Succession Outline Notes Cases2

Wills & Succession/ Atty Uribe
SUCCESSION
Legend:
T Senator Tolentino comments
B Professor Balane comments
I. GENERAL PROVISIONS
Devisees and legatees are persons to whom gifts of real and

personal property are respectively given by virtue of a will.
Art. 887. The following are compulsory heirs:
A. Definition and Concepts
(1) Legitimate children and descendants, with respect to their

legitimate parents and ascendants;
Art. 774. Succession is a mode of acquisition by virtue of which the

property, rights and obligations to the extent of the value of the
inheritance, of a person are transmitted through his death to another
or others either by his will or by operation of law. (n)
(2) In default of the foregoing, legitimate parents and ascendants,

with respect to their legitimate children and descendants;
Art. 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 estate and intestate succession,
and in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription.
Art. 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.
Fundamental Changes in the NCC in line with the purpose of
Socialization
1. The surviving spouse is given a better status in terms of
succession to the property of the decease husband, her right to the
property was improved from a mere usufruct to full ownership.
2. The illegitimate children are now given successional rights unlike
the old civil code which does not. Further, the illegitimate childs
mother or father not related by blood has a chance of inheriting, thus,
furthering the purpose of socialization preventing a the property from
staying within the same family.
3. The Legitime of the compulsory heirs is increased from 1/3 to
(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)
The Collateral Relatives
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. (946a)
Art. 1004. Should the only survivors be brothers and sisters of the full
blood, they shall inherit in equal shares. (947)
Art. 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. In relation to Article 975 which states Art. 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.
Division per capita entails a division of the estate

into as many equal parts as there are persons to
succeed. If there are three children, for instance,
each will receive, per capita, one third of the
estate. Division per capita is the general rule.
Division per stirpes is made when a sole

descendant or a group of descendants represent
a person in intestate succession. The sole
representative or group of representatives are
counted as one head. Thus, should a father be
survived by a son and four children of another
son who predeceased him, then, the estate is
divided per stirpes. The first half is given to the
surviving son and the other half shall be divided
among the four grandchildren.
4. The free portion of the estate of the deceased is likewise

increased.
B. Subjects of Succession
1. Who are the subjects?
The Decedent
Art. 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.
The Heir, devisee, Legatee
Art. 782. An heir is a person called to the succession either by the
provision of a will or by operation of law.
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Art. 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)

Art. 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)
Art. 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)
Art. 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 the brothers and sisters of the full blood. (915)
Art. 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.
Art. 1009. Should there be neither brothers nor sisters nor children of
brothers or sisters, the other collateral relatives shall succeed to the
estate.
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.
The latter shall succeed without distinction of lines or preference

among them by reason of relationship by the whole blood. (954a)
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.
Art. 1010. The right to inherit ab intestato shall not extend beyond the
fifth degree of relationship in the collateral line.(955a)
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)
when there are no brothers whether the full of half

blood, the other collateral relatives succeed which
whom, however, are limited within the 5 th degree of
relationship. Because beyond this degree, it is safe to
say that, there is hardly any affection to merit
succession. Hence, for succession purposes these
persons are no longer considered relatives.
The following rules shall apply: 1. the nearest relative
exclude the farther. 2. collateral of the same degree
inherit equal parts, there being no right of
representation, 3. They succeed without distinction or
lines or preference among them on account of the
whole blood relationship
Art. 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.
2. Relationships (Intestate or Legal Heirs)
Art. 963. Proximity of relationship is determined by the number of
generations. Each generation forms a degree.
Art. 964. A series of degrees forms a line, which may be either direct
or collateral.
The State
Art. 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)
When a person dies intestate, leaving no compulsory

heir, nor any other relatives to succeed him by law,
the natural result would be the complete
abandonment of the property.
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)
Art. 965. The direct line is either descending or ascending.
The estate becomes subject to appropriation by

anyone. This condition would result in conflicts
detrimental to the public and economic order.
The former unites the head of the family with those who descend
from him.
In view of this, the law awards the property to the

State, in representation of the people. Ratio: a)
Dictated by public policy and, b) private property is
enjoyed only under the protection of the State, and
when no longer used, it should revert back to the
State.
The latter binds a person with those from whom he descends. (917)
The reversion of the res nullius property can only be

done through an Escheat proceedings instituted by
the Solicitor General to the proper court ( the city or
municipality where the land is situated ). The State,
therefore does not ipso facto become the owner of
the estate left without heir. Its right to claim must be
based on a courts ruling allowing it to have the
estate, after compliance with the procedure laid down
by the Rules of Court. (Rule 91)
Art. 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)
Art. 967. Full blood relationship is that existing between persons who
have the same father and the same mother.
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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)
Art. 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)
In such cases as above, the shares would have

pertained to those who repudiated or are
incapacitated do not pass to relatives of the next
degree, but are retained by other relatives of the
same degree through the right of accretion, with the
exception of the cases where the right of
representation obtains. The right to represent a living
person obtains only in cases of disinheritance and
incapacity.
Art. 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.
* The article only pertains to repudiation. What then would
be the effect of incapacity of the only nearest relative? The right of
representation may or may not obtain. Should the incapacitated heir
be the child of the decease, and he in turn has children, the latter
may represent the incapacitated heir.
3. Capacity to Succeed
The general rule is any person may succeed by law or by
will unless excluded by law.
Requisites of capacity to succeed: a) that there be general
civil capacity of the person, whether natural or artificial, according to
law; and b) that here be no incapacity to succeed under express
provision of law.
a.
Determination
Art. 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.
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)
Cayetano vs. Leonides 129 SCRA 522
On January 31, 1977, Adoracion C. Campos died, leaving her father,
petitioner Hermogenes Campos and her sisters, private respondent
Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the only compulsory
heir, he executed an Affidavit of Adjudication under Rule 74, Section I
of the Rules of Court whereby he adjudicated unto himself the
ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a
petition for the reprobate of a will of the deceased, Adoracion
Campos, which was allegedly executed in the United States and for
her appointment as administratrix of the estate of the deceased
testatrix.
In her petition, Nenita alleged that the testatrix was an American
citizen at the time of her death and was a permanent resident of
4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the
testatrix died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate, Manila; that during
her lifetime, the testatrix made her last will and testament on July 10,
1975, according to the laws of Pennsylvania, U.S.A., nominating
Wilfredo Barzaga of New Jersey as executor; that after the testatrix'
death, her last will and testament was presented, probated, allowed,
and registered with the Registry of Wills at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator
who was appointed after Dr. Barzaga had declined and waived his
appointment as executor in favor of the former, is also a resident of
Philadelphia, U.S.A., and that therefore, there is an urgent need for
the appointment of an administratrix to administer and eventually
distribute the properties of the estate located in the Philippines.
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died
and left a will, which, incidentally has been questioned by the
respondent, his children and forced heirs as, on its face patently null
and void, and a fabrication, appointing Polly Cayetano as the
executrix of his last will and testament. Cayetano, therefore, filed a
motion to substitute herself as petitioner in the instant case which
was granted by the court on September 13, 1982.
ISSUE: Whether or not a compulsory heir may be validly excluded by
a will executed by a foreign testator?
HELD: YES
RATIO: 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:
If the institution, devise or legacy should be conditional, the time

of the compliance with the condition shall also be considered.
Art. 16 par. (2)."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
Art. 1039."Capacity to succeed is governed by the law of the nation

of the decedent."
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.
Art. 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
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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.
b.
Who may succeed?
Art. 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)
the second paragraph above merely enunciates a

general rule because Article 1027 and 1028 clearly
are exceptions which do not apply to intestate
succession but only that of testamentary dispositions.
Kinds of Incapacity: a) absolute or per se and b)

relative or per accidens
Art. 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)
* Those not existing at the time of death is incapacitated to
succeed except on conditional wills where succession only opens
upon the happening of the condition.
Art. 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)
Art. 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)
Art. 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.
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The preceding paragraph shall apply when the testator has

disposed of his property in favor of the poor of a definite locality.
Parish Priest of Victoria vs. Rigor
This case is about the efficaciousness or enforceability of a devise of
ricelands located at Guimba, Nueva Ecija, with a total area of around
forty-four hectares. That devise was made in the will of the late
Father Pascual Rigor, a native of Victoria, Tarlac, in favor of his
nearest male relative who would study for the priesthood.
The record discloses that Father Rigor, the parish priest of Pulilan,
Bulacan, died on August 9, 1935, leaving a will executed on October
29, 1933 which was probated by the Court of First Instance of Tarlac
in its order of December 5, 1935. Named as devisees in the will were
the testator's nearest relatives, namely, his three sisters: Florencia
Rigor-Escobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao.
The testator gave a devise to his cousin, Fortunato Gamalinda.
About thirteen years after the approval of the project of partition, or
on February 19, 1954, the parish priest of Victoria filed in the pending
testate proceeding a petition praying for the appointment of a new
administrator (succeeding the deceased administratrix, Florencia
Rigor), who should deliver to the church the said ricelands, and
further praying that the possessors thereof be ordered to render an
accounting of the fruits. The probate court granted the petition. A new
administrator was appointed. On January 31, 1957 the parish priest
filed another petition for the delivery of the ricelands to the church as
trustee.
The intestate heirs of Father Rigor countered with a petition dated
March 25, 1957 praying that the bequest be declared inoperative and
that they be adjudged as the persons entitled to the said ricelands
since, as admitted by the parish priest of Victoria, "no nearest male
relative of" the testator "has ever studied for the priesthood"
(pp. 25 and 35, Record on Appeal). That petition was opposed by the
parish priest of Victoria.
Judge De Aquino granted the second motion for reconsideration in
his order of December 10, 1957 on the ground that the testator had a
grandnephew named Edgardo G. Cunanan (the grandson of his first
cousin) who was a seminarian in the San Jose Seminary of the
Jesuit Fathers in Quezon City. The administrator was directed to
deliver the ricelands to the parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that
order. It held that Father Rigor had created a testamentary trust for
his nearest male relative who would take the holy orders but that
such trust could exist only for twenty years because to enforce it
beyond that period would violate "the rule against perpetuities". It
ruled that since no legatee claimed the ricelands within twenty years
after the testator's death, the same should pass to his legal heirs,
citing articles 888 and 912(2) of the old Civil Code and article 870 of
the new Civil Code.
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"
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 legal 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 sons of his nephew or niece) and so he had to use the term
"nearest male relative".
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).
Had the testator intended that the "cualquier pariente mio varon mas
cercano que estudie la carrera eclesiastica" 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.
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 "no
nearest 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
will, was likewise inoperative.
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 refundir 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
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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 covered by the said legacy (Macrohon
Ong Ham vs. Saavedra, 51 Phil. 267).
c.
Who are incapable of succeeding?
Art. 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; in relation to Art. 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)
(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)
Art. 1028. The prohibitions mentioned in article 739, concerning
donations inter vivos shall apply to testamentary provisions.
Art. 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)
Art. 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;
Art. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.
It is evident from this article that the inheritance does not include
everything that belongs to the deceased at the time of his death. It is
limited to the property, rights, and obligations not extinguish by his
death. Including those transmissible rights and property accruing
thereto from that time pertain to the heir.
The following are the rights and obligations extinguished by death:
those arising from marriage
2.
action for legal separation belonging to the innocent

spouse
3.
action to annul marriage
4.
obligation to give legal support except those expressly

provided for by law
Art. 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)
5.
right to receive support
6.
right of patria potestas
7.
right of the guardian
d.
8.
right of usufruct
Art. 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.
9.
right of donor to revoke donation due to ingratitude of

donee
e.
12. rights from public law such as suffrage and public

employment
(8) Any person who falsifies or forges a supposed will of the

decedent. (756, 673, 674a)
Effect of alienations by the excluded heir
Rights of the excluded Heir
Art. 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
Art. 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.
Art. 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.
Liabilities of the excluded heir
Art. 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.
g.
C. Object of Succession
1.
(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;
f.
Art. 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.
10. rights arising from agency not the effects already executed
11. criminal responsibility
The following rules are laid down

1.
rights which are purely personal are by their nature and

purpose intransmissible, ex. Those relating to civil
personality, family rights, and discharge of public office
2.
rights which are patrimonial or relating to property are, as

ageneral rule, not extinguished by death except those
expressly provided by law or by will of the testator such as
usufruct and personal servitudes.
3.
rights of obligation are by nature transmissible and may be

part of inheritance, both the right of the creditor and
obligation of the debtor except the following:
a.
those which are personal, such as personal

qualifications of the debtor have been taken into
account
b.
those that are intransmissible by express

agreement or will of testator
c.
those that are intransmissible by express

provision of law like life pensions given under
contract
The heirs of the deceased are no longer liable for the debts he may
leave at the time of his death. Such debts are chargeable against the
property or assets left by the deceased. In other words, the heirs are
no longer liable personally for the debts of the deceased ; such debts
must be collected only from the property left upon his death, and if
this should not be sufficient to cover all of them, the heirs cannot be
made to pay the uncollectible balance.
Prescription of Action
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Inheritance consists of the mass of property, rights, and obligations
adjudicated to the heirs or transmitted to them after deducting
therefrom all the debts left by the deceased.
No contract may be entered into upon future inheritance except

in cases expressly authorized by law.
This should not be understood to mean, however, that obligations

are no longer a part of inheritance. Only the money debts are
chargeable against the estate left by the deceased; these are
obligations which do not pass to the heirs, but constitute a charge
against the hereditary property.
All services which are not contrary to law, morals, good

customs, public order or public policy may likewise be the
object of a contract.
Art. 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.
Since ownership is vested in the heir from the moment of the death
of the predecessor, necessarily all accessions subsequent to that
moment must belong to such heir.
It is essential that the object must be in existence at the time of

perfection of the contract, or that it has the possibility or potentiality
of coming into existence at some future time. By way of exception,
the law generally does not allow contracts on future inheritance. In
order to be future inheritance, the succession must not have been
opened at the time of the contract. A contract to fall within the
prohibition of this article, the following requisites are necessary: 1.
that the succession is yet to be opened. 2. the object forms part of
the inheritance. 3. the promissor has an expectant right over the
object which is purely hereditary in nature.
The criticism on this article is that the accession to such property is

not transmitted by death; it is acquired already by virtue of the right
of ownership which is vested from the moment of the predecessors
death in the successor. It is judicially erroneous to say that
inheritance includes such accession. Even without this article, an heir
would be entitled to the accession and fruits which accrued since the
death of the decedent by virtue of the right of accession
(ownweship).
An agreement to partition an estate of a living person by those who

inherit from him is void. A contract renouncing the right to inherit from
one who is still alive is void.
Art. 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.
When the object of the contract is not a part of the inheritance, the
prohibition does not apply, even if delivery of such object is
dependent upon the death of one of the contracting parties. Thus, life
insurance contracts, and stipulations providing for reversion of
property donated in marriage settlements in the event of the death of
the donee, are valid. Likewise, if the right of the party over the thing
is not by virtue of succession, but as creditor, the contract does not
fall within the prohibition of this article. It has been held that in a
contract of purchase by co-owners, it is valid to stipulate that in the
event of death of any of them, those who survive will acquire the
share of the predeceased.
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.
As a general rule, rights and obligations under a contract are
transmitted to the heirs of the parties. The heirs cannot be
considered third parties, because there is privity of interest between
them and their predecessor. A lease contract is transmissible to the
heirs of the lessee. The heirs of a party in whose favor a trust exists,
may enforce the trust against the trustee. The heirs of the parties to a
contract may make a valid novation of said contract.
Art. 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.
Art. 1178. Subject to the laws, all rights acquired in virtue of an
obligation are transmissible, if there has been no stipulation to
the contrary.
As a general rule. Civil rights are transmissible except: 1) expressly
provided by law that they are not. 2) Stipulation of the parties. 3)
Personal rights of the debtor. An instrument evidencing a credit may
be transferred or assigned by the creditor to another, and the
transferee would be considered in lawful possession of the same as
well as the credit, unless contrary is shown.
Transmissibility is the capability of the rights to be transferred from
one person to another.
Art. 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.
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After the death of the person, however, the properties and rights left
by him by way of inheritance can be the subject matter of a contract
among or by his heirs, even before a partition thereof has been
made, because the rights of the heirs are transmitted to them from
the death of the predecessor.
(RPC) Art. 108. Obligation to make restoration, reparation for

damages, or indemnification for consequential damages and
actions to demand the same; Upon whom it devolves. The
obligation to make restoration or reparation for damages and
indemnification for consequential damages devolves upon the
heirs of the person liable.
The action to demand restoration, reparation, and
indemnification likewise descends to the heirs of the person
injured.
The heirs of the person liable has no obligation if restoration is not
possible and the deceased left no property.
D. Opening of Succesion
Art. 777. The rights to the succession are transmitted from the
moment of the death of the decedent. (657a)
This article is criticized by some commentators. It is contended that
the right to succeed to the properties of a person is not transmitted to
anyone from the moment of the death of such person. What happens
is that the death of a person consolidates and renders immutable, in
a certain sense, rights which up to that moment were nothing but
mere expectancy. These rights arise from the express will of the
testator or from the provisions of the law, but they do not
acquire solidity and effectiveness except from the moment of
death; before this event, the law may change, the will of the testator
may vary, and even circumstances may be modified to such an
extent that he who is expected to receive property may be deprived
of it; but once death supervenes, the will of the testator becomes
immutable, the law as to the succession can no longer be changed,
disinheritance cannot be effected, and the rights to the succession
acquire a character of marked permanence. What the article really

means is that succession is opened by the death of the person from
whom the inheritance comes.
The provision must therefore, be understood as meaning that the
rights to the succession of a person are transmitted from the moment
of his death, and by virtue of prior manifestations of his will or of
causes predetermined by law. Two must be considered, therefore,
the origin of the right, and that which makes the right effective.
It is clear that the moment of death is the determining point when the
heirs acquire a definite right to inheritance whether pure or
conditional. It is immaterial whether a short or long period of time
elapse between the death of the predecessor and the entry in the
possession of the properties of the inheritance, because the rights
are always deemed to retroact to the moment of death. The
possession of hereditary property is deemed transmitted to the heir
without interruption and from the moment of death of the decedent in
case the inheritance is accepted. The law avoids any gap to
ownership of property or a period wherein a property has no clear
owner or a period of res nullius.
Note: That death under this article is not limited to natural or physical
death, presumed death by virtue of prolonged legal absence is
included.
Art. 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)
The decisive fact which gives origin to the right of heirs, devisees
and legatees is the death of the decedent. This is the basis of the
present article. Thus, the provisions of the new code relaxing the
rigidity of the rules of the old code regarding proof or recognition of
natural children, were held inapplicable to one claiming recognition
and a share in the estate of the alleged natural father who died
before the new code went into effect.
Art. 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)
The second sentence of this article gives a retroactive effect to newly
created rights, provided they do not prejudice or impair any vested or
acquired right. Thus, compensation for damages under article 21 of
the new civil code, being a right declared for the first time, shall be
effective at once, eventhough the acts giving rise thereto were done
before the effectivity of the new code. But the new successional
rights granted by the new Civil code in favor of illegitimate children
cannot be given retroactive effect and be made to apply to the estate
of a deceased who died before the effectivity of the new Civil Code,
for the same would have the effect of impairing the vested rights of
another who is deemed to have become the owner of the deceaseds
property upon the latters death during the regime of the old Civil
Code.
moment of the death of the decedent, in case the inheritance is

