company in
the Philippines may be appointed as an executor, administrator, guardian of an estate, or trustee, in
like manner as an individual; but it shall not be appointed guardian of the person of a ward. (n)
 RULE 86

Claims Against Estate

Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions. — All claims
for money against the decent, arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses and expense for the last sickness of the
decedent, and judgment for money against the decent, must be filed within the time limited in the
notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any
action that the executor or administrator may bring against the claimants. Where an executor or
administrator commences an action, or prosecutes an action already commenced by the deceased
in his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of
presenting them independently to the court as herein provided, and mutual claims may be set off
against each other in such action; and if final judgment is rendered in favor of the defendant, the
amount so determined shall be considered the true balance against the estate, as though the claim
had been presented directly before the court in the administration proceedings. Claims not yet due,
or contingent, may be approved at their present value.

RULE 87

Actions By and Against Executors and Administrators

Section 1. Actions which may and which may not be brought against executor or administrator. —
No action upon a claim for the recovery of money or debt or interest thereon shall be commenced
against the executor or administrator; but to recover real or personal property, or an interest therein,
from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person
or property, real or personal, may be commenced against him.

G.R. No. L-36083 September 5, 1975

Spouses RAMON DOROMAL, SR., and ROSARIO SALAS, and Spouses RAMON DOROMAL,
JR., and GAUDELIA VEGA, petitioners,
vs.
HON. COURT OF APPEALS and FILOMENA JAVELLANA, respondents.

G.R. No. L-68282 November 8, 1990

RAQUEL CHAVEZ, GERARDO GIMENEZ and MANUELA BUENAVISTA VDA. DE CHAVEZ,

petitioners, vs. HON. INTERMEDIATE APPELLATE COURT (4th Civil Cases Division),
ANTONIO CHAVEZ, ROSARIO CHAVEZ and CONCEPCION CHAVEZ, respondents.

(The 1/6 undivided share of the paraphernal property of Manuela Buenavista was sold by
Presentacion with consent of the latter mother to her sister Concepcion the same goes with
Floserpina and Raquel totalling to 4/6 share were tansferred to Concepcion co-owned with
Antonio and Rosario. The properties were then later sold by Manuela's children with her consent
to Raquel and her husband. The Antonio, Rosario and Concepcion then filed filed a suit against
their mother Manuela and Raquel which prompted Manuela to sell the entire property to Pepito
Ferrer with right to repurchase. The trial court dismiss the case upon appeal, the CA reversed
declaring the sale void ab initio. The SC ruled that the property signed by the owner herself
given her consent thereto is a partition inter vivos valid as such by virtue of estoppel which
prohibits the Manuela to deny the partition and later revoke the sale contract which she herself
signed and authorized and disavow the partition made with her consent. The law on succession
1080 allows to kinds of partion namely partition inter vivos or by will; Partition inter vivos made
by a parent is allow while generally partion upon future inheritance is precluded, which may be
oral or written, need not be in a form of will provided the same does not impair the legitime of
compulsory heirs)

EMILIANA BAUTISTA, as Heir of the late MANUEL BAUTISTA and EVANGELINE BAUTISTA,
petitioners, vs. HON. JUSTICES CAROLINA C. GRINO-AQUINO, MANUEL T. REYES, AND
JAIME M. LANTIN in their capacity as Justices of the Special First Division of the Court of
Appeals, HON. PEDRO JL. BAUTISTA, in his capacity as Presiding Judge of the Court of First
Instance of Rizal, Branch III, Pasay City, MANOLITO BAUTISTA, BENJAMIN DE GUZMAN,
BETTY N. BAUTISTA alias BEATRIZ BAUTISTA, NELIA N. BAUTISTA, GLORIA N.
BAUTISTA, CLARITA N. BAUTISTA and ROSALINA BAUTISTA, respondents.

(The disputed properties were registered in the name of Manuel Bautista inherited from his
father Mariano subject of extrajudicial partition sign by petitioners and privated respondents
allegedly denied having signed by Manuel and participation therein. A deed of absolute sale
was then contracted by private respondents except Manolito in favor of Manolito Bautista who
likewise sold the same to other respondents and Manuel married second wife Emiliana Tamayo
whom Manuel had only child Evangeline. The property transferred from different persons by
virtue of sales is the subject of extrajudicial partition among the heirs of Juliana first wife of
Manuel, the signatures of Manuel were then examined by NBI to be authentic. The case was
dismissed by the trial court and affirmed by CA. The property was adjudged to be an exclusive
property of Manuel and cannot be subject of extrajudicial partion of Juliana's estate as the same
property does not belong to the latter's estate to allow such would be a violation of due process
of law reposed upon Manuel over his properties only those belong to her estate can lawfully be
subject to such therefore, such deed over such is void ab initio. Further, it resulted also in
preterition of Evangeline's right as compulsory heir attended with bad faith as private
respondents knew the former half-sister and denial of the signature is plausible as it would
affect Evangeline and ultimately the same cannot be allowed partitioning a future inheritance
because it is prohibited by law. Thus, the deed of extrajudicial partion and all subsequent
transactions therein are null and void)

G.R. No. 72873 May 28, 1987

CARLOS ALONZO and CASIMIRA ALONZO, petitioners, vs. INTERMEDIATE APPELLATE

COURT and TECLA PADUA, respondents.

(Five brothers and sister equally inherited pro indiviso shares of parcel of land from their
parents. Celestino transferred his undivided share to petitioners by way of absolute sale the
same goes with Eustaquia. Logically, the petitioners who acquire the shares occupied two-fifths
of the property corresponding the portions sold and enclosed the same with concrete material
and built house thereon at the expense of Eduardo Alonzo and his wife with their consent.
Mariano initially sought to redeem the portion sold to the spouses Alonzo which cause was
denied due to his American citizenship and the other sister Tecla followed suit on the same right
and ground. The trial court dismissed the case upon appeal, affirmed the same. The notice was
palpably given to the redemptioner-respondents although not in writing but constructively given
is sufficient enough to comply the mandate of Art. 1088 being the soul law with the application
of justice.)