accepted.
One who validly renounces an inheritance is deemed never to
have possessed the same. (440)
The article relates to tacking of possession due to privity to relations.
By way of Example, A had been in possession of a piece of land,
which he thought was his, for eight years, when he died. He left a
son, B, who continued to occupy and cultivate the land as
administrator, while the settlement of the properties left by A was
pending. The proceedings in court for the settlement of the estate
lasted three years; in these proceedings, B renounces his inheritance
from A. The next nearest relative of A, was C, a brother, who
accepted the inheritance. Legally, B has never been in possession
although he was materially or physically holding the property, while
C, who had never set foot upon the land, is deemed to have been in
possession from the very moment that A died. So that, if later, a third
person appears to claim the property, C can assert ownership by
prescription, because, legally, the possession has not been
interrupted for eleven years, and ten years possession in good faith
is sufficient for prescription of ownership of real property.
contracts.
Sale of future inheritance is void except in cases of Donation Propter
Nuptias (art. 84, NCC) and Partition Inter Vivos (art. 1080).
Ratio: 1. What an heir have is merely an inchoate right which does
not come to existence after death of predecessor.
2. The amount or extent of inheritance cannot be exactly determined
until death and after settlement thereof.
Art. 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.
Art. 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)
Art. 131. The donor by reason of marriage shall release the
property donated from mortgages and all other encumbrances
upon the same, with the exception of easements, unless in the
marriage settlements or in the contracts the contrary has been
stipulated. (1332a)
Art. 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;
Art. 533. The possession of hereditary property is deemed

transmitted to the heir without interruption and from the
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(3) 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) When the marriage is annulled, and the donee

acted in bad faith; thus, the implication of this ground is
that the donor in bad faith cannot revoke.
(4) Upon legal separation, the donee being the guilty

spouse;
(5) If it is with a resolutory condition and the condition
is complied with;
(5) Upon legal separation, the donee being the guilty

spouse; thus, the implication of this article is that the guilty
donor spouse cannot revoke his donation.
(6) When the donee has committed an act of
ingratitude as specified by the provisions of this Code
on donations in general. (1333a)
(6) When the donee has committed an act of

ingratitude as specified by the provisions of the Civil
Code on donations in general. (132a)
Art. 765. The donation may also be revoked at the instance of
the donor, by reason of ingratitude in the following cases:
Art. 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)
(1) If the donee should commit some offense against

the person, the honor or the property of the donor, or
of his wife or children under his parental authority;
(2) If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude, even
though he should prove it, unless the crime or the act
has been committed against the donee himself, his
wife or children under his authority;
Art. 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)
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)
These donations, unlike donations of present property which take
effect upon the celebration of the marriage, take effect upon the
death of the donor spouse. It cannot be made in the marriage
settlement but in a will or testament. Its limits are governed by the
rules of testamentary succession provided by the Civil Code. Since a
will can be revoked by the testator at any time before his death the
donation propter nuptias of future property may be so revoked.
Persons other than the affianced parties cannot give donations
propter nuptial of future property.
(3) If he unduly refuses him support when the donee is

legally or morally bound to give support to the donor.
(648a)
REQUISITES FOR THE TRANSMISSION OF SUCCESSIONAL
RIGHTS
1.
Express will of the testator or provision of law
2.
Death of the person whose property is subject of

succession
3.
acceptance of the inheritance Art. 1041-1057
Express or tacit acceptance by the heir, devisee or legatee is

necessary to the perfection of the juridical relation in succession, and
indispensable to the transmission of successional rights. To make a
person succeed by the mere fact of death of the predecessor is to
deny him the right to accept or repudiate the inheritance. However, a
previous declaration of heirship is not necessary in order that an heir
may assert his right to the property of the deceased. The acceptance
of the inheritance may, therefore, be said to be the confirmation of
the institution of the heir, the perfection of the right to succeed.
Art. 1041. The acceptance or repudiation of the inheritance is an
act which is purely voluntary and free. (988)
T: Acceptance is the act by which the person is called to succeed by
universal title either by the testator or by law manifests his will of
making his own the universality of the rights and obligations which
are transmitted to him.
Art. 86. A donation by reason of marriage may be revoked by the

donor in the following cases:
Repudiation is the manifestation by such heir of his desire not to

succeed to the said universality.
(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;
T: Is partial acceptance allowed? Under the old civil code a partial

acceptance or repudiation is prohibited, this prohibition was omitted
in the NCC. Hence, it is submitted that in the light of the present law,
inheritance can be accepted or repudiated partially. The argument
that the personality of the decedent cannot be continued in fraction
can no longer obtain in this jurisdiction. The heir in our law is not the
continuation of the personality of the deceased. He stands on the
same footing as a mere legatee in the Civil Code. If the latter may
accept or repudiate partially, there is no legal reason why the heir
should not be allowed to do so. The greater right always includes the
(2) When the marriage takes place without the consent

of the parents or guardian, as required by law;
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less; if total acceptance or repudiation can be made, why not partial
acceptance or repudiation? The argument that creditors of the estate
would be prejudiced by partial acceptance has no force; because,
under our present laws, the creditors of the estate must first be paid
before it can be known whether ther is any inheritance left to be
accepted or repudiated.
Art. 1042. The effects of the acceptance or repudiation shall
always retroact to the moment of the death of the decedent.
(989)
The law seeks to insure continuity in the ownership of the property,
without hiatus or gap, even for a moment, from the time of the death
of the decedent.
The old civil code prohibited acceptance or repudiation with a term.
Is it now allowed under the NCC? No conditional acceptance and
repudiation is still prohibited. To permit this kind of acceptance is and
repudiation will be placing in uncertainty the transmission of rights by
succession. The power to impose conditions on the transmission is
inherent only in the testator himself, as a logical consequence of his
freedom to dispose of his property. The person favored cannot
subject the transmission to conditions because he has no right over
the property until he accepts the inheritance.
The very Nature of transmission of property by mortis causa argues
against the validity of acceptance or repudiation with a term or
condition. The law seeks to insure continuity in the ownership of the
property, without any hiatus or gap from the time of the death of the
decedent. Thus, to allow this would be contrary to the principle of
succession that inheritance is transmitted upon death.
Art. 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)
Requisites of acceptance: 1. certain of the death of the decedent, 2.
must survive the decedent, 3. must have capacity to succeed, and 4.
certain of his right to the inheritance.
obtained. The minor should not be saddled with obligations without

the approval of the guardianship court.
Repudiation amounts to alienation of property; hence, there must
always be judicial authorization.
Art. 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)
Art. 1046. Public official establishments can neither accept nor
repudiate an inheritance without the approval of the
government. (994)
Refers to organizations which have their own social and public
purpose, such as for culture separate from the mere manifestation of
governmental functions of the State.
Approval required by this article must be given by the head of the
department to which the public establishment belong or is
subordinated.
Art. 1047. A married woman of age may repudiate an inheritance
without the consent of her husband. (995a)
Art. 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)
Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private
document.
Ratio: the will of man is changeable. Even just before the moment of
his death he may change his mind. A person who accepts from a
living person an inheritance accepts or repudiates nothing at all. If a
person is uncertain of his right to inherit then his acceptance or
repudiation is ineffective.
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.
Art. 1044. Any person having the free disposal of his property
may accept or repudiate an inheritance.
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)
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.
Art. 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 coheirs;
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)
(3) If he renounces it for a price in favor of all his coheirs 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)
Acceptance presupposes not only rights but sometimes also

obligations. Repudiation, on the otherhand, means alienation.
Hence, persons having the capacity to succeed but not having the
capacity to dispose of their property may not, therefore, accept or
repudiate. Their legal representatives may do so for them.
Exception to paragraph 2; where the act would be purely beneficial
to the minor or incapacitated person, the intervention of the court is
unnecessary. But where the institution, devise or legacy is subject to
a charge or condition to be performed by the minor or incapacitated
beneficiary, we believe that the approval of the court should be
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Other acts of tacit acceptance:

1.
heir demands partition
2.
alienates some of the inheritance
10

3.
performs such acts which show the clear intent ot accept.
4.
Art. 1057, failure to signify to court ones acceptance or

repudiation within 30 days from distribution
Art. 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)
T: The law considers the act of repudiation more solemn than the act
of acceptance; hence, the requirement of a public or authentic writing
or one presented to the judge.The acceptance of an inheritance
confirms the transmission of the right, while repudiation makes this
transmission ineffective, producing thereby more violent and
disturbing consequences which the law cannot permit by mere
implications or presumptions.
Public instrument refers to one notarized and duly acknowledged by
a notary. Authentic here refers to one whose genuinenessn is
admitted or clearly proved.
Art. 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)
The law seeks to protect the creditor. By the debtor-heirs repudiation
two are affected thereat. The co-heir who receives more and the
creditor who is prejudiced thereby. The law favors the latter. The
acceptance by the creditor does not revoke the repudiation but only
rescinds the same to the extent sufficient to protect the interest of
the creditors.
Requisites to entitle creditor to accept repudiated inheritance:
1.
There must be a valid repudiation in accord with law as to

from
2.
There must be existing credits
3.
Judicial authorization must be obtained by creditors to

accept
4.
The repudiation prejudices the ceditors.
Exceptions:
Art. 1054. Should there be several heirs called to the

inheritance, some of them may accept and the others may
repudiate it. (1007a)
Art. 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)
T: The repudiation of the express will of the testator includes that of
the presumed will, but the repudiation of the latter still leaves the
express will open to respect.
Ratio: An heir by will who repudiates the same, manifests his dislike
to become an heir in any concept. By his act reveals the fact that he
does not deserve to become his successor even by intestacy.
OTOH, when an heir repudiates as legal heir may later accept by will
on the reason that a person may not desire to succeed by intestacy
but is willing to succeed by testamentary capacity in order to follow
the wishes of the dead.
Art. 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)
Other causes or revocation:
1.
one who accepts or repudiates who is not entitled to the

inheritance has no legal effect.
2.
when institution depends upon the fulfillment of a

suspensive condition which is not realized
3.
birth of a posthumous child not born or is born dead
Art. 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)
1.
Creditors who became such after repudiation
CASES:
2.
inheritance is useless to the heir because the debt of the

estate exceeds the inheritance left
5. Uson vs. Del Rosario
3.
the heir-debtor is solvent and has sufficient properties to

cover his debt.
Art. 1053. If the heir should die without having accepted or

repudiated the inheritance his right shall be transmitted to his
heirs. (1006)
This is on the assumption that the heir of the heir who died accepts
his inheritance from the latter. Then he may accept the inheritance
from the original decedent.
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Maria Uson was the lawful wife of Faustino Nebreda who upon his
death in 1945 left the lands involved in this litigation. Faustino
Nebreda left no other heir except his widow Maria Uson. However,
plaintiff claims that when Faustino Nebreda died in 1945, his
common- law wife Maria del Rosario took possession illegally of said
lands thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense that on
February 21, 1931, Maria Uson and her husband, the late Faustino
Nebreda, executed a public document whereby they agreed to
separate as husband and wife and, in consideration of their
separation, Maria Uson was given a parcel of land by way of alimony
and in return she renounced her right to inherit any other property
that may be left by her husband upon his death (Exhibit 1). After trial,
11

at which both parties presented their respective evidence, the court
rendered decision ordering the defendants to restore to the plaintiff
the ownership and possession of the lands in dispute without special
pronouncement as to costs. Defendants interposed the present
appeal.
Code). Inasmuch as this essential formality has not been followed, it

results that the alleged assignment or donation has no valid effect.
Wherefore, the decision appealed from is affirmed, without costs.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful

wife of Faustino Nebreda, former owner of the five parcels of lands
litigated in the present case. There is likewise no dispute that Maria
del Rosario, one of the defendants-appellants, was merely a
common-law wife of the late Faustino Nebreda with whom she had
four illegitimate children, her now co-defendants. It likewise appears
that Faustino Nebreda died in 1945 much prior to the effectivity of the
new Civil Code. With this background, it is evident that when
Faustino Nebreda died in 1945 the five parcels of land he was seized
of at the time passed from the moment of his death to his only heir,
his widow Maria Uson (Article 657, old Civil Code). As this Court
aptly said, "The property belongs to the heirs at the moment of
the death of the ancestor as completely as if the ancestor had
executed and delivered to them a deed for the same before his
death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that
moment, therefore, the rights of inheritance of Maria Uson over the
lands in question became vested.
It is uncontested that Francisco de Borja, upon the death of his wife

Josefa Tangco on 6 October 1940, filed a petition for the probate of
her will which was docketed as Special Proceeding No. R-7866 of
the Court of First Instance of Rizal, Branch I. The will was probated
on 2 April 1941. In 1946, Francisco de Borja was appointed executor
and administrator: in 1952, their son, Jose de Borja, was appointed
co-administrator. When Francisco died, on 14 April 1954, Jose
became the sole administrator of the testate estate of his mother,
Jose Tangco While a widower Francisco de Borja allegedly took unto
himself a second wife, Tasiana Ongsingco. Upon Francisco's death,
Tasiana instituted testate proceedings in the Court of First Instance
of Nueva Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to Francisco was
questioned in said proceeding.
The claim of the defendants that Maria Uson had relinquished her
right over the lands in question because she expressly renounced to
inherit any future property that her husband may acquire and leave
upon his death in the deed of separation they had entered into on
February 21, 1931, cannot be entertained for the simple reason that
future inheritance cannot be the subject of a contract nor can it be
renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p.
12; Osorio vs. Osorio and Ynchausti Steamship Co., 41 Phil., 531).
But defendants contend that, while it is true that the four minor
defendants are illegitimate children of the late Faustino Nebreda and
under the old Civil Code are not entitled to any successional rights,
however, under the new Civil Code which became in force in June,
1950, they are given the status and rights of natural children and are
entitled to the successional rights which the law accords to the latter
(Article 2264 and article 287, new Civil Code), and because these
successional rights were declared for the first time in the new code,
they shall be given retroactive effect even though the event which
gave rise to them may have occurred under the prior legislation
(Article 2253, new Civil Code).
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
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6. De Borja vs. De Borja
The relationship between the children of the first marriage and

Tasiana Ongsingco has been plagued with several court suits and
counter-suits; including the three cases at bar, some eighteen (18)
cases remain pending determination in the courts. The testate estate
of Josefa Tangco alone has been unsettled for more than a quarter of
a century. In order to put an end to all these litigations, a compromise
agreement was entered into on 12 October 1963, 2 by and between
"[T]he heir and son of Francisco de Borja by his first marriage,
namely, Jose de Borja personally and as administrator of the Testate
Estate of Josefa Tangco," and "[T]he heir and surviving spouse of
Francisco de Borja by his second marriage, Tasiana Ongsingco Vda.
de Borja, assisted by her lawyer, Atty. Luis Panaguiton, Jr."
On 16 May 1966, Jose de Borja submitted for Court approval the
agreement of 12 October 1963 to the Court of First Instance of Rizal,
in Special Proceeding No. R-7866; and again, on 8 August 1966, to
the Court of First Instance of Nueva Ecija, in Special Proceeding No.
832. Tasiana Ongsingco Vda. de de Borja opposed in both instances.
The Rizal court approved the compromise agreement, but the Nueva
Ecija court declared it void and unenforceable. Special administratrix
Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's
order of approval (now Supreme Court G.R. case No. L-28040),
while administrator Jose de Borja appealed the order of disapproval
(G.R. case No. L-28568) by the Court of First Instance of Nueva
Ecija.
The genuineness and due execution of the compromise agreement
of 12 October 1963 is not disputed, but its validity is, nevertheless,
attacked by Tasiana Ongsingco on the ground that: (1) the heirs
cannot enter into such kind of agreement without first probating the
will of Francisco de Borja; (2) that the same involves a compromise
on the validity of the marriage between Francisco de Borja and
Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to
have force and effect.
In assailing the validity of the agreement of 12 October 1963,
Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this
Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the
Court's majority held the view that the presentation of a will for
probate is mandatory and that the settlement and distribution of an
estate on the basis of intestacy when the decedent left a will, is
against the law and public policy. It is likewise pointed out by
appellant Tasiana Ongsingco that Section 1 of Rule 74 of the
Revised Rules explicitly conditions the validity of an extrajudicial
settlement of a decedent's estate by agreement between heirs, upon
the facts that "(if) the decedent left no will and no debts, and the
heirs are all of age, or the minors are represented by their judicial
and legal representatives . . ." The will of Francisco de Borja having
been submitted to the Nueva Ecija Court and still pending probate
when the 1963 agreement was made, those circumstances, it is
argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise
agreement, Jose de Borja stresses that at the time it was entered
into, on 12 October 1963, the governing provision was Section 1,
Rule 74 of the original Rules of Court of 1940, which allowed the
extrajudicial settlement of the estate of a deceased person
12

regardless of whether he left a will or not. He also relies on the
dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil.
479, wherein was expressed the view that if the parties have already
divided the estate in accordance with a decedent's will, the probate
of the will is a useless ceremony; and if they have divided the estate
in a different manner, the probate of the will is worse than useless.
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 In stance 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."
Tasiana Ongsingco further argues that her contract with Jose de
Borja (Annex "A") is void because it amounts to a compromise as to
her status and marriage with the late Francisco de Borja. The point is
without merit, for the very opening paragraph of the agreement with
Jose de Borja (Annex "A") describes her as "the heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de de Borja", which is in itself definite admission of
her civil status. There is nothing in the text of the agreement that
would show that this recognition of Ongsingco's status as the
surviving spouse of Francisco de Borja was only made in
consideration of the cession of her hereditary rights.
It is difficult to believe, however, that the amicable settlement referred
to in the order and motion above-mentioned was the compromise
- jann -
agreement of 13 October 1963, which already had been formally

signed and executed by the parties and duly notarized. What the
record discloses is that some time after its formalization, Ongsingco
had unilaterally attempted to back out from the compromise
agreement, pleading various reasons restated in the opposition to
the Court's approval of Annex "A" (Record on Appeal, L-20840, page
23): that the same was invalid because of the lapse of the allegedly
intended resolutory period of 60 days and because the contract was
not preceded by the probate of Francisco de Borja's will, as required
by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved
a compromise affecting Ongsingco's status as wife and widow of
Francisco de Borja, etc., all of which objections have been already
discussed.
It was natural that in view of the widow's attitude, Jose de Borja
should attempt to reach a new settlement or novatory agreement
before seeking judicial sanction and enforcement of Annex "A", since
the latter step might ultimately entail a longer delay in attaining final
remedy. That the attempt to reach another settlement failed is
apparent from the letter of Ongsingco's counsel to Jose de Borja
quoted in pages 35-36 of the brief for appellant Ongsingco in G.R.
No. L-28040; and it is more than probable that the order of 21
September 1964 and the motion of 17 June 1964 referred to the
failure of the parties' quest for a more satisfactory compromise. But
the inability to reach a novatory accord can not invalidate the original
compromise (Annex "A") and justifies the act of Jose de Borja in
finally seeking a court order for its approval and enforcement from
the Court of First Instance of Rizal, which, as heretofore described,
decreed that the agreement be ultimately performed within 120 days
from the finality of the order, now under appeal. We conclude that in
so doing, the Rizal court acted in accordance with law, and,
therefore, its order should be upheld, while the contrary resolution of
the Court of First Instance of Nueva Ecija should be, and is,
reversed.
7. Bonilla vs. Barcena
On March 31, 1975 Fortunata Barcena, mother of minors Rosalio
Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla, instituted
a civil action in the Court of First Instance of Abra, to quiet title over
certain parcels of land located in Abra. On August 4, 1975, the
defendants filed another motion to dismiss the complaint on the
ground that Fortunata Barcena is dead and, therefore, has no legal
capacity to sue. Said motion to dismiss was heard on August 14,
1975. In said hearing, counsel for the plaintiff confirmed the death of
Fortunata Barcena and asked for substitution by her minor children
and her husband, the petitioners herein; but the court after the
hearing immediately dismissed the case on the ground that a dead
person cannot be a real party in interest and has no legal personality
to sue.
On August 28, 1975, the court denied the motion for reconsideration
filed by counsel for the plaintiff for lack of merit. On September 1,
1975, counsel for deceased plaintiff filed a written manifestation
praying that the minors Rosalio Bonilla and Salvacion Bonilla be
allowed to substitute their deceased mother, but the court denied the
counsel's prayer for lack of merit. From the order, counsel for the
deceased plaintiff filed a second motion for reconsideration of the
order dismissing the complaint claiming that the same is in violation
of Sections 16 and 17 of Rule 3 of the Rules of Court but the same
was denied.
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
13

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 to allow their
substitution as parties in interest for the deceased plaintiff.
8. Bough vs. Modesto
9. Borromeo-Herrera vs. Borromeo
Vito Borromeo, a widower and permanent resident of Cebu City, died
on March 13, 1952, in Paraaque, Rizal at the age of 88 years,
without forced heirs but leaving extensive properties in the province
of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First
Instance of Cebu a petition for the probate of a one page document
as the last will and testament left by the said deceased, devising all
his properties to Tomas, Fortunato and Amelia, all surnamed
Borromeo, in equal and undivided shares, and designating Junquera
as executor thereof. The case was docketed as Special Proceedings
No. 916-R. The document, drafted in Spanish, was allegedly signed
and thumbmarked by the deceased in the presence of Cornelio
Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who acted
as witnesses.
Oppositions to the probate of the will were filed. On May 28, 1960,
after due trial, the probate court held that the document presented as
the will of the deceased was a forgery.
On appeal to this Court, the decision of the probate court disallowing
the probate of the will was affirmed in Testate Estate of Vito
Borromeo, Jose H. Junquera, et al. v. Crispin Borromeo, et al. (19
SCRA 656).
The testate proceedings was converted into an intestate
proceedings. Several parties came before the court filing claims or
petitions alleging themselves as heirs of the intestate estate of Vito
Borromeo. On April 10, 1969, the trial court, invoking Art. 972 of the
Civil Code, issued an order declaring the following, to the exclusion
of all others, as the intestate heirs of the deceased Vito Borromeo:
1.Jose Cuenco Borromeo 2.Judge Crispin Borromeo 3.Vitaliana
Borromeo 4.Patrocinio Borromeo Herrera 5.Salud Borromeo
6.Asuncion Borromeo 7.
Marcial
Borromeo
8.Amelinda
Borromeo de Talam, and 9.The heirs of Canuto Borromeo
The court also ordered that the assets of the intestate estate of Vito
Borromeo shall be divided into 4/9 and 5/9 groups and distributed in
equal and equitable shares among the 9 abovenamed declared
intestate heirs.
Fortunato Borromeo filed a motion for reconsideration. In the
memorandum he submitted to support his motion for reconsideration,
Fortunato changed the basis for his claim to a portion of the estate.
He asserted and incorporated a Waiver of Hereditary Rights dated
July 31, 1967, supposedly signed by Pilar N. Borromeo, Maria B.
Putong. Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo,
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Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion

Borromeo, Federico V. Borromeo, Consuelo B. Morales, Remedios
Alfonso and Amelinda B. Talam. In the waiver, five of the nine heirs
relinquished to Fortunato their shares in the disputed estate. The
motion was opposed on the ground that the trial court, acting as a
probate court, had no jurisdiction to take cognizance of the claim;
that respondent Fortunato Borromeo is estopped from asserting the
waiver agreement; that the waiver agreement is void as it was
executed before the declaration of heirs; that the same is void having
been executed before the distribution of the estate and before the
acceptance of the inheritance; and that it is void ab initio and
inexistent for lack of subject matter.
On December 24, 1974, after due hearing, the trial court concluding
that the five declared heirs who signed the waiver agreement
assigning their hereditary rights to Fortunato Borromeo had lost the
same rights, declared the latter as entitled to 5/9 of the estate of Vito
Borromeo.
In the present petition, the petitioner seeks to annul and set aside the
trial court's order dated December 24, 1974, declaring respondent
Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo
and the July 7, 1975 order, denying the motion for reconsideration.
It is further argued by the petitioner that the document entitled
"Waiver of Hereditary Rights" executed on July 31, 1967, aside from
having been cancelled and revoked on June 29, 1968, by Tomas L.
Borromeo, Fortunato Borromeo and Amelia Borromeo, is without
force and effect because there can be no effective waiver of
hereditary rights before there has been a valid acceptance of the
inheritance the heirs intend to transfer. Pursuant to Article 1043 of
the Civil Code, to make acceptance or repudiation of inheritance
valid, the person must be certain of the death of the one from whom
he is to inherit and of his right to the inheritance. Since the petitioner
and her co-heirs were not certain of their right to the inheritance until
they were declared heirs, their rights were, therefore, uncertain. This
view, according to the petitioner, is also supported by Article 1057 of
the same Code which directs heirs, devisees, and legatees to signify
their acceptance or repudiation within thirty days after the court has
issued an order for the distribution of the estate.
Respondent Fortunato Borromeo on the other hand, contends that
under Article 1043 of the Civil Code there is no need for a person to
be first declared as heir before he can accept or repudiate an
inheritance. What is required is that he must first be certain of the
death of the person from whom he is to inherit and that he must be
certain of his right to the inheritance. He points out that at the time of
the signing of the waiver document on July 31, 1967, the signatories
to the waiver document were certain that Vito Borromeo was already
dead as well as of their rights to the inheritance as shown in the
waiver document itself.
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
14

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).
The circumstances of this case show that the signatories to the
waiver document did not have the clear and convincing intention to
relinquish their rights. Thus: (1) On October 27, 1967, Fortunato,
Tomas, and Amelia Borromeo filed a pleading entitled "Compliance"
wherein they submitted a proposal for the amicable settlement of the
case. In that Compliance, they proposed to concede to all the eight
(8) intestate heirs of Vito Borromeo all properties, personal and real,
including all cash and sums of money in the hands of the Special
Administrator, as of October 31, 1967, not contested or claimed by
them in any action then pending in the Court of First Instance of
Cebu. In turn, the heirs would waive and concede to them all the 14
contested lots. In this document, the respondent recognizes and
concedes that the petitioner, like the other signatories to the waiver
document, is an heir of the deceased Vito Borromeo, entitled to
share in the estate.
This shows that the "Waiver of Hereditary Rights" was never meant
to be what the respondent now purports it to be. Had the intent been
otherwise, there would not be any reason for Fortunato, Tomas, and
Amelia Borromeo to mention the heirs in the offer to settle the case
amicably, and offer to concede to them parts of the estate of the
deceased; (2) On April 21 and 30, 1969, the majority of the declared
heirs executed an Agreement on how the estate they inherited shall
be distributed. This Agreement of Partition was approved by the trial
court on August 15, 1969; (3) On June 29, 1968, the petitioner,
among others, signed a document entitled Deed of Assignment"
purporting to transfer and assign in favor of the respondent and
Tomas and Amelia Borromeo all her (Patrocinio B. Herrera's) rights,
interests, and participation as an intestate heir in the estate of the
deceased Vito Borromeo.
The stated consideration for said assignment was P100,000.00; (4)
On the same date, June 29, 1968, the respondent Tomas, and
Amelia Borromeo (assignees in the aforementioned deed of
assignment) in turn executed a "Deed of Reconveyance" in favor of
the heirs-assignors named in the same deed of assignment. The
stated consideration was P50,000.00; (5) A Cancellation of Deed of
Assignment and Deed of Reconveyance was signed by Tomas
Borromeo and Amelia Borromeo on October 15, 1968, while
Fortunato Borromeo signed this document on March 24, 1969. In
view of the foregoing, the questioned order of the trial court dated
December 24, 1974, is hereby SET ASIDE.
E. Kinds of Succesion
Art. 778. Succession may be:
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)
T: A void will has no legal existence.
A void will and a will that later lost its validity are essentially the
same. The only difference between the two lies in the fact that the
first refers to a will that has never been valid, but is null and void ab
origine, ipso facto, while the second refers to a valid will which later
lost its validity.
Under Art. 841 a will is valid though there is no institution of heir. In
such cases the testamentary dispositions made in accordance with
law shall be carried out, and the remainder of the property shall pass
to legal heirs. Absence of institution includes those institution which
are void.
Other causes of intestacy:
1.
happening of a resolutory condition which sets aside the

institution of the heir
2.
expiration of the resolutory term or period of institution of

an heir, legatee or devisee instituted up to a day certain
3.
noncompliance or the impossibility of complying with the

will of the testator.
4.
Preterition which results to annulment of the institution of

an heir
B: There are three instances contained in this paragraph, although,

legally, the result is the same in each instance, i.e., there is no will.
In par. 2 validity should read as efficacy
(1) Testamentary;
(2) Legal or intestate; or
Intestacy may be total or partial depending on the extent of the

disposition that turns out to be inoperative
(3) Mixed. (n)
Art. 780. Mixed succession is that effected partly by will and

partly by operation of law. (n)
Art. 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)
B: Legal or Intestate succession is inexplicably not defined.
Curiously, the draft code contained a definition of this kind of
succession but for some unknown reasons it was not included. It
stated that an Intestate succession takes place by operation of law
in the absence of a valid will.
Art. 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
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Art. 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.
contracts.
15

A will is a personal, solemn, revocable, and free act by which a

capacitated person disposes of his property and rights and declares
or complies with the duties to take effect after his death.
Art. 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)
T: A will is a specie of conveyance whereby a person is permitted,

with the formalities prescribed by law to control to a certain degree
disposition of his property to take effect after his death. However,
when there is no disposition of property, it is submitted that, although
the instrument may be considered as a will, it does not have to be
probated. All other relevant legal matters stated in the will may take
effect even without probating such as the acknowledgement of a
natural child.
The limitation imposed by this article applies to persons who have

compulsory heirs. The amount that can be donated depends upon
the character of the compulsory heirs and the amount of property at
the time of the death of the donor. The donation itself is not a nullity,
but only subject to reduction in so far as it exceeds what the donor
could have given by will to the donee. This amount is determinable
only at the time of the death of donor.
Art. 750. The donations 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 in
petition of any person affected. (634a)
A donation of all the present property of the donor, without the
reservation of a sufficient amount for his subsistence, is not void, but
only susceptible of reduction. It is voidable with respect to the
amount necessary for the support of the donor or his dependent
relatives.
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)
These donations, unlike donations of present property which take
effect upon the celebration of the marriage, take effect upon the
death of the donor spouse. It cannot be made in the marriage
settlement but in a will or testament. Its limits are governed by the
rules of testamentary succession. Since a will can be revoked by the
testator at any time before his death the donation propter nuptias of
future property may be so revoked. Persons other than the affianced
parties cannot give donations propter nuptias of future property.
There is no more contractual succession by virtue of the the repeal
of Article 130 of the Old Civil Code which was amended under Article
84 of the Family Code. In mandating the applicability of the rules on
Succession to donation of future property between spouses, the law,
therefore, eliminated this kind of succession. Hence, by implication
such type of succession under Article 84 is considered an ordinary
testamentary succession.
TESTAMENTARY SUCCESSION
II. WILLS
A. Definition
Art. 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of this estate, to take effect after his death. (667a)
Better definition:
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A will is not necessarily an act of liberality or generosity. The

inheritance may be so burdened with legacies that all benefit to the
heir is nullified.
B. Characteristics
1.
2.
3.
4.
5.
6.
7.
8.
purely personal act;

free act w/o fraud, violence, etc.
disposition of property
essentially revocable
formally executed
testator must have testamentary capacity
Unilateral act and;
Mortis causa
Balane:
9. individual (Art. 818)
10. executed with animus testandi (Art. 783)
11. Statutory (Art. 783)
Art. 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of this estate, to take effect after his death. (667a)
B: The word Act is too broad and should have been limited to a
more specific term such as instrument or document in view of Art.
804 that every will must be in writing.
The requirement of form prescribed respectively for attested and
holographic wills.
The testators power of disposition is limited by the rules on
legitimes.
Will making is purely statutory being defined as permitted.
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. (n)
B: This is an exclusive enumeration for the causes of disallowance of
a will. These are matters involved in the formal validity. A probate
16

decree once final , forecloses any subsequent challenge on any of
the matter enumerated in this article.
If any of these grounds is proved the will is void. A will is either valid
or void. If none of the defects are present the will is valid; if any
defect is present the will is void. The issue on formal validity is what
the probate proceedings will determine. There is no such thing as a
voidable will.
B: the vesting of the successional right occurs immediately upon the

decedents death, without a moments interruption.
Art. 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)
T: During the life of the testator the will is said to be ambulatory and
may be altered, revoked, or superseded at any time. Its is of no
possible effect as a will while the maker lives.
A will may be revoked at pleasure. Revocation is an act of the mind,
terminating the potential capacity of the will to operate at the death of
the testator, manifested by some outward and visible act or sign,
symbolic thereof.
Revocation
vs.
1. act of testator
2. presupposes a valid act
3. inter vivos
4. testator cannot renounce
Nullity
1. proceeds from law
2. inherent from the will
3. invoked After death
4. can be disregarded by heirs
B: This characteristic is consistent with the principle laid down in Art.

777, successional rights vest only upon death.
Art. 796. All persons who are not expressly prohibited by law
may make a will. (662)
T: The law presumes capacity to make a will, thus, one must be
expressly be prohibited by law to be disqualified.
Only natural persons may make a will. Juridical persons are not
granted T.C.
Even spendthrifths or prodigal under guardianship, can make a will.
A peson under civil interdiction can make a will, he is only
disqualified fro dispositions of property inter vivos, but not by act
mortis causa.
Art. 797. Persons of either sex under eighteen years of age
cannot make a will. (n)
The manner of computation of age, sustains the view that the
required age is reached at the commencement of the day preceeding
the anniversary of the birthday; that is, it is sufficient that the last day
of the eighteenth year shall have commenced. The law does not
recognize fractions of a day and this construction is more in accord
with the liberal policy of the law to presume capacity to make will.
Art. 798. In order to make a will it is essential that the testator be
of sound mind at the time of its execution. (n)
T: Sound Mind is meant that the testator is able to execute his will
with an understanding of the nature of the act, such as the
recollection of the property he means to dispose of, of the persons
who are or who moght reasonably be the objects of his bounty and
the manner in which it is to be distributed among them. It is sufficient
if he understands what he is about, even if he has less mental
capacity than would be required to make a contract.
B: the legal importance and implication of mental capacity is that the
law is interested in the legal consequences of the testators mental
capacity or incapacity not in the medical aspects of mental disease.
Concievably, the testator could be mentally aberrant medically but
testamentarily capable or, vice versa, mentally competent medically
but testamentariy incompetent.
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Art. 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)
T: A joint will is one where the same instrument is made the will of
two or more persons and is jointly signed by them. Such will may be
probate upon the death of one and subsequently probated again
upon the death of the other testator. Usually made to dispose joint
properties.
Mutual will, OTOH, may be defined as the separate wills of two
persons, which are reciprocal in their provisions. A will that is both
joint and mutual is one executed jointly by teo or more persons and
which shows on its face that the devises are made one in
consideration of the other.
Ratio for prohibition:
1.
purely personal and unilateral characteristic of wills are

defeated
2.
contrary to the revocable character of wills, if one revokes

the will no document is left for the other to revoke specially
in cases were the revocation is done by destroying or
tearing the will.
3.
may expose a testator to undue influence
4.
may tempt one to kill the other testator
5.
against public policy
6.
Dimunition of Testamentary secrecy
What is actually prohibited, therefore, is the execution of a will in a

SINGLE DOCUMENT and by ONE ACT.
B: if there are separate documents, each serving one independent
will, even if they are written on the same sheet or even back to back,
they are not joint wills.
Art. 784. The making of a will is a strictly personal act; it cannot
be left in whole or in part of the discretion of a third person, or
accomplished through the instrumentality of an agent or
attorney. (670a)
T: The testator cannot substitute the mind or will of another for his
own. But the mere mechanical act of drafting the will may be done by
a third person, inasmuch as such act does not constitute a
delegation of the will or disposition.
Art. 785. The duration or efficacy of the designation of heirs,
devisees or legatees, or the determination of the portions which
they are to take, when referred to by name, cannot be left to the
discretion of a third person. (670a)
T: The matters mentioned in this article are testamentary in nature;
they constitute expressions of the will or disposition of the testator.
Hence, pursuant to Art. 784, it cannot be delegated.
17

B: The ff. constitute the essence of will making or the exercise of the
disposing power, and thus, non-delegable:
1.
the designation of heirs, devisees, legatees;
2.
the duration or efficacy of such designation including such

things as conditions, terms, substitutions
3.
the determination of the portions they are to recieve
Art. 786. The testator may entrust to a third person the

distribution of specific property or sums of money that he may
leave in general to specified classes or causes, and also the
designation of the persons, institutions or establishments to
which such property or sums are to be given or applied. (671a)
T: the third person here does not make any disposition, but simply
carries out details in the execution of the testamentary disposition
made by the testator himself in the will.
B: for this article to take effect the testator must determine the ff:
1.
the property or amount of money given and;
2.
the class or cause to be benefited
and the ff. may be delegated:

1.
designation of persons, institutions, or establishments

within the class or cause;
2.
the manner of distribution.
Art. 787. The testator may not make a testamentary disposition

in such manner that another person has to determine whether
or not it is to be operative. (n)
The second part pertains to latent or intrinsic ambiguity which cannot

be seen from a mere perusal or reading of the will but appears only
upon consideration of extrinsic circumstances, such as giving legacy
to my cousin Pedro, when I fact he has two cousins named Pedro.
Thus. It occurs when:
1.
two or more persons or things answer the name or

description;
2.
misdescription of the beneficiary or the gift
Extrinsic evidence is admissible to show the situation of the testator

and all the relevant facts and circumstances surrounding him at the
time of making the will, for the purpose of explaining or resolving
patent ambiguity.
B: method of resolving ambiguity, whether latent or patent is any
evidence admissible and relevant excluding the oral declarations of
testator as to his intention.
Ratio for the exclusion: B: can a dead man refute a tale?
T: the testator whose lips have been sealed by death can no longer
deny or affirm the truth of what witnesses may say he declared,
would create confusion and give rise to false claims.
Art. 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 he was unacquainted with
such technical sense. (675a)
Intent of the testator is the supreme law in succession. All rules of
construction are designed to ascertain and give effect to the intention
unless the latter is contrary to law, morals, and public policy.
C. Interpretation of Wills
Art. 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)
T: The presumption is that the testator intended a lawful rather than
an unlawful thing, and courts will not seek an interpretation that will
nullify his will or any part thereof.That construction must be followed
which will sustatn and uphold the will in all its parts, if it can be done
consistently with the established rules of law. If the will is susceptible
of two interpretations , the doubt must be resolved in favor of the
construction which will give effect to the will, rather than the one
which will defeat it.
Art. 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)
T: The first part of this article pertains to patent or extrinsic ambiguity
which appears upon the face of the instrument such as when the
testator gives a devise or legacy to SOME of the six children of his
cousin Juan
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The words and provisions in the will must be plainly construed in

order to avoid violations of his intentions and real purpose.
Wills drated by skilled persons or lawyers are to be construed with
strictness giving account to the words technical meaning, while
words stated by persons not learned in the law are interpreted
liberally and in their ordinary acceptation. Holographic wills usually
made by pesons not learned in the law should be construed liberally
in their ordinary acceptation foregoing the technical meaning in
pursuance of the policy of the law of preference on testacy than
intestacy.
Art. 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)
Its to be presumed that every word or clause was intended by the
testator to have some meaning; and no word or clause should be
rejected if it is at all possible to give it reasonable effect. Where two
constructions are possible, the one disregarding a word or clause of
the will, and the other giving effect to the will as a whole, th latter
interpretation must be followed.
Art. 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
18

not have made such other dispositions if the first invalid
disposition had not been made. (n)
B: The article makes applicable to wills the severability or separability
principle in statutory construction frequently provided in a separability
clause.
Art. 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)
T: This article is inconsistent with the principle of inheritance laid
down under the code. The inheritance includes all the property,
rights, and obligations not extinguished by death. To follow this article
would mean that only the property at the time of making the will shall
be transmitted to the heir unless there is an express declaration
under the will to include properties acquired before death of testator
but after making the will. This contravenes Art. 777 of the code.
Hence, it must be construed as referring only to devises and legacies
and not to inheritance. After all this article is under the chapter of
testamentary dispositions. The problem now arises with its
irreconcilable conflict with Art. 930.
Art. 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)
T: When the Testator does not state the extent of the interest that he
gives to the legatee or devisee in the property transmitted, it is
understood that his whole interest passes, no more no less. But the
testator, under the present article, may manifest his intention to
convey a less interest; and under article 929, he may expressly
convey a larger interest. In such cases, the intention of the testator
will be followed.
Art. 930. The legacy or devise of a thing belonging to another
person is void, if the testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, though not
belonging to the testator when he made the will, afterwards
becomes his, by whatever title, the disposition shall take effect.
(862a)
The presumption under this article is that had the testator known the
fact that another owns the property, he would not have made the
legacy. The ignorance of the testator is presumed by law.
Its must be noted that if the subsequent change of ownership
transferred the thing to the very person to whom it was being given
as a devise or legacy, and by lucrative title, or to another third
person, the legacy is void.
Solla vs. Ascuenta
Da. Maria Solla died in June, 1883, in the municipality of Cabugao,
Ilocos Sur, leaving a will executed and recorded in accordance with
the laws then in force, but which had not been probated in
accordance with the Code of Civil Procedure.
There were named in said will, as legatees Sergio Solla, Cayetano
Solla, Josefa Solla, Jacinto Serna, Rosenda Lagmay,
Silvestra Sajor and Matias Sevedea, and Leandro Serrano, as
universal heir, with their shares given them by the will abovementioned.
Said legatees or their descendants or heirs did not judicially claim
their legacies during the life-time of Leandro Serrano, of which he
had taken possession, neither was any testamentary proceeding
instituted for the settlement of the estate left by Maria Solla and that
Leandro Serrano did not deliver the legacies in question, which he
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possessed in his name until his death, having declared the property
for taxation as his own and collected the income therefrom for
himself.
As may also be seen Leandro Serrano named his son Simeon
Serrano, as executor of his will and that he directed him to put all of
his property in order and to separate that which came from his
deceased grandmother Maria Solla, which he gives to his said son
Simeon Serrano and orders that same be disposed of exclusively in
conformity with the wishes of his said grandmother, not forgetting the
souls of all of his grandmother's relatives and of his own for whose
repose nine masses were to be said annually during nine days, with
a solemn mass on the first and last days.
In order to determine the testator's intention, the court should place
itself as near as possible in his position, and hence, where the
language of the will is ambiguous or doubtful, should take into
consideration the situation of the testator and the facts and
circumstances surrounding him at the time the will was executed. (40
Cyc., 1392.) Where the testator's intention is manifest from the
context of the will and surrounding circumstances, but is obscured by
inapt and inaccurate modes of expression, the language will be
subordinated to the intention, and in order to give effect to such
intention, as far as possible, the court may depart from the strict
wording and read a word or phrase in a sense different from that
which is ordinarily attributed to it, and for such purpose may mould or
change the language of the will, such as restricting its application or
supplying omitted words or phrases. (40 Cyc., 1399.)
In the present case, it clearly appearing that it was Maria Solla's
intention, in ordering her universal heir Leandro Serrano in her will at
the hour of his death, to insist upon the compliance of her orders by
his heirs, that the latter should comply with her pious orders and that
she did not mean her orders concerning her legacies, the compliance
of which she had entrusted to Leandro Serrano, we are authorized to
restrict the application of the words "all that I have here ordered"
used by the said Maria Solla and the words "all her orders" used by
Leandro Serrano in their respective wills limiting them to the pious
orders and substituting the phrase "in regard to the annual masses"
after the words used by both testators, respectively.
The trial court, therefore, committed an error in interpreting the order
of Leandro Serrano mentioned in his will as applicable to the
provisions of Maria Solla's will relative to the legacies and not to the
pious bequests exclusively.
D. Law Governing Form
Art. 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)
The general rule is that given in the present article, that the validity of
the execution of a will is controlled by the statute in force at the time
of execution; and a statute enacted subsequent to the execution and
prior to the death of the testator, changing the rules respecting the
form of the instrument, the capacity of the testator, and the like, has
no retrospective effect.
However, the intrinsic validity of the will, although executed in the
Philippines, is governed by the laws of the state or country of which
the testator was a citizen or subject at the time of his death. The
place of execution has no effect whatever upon the validity of the
provisions of the will.
The law may be changed after the will has been made. The
provisions may be valid at the time it was made but may be contrary
to the law at the time of the death of the testator. In such case, the
law at the time of the death of the testator will apply. It is the law at
the time when the succession opens which must determine the
intrinsic validity of the provisions of the will, because it is at this time
that the rights are transmitted to the heirs, devisees, or legatees.
Art. 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.
19

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)
probate upon the death of one and subsequently probated again

upon the death of the other testator. Usually made to dispose joint
properties.
Mutual will, OTOH, may be defined as the separate wills of two
persons, which are reciprocal in their provisions. A will that is both
joint and mutual is one executed jointly by teo or more persons and
which shows on its face that the devises are made one in
consideration of the other.
Ratio for prohibition:
Art. 18. In matters which are governed by the Code of

Commerce and special laws, their deficiency shall be supplied
by
the
provisions
of
this
Code.
(16a)
Matters connected with the performance of contracts are regulated

by the law prevailing at the place of performance. Remedies, such as
the bringing of suit, admissibility of evidence, and the statute of
limitations, depend upon the law of the place where the action is
brought.
a.
purely personal and unilateral characteristic of wills are

defeated
b.
contrary to the revocable character of wills, if one revokes

the will no document is left for the other to revoke specially
in cases were the revocation is done by destroying or
tearing the will.
c.
may expose a testator to undue influence
d.
may tempt one to kill the other testator
e.
against public policy
In terms of the validity and effect of obligations, the following rules

shall be followed. First, the law designated by the parties shall be
applied; if there is no stipulation on the matter, and the parties of the
same nationality, their national law shall be applied; if this is not the
case, the law of the place of perfection of the obligation shall govern
its fulfillment; but if these places are not specified and they cannot be
deduced from the nature and circumstances of the obligation, then
the law of the domicile of the passive subjects shall apply.
What is actually prohibited, therefore, is the execution of a will in a

SINGLE DOCUMENT and by ONE ACT.
Art. 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)
Art. 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)
Art. 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)
Fleumer vs. Hix
The article follows the general rule that the law governing the formal
vailidity of wills is the law of the place where it is executed. Yet a
Filipino may make will in a foreigh country in conformity with our laws
and not of the place of execution. Article 816 and 817 shall govern.
Art. 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)
Art. 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)
If an alien executes a will in the Philippines, not in conformity with our
law, but in conformity with the law of his own state or country, the will
can be probated in the Philippines.
Art. 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)
A joint will is one where the same instrument is made the will of two
or more persons and is jointly signed by them. Such will may be
- jann -
It is the 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 Virginia
govern. To this end, there was submitted a copy of section 3868 of
Acts 1882, c. 84 as found in West Virginia 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 judicial notice of the laws of the various States of
the 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 showing that the book from
which an extract was taken 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 seal 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.
While the appeal was 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 last will and testament of Edward Randolph Hix,
deceased, was presented for probate on June 8, 1929, to the clerk of
Randolph County, 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 County, West Virginia, appointed
20

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 the provisions of sections 637, 638, and 639 of the Code
of 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 Virginia. The present
proceedings do not call for any specific pronouncements on the
validity or invalidity of this alleged divorce.For all of the foregoing, the
judgment appealed from will be affirmed, with the costs of this
instance against the appellant.Villamor, Ostrand, Johns, Romualdez
and Villa-Real, JJ., concur.
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 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 (from the beginning), 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.
E. Law Governing Content
Dela Cerna vs. Potot
1. As to time
"It appears that on May 9, 1939, the spouses, Bernabe de la Cerna

and Gervasia Rebaca, executed a joint last will and testament in the
local dialect whereby they willed that 'our two parcels of land
acquired during our marriage together with all improvements thereon
shall be given to Manuela Rebaca, our niece, whom we have
nurtured since childhood, because God did not give us any child in
our union, Manuela Rebaca being married to Nicolas Potot', and that
'while each of the testator is yet living, he or she will continue to
enjoy the fruits of the two lands aforementioned', the said two parcels
of land being covered by Tax No. 4676 and Tax No. 6677, both
situated in sitio Bucao, barrio Lugo, municipality of Borbon, province
of Cebu. Bernabe de la Cerna died on August 30, 1939, and the
aforesaid will was submitted to probate by said Gervasia and
Manuela before the Court of First Instance of Cebu which, after due
publication as required by law and there being no opposition, heard
the evidence,
Art. 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)
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 Estate 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 sit 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 count, 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 1939 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
- jann -
The decisive fact which gives origin to the right of heirs, devisees
and legatees is the death of the decedent. This is the basis of the
present article. Thus, the provisions of the new code relaxing the
rigidity of the rules of the old code regarding proof or recognition of
natural children, were held inapplicable to one claiming recognition
and a share in the estate of the alleged natural father who died
before the new code went into effect.
2. As to successional rights
Art. 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)
The distribution of the estate is governed by the law of the nation of
the deceased; the present article applies in such case. It may involve
various questions such as:
1.
order of succession in intestacy
2.
intrinsic validity of a will
3.
extent of property an heir is entitled
4.
capacity to succeed of heirs
5.
questions of preterition, disinheritance, and collation.
21

In above cases, the national law of the decedent applies and the
ratio of which is stated by Dean Capistrano in this wise:
property and regardless of the country wherein said

property may be found."
With regard to succession there is only one will, express in

testatmentary and presumed in intestate succession. The oneness
and universality of the inheritance cannot be divided or broken up
merely because of the different countries where the properties of the
estate are situated.
"Art. 1039.
Capacity to succeed is governed by
the law of the nation of the decedent."
The intrinsic validity of the provisions of the will of a foreigner who

dies in the Philippines is to be determined by the laws of his own
state or country, and not by those of the Philippines. The second
paragraph of this article can only invoked when the deceased eas
vested with a descendible interest in property within the jurisdiction
of the Philippines.
"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."
When a foreign law is invoked it must be proved. (fluemer vs. Hix)
prevails as the exception to Art. 16, par. 2 of the Civil Code

aforequoted. 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 successions. 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.
In re the estate of Amos G. Bellis

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas
and of the United States." By his first wife, Mary E. Mallen, whom he
divorced, he had five legitimate children: Edward A. Bellis, George
Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander
Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy,
who survived him, he had three legitimate children: Edwin G. Bellis,
Walter S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes, obligations, and
expenses of administration are paid for, his distributable estate
should be divided, in trust, in the following order and manner: (a)
$240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his
three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, and
Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing
two items have been satisfied, the remainder shall go to his seven
surviving children by his first and second wives, namely: Edward A.
Bellis, Henry A. Bellis, Alexander Bellis, and Anna Bellis Allsman,
Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal
shares.
Subsequently, or on July 8, 1958, Amos G. Bellis died, a resident of
San Antonio, Texas, U.S.A. His will was admitted to probate in the
Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid
all the bequests therein including the amount of $240,000.00 in the
form of shares of stock to Mary E. Mallen and to the three (3)
illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis, various amounts totalling P40,000.00 each in
satisfaction of their respective legacies, or a total of P120,000.00,
which it released from time to time according as the lower court
approved and allowed the various motions or petitions filed by the
latter three requesting partial advances on account of their
respective legacies.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis
filed their respective oppositions to the project of partition on the
ground that they were deprived of their legitimes as illegitimate
children and, therefore, compulsory heirs of the deceased.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable
the national law of the decedent, in intestate or testamentary
successions, with regard to four items: (a) the order of succession;
(b) the amount of successional rights; (c) the intrinsic validity of the
provisions of the will; and (d) the capacity to succeed. They provide
that
"Art 16. Real property as well as personal property is
subject to the law of the country where it is situated.
"However", intestate and testamentary successions,
both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity
of testamentary provisions, shall be regulated by the
national law of the person whose succession is under
consideration, whatever may be the nature of the
- jann -
Appellants would however counter that Article 17, paragraph three, of

the Civil Code, stating that
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 vs. 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.
Cayetano vs. Leonides 129 SCRA 522
On January 31, 1977, Adoracion C. Campos died, leaving her father,
petitioner Hermogenes Campos and her sisters, private respondent
Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the
surviving heirs. As Hermogenes Campos was the only compulsory
heir, he executed an Affidavit of Adjudication under Rule 74, Section I
of the Rules of Court whereby he adjudicated unto himself the
ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a
petition for the reprobate of a will of the deceased, Adoracion
Campos, which was allegedly executed in the United States and for
her appointment as administratrix of the estate of the deceased
testatrix.
In her petition, Nenita alleged that the testatrix was an American
citizen at the time of her death and was a permanent resident of
4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the
testatrix died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate, Manila; that during
her lifetime, the testatrix made her last will and testament on July 10,
22

1975, according to the laws of Pennsylvania, U.S.A., nominating
Wilfredo Barzaga of New Jersey as executor; that after the testatrix'
death, her last will and testament was presented, probated, allowed,
and registered with the Registry of Wills at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator
who was appointed after Dr. Barzaga had declined and waived his
appointment as executor in favor of the former, is also a resident of
Philadelphia, U.S.A., and that therefore, there is an urgent need for
the appointment of an administratrix to administer and eventually
distribute the properties of the estate located in the Philippines.
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died
and left a will, which, incidentally has been questioned by the
respondent, his children and forced heirs as, on its face patently null
and void, and a fabrication, appointing Polly Cayetano as the
executrix of his last will and testament. Cayetano, therefore, filed a
motion to substitute herself as petitioner in the instant case which
was granted by the court on September 13, 1982.
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)
B: requisite of sanity to execute a will is based on the testators
ability to know three things:
1.
Nature of the estate to be disposed- the testator should

have a fairly accurate knowledge of what he owns.
Accurate should be understood in the relative sense. The
more one owns the less accurate is ones knowledge of his
estate expected to be. Henry Sy might have a far less
accurate picture of his economic empire than a poverty
stricken laborer.
2.
Proper objects of his bounty- under ordinary

circumstances, the testator should know his relatives in the
proximate degrees. As the degree of relationship goes
further, it is less likely that he knows them.
3.
Character of the testamentary act- it is not required, in

order for this requisite to be present, that the testator know
the legal nature of a will with the erudition of a civilest. All
that he need know is that the document he is executing is
one that disposes of his property upon death.
ISSUE: Whether or not a compulsory heir may be validly excluded by

a will executed by a foreign testator?
HELD: YES
RATIO: 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)."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.
III. TESTAMENTARY CAPACITY
A. Who may make a will?
Art. 796. All persons who are not expressly prohibited by law
may make a will. (662)
Art. 797. Persons of either sex under eighteen years of age
cannot make a will. (n)
Art. 798. In order to make a will it is essential that the testator be
of sound mind at the time of its execution. (n)
Art. 799. To be of sound mind, it is not necessary that the
testator be in full possession of all his reasoning faculties, or
- jann -
T: Neither sickness, old age, deafness, senile debility, blindness, nor

poor memory is by itself sufficient to establish a presumption of lack
of testamentary capacity, actual insanity need not exist in order that a
person may be said to lack testamentary capacity. It is enough that
the mental condition be such that there is want of understanding of
the nature and consequences of the disposition by will.
Art. 800. The law presumes that every person is of sound mind,
in the absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at
the time of making his dispositions is on the person who
opposes the probate of the will; but if the testator, one month,
or less, before making his will was publicly known to be insane,
the person who maintains the validity of the will must prove that
the testator made it during a lucid interval. (n)
Art. 801. Supervening incapacity does not invalidate an effective
will, nor is the will of an incapable validated by the supervening
of capacity. (n)
The capacity of the person who leaves a will is to be determined as
of the time of execution of such will. Any prior or subsequent
incapacity will not affect the validity of the will. It will, however, in
cases of prior incapacity within 30 days from the making of the will
merely shift the burden of proof of capacity on the person
maintaining the validity of the will. (Art. 800)
Art. 802. A married woman may make a will without the consent
of her husband, and without the authority of the court. (n)
Art. 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)
B. Supervening Incapacity
23

Art. 801. Supervening incapacity does not invalidate an effective
will, nor is the will of an incapable validated by the supervening
of capacity. (n)
The capacity of the person who leaves a will is to be determined as
of the time of execution of such will. Any prior or subsequent
incapacity will not affect the validity of the will. It will, however, in
cases of prior incapacity within 30 days from the making of the will
merely shift the burden of proof of capacity on the person
maintaining the validity of the will. (Art. 800)
IV. SOLEMNITIES OF WILLS
A. Kinds of Wills
Art. 804. Every will must be in writing and executed in a
language or dialect known to the testator. (n)
T: the following are the advantages of a holographic will:
1. simple and easy to make for those a) who have no means to
employ a lawyer, b)who are timid and wants to reread their wills
before signing, c) those who have only very little property to dispose
2. It induces foreigners in this jurisdiction to set down their last
wishes;
3. guaranties the absolute secrecy of the testamentary disposition
because it is not witnessed.
The disadvantages are:
1. does not gauranty testamentary capacity of testator;
2. no protection against vices of consent which may not be known in
case of death;
3. due to faulty expression, it may not express the true will of the
testator;
4. for the same reason, it can be easily concealed.
May a blind testator make a valid holographic will? There is no
question as to notarial wills it being allowed under the law provided
the will was read twice to the testator. As to holographic wills, it is
submitted that it may be allowed. The testator, having written the
holographic will by his own hand, knows what it contains. He may
have learned to write before he became blind, or inspite of his
blindness. This view has been sustained in Louisiana, where it has
been held that blindness does not of itself prevent the making of a
valid holographic.
A HW may be in any form, but the intent to dispose mortis causa
must clearly appear in the context.
2. if the insertion was after execution with the consent of testator, the
will remains valid but the insertion void;
3. if insertion was after execution and validated by testator by his
signature, the entire will is void because it is not wholly written by the
testator himself;
4. if insertion is contemporaneous to the execution the effect same
as no. 3.
As to date, the day, month, and year on which the will was made
should be indicated therein. The day and the month, however, may
be indicated by implication, so long as the designation leaves no
room for doubt as to exact date.
The validity of the holographic will is defeated by the fact that part of
the date is printed. Such as that written on a daily planner though the
contents are entirely written by the hand but the testator relied on the
date indicated on the planner, the same is still extrinsically void.
Signatures of witnesses to a HW will not invalidate the will, but will be
disregarded as a mere surplusage.
B. Notarial Wiils
1. General Requirements
Our law does not recognize nuncupative wills, which is one that is
not written, but orally declared by the testator in his last illness, in
contemplation of death, and before a sufficient number of competent
witnesses.
The above requirement applies to both holographic and notarial. In
notarial wills it is immaterial who performs the mechanical act writing
the will, so long as the testator signs it or has somebody sign his
name in his presence upon his direction.
As to the language or dialect, when a will is executed in a certain
province or locality, in the dialect currently used in such province or
locality, there arises a presumption that the testator knew the dialect
so used, in the absence of contrary evidence. It is not required that
the will express that the language is known by the testator it is a fact
which may be proved by evidence aliunde.
The attestation clause of an ordinary will does not have to be written
in a language or dialect known to the testator. It is not part of the
testamentary disposition. The language used in the attestation
clause does not even have to be known to the witness; it should,
however, be translated to them.
Suroza vs. Hon. Honrado

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army
(Philippine Scouts), Fort McKinley, married Marcelina Salvador in
1923 (p. 150, Spec. Proc. No. 7816). They were childless. They
reared a boy named Agapito who used the surname Suroza and who
considered them as his parents as shown in his 1945 marriage
contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654, p.
148, Rollo of Testate Case showing that Agapito was 5 years old
when Mauro married Marcelina in 1923).
What would be the effect of words written by another and inserted

among the words written by the testator?
Mauro died in 1942. Marcelina, as a veteran's widow, became a

pensioner of the Federal Government. That explains why on her
death she had accumulated some cash in two banks.
1. if insertion was made after execution bu w/o consent, such is

deemed not written;
Agapito and Nenita begot a child named Lilia who became a medical
technologist and went abroad. Agapito also became a soldier. He
was disabled and his wife Nenita was appointed as his guardian in
1953 when he was declared an incompetent in Special Proceedings
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24

No. 1807 of the Court of First Instance of Rizal, Pasig Branch I (p.
16, Rollo of CA-G.R. No. 08654-R)
In that connection, it should be noted that a woman named Arsenia
de la Cruz wanted also to be his guardian in another proceeding.
Arsenia tried to prove that Nenita was living separately from Agapito
and that she (Nenita) admitted to Marcelina that she was unfaithful to
Agapito (pp. 61-63, Record of testate case)
Judge Bienvenido A. Tan dismissed the second guardianship
proceeding and confirmed Nenita's appointment as guardian of
Agapito (p. 16, Rollo of CA case). Agapito has been staying in a
veteran's hospital in San Francisco or Palo Alto, California (p. 87,
Record)
On a date not indicated in the record, the spouses Antonio Sy and
Hermogena Talan begot a child named Marilyn Sy, who, when a few
days old, was entrusted to Arsenia de la Cruz (apparently a girl friend
of Agapito) and who was later delivered to Marcelina Salvador
Suroza who brought her up as a supposed daughter of Agapito and
as her granddaughter (pp. 23-26, Rollo of CA-G.R. No. SP-08654R). Marilyn used the surname Suroza. She stayed with Marcelina but
was not legally adopted by Agapito. She married Oscar Medrano and
is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor
of Marina Paje, a resident of 7668 J.B. Roxas Street.
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 (Acop vs. Piraso, 52
Phil. 660)
The hasty preparation of the will is shown in the attestation clause
and notarial acknowledgment where Marcelina Salvador Suroza is
repeatedly referred to as the "testator" instead of "testatrix."
Had respondent judge been careful and observant, he could have
noted not only the anomaly as to the language of the will but also
that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her
supposed father who was still alive. Furthermore, after the hearing
conducted by respondent deputy clerk of court, respondent judge
could have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should
have personally conducted the hearing on the probate of the will so
that he could have ascertained whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of
duty to be inexcusable.
2. Specific Requirements
Marcelina supposedly executed a notarial will in Manila on July

23, 1973, when she was 73 years old. That will, which is in
English, was thumb marked by her. She was illiterate. Her letters
in English to the Veterans Administration were also thumb
marked by her (pp. 38-39, CA Rollo). In that will, Marcelina
bequeathed all her estate to her supposed granddaughter
Marilyn.
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.
On April 24, Nenita filed in the testate case an omnibus petition "to
set aside proceedings, admit opposition with counter-petition of
administration and preliminary injunction." Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina,
that the will was not duly executed and attested, that it was procured
by means of undue influence employed by Marina and Marilyn and
that the thumb marks of the testatrix were procured by fraud or trick.
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.
About ten months later, in a verified complaint dated October

12,1978, filed in this Court, Nenita charged Judge Honrado with
having probated the fraudulent will of Marcelina. The complainant
reiterated her contention that the testatrix was illiterate as shown by
the fact that she affixed her thumb mark to the will and that she did
not know English, the language in which the will was written. (In the
decree of probate Judge Honrado did not make any finding that the
will was written in a language known to the testatrix).
Nenita further alleged that Judge Honrado, in spite of his knowledge
that the testatrix had a son named Agapito (the testatrix's supposed
sole compulsory and legal heir), who was preterited in the will, did
not take into account the consequences of such a preterition.
We hold that disciplinary action should be taken against respondent
judge for his improper disposition of the testate case which might
have resulted in a miscarriage of justice because the decedent's
legal heirs and not the instituted heiress in the void will should have
inherited the decedent's estate.
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)
T: The object of the solemnities surrounding the execution of wills is
to close the door against bad faith and fraud, to avoid sunstitution of
wills and testaments and to gauranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a
way as to attain these primordial ends. Both 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.
A judge may be criminally liable for knowingly rendering an unjust

judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable negligence
or ignorance (Arts. 204 to 206, Revised Penal Code)
In this case, respondent judge, on perusing the will and noting that it
was written in English and was thumb marked by an obviously
illiterate testatrix, could have readily perceived that the will is void.
Signed by Testator
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
Attested and subscribed by witnesses
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Signing is making a sign, token, or emblem; and what that shall be

depends upon the individual. The material thing is that the testator
made the mark to authenticate the writing as his will and whatever he
puts on it for that purpose will suffice.
Attestation is the act of the senses, subscription is the act of the

hand; one is mental, the other is mechanical. To attest a will is to
know that it is published a such, and to certify the facts required to
constitute an actual legal publication; but to subscribe a paper as a
will is only to write on the paper the names of the witnesses, for the
25

sole purpose of identification. To attest as witness to a will is
therefore to observe, perceive, discern, and take notice of what is
done in executing a will. The witness subscribe with his hand, and
attest with his eyes and ears.
witnesses certify that the instrument has been executed before them,
and the manner of execution.
The attestation clause duly signed is the best evidence as to date of
signing
Purpose of attesting and subscribing:

1.
identification of the instrument;
2.
protection of testator fraud and deception and other vices

of consent;
3.
to ascertain the TC of the testator
the witnesses need not even know the contents of the will because
what they attest to is the due execution and the signing of the
testator.
It is presumed that a witness has the qualifications prescribed by law,
unless the contrary is established. His credibility depends upon the
appreciation of his testimony and arises from the belief and
appreciation of the court that he is telling the truth. His competency
arise or is required to exist at the time of execution of the will.
As to order of signing, there are two views:
Strict approach; The general rule has been, that everything required
to be done by the testator in the execution of a will shall precede in
point of time the subscription by the attesting witness, and if the
signatures of the latter precede the signing by the testator there is no
proper attestation, and the will is void, for until the testator has
signed, there is no will and nothing to attest.
Liberal approach; where the witnesses and the testator all sign in the
presence of one another, it is not essential that the testator sign first,
if the signing and the attestation be parts of the same transaction; in
such case, where the acts are substantially contemporaneous, it
cannot be said that there is any substantial priority.
The latter view is upheld by most courts. In the absence of proof to
the contrary, it will be presumed that the testator signed first.
Purpose of requiring presence of each other:
1.
to prevent another paper being substituted for the will

fraudulently;
2.
so that each may be a witness of the other and;
3.
to render fabrication of testimony more difficult.
The law does not require the attestation to be contained in a single

clause. Thus, where a will did not contain a separate independent
attestation clause, but the concluding paragraph of the body of the
will was written in the tenor of an attestation, stating the facts
required by law to be set forth in an attestation clause, and the
penultimate paragraph of the will stated the number of pages used, it
was held to be sufficient though in the first person and signed by the
testator provided it was signed by the witnesses.
Any failure to state a material fact in the attestation clause will render
the will null and void. Oral evidence will not cure any alleged defect
because the statute of frauds does not apply to wills. The statute
relates to contracts and agreement only this may be cured by the
oral ratification of the parties.
Date- in an ordinary will date is not an essential part. Only HW
requires a date. Neither a statement of the place of execution is
required and the absence of both facts does not invalidate the will.
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. (n)
T: This article applies only to ordinary or attested wills. It has no
application to a holographic will which does not have to be
witnessed. Since acknowledgement before a notary public must be
made by the testator and the witness, it is obvious that the law
contemplates only ordinary wills.
The signing of the will by the testator and the witnesses, and the
acknowledgement of said will before a notary public need not be
done in a single act unlike the in the old code because his presence
is required due to the fact that he prepares the will. Under the
present code, it is enough that the testator and witnesses
acknowledge to him its execution for such acknowledgement is
indispensable for the validity of the will. An interval of time may
elapse between the actual signing of the will and the
acknowledgement before the notary public. It is important also that
testamentary capacity must exist also at the time of
acknowledgement, because this is an essential part of the execution
of the will.
The purpose of acknowledgement is to minimize fraud and undue
pressure and this purpose can be attained whether
acknowledgement takes place at the same time at same time as the
signing or at some time thereafter.
When testator is blind; when witness subscribe his will in the same
room or within reasonable close proximity and within his hearing,
they subscribe in his presence. Evidently, the rule is that they should
be within the cognizance of his remaining senses, such that he
knows what is being done.
The prohibition under this article on the retention of a copy by the

notary is grounded on the desire of the testator to safeguard the
secrecy of the contents of the will during the lifetime of the testator so
he will not be the object of importunities or pressure to change his
will on the part of designing persons or relatives, or it may be that the
testator wants to keep the secret of the will during his lifetime.
The testator and witnesses must sign on the left margin of every
page, the failure of all of them to sign the left margin is a fatal defect
B: Special Requirements of attested wills are as follows
The purpose of numbering of pages is to afford a means for

determinig whether any sheet or page of the will has been removed.
Except only when will was written on a single page.
1.
subscribed by the testator or his agent in his presence and

by his express direction at the end thereof, in the presence
of the witnesses
An attestation clause is a memorandum of facts attending the

execution of the will and is that part of the instrument wherein the
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26

2.
attested and subscribed by at least three credible

witnesses in the presence of the testator and of one
another;
3.
the testator or his agent must sign every page except the
last, on the left margin in the presence of the witnesses;
4.
the witnesses must sign every page except last, on the left
margin in the presence of the testator and of one another;
5.
all pages numbered correlatively in letters above page;
6.
attestation clause stating:
7.
a.
number of pages;
b.
testator or his agent under his direction signed

the will and every page thereof, in the presence
of the witnesses;
c.
the witnesses witnessed and signed evry page

in the presence of testator and of one another;
"We, the undersigned, by these presents do declare that

the foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this
attestation clause and that of the left margin of the three
pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect
which is spoken and understood by the testator, and it
bears the corresponding number in letter which compose
of three pages and all of them were signed in the presence
of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of
us witnesses.
"In testimony, whereof, we sign this testament, this the
third day of January, one thousand nine hundred forty
three, (1943) A.D.
(Sgd.)
(Sgd.)
The will appears to have been signed by Atty. Florentino Javier who
wrote the name of Antero Mercado, followed below by "A ruego del
testador" 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 judgment of the Court of First
Instance of Ilocos Norte, ruled that the attestation clause failed (1) to
certify that the will was signed on all the left margins of the three
pages and at the end of the will by Atty. Florentino Javier at the
express request of the testator in the presence of the testator and
each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's
request 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
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What has been said makes it unnecessary for us to determine

whether there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the witnesses,
and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs
against the petitioner. So ordered.
Appeal from a decision of the Court of First Instance of Zamboanga

City admitting to probate the will of one Anacleta Abellana.
This is an appeal from a decision of the Court of Appeals disallowing

the will of Antero Mercado dated January 3, 1943. The will is written
in the Ilocano dialect and contains the following attestation clause:
"NUMERIANO EVANGELISTA
ROSENDO CORTES
BIBIANA ILLEGIBLE"
It is not here pretended that the cross appearing on the will is the
usual signature of Antero Mercado or even one of the ways by which
he signed his name. After mature reflection, we are not prepared to
liken the mere sign of a cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the trustworthiness of
a thumbmark.
Balona vs. Abellana
acknowledged before a notary public
Garcia vs. la Cuesta
(Sgd.)
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 appears on record that the last Will and Testament

(Exhibit 'A'), which is sought to be probated, is written in
the Spanish language and consists of two (2) typewritten
pages (pages 4 and 5 of the record) double space. The
first page is signed by Juan Bello and under his name
appears typewritten 'Por la testadora Anacleta Abellana,
residence Certificate A-1167629, Enero 20, 1951, Ciudad
de Zamboanga', and on the second page appears the
signature of the three (3) instrumental witnesses Blas
Sebastian, Faustino Macaso and Rafael Ignacio, at the
bottom of which appears the signature of T. de los Santos
and below his signature is his official designation as the
notary public who notarized the said testament. On the first
page on the left margin of the said instrument also appear
the signatures of the instrumental witnesses. On the
second page, which is the last page of the said last Will
and Testament, also appears the signature of the three (3)
instrumental witnesses and on that second page on the left
margin appears the signature of Juan Bello under whose
name appears handwritten the following phrase, 'Por la
Testadora Anacleta Abellana'. The will is duly
acknowledged before Notary Public, Attorney Timoteo de
los Santos." (Italics supplied.)
The present law, Article 805 of the Civil Code, in part provides as
follows:
"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." (Italics
supplied.)
Note that the old law as well as the new require that the testator
himself sign the will, or if he cannot do so, the testator's name must
be written by some other person in his presence and by his express
direction. Applying this provision this Court said in the case of Ex
Parte Pedro Arcenas, et al., 4 Phil., 700:
"It will be noticed from the above-quoted section 618 of the
Code of Civil Procedure that where the testator does not
know how, or is unable, to sign, it will not be sufficient that
one of the attesting witnesses signs the will at the
testator's request, the notary certifying thereto as provided
in article 695 of the Civil Code, which, in this respect, was
27

modified by section 618 above referred to, but it is
necessary that the testator's name be written by the
person signing in his stead in the place where he would
have signed if he knew how or was able so to do, and this
in the testator's presence and by his express direction; so
that a will signed in a manner different than that prescribed
by law shall not be valid and will not be allowed to be
probated.
The same ruling was laid down in the case of Cuison vs.
Concepcion, 5 Phil., 552. In the case of Barut vs. Cabacungan, 21
Phil., 461, we held that the important thing is that it clearly appears
that the name of the testatrix was signed at her express direction; it
is unimportant whether the person who writes the name of the
testatrix signs his own or not. Cases of the same import are as
follows: (Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs. Domingo,
27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does
not appear written under the will by said Abellana herself, or by Dr.
Juan Abello. There is, therefore, a failure to comply with the express
requirement in the law that the testator must himself sign the will, or
that his name be affixed thereto by Some other person in his
presence and by his express direction. It appearing that the above
provision of the law has not been complied with, we are constrained
to declare that the said will of the deceased Anacleta Abellana may
not be admitted to probate.
Nera vs. Rimando
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
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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.
Garcia vs. la Cuesta
This is an appeal from a decision of the Court of Appeals disallowing
the will of Antero Mercado dated January 3, 1943. The will is written
in the Ilocano dialect and contains the following attestation clause:
"We, the undersigned, by these presents do declare that
the foregoing testament of Antero Mercado was signed by
himself and also by us below his name and of this
attestation clause and that of the left margin of the three
pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect
which is spoken and understood by the testator, and it
bears the corresponding number in letter which compose
of three pages and all of them were signed in the presence
of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of
us witnesses.
"In testimony, whereof, we sign this testament, this the
third day of January, one thousand nine hundred forty
three, (1943) A.D.
(Sgd.)
(Sgd.)
"NUMERIANO EVANGELISTA
ROSENDO CORTES
BIBIANA ILLEGIBLE"
(Sgd.)
The will appears to have been signed by Atty. Florentino Javier who
wrote the name of Antero Mercado, followed below by "A ruego del
testador" 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 judgment of the Court of First
Instance of Ilocos Norte, ruled that the attestation clause failed (1) to
certify that the will was signed on all the left margins of the three
pages and at the end of the will by Atty. Florentino Javier at the
express request of the testator in the presence of the testator and
each and every one of the witnesses; (2) to certify that after the
signing of the name of the testator by Atty. Javier at the former's
request 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
28

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 a cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the trustworthiness of
a thumbmark.
What has been said makes it unnecessary for us to determine
whether there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the witnesses,
and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs
against the petitioner. So ordered.
Taboado vs. Rosal
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 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 13) 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 publications, 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.
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 all 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 will that the
signatures of the subscribing witnesses should be specifically
located at the end of the will after the signature of the testatrix. He
contends that it would be absurd that the legislature intended to
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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.
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?
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 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).
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 will that it is really
and actually composed of only two pages duly signed by the testatrix
and her instrumental witnesses. As earlier stated, the first page
which contains the entirety of the testamentary dispositions is signed
by the testatrix at the end or at the bottom while the instrumental
witnesses signed at the left margin. The other page which is marked
as "Pagina dos" comprises the attestation clause and the
acknowledgment. The acknowledgment itself states that "This Last
Will and Testament consists of two pages including this page."
The ratio decidendi of these cases seems to be that the attestation
clause must contain a statement of the number of sheets or passes
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."
29

" . . . 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
attest 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.'"
WHEREFORE, the present petition is hereby granted. The orders of
the respondent Court which denied the probate of the will, the motion
for reconsideration of the denial of probate, and the motion for
appointment of a special administrator are set aside.
Icasiano vs. Icasiano
This special proceeding was begun on October 2, 1958 by a petition
for the allowance and admission to probate of the original, Exhibit "A"
as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof.
The evidence presented for the petitioner is to the effect that Josefa
Villacorte died in the City of Manila on September 12, 1958; that on
June 2, 1956, the late Josefa Villacorte executed a last will and
testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and
attested by three instrumental witnesses, namely: attorneys Justo P.
Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will
was acknowledged by the testatrix and by the said three instrumental
witnesses on the same date before attorney Jose Oyengco Ong,
Notary Public in and for the City of Manila; and that the will was
actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and
testament, together with former Governor Emilio Rustia of Bulacan,
Judge Ramon Icasiano and a little girl. Of the said three instrumental
witnesses to the execution of the decedent's last will and testament,
attorneys Torres and Natividad were in the Philippines at the time of
the hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public before whom
the will was acknowledged by the testatrix and attesting witnesses,
and also attorneys Fermin Samson, who actually prepared the
document. The latter also testified upon cross examination that he
prepared one original and two copies of Josefa Villacorte last will and
testament at his house in Baliuag, Bulacan, but he brought only one
original and one signed copy to Manila, retaining one unsigned copy
in Bulacan.
The records show that the original of the will, which was surrendered
simultaneously with the filing of the petition and marked as Exhibit
"A" consists of five pages, and while signed at the end and in every
page, it does not contain the signature of one of the attesting
witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the
duplicate copy attached to the amended and supplemental petition
and marked as Exhibit "A-1" is signed by the testatrix and her three
attesting witnesses in each and every page.
Witness Natividad who testified on his failure to sign page three (3)
of the original, admits that he may have lifted two pages instead of
one when he signed the same, but affirmed that page three (3) was
signed in his presence.
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
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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.
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 nonheirs 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".
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
30

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 oppositorsappellants 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.
making of the will. To permit such a situation to obtain would be

sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to
guard against any illegal or immoral arrangements. Balinon v. De
Leon, 50 O. G. 583.) That function would be defeated if the notary
public were one of the attesting or instrumental witnesses. For them
he would be interested in sustaining the validity of the will as it
directly involves himself and the validity of his own act. It would place
him in an inconsistent position and the very purpose of the
acknowledgment, which is to minimize fraud (Report of the Code
Commission p. 106-107), would be thwarted. These authorities do
not serve the purpose of the law in this jurisdiction or are not decisive
of the issue herein, because the notaries public and witnesses
referred to in the aforecited cases merely acted as instrumental,
subscribing or attesting witnesses, and not as acknowledging
witnesses. Here the notary public acted not only as attesting witness
but also as acknowledging witness, a situation not envisaged by
Article 805 of the Civil Code.
To allow the notary public to act as third witness, or one of the
attesting and acknowledging witnesses, would have the effect of
having only two attesting witnesses to the will which would be in
contravention of the provisions of Article 805 requiring at least three
credible witnesses to act as such and of Article 806 which requires
that the testator and the required number of witnesses must appear
before the notary public to acknowledge the will. The result would be,
as has been said, that only two witnesses appeared before the
notary public for that purpose. In the circumstances, the law would
not be duly observed.
IN VIEW OF THE FOREGOING, the decision appealed from is

affirmed
Gabucan vs. Manta
Cruz vs. Villasor
This case is about the dismissal of a petition for the probate of a

notarial will on the ground that it does not bear a thirty-centavo
documentary stamp.
Petition to review on certiorari the judgment of the Court of First

Instance of Cebu allowing the probate of the last will and testament
of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, the
surviving spouse of the said deceased, opposed the allowance of the
will (Exhibit "E"), alleging that the will was executed through fraud,
deceit, misrepresentation and undue influence; that the said
instrument was executed without the testator having been fully
informed of the contents thereof, particularly as to what properties he
was disposing; and that the supposed last will and testament was not
executed in accordance with law. Notwithstanding her objection, the
Court allowed the probate of the said last will and testament. Hence
this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision
of the case hinges, is whether the supposed last will and testament
of Valente Z. Cruz (Exhibit "E") was executed in accordance with law,
particularly Articles 805 and 806 of the new Civil Code, the first
requiring at least three credible witnesses to attest and subscribe to
the will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely, Deogracias T.
Jamaoas, Jr., Dr. Francisco Paares, 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.
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
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The Court of First Instance of Camiguin in its "decision" of December

28, 1977 in Special Proceeding No. 41 for the probate of the will of
the late Rogaciano Gabucan, dismissed the proceeding (erroneously
characterizes as an "action").
The proceeding was dismissed because the requisite documentary
stamp was not affixed to the notarial acknowledgment in the will and,
hence, according to respondent The probate court assumed that the
notarial acknowledgment of the said will is subject to the thirtycentavo documentary stamp tax fixed in section 225 of the Tax Code,
now section 237 of the 1977 Tax Code. Judge, it was not admissible
in evidence, citing section 238 of the Tax Code.
We hold that the lower court manifestly erred in declaring that,
because no documentary stamp was affixed to the will, there was "no
will and testament to probate" and, consequently, the alleged "action
must of necessity be dismissed."
What the probate court should have done was to require the
petitioner or proponent to affix the requisite thirty-centavo
documentary stamp to the notarial acknowledgment of the will which
is the taxable portion of that document.
That procedure may be implied from the provision of section 238 that
the non-admissibility of the document, which does not bear the
requisite documentary stamp, subsists only "until the requisite stamp
or stamps shall have been affixed thereto and cancelled."
Thus, it was held that the documentary stamp may be affixed at the
time the taxable document is presented in evidence (Del Castillo vs.
Madrilea, 49 Phil. 749) If the promissory note does not bear a
documentary stamp, the court should have allowed plaintiff's tender
of a stamp to supply the deficiency. (Rodriguez vs. Martinez, 5 Phil.
67, 71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, that
the lack of the documentary stamp on a document does not
invalidate such document. See Cia. General de Tabacos vs.
Jeanjaquet, 12 Phil. 195, 201-2 and Delgado and Figueroa vs.
Amenabar, 16 Phil. 403, 405-6.)
Javellana vs. Ledesma
31

By order of July 23, 1953, the Court of First Instance of Iloilo
admitted to probate the documents in the Visayan dialect, marked
Exhibits D and E, as the testament and codicil duly executed by the
deceased Da. Apolinaria Ledesma Vda. de Javellana, on March 30,
1950, and May 29, 1952, respectively, with Ramon Tabiana, Gloria
Montinola de Tabiana and Vicente Yap as witnesses. The contestant,
Da. Matea Ledesma, sister and nearest surviving relative of said
deceased, appealed from the decision, insisting that the said exhibits
were not executed in conformity with law. The appeal was made
directly to this Court because the value of the properties involved
exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix
lacked testamentary capacity and that the dispositions were
procured through undue influence. These grounds were abandoned
at the hearing in the court below, where the issue was concentrated
into three specific questions: (1) whether the testament of 1950 was
executed by the testatrix in the presence of the instrumental
witnesses; (2) whether the acknowledgment clause was signed and
the notarial seal affixed by the notary without the presence of the
testatrix and the witnesses; and (3) if so, whether the codicil was
thereby rendered invalid and ineffective. These questions are the
same ones presented to us for resolution.
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.
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 must 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 eodem 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.
The decision admitting the will to probate is affirmed, with costs
against appellant.
Witnesses to a will
d.
who are competent?
Art. 820. Any person of sound mind and of the age of eighteen
years or more, and not bind, 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)
T: these are witnesses under an ordinary will.
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B: Six qualifications of a witness: 1. sound mind; 2. 18 years of age;

3. not blind, deaf or dumb,; 4. literateor able to read and write;
domicile in the Philippines;6. not convicted of a crime involving,
falsification, perjury, or false testimony.
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. (n)
T: The law requires that the witness be domiciled in the Philippines
mere residence is not sufficient. Domicile under Art. 50, Art. 50. For
the exercise of civil rights and the fulfillment of civil obligations, the
domicile of natural persons is the place of their habitual residence.
(40a)
Ratio of domicile requirement:
1.
availability of witness when will is probated if the same is

within the Philippines;
2.
witness domiciled in the Philippines more likely to know the

testator and be ablr to testify on his mental condition at the
time of execution of the will.
Except of course if the will was executed in a foreign country the

domicile requirement does not apply.
There is citizenship requirement only domicile requirement. Even
aliens may witness as long as they are domiciled here.
As to conviction of perjury, falsification, and false testimony, it is
presumed that such witness cannot be relied upon fot truthfulness.
Conviction for any other crime, however, is not a disqualification
The notary public before whom the will was acknowledged cannot
act as witness because he cannot acknowledge before himself his
having signed the will; this cannot be done because it would place
him in an inconsistent position and the very purpose of the
acknowledgement, which is to minimize fraud would be thwarted.
Art. 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)
B: Because This is not a testamentary disposition
Gonzales vs. CA
This is a petition for review of the decision of the Court of Appeals,
First Division,
1 promulgated on May 4, 1973 in CA-G. R. No.
36523-R which reversed the decision of the Court of First Instance of
Rizal dated December 15, 1964 and allowed the probate of the last
will and testament of the deceased Isabel Gabriel.
It appears that on June 24, 1961, herein private respondent Lutgarda
Santiago filed a petition with the Court of First Instance of Rizal
docketed as Special Proceedings No. 3617, for the probate of a will
alleged to have been executed by the deceased Isabel Gabriel and
designating therein petitioner as the principal beneficiary and
executrix.
There is no dispute in the records that the late Isabel Andres Gabriel
died as a widow and without issue in the municipality of Navotas,
province of Rizal her place of residence, on June 7, 1961 at the age
of eighty-five (85), having been born in 1876. It is likewise not
controverted that herein private respondent Lutgarda Santiago and
32

petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and
that private respondent, with her husband and children, lived with the
deceased at the latter's residence prior and up to the time of her
death.
The petition was opposed by Rizalina Gabriel Gonzales, herein
petitioner, assailing the document purporting to be the will of the
deceased on the following grounds:
From this judgment of disallowance, Lutgarda Santiago appealed to
respondent Court, hence, the only issue decided on appeal was
whether or not the will in question was executed and attested as
required by law. The Court of Appeals, upon consideration of the
evidence adduced by both parties, rendered the decision now under
review, holing that the will in question was signed and executed by
the deceased Isabel Gabriel on April 15, 1961 in the presence of the
three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the presence of
the deceased and of each other as required by law,
2 hence
allowed probate.
Petitioner, in her first assignment, contends that the respondent
Court of Appeals erred in holding that the document, Exhibit "F", was
executed and attested as required by law when there was absolutely
no proof that the three instrumental witnesses were credible
witnesses. She argues that the requirement in Article 806, Civil
Code, that the witnesses must be credible is an absolute
requirement which must be complied with before an alleged last will
and testament may be admitted to probate and that to be a credible
witness, there must be evidence on record that the witness has a
good standing in his community, or that he is honest and upright, or
reputed to be trustworthy and reliable. According to petitioner, unless
the qualifications of the witness are first established, his testimony
may not be favorably considered. Petitioner contends that the term
"credible" is not synonymous with "competent" for a witness may be
competent under Article 820 and 821 of the Civil Code and still not
be credible as required by Article 805 of the same Code. It is further
urged that the term "credible" as used in the Civil Code should
receive the same settled and well-known meaning it has under the
Naturalization Law, the latter being a kindred legislation with the Civil
Code provisions on wills with respect to the qualifications of
witnesses.
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 will. 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 805 of this Code.
"Art. 821. The following
witnesses to a will:
(1)
are
disqualified
from
being
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 trustworthiness 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.
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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.
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.
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.
e.
supervening incompetency
Art. 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)
B: As in the case of TC the time of execution of the will is the only
relevant temporal criterion in the determination of the competence of
the witnesses.
J: competency determined at the time of execution of will and not at
the time of presentation for probate.
f.
Competency of interested witnesses
33

Art. 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)
T: This article does not refer to disqualification to be a witness, but a
disqualification to inherit. The devisee or legatee is not disqualified
nor his spouse, parent or child to be witness as long as he is
competent and credible under Art. 821 but the devise or legacy,
however, shall be void.
But if the witness is not a devisee or legatee, but an heir, is the
institution of such heir void? Notwithstanding the terminology of the
article, we believe that even as instituted heir, or spouse, parent child
is disqualified. The disqualification is intended to to aply to one
succeeding by will, and it is not material in what concept he
succeeds. This is proved by Art. 1027 par. 4 on relative incapacity
which makes no distinction between heirs, devisees or legatees.
B: this article pertains more on the capacity to succeed than the
capacity to be a witness. The witness will remain as such but the
legacy or devise shall be void.
The disqualification applies only to testamentary disposition . if the
witness is also entitled to legitime or intestate share this shall not be
affected.
3.
Special requirements for deaf, deaf mute and blind

testators
Art. 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)
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. (n)
T: The reason for the requirement in this article is to make the
provisions of the will known to the testator, so that he may be able to
object if they are not in accordance with his wishes. Failure to
comply with this requirement mkes the will invalid.
An illiterate testator can see the paper and the writing thereon, but
ne cannot understand what is written because he cannot read it.
From the point of view of understanding or knowing the contents of
the will, there is no difference between the illiterate testator and the
blind testator. Therefore, the present article should likewise apply to
an illiterate testator.
B: the burden of proof of the compliance of this aticle is is upon the
proponent. No requirement that such compliance is stated in the will
or attestation clause
Garcia vs. Vasquez
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2
September 1965, leaving no descendents, ascendants, brother or
sister. At the time of her death, she was said to be 90 years old more
or less, and possessed of an estate consisting mostly of real
properties.
The petition was opposed separately by several groups of alleged
heirs the latter five groups of persons all claiming to be relatives of
Doa Gliceria within the fifth civil degree. The oppositions invariably
charged that the instrument executed in 1960 was not intended by
the deceased to be her true will; that the signatures of the deceased
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appearing in the will was procured through undue and improper

pressure and influence the part of the beneficiaries and/or other
persons; that the testatrix did not know the object of her bounty; that
the instrument itself reveals irregularities in its execution, and that the
formalities required by law for such execution have not been
complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956
will of the deceased, joined the group of Dr. Jaime Rosario in
registering opposition to the appointment of petitioner Consuelo S.
Gonzales Vda. de Precilla as special administratrix, on the ground
that the latter possesses interest adverse to the estate. After the
parties were duly heard, the probate court, in its order of 2 October
1965, granted petitioner's prayer and appointed her special
administratrix of the estate upon a bond for P30,000.00. The order
was premised on the fact the petitioner was managing the properties
belonging to the estate even during the lifetime of the deceased, and
to appoint another person as administrator or co administrator at that
stage of the proceeding would only result in further confusion and
difficulties.
On 25 August 1966, the Court issued an order admitting to probate
the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the
due execution of the will, the probate court took note that no
evidence had been presented to establish that the testatrix was not
of sound mind when the will was executed; that the fact that she had
prepared an earlier will did not, prevent her from executing another
one thereafter; that the fact that the 1956 will consisted of 12 pages
whereas the 1960 testament was contained in one page does not
render the latter invalid; that, the erasures and alterations in the
instrument were insignificant to warrant rejection; that the
inconsistencies in the testimonies of the instrumental witnesses
which were noted by the oppositors are even indicative of their
truthfulness. The probate court, also considering that petitioner had
already shown capacity to administer the properties of the estate and
that from the provisions of the will she stands as the person most
concerned and interested therein, appointed said petitioner regular
administratrix with a bond for P50,000.00. From this order all the
oppositors appealed, the case being docketed in this Court as G.R.
No. L-27200.
Foremost of the questions to be determined here concerns the
correctness of the order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the
testatrix, Gliceria A. del Rosario, during her lifetime, executed two
wills: one on 9 June 1956 consisting of 12 pages and written in
Spanish, a language that she knew and spoke, witnessed by Messrs.
Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and
acknowledged before notary public Jose Ayala; and another dated 29
December 1960, consisting of 1 page and written in Tagalog,
witnessed by Messrs. Vicente Rosales, Francisco Decena, and
Francisco Lopez and acknowledged before notary public Remigio M.
Tividad.
Called to testify on the due execution of the 1960 will, instrumental
witnesses Decena, Lopez and Rosales uniformly declared that they
were individually requested by Alfonso Precilla (the late husband of
petitioner special administratrix) to witness the execution of the last
will of Doa Gliceria A. del Rosario; that they arrived at the house of
the old lady at No. 2074 Azcarraga, Manila, one after the other, in the
afternoon of 29 December 1960; that the testatrix at the time was
apparently of clear and sound mind, although she was being aided
by Precilla when she walked; 3 that the will, which was already
prepared, was first read "silently" by the testatrix herself before she
signed it;
The oppositors-appellants in the present case, however, challenging
the correctness of the probate court's ruling, maintain that on 29
December 1960 the eyesight of Gliceria del Rosario was so poor and
defective that she could not have read the provisions of the will,
contrary to the testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V.
Tamesis very material and illuminating. Said ophthalmologist, whose
expertise was admitted by both parties, testified, among other things,
that when Doa Gliceria del Rosario saw him for consultation on 11
March 1960 he found her left eye to have cataract (opaque lens),
34

15 and that it was "above normal in pressure", denoting a possible
glaucoma, a disease that leads to blindness 16 As to the conditions
of her right eye
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.
the pending action which oppositors seek to annotate in the records

of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding
filed in this Court (G.R. No. L-26615). As previously discussed in this
opinion, however, that case is concerned merely with the correctness
of the denial by the probate court of the motion for the removal of
Consuelo Gonzales Vda. de Precilla as special administratrix of the
estate of the late Gliceria del Rosario. In short, the issue in
controversy there 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
said 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.
FOR THE FOREGOING REASONS, the order of the court below
allowing to probate the alleged 1960 will of Gliceria A. del Rosario is
hereby reversed and set aside.
4.
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 Doa 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.
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."
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.
On the matter of lis pendens (G.R. No. L-26864), 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." 23 In the case at bar,
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Substantial compliance
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.
T: The law on formal requirements of a will should be liberally
construed; while perfection in drafting is desirable, unsubstantial
departures should be ignored, as long as the possibility of fraud and
bad faith are obviated.
There are many people who are fluent and have a graet mastery of
grammar. Thus, grammatical errors which may be noted from the
general tenor of the attestation clause must, therefore, be overlooked
or corrected by construction, so as not to frustrate the recognized
intention of those who intervened in the execution thereof. Where it
appears from the context of the attestation that certain words were
ommtied inadvertently, the court may supply the omission.
It is sufficient if from the language employed it can be reasonably
deduced that the attestation clause fulfills what the law expects of it.
Hence, an attestation clause will be held sufficient, notwithstanding
some imperfections in the grammatical constructions, where it is
evident that the defect is due to carelessness of the clerk or to lac of
mastery of the language, if the meaning sought to be conveyed can
be determined from the clause itself.
Furthermore, the whole language of the attestation clause must be
taken together to determine whether the testaor complied with the
law.
The substantial compliance rule has been applied to such extent as
to allow the attestation clause to be contained in the body of the will
itself and not a separate portion therein, expressed in the first preson
as a recital of the testator, provided that it is also signed by the three
instrumental witnesses.
Justice JBL Reyes criticism of this article is enlightening:
The rule here is so broad that no matter how imperfect the attestation
clause happens to be, the same could be cured by evidence aliunde.
It thus renders the attestation of no value in protecting fraud or really
defective execution. The rule must be limited to disregarding those
defects that can be supplied by an examination of the will itself:
1.
Whether all the pages are consecutively numbered;
2.
W signature appears in each page;
35

3.
W the subscribing witnesses are three
JBL Reyes criticizes this form of a will:
4.
W the will is notarized
A holographic wills are peculiarly dangerous in case of persons who

have written very little. The validity of these wills depends exclusively
on the authenticity of the handwriting, and if writing standards are not
procurable, or not contemporaneous, the courts are left to the mercy
of the mendacity of witnesses.
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 number of pages, and whether all
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 probate proceedings.
Its simplicity is an invitation to forgery, since the text may be

extremely short. If we want to permit the testator to keep his wishes
secret in order to avoid importunity, it can be done on the basis of the
closed will. (tstamento cerrado)
C. Holographic Wills
1.
General requirements.

Our law does not recognize nuncupative wills, which is one that is
not written, but orally declared by the testator in his last illness, in
contemplation of death, and before a sufficient number of competent
witnesses.
The above requirement applies to both holographic and notarial. In
notarial wills it is immaterial who performs the mechanical act writing
the will, so long as the testator signs it or has somebody sign his
name in his presence upon his direction.
As to the language or dialect, when a will is executed in a certain
province or locality, in the dialect currently usd in such province or
locality, there arises a presumption that the testator knew the dialect
so used, in the absence of contrary evidence. It is not required that
the will express that the language is known by the testator it is a fact
which may be proved by evidence aliunde.
The attestation clause of an ordinary will does not have to be written
in a language or dialect known to the testator. It is not part of the
testamentary disposition. The language used in the attestation
clause does not even have to be known to the witness; it should,
however, be translated to them.
May a blind testator make a valid holographic will? There is no

question as to notarial wills it being allowed under the law provided
the will was read twice to the testator. As to holographic wills, it is
submitted that it may be allowed. The testator, having written the
holographic will by his own hand, knows what it contains. He may
have learned to write before he became blind, or inspite of his
blindness. This view has been sustained in Louisiana, where it has
been held that blindness does not of itself prevent the making of a
valid holographic.
A HW may be in any form, but the intent to dispose mortis causa
must clearly appear in the context.
What would be the effect of words written by another and inserted
among the words written by the testator?
1. if insertion was made after execution bu w/o consent, such is
deemed not written;
2. if the insertion was after execution with the consent of testator, the
will remains valid but the insertion void;
3. if insertion was after execution and validated by testator by his
signature, the entire will is void because it is not wholly written by the
testator himself;

4. if insertion is contemporaneous to the execution the effect same

as no. 3.
T: the following are the advantages of a holographic will:
As to date, the day, month, and year on which the will was made
should be indicated therein. The day and the month,however, may be
indicated by implication, so long as the designation leaves no room
for doubt as to exact date.
1. simple and easy to make for those a) who have no means to

employ a lawyer, b)who are timid and wants to reread their wills
before signing, c) those who have only very little property to dispose
2. It induces foreigners in this jurisdiction to set down their last
wishes;
3. guaranties the absolute secrecy of the testamentary disposition
because it is not witnessed.
The disadvantages are:
The validity of the holographic will is defeated by the fact that part of
the date is printed. Such as that written on a daily planner though the
contents are entirely written by the hand but the testator relied on the
date indicated on the planner, the same is still extrinsically void.
Signatures of witnesses to a HW will not invalidate the will, but will be
disregarded as a mere surplusage.
A person can make a HW in the form of a letter in which he states his
testamentary dispositions giving it a character of a will but the
animus testatandi must be present.
1. does not gauranty testamentary capacity of testator;

2. no protection against vices of consent which may not be known in
case of death;
3. due to faulty expression, it may not express the true will of the
testator;
4. for the same reason, it can be easily concealed.
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Inaccuracy of the date due to involuntary error, or inadvertence, the

testator being in good faith, the court may allow proof of the true
date, provided such proof even extrinsic can have a basis in the will
itself.
The signature of the testator in HW is not the simple writing of the
name and surname of the testator. It is his name written by him in his
usual and habitual manner.
36

Under our law, the signature musr be at the end of the will. Thus can
be inferred from article 812 by the reference to dispositions written
below his signature this phrase implies that the signature is at the
end of the will and any disposition below it must be further signed
and dated.
Art. 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)
T: the dispositions written below the testators dignature to the will
are considered as independent of the will itself; hence, they must be
signed and dated by the testator. If one is not dated, even irf signed,
that particular disposition will be void, without affecting the validity of
others or of the will itself. And an unsigned and undated postscript to
a holographic will is invalid as to testamentary disposition.
Art. 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)
B: Thus, in case of several additional dispositions the additional ones
before the last are dated but unsigned, only the last will be valid
provided the last is dated and signed.
Roxas vs. De Jesus
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased
Bibiana R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a
letter-will addressed to her children and entirely written and signed in
the handwriting of the deceased Bibiana R. de Jesus was found. The
will is dated "FEB./61" and states: "This is my will which I want to be
respected altho it is not written by a lawyer. . . "
On August 24, 1973, respondent Judge Jose C. Colayco issued an
order allowing the probate of the holographic Will which he found to
have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration
alleging inter alia that the alleged holographic Will of the deceased
Bibiana R. de Jesus was not dated as required by Article 810 of the
Civil Code. She contends that the law requires that the Will should
contain the day, month, and year of its execution and that this should
be strictly complied with.
The only issue is whether or not the date "FEB./61" appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
ART. 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."
The petitioners contend that while Article 685 of the Spanish Civil
Code and Article 688 of the Old Civil Code require the testator to
state in his holographic Will the "year, month, and day of its
execution," the present Civil Code omitted the phrase "Ao, mes y
dia" and simply requires that the holographic Will should be dated.
The petitioners submit that the liberal construction of the holographic
Will should prevail.
We agree with the petitioner.
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
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"The underlying and fundamental objectives permeating

the provisions of 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." (Report
of the Code Commission, p. 103)
". . . 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 Will should be admitted to probate
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 Wills 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.
WHEREFORE, the instant petition is GRANTED. The order appealed
from is REVERSED and SET ASIDE and the order allowing the
probate of the holographic Will of the deceased Bibiana Roxas de
Jesus is reinstated
Kalaw vs. Relova
On September 1, 1971, private respondent GREGORIO K. KALAW,
claiming to be the sole heir of his deceased sister, Natividad K.
Kalaw, filed a petition before the Court of First Instance of Batangas,
Branch VI, Lipa City, for the probate of her holographic Will executed
on December 24, 1968.
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:
37

"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.
From that Order, GREGORIO moved for reconsideration arguing that
since the alterations and/or insertions were made by the testatrix, the
denial to probate of her holographic Will would be contrary to her
right of testamentary disposition. Reconsideration was denied in an
Order, dated November 2, 1973, on the ground that "Article 814 of
the Civil Code being clear and explicit, (it) requires no necessity for
interpretation."
From that order, dated September 3, 1973, denying probate, and the
Order dated November 2, 1973 denying reconsideration, ROSA filed
this Petition for Review on Certiorari on the sole legal question of
whether or not the original unaltered text after subsequent alterations
and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be
probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have not
been noted under his signature, . . . 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. WHEREFORE, this
Petition is hereby dismissed and the Decision of respondent Judge,
dated September 3, 1973, is hereby affirmed in toto. No costs
V. INCORPORATION OF DOCUMENT BY REFERENCE
Art. 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)
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Incorporation by reference is an exception to the rule that if an

instrument is not executed with all the formalities of a will it cannot
be admitted to probate. If a will duly executed and witnessed
according to the requirements of the statute, incorporates in itself by
reference any document or paper not so executed and witnessed,
whether such paper referred to be in the form of a will or codicil, or of
a deed or indenture, or of a mere list or memorandum, the paper so
referred to, if it was in existence at the time of the execution of the
will and is identified by clear and satisfactory proof as the paper
referred to therein, will take effect as part of the will and be admitted
to probate as such.
To establish a separate writing as part of the will it must appear on its
face the ff:
1. there must be distinct reference to such writing, so explicit
as to identify it beyond doubt, less is sufficient, including
parol evidence received.
2. the reference must indicate the writing as already existing;
3. it can only be given effect to the extent that it appears
prima facie to have been the wish of the testator.
The following must likewise be shown by extrinsic proof:
1. that it is the very writing referred to in the will;
2. that it was in fact made before will was executed
B: This article refers to such documents as inventories, books of
account, documents of titile, and papers of similar nature; the docs
should under no circumstances, make testamentary dispositions
because formal requirements of wills may be circumvented.
Can holographic wills incorporate documents by refernce?
It depends. No, because par. 4 of this article requires a witness to
sign on every page except voluminous docs. Only ordinary wills
requires witnesses unless of course a HW is executed with
witnesses superfluously.
VI. CODICIL
A.
Definitions and Solemnities
Art. 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)
Art. 826. In order that a codicil may be effective, it shall be
executed as in the case of a will. (n)
T: After a testator has already made a will, a subsequent instrument
mortis causa may either be a codicil or a new will. If the subsequent
instrument explains the original will, or alters, or adds to it, then it is a
codicil. But if the later instrument makes dispositions independent of
those in the original will, then it is a new will, not a codicil. A codicil is
always related to some prior will.
B: The distinctions, however, is purely academic because Article 826
requires the codicil to be in the form of a will anyway.
Must the codicil conform to the form of the will to which it refers?
The law does not require this. Thus, an attested will may have a
holographic codicil; a holographic will may have an attested codicil.
Needles to say, of course, the forms of the will and the codicil may
concur.
VII. REVOCATION OF WILLS AND TESTAMENTARY
DISPOSITIONS
A.
Definitions of revocation
Revocation is an act of the mind, terminating the potential capacity of

the will to operate at the death of the testator, manifested by some
outward and visible act or sign, symbolic thereof.
38

Revocation is the recall of some power, authority, or a thing granted
or a destroying or making void of some deed that had existence until
the act of revocation made it void. (Blacks Law Dictionary)
Art. 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)
T: During the life of the testator the will is said to be ambulatory and
may be altered, revoked, or superseded at any time. Its is of no
possible effect as a will while the maker lives.
A will may be revoked at pleasure. Revocation is an act of the mind,
terminating the potential capacity of the will to operate at the death of
the testator, manifested by some outward and visible act or sign,
symbolic thereof.
Revocation
vs.
1. act of testator
2. presupposes a valid act
3. inter vivos
4. testator cannot renounce
Nullity
1. proceeds from law
2. inherent from the will
3. invoked After death
4. can be disregarded by heirs
B: This characteristic is consistent with the principle laid down in Art.

777, successional rights vest only upon death.
C. Law Governing revocation
Art. 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)
Rules for revocation:
(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)
There is revocation by implication of law when certain acts or events
take place subsequent to making of a will, which nullify or render
inoperative either the will itself or some testamentary disposition
therein. Examples are the ff:
1. act of unworthiness by an heir, devisee, or legatee under Art.
1032;
2. transformation, alienation or loss of the thing devised or legacy
after execution of will (art. 957);
3. Judicial demand by the testator of a credit given as legacy art.
936;
4. preterition of compulsory heirs article 854;
5. sale of property given as devise or legacy for the payment of the
debts of the testator.
Enumeration is not exclusive.
Subsequent Instrument
A subsequent will containing a clause revoking a previous will should
possess all the requisites of a will, whether it be an ordinary or
holographic will, and should be probated,in order that the revocatory
clause may produce the effect of revoking the previous will.
Destruction of a will
A.
if revocation in the Phil. Follow local laws
B.
if outside the Phil.
1.
testator not domiciled in the Phil
a)
follow law of the place where will was made, or
b)
follow law of the domicile of testator at time of

revocation
2.
testator domiciled in the Phil. Art. 829 not

applicable:
a)
follow Phil. Law- domiciliary principle, or
b)
follow law of place of revocation- lex loci

celebrationis, or
c)
follow law of the place where will was made ( by

analogy with Art. 829)
1.
2.
D. Modes of Revocation
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
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the testator must at the time or revocation be of

sound mind. The same degree of mental capacity is
required to revoke a will as to make one;
the burning, tearing, canceling, or obliteration of the
will must be done with animo revocandi and must
actually be carried out. The mental process or intent
to revoke must concur with the physical fact or actual
destruction of the will;
where a testatrix was about to burn a will in an envelope, with the

intention of revoking it, but a third person fraudulently replced the will
inside thought he testatrix believed the will was destroyed, still no
revocation occurred. However, if the third person is a devisee or
legatee who prevents the revocation by threats, fraud or violence, the
will is revoked as to him, by implication of law on the ground of
unworthiness.
Third person may revoke a will if the same was done in the presence
of and by the express direction of the testator.
In cases where the destruction is unauthorized, there is no
revocation, and the contents of the will may be preoved by
secondary evidence.
If the will was already partly burned or torn but was only saved upon
the interference of a third person the will is still deemed revoked as
long as the testator intended to. No matter how large or small the
extent of the damage to the will even if the same is still legible, the
same is still deemed revoked for all intents and purposes. This case
is to be differentiated from the will that was replaced because here
the actual will itself has commenced destruction.
Gago vs. Mamuyac
The purpose of this action was to obtain the probation of a last will
and testament of Miguel Mamuyac, who died on the 2d day of
39

January, 1922, in the municipality of Agoo of the Province of La
Union. It appears from the record that on or about the 27th day of
July, 1918, the said Miguel Mamuyac executed a last will and
testament (Exhibit A). In the month of January, 1922, the said
Francisco Gago presented a petition in the Court of First Instance of
the Province of La Union for the probation of that will. The probation
of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144,
Province of La Union). After hearing all of the parties the petition for
the probation of said will was denied by the Honorable C. M. Villareal
on the 2d day of November, 1923, upon the ground that the
deceased had on the 16th day of April, 1919, executed a new will
and testament.
On the 21st day of February, 1925, the present action was
commenced. Its purpose was to secure the probation of the said will
of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac presented their oppositions, alleging (a) that the said will is
a copy of the second will and testament executed by the said Miguel
Mamuyac; (b) that the same had been cancelled and revoked during
the lifetime of Miguel Mamuyac and (c) that the said will was not the
last will and testament of the deceased Miguel Mamuyac.
"That Exhibit A is a mere carbon copy of its original which remained
in the possession of the deceased testator Miguel Mamuyac, who
revoked it before his death as per testimony of witnesses Jose
Fenoy, who typed the will of the testator on April 16, 1919, and
Carlos Bejar, who saw on December 30, 1920, the original of Exhibit
A (will of 1919) actually cancelled by the testator Miguel Mamuyac,
who assured Carlos Bejar that inasmuch as he had sold him a house
and the land where the house was built, he had to cancel it the will of
1919), executing thereby a new testament. Narcisa Gago in a way
corroborates the testimony of Jose Fenoy, admitting that the will
executed by the deceased (Miguel Mamuyac) in 1919 was found in
the possession of father Miguel Mamuyac. The opponents have
successfully established the fact that father Miguel Mamuyac had
executed in 1920 another will. The same Narcisa Gago, the sister of
the deceased, who was living in the house with him, when crossexamined by attorney for the opponents, testified that the original of
Exhibit A could not be found. For the foregoing consideration and for
the reason that the original of Exhibit A has been cancelled by the
deceased father Miguel Mamuyac, the court disallows the probate of
Exhibit A for the applicant." From that order the petitioner appealed.
With reference to the said cancellation, it may be stated that there is
positive proof, not denied, which was accepted by the lower court,
that the will in question had been cancelled in 1920. The law does
not require any evidence of the revocation or cancellation of a will to.
be preserved. It therefore becomes difficult at times to prove the
revocation or cancellation of wills. The fact that such cancellation or
revocation has taken place must either remain unproved or be
inferred from evidence showing that after due search the original will
cannot be found. Where a will which cannot be found is shown to
have been in the possession of the testator, when last seen, the
presumption is, in the absence of other competent evidence, that the
same was cancelled or destroyed. The same presumption arises
where it is shown that the testator had ready access to the will and it
cannot be found after his death. It will not be presumed that such will
has been destroyed by any other person without the knowledge or
authority of the testator. The force of the presumption of cancellation
or revocation by the testator, while varying greatly, being weak or
strong according to the circumstances, is never conclusive, but may
be overcome by proof that the will was not destroyed by the testator
with intent to revoke it.
In view of the fact that the original will of 1919 could not be found
after the death of the testator Miguel Mamuyac and in view of the
positive proof that the same had been cancelled, we are forced to
the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece
and nephews, the petitioners Aldina Maloto-Casiano and Constancio
Maloto, and the private respondents Panfilo Maloto and Felino
Maloto. Believing that the deceased did not leave behind a last will
and testament, these four heirs commenced on November 4, 1963
an intestate proceeding for the settlement of their aunt's estate. The
case was instituted in the then Court of First Instance of Iloilo and
was docketed as Special Proceeding No. 1736. However, while the
case was still in progress, or to be exact on February 1, 1964, the
parties Aldina, Constancio, Panfilo, and Felino executed an
agreement of extrajudicial settlement of Adriana's estate. The
agreement provided for the division of the estate into four equal parts
among the parties. The Malotos then presented the extrajudicial
settlement agreement to the trial court for approval which the court
did on March 21, 1964. That should have signalled the end of the
controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a
former associate of Adriana's counsel, the late Atty. Eliseo Hervas,
discovered a document entitled "KATAPUSAN NGA PAGBULUT-AN
(Testamento)," dated January 3, 1940, and purporting to be the last
will and testament of Adriana. Atty. Palma claimed to have found the
testament, the original copy, while he was going through some
materials inside the cabinet drawer formerly used by Atty. Hervas.
The document was submitted to the office of the clerk of the Court of
First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and
Felino are still named as heirs in the said will, Aldina and Constancio
are bequeathed much bigger and more valuable shares in the estate
of Adriana than what they received by virtue of the agreement of
extrajudicial settlement they had earlier signed. The will likewise
gives devises and legacies to other parties, among them being the
petitioners Asilo de Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor.
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.
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
Casiano vs. CA
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40

Guadalupe told him so, thus, his testimony on this point is double
hearsay.
At this juncture, we reiterate that "(it) is an important matter of public
interest that a purported will is not denied legalization on dubious
grounds. Otherwise, the very institution of testamentary succession
will be shaken to its very foundations . . . " 4
One last note. The private respondents point out that revocation
could be inferred from the fact that "(a) major and substantial bulk of
the properties mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the time of death
(of the testatrix); and, furthermore, more valuable properties have
been acquired after the execution of the will on January 3, 1940." 7
Suffice it to state here that as these additional matters raised by the
private respondents are extraneous to this special proceeding, they
could only be appropriately taken up after the will has been duly
probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and
SETTING ASIDE the Decision dated June 7, 1985 and the
Resolution dated October 22, 1986, of the respondent Court of
Appeals, and a new one ENTERED for the allowance of Adriana
Maloto's last will and testament. Costs against the private
respondents.
E. Effect of revocation
Art. 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 latter wills. (n)
Revocation may be:
Express- when the later declares the former or all former wills
revoked.
Implied- when it merely makes disposition inconsistent with the
provisions of the former wills, the later will annuls only such
disposiotion in prior wills as are inconsisten with those contained in
the subsequent will. Or if there appears an intention of the testator to
dispose of his property in a manner different from the first will, it is to
the extent revoked.
If two similar wills are executed on the same day they may
constituted as the same will.
Art. 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)
The Doctrine of Dependent Relative Revocation entails that 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 substitute is inoperative, the revocation fails and the original
will remain in full force. The failure of the new testamentary
disposition is equivalent to the non-fulfillment of a suspensive
condition which prebvents revocation of the first will.
The article contemplates a case where a subsequent will revokes a
prior one, and the validity of the later will is established, but its
provisions cannot be carried out because of incapacity of or
renunciation by the beneficiaries named therein. The revocation is
ineffective, because of the clear intent of the testator to revoke ,
contained in a valid will. The validity of the new will prevents the
operation of the principle of dependent relative revocation, even if
the new dispositions cannot be carried out.
Art. 833. A revocation of a will based on a false cause or an
illegal cause is null and void. (n)
T: if the act of revocation is induced by a belief which turns out to be
false, there is no revocation. The fact, with regard to which the
mistake was made, must, however, appear upon the face of the
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instrument. Parol evidence not competent tp prove revocation was

induced by false assumption of fact or law.
Where the facts alleged by the testator were peculiarly w/in his
knowledge, or the testator must have known the truth of the facts
alleged by him, it does not matter whether they are true or not; the
revocation in such case is absolute.
B: Requisites for Article 833:
1.
the cause must be concrete, factual and not purely

subjective
2.
it must be false;
3.
the testator must know its falsity
4.
it must appear that the testator is revoking because of the

cause which is false.
5.
the illegal cause should be stated in the will as the cause

of revocation
Art. 834. The recognition of an illegitimate child does not lose

its legal effect, even though the will wherein it was made should
be revoked. (714)
T: the recognition does not lose its legal effect even if the will is
revoked, because the recognition is not a testamentary disposition; it
takes effect upon the execution of the will and not upon the death of
the testator.
B: Recognition is an irrevocable act, even if will is revoked
recognition remains.
Molo vs. Molo
Mariano Molo y Legaspi died on January 24, 1941, in the
municipality of Pasay, province of Rizal, without leaving any forced
heir either in the descending or ascending line. He was survived,
however, by his wife, the herein petitioner Juana Juan Vda. de Molo,
and by his nieces and nephew, the oppositors-appellants, Luz,
Gliceria and Cornelio, all surnamed Molo, who were the legitimate
children of Candido Molo y Legaspi, deceased brother of the testator.
Mariano Molo y Legaspi left two wills, one executed on August 17,
1918, (Exhibit A) and another executed on June 20, 1939, (Exhibit I).
The latter will contains a clause which expressly revokes the will
executed in 1918.
The next contention of appellants refers to the revocatory clause
contained in the 1939 will of the deceased which was denied
probate. They contend that, notwithstanding the disallowance of said
will, the revocatory clause is valid and still has the effect of nullifying
the prior will of 1918. Counsel for petitioner meets this argument by
invoking the doctrine laid down in the case of Samson vs. Naval, (41
Phil., 838). He contends that the facts involved in that case are on all
fours with the facts of this case. Hence, the doctrine in that case is
here controlling.
There is merit in this contention. We have carefully read the facts
involved in the Samson case and we are indeed impressed by their
striking similarity with the facts of this case. We do not need to recite
here what those facts are; it is enough to point out that they contain
many points and circumstances in common. No reason, therefore, is
seen why the doctrine laid down in that case (which we quote
hereunder) should not apply and control the present case.
"A subsequent will, containing a clause revoking a previous will,
having been disallowed, for the reason that it was not executed in
conformity with the provisions of section 618 of the Code of Civil
41

Procedure as to the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said revocatory clause is
void." (41 Phil., 838.)
"It is universally agreed that where the second will is
invalid on account of not being executed in accordance
with the provisions of the statute, or where the testator has
not sufficient mental capacity to make a will or the will is
procured through undue influence, or the such, in other
words, where the second will is really no will, it does not
revoke the first will or affect it in any manner." Mort vs.
Baker University (1935) 229 Mo. App., 632, 78 S. W. (2d),
498."
These treaties cannot be mistaken. They uphold the view on which
the ruling in the Samson case is predicated. They reflect the opinion
that this ruling is sound and good and for this reason we see no
justification for abandoning it as now suggested by counsel for the
oppositors.
It is true that our law on the matter (sec. 623, Code of Civil
Procedure) provides that a will may be revoked "by some will, codicil,
or other writing executed as provided in case of wills"; but it cannot
be said that the 1939 will should be regarded, not as a will within the
meaning of said word, but as "other writing executed as provided in
the case of wills", simply because it was denied probate. And even if
it be regarded as any other writing within the meaning of said clause,
there is authority for holding that unless said writing is admitted to
probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp.
329-330).
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 occasions 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.
VIII. REPUBLICATION AND REVIVAL OF WILLS
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 some reason. The doctrine is not 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 the 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 the new testamentary disposition, upon whose
validity the revocation depends, is equivalent to the nonfulfillment of a suspensive condition, and hence prevents
the revocation of the original will. But a mere intent to
make at some time a will in 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. 233.)
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Art. 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)
Art. 836. The execution of a codicil referring to a previous will
has the effect of republishing the will as modified by the codicil.
(n)
Art. 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)
IX. ALLOWANCE OF WILLS
Art. 838. No will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of
Court.
The testator himself may, during his lifetime, petition the court
having jurisdiction for the allowance of his will. In such case,
the pertinent provisions of the Rules of Court for the allowance
of wills after the testator's 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)
A. Concept of Probate
To probate a will means to prove before some officer or tribunal,
vested by law with authority for that purpose, that the instrument
offered to be proved is the last will and testament of the deceased
person whose testamentary act it is alleged to be, and that it has
been executed, attested and published as required by law, and that
the testator was of sound and disposing mind. It is a civil proceeding
to establish the validity of the will.
Revocation
vs.
1. by the act of testator
Disallowance
1. by decree of court
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2. even without cause
3. may be partial
2. exclusive grounds by law

3. entire will
B. Necessity of Probate
A final decree of probate is conclusive as to the due execution and
formal validity of a will, hence, probate is necessary to determine the
following:
1. testator was of sound mind
2. consent was not vitiated
3. will was signed by the required number of witnesses
4. it is genuine and authentic
In sum it involves:
a. Testatmentary Capacity
b. due execution thereof
c. genuineness
6. De Borja vs. De Borja
It is uncontested that Francisco de Borja, upon the death of his wife
Josefa Tangco on 6 October 1940, filed a petition for the probate of
her will which was docketed as Special Proceeding No. R-7866 of
the Court of First Instance of Rizal, Branch I. The will was probated
on 2 April 1941. In 1946, Francisco de Borja was appointed executor
and administrator: in 1952, their son, Jose de Borja, was appointed
co-administrator. When Francisco died, on 14 April 1954, Jose
became the sole administrator of the testate estate of his mother,
Jose Tangco While a widower Francisco de Borja allegedly took unto
himself a second wife, Tasiana Ongsingco. Upon Francisco's death,
Tasiana instituted testate proceedings in the Court of First Instance
of Nueva Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to Francisco was
questioned in said proceeding.
The relationship between the children of the first marriage and
Tasiana Ongsingco has been plagued with several court suits and
counter-suits; including the three cases at bar, some eighteen (18)
cases remain pending determination in the courts. The testate estate
of Josefa Tangco alone has been unsettled for more than a quarter of
a century. In order to put an end to all these litigations, a compromise
agreement was entered into on 12 October 1963, 2 by and between
"[T]he heir and son of Francisco de Borja by his first marriage,
namely, Jose de Borja personally and as administrator of the Testate
Estate of Josefa Tangco," and "[T]he heir and surviving spouse of
Francisco de Borja by his second marriage, Tasiana Ongsingco Vda.
de Borja, assisted by her lawyer, Atty. Luis Panaguiton, Jr."
On 16 May 1966, Jose de Borja submitted for Court approval the
agreement of 12 October 1963 to the Court of First Instance of Rizal,
in Special Proceeding No. R-7866; and again, on 8 August 1966, to
the Court of First Instance of Nueva Ecija, in Special Proceeding No.
832. Tasiana Ongsingco Vda. de de Borja opposed in both instances.
The Rizal court approved the compromise agreement, but the Nueva
Ecija court declared it void and unenforceable. Special administratrix
Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's
order of approval (now Supreme Court G.R. case No. L-28040),
while administrator Jose de Borja appealed the order of disapproval
(G.R. case No. L-28568) by the Court of First Instance of Nueva
Ecija.
The genuineness and due execution of the compromise agreement
of 12 October 1963 is not disputed, but its validity is, nevertheless,
attacked by Tasiana Ongsingco on the ground that: (1) the heirs
cannot enter into such kind of agreement without first probating the
will of Francisco de Borja; (2) that the same involves a compromise
on the validity of the marriage between Francisco de Borja and
Tasiana Ongsingco; and (3) that even if it were valid, it has ceased to
have force and effect.
In assailing the validity of the agreement of 12 October 1963,
Tasiana Ongsingco and the Probate Court of Nueva Ecija rely on this
Court's decision in Guevara vs. Guevara. 74 Phil. 479, wherein the
Court's majority held the view that the presentation of a will for
probate is mandatory and that the settlement and distribution of an
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estate on the basis of intestacy when the decedent left a will, is

against the law and public policy. It is likewise pointed out by
appellant Tasiana Ongsingco that Section 1 of Rule 74 of the
Revised Rules explicitly conditions the validity of an extrajudicial
settlement of a decedent's estate by agreement between heirs, upon
the facts that "(if) the decedent left no will and no debts, and the
heirs are all of age, or the minors are represented by their judicial
and legal representatives . . ." The will of Francisco de Borja having
been submitted to the Nueva Ecija Court and still pending probate
when the 1963 agreement was made, those circumstances, it is
argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the compromise
agreement, Jose de Borja stresses that at the time it was entered
into, on 12 October 1963, the governing provision was Section 1,
Rule 74 of the original Rules of Court of 1940, which allowed the
extrajudicial settlement of the estate of a deceased person
regardless of whether he left a will or not. He also relies on the
dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil.
479, wherein was expressed the view that if the parties have already
divided the estate in accordance with a decedent's will, the probate
of the will is a useless ceremony; and if they have divided the estate
in a different manner, the probate of the will is worse than useless.
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 In stance 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:
43

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."
The Revised rules of Court provides for the requirements and

procedure for probating a will as follows:
RULE 75
PRODUCTION OF WILL. ALLOWANCE OF WILL
NECESSARY
Tasiana Ongsingco further argues that her contract with Jose de

Borja (Annex "A") is void because it amounts to a compromise as to
her status and marriage with the late Francisco de Borja. The point is
without merit, for the very opening paragraph of the agreement with
Jose de Borja (Annex "A") describes her as "the heir and surviving
spouse of Francisco de Borja by his second marriage, Tasiana
Ongsingco Vda. de de Borja", which is in itself definite admission of
her civil status. There is nothing in the text of the agreement that
would show that this recognition of Ongsingco's status as the
surviving spouse of Francisco de Borja was only made in
consideration of the cession of her hereditary rights.
SECTION 1. Allowance necessary. Conclusive as to

execution.No will shall pass either real or personal estate
unless it is proved and allowed in the proper court. Subject to
the right of appeal, such allowance of the will shall be
conclusive as to its due execution.
It is difficult to believe, however, that the amicable settlement referred

to in the order and motion above-mentioned was the compromise
agreement of 13 October 1963, which already had been formally
signed and executed by the parties and duly notarized. What the
record discloses is that some time after its formalization, Ongsingco
had unilaterally attempted to back out from the compromise
agreement, pleading various reasons restated in the opposition to
the Court's approval of Annex "A" (Record on Appeal, L-20840, page
23): that the same was invalid because of the lapse of the allegedly
intended resolutory period of 60 days and because the contract was
not preceded by the probate of Francisco de Borja's will, as required
by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved
a compromise affecting Ongsingco's status as wife and widow of
Francisco de Borja, etc., all of which objections have been already
discussed.
SEC. 3. Executor to present will and accept or refuse

trust.A person named as executor in a will shall, within
twenty (20) days after he knows of the death of the testator,
or within twenty (20) days after he knows that be is named
executor if he obtained such knowledge after the death of the
testator, present such will to the court having jurisdiction,
unless the will has reached the court in any other manner,
and shall, within such period, signify to the court in writing his
acceptance of the trust or his refusal to accept it.
It was natural that in view of the widow's attitude, Jose de Borja

should attempt to reach a new settlement or novatory agreement
before seeking judicial sanction and enforcement of Annex "A", since
the latter step might ultimately entail a longer delay in attaining final
remedy. That the attempt to reach another settlement failed is
apparent from the letter of Ongsingco's counsel to Jose de Borja
quoted in pages 35-36 of the brief for appellant Ongsingco in G.R.
No. L-28040; and it is more than probable that the order of 21
September 1964 and the motion of 17 June 1964 referred to the
failure of the parties' quest for a more satisfactory compromise. But
the inability to reach a novatory accord can not invalidate the original
compromise (Annex "A") and justifies the act of Jose de Borja in
finally seeking a court order for its approval and enforcement from
the Court of First Instance of Rizal, which, as heretofore described,
decreed that the agreement be ultimately performed within 120 days
from the finality of the order, now under appeal. We conclude that in
so doing, the Rizal court acted in accordance with law, and,
therefore, its order should be upheld, while the contrary resolution of
the Court of First Instance of Nueva Ecija should be, and is,
reversed.
C. Modes of Probate
Two kinds of probate under Art. 838
1.
Ante mortem probate or that which is had during the

lifetime of the testator. This is an innovation to our laws on
succession.
Ratio:
a. easier for the courts to determine the mental condition of
testator during his lifetime.
b. Fraud, intimidation, undue influence are minimized
c. If will found to be non conforming to the requirements
provided for by law the same maybe corrected at once
d. Will lessen the number of contest upon wills, since testator
still alive his animus testandi is determinable at once.
2. Post mortem or that which is had after death
D. Requirements for Probate
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SEC. 2. Custodian of will to deliver.The person who

has custody of a will shall, within twenty (20) days after he
knows of the death of the testator, deliver the will to the court
having jurisdiction, or to the executor named In the will.
SEC. 4. Custodian and executor subject to fine for

neglect.A person who neglects any of the duties required in
the two last preceding sections without excuse satisfactory to
the court shall be fined not exceeding two thousand pesos.
SEC. 5. Person retaining will may be committed.A
person having custody of a will after the death of the testator
who neglects without reasonable cause to deliver the same,
when ordered so to do, to the court having jurisdiction, may
be committed to prison and there kept until he delivers the
will.
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
SECTION 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 the
court for the allowance of his will.
SEC. 2. Contents of petition.A petition for the
allowance of a will must show, so far as known to the
petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the
heirs, legatees, and devisees of the testator or
decedent;
(c) The probable value and character of the
property of the estate;
(d) The name of the person for whom letters
are prayed;
44

(e) If the will has not been delivered to the
court, the name of the person having custody of it.
But no defect in the petition shall render void the
allowance of the will, or the issuance of letters testamentary
or of administration with the will annexed.
SEC. 3. Court to appoint time for proving will. Notice
thereof to be published.When a will is delivered to, or a
petition for the allowance of a will is filed in, the court having
jurisdiction, such court shall fix a time and place for proving
the will when all concerned may appear to contest the
allowance thereof, and shall cause notice of such time and
place to be published three (3) weeks successively, previous
to the time appointed, in a newspaper of general circulation
in the province.
But no newspaper publication shall be made where the
petition for probate has been filed by the testator himself.
none of the subscribing witnesses resides in the province,

but that the deposition of one or more of them can be taken
elsewhere, the court may, on motion, direct It to be taken,
and may authorize a photographic copy of the will to be
made and to be presented to the witness on his examination,
who may be asked the same questions with respect to it and
to the handwriting of the testator and others, as would be
pertinent and competent if the original will were present.
SEC. 8. Proof when witnesses dead or insane or do not
reside in the Philippines.If it appears at the time fixed for
the hearing that the subscribing witnesses are dead or
insane, or that none of them resides in the Philippines, the
court may admit the testimony of other witnesses to prove
the sanity of the testator, and the due execution of the will;
and as evidence of the execution of the will, it may admit
proof of the handwriting of the testator and of the subscribing
witnesses, or of any of them.
SEC. 4. Heirs, devisees, legatees, and executors to be

notified by mail or personally.The court shall also cause
copies of the notice of the time and place fixed for proving
the will to be addressed to the designated or other known
heirs, legatees, and devisees of the testator resident in the
Philippines at their places of residence, and deposited in the
post office with the postage thereon prepaid at least twenty
(20) days before the hearing, if such places of residence be
known. A copy of the notice must in like manner be mailed to
the person named as executor, if he be not the petitioner,
also, to any person named as co-executor not petitioning, if
their places of residence be known. Personal service of
copies of the notice at least ten (10) days before the day of
hearing shall be equivalent to mailing.
SEC. 9. Grounds for disallowing will.The will shall be

disallowed in any of the following cases:
If the testator asks for the allowance of his own will,

notice shall be sent only to his compulsory heirs.
(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.
SEC. 5. Proof at hearing. What sufficient in absence of

contest.At the hearing compliance with the provisions of
the last two preceding sections must be shown before the
introduction of testimony in support of the will. All such
testimony shall be taken under oath and reduced to writing. If
no person appears to contest the allowance of the will, the
court may grant allowance thereof on the testimony of one of
the subscribing witnesses only, if such witness testify that the
will was executed as is required by law.
In the case 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. In the
absence of any such competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
SEC. 6. Proof of lost or destroyed will. Certificate
thereupon.No will shall be proved as a lost or destroyed
will unless the execution and validity of the same be
established and the will is proved to have been in existence
at the time of the death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the lifetime of
the testator without his knowledge, nor unless its provisions
are clearly and distinctly proved by at least two (2) credible
witnesses. When a lost will is proved, the provisions thereof
must be distinctly stated and certified by the judge, under the
seal of the court, and the certificate must be filed and
recorded as other wills are filed and recorded.
SEC. 7. Proof when witnesses do not reside in
province.If it appears at the time fixed for the hearing that
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(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;
SEC. 10. Contestant to file grounds of contest.

Anyone appearing to contest the will must state in writing his
grounds for opposing its allowance, and serve a copy thereof
on the petitioner and other parties interested in the estate.
SEC. 11. Subscribing witnesses produced or accounted
for where will contested.If the will is contested, all the
subscribing witnesses, and the notary in the case of wills
executed under the Civil Code of the Philippines, if present in
the Philippines, and not insane, must be produced and
examined, and the death, absence, or insanity of any of them
must be satisfactorily shown to the court. If all or some of
such witnesses are present in the Philippines but outside the
province where the will has been filed, their deposition must
be taken. If any or all of them testify against the due
execution of the will, or do not remember having attested to
it, or are otherwise of doubtful credibility, the will may,
nevertheless, be allowed if the court is satisfied from the
testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the
manner required by law.
If a holographic will is contested, the same shall be
allowed if at least three (3) witnesses who know the
handwriting of the testator explicitly declare that the will and
the signature are in the handwriting of the testator; in the
absence of any competent witness, and if the court deem it
necessary, expert testimony may be resorted to.
45

SEC. 12. Proof where testator petitions for allowance of
holographic will.Where the testator himself petitions for the
probate of his holographic will and no contest is filed, the fact
that he affirms that the holographic will and the signature are
in his own handwriting, shall be sufficient evidence of the
genuineness and due execution thereof. If the holographic
will is contested, the burden of disproving the genuineness
and due execution thereof shall be on the contestant The
testator may, in his turn, present such additional proof as
may be necessary to rebut the evidence for the contestant.
is improbable that the decedent would have permitted Primitivo

Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will,
when she precisely wanted its contents to remain a secret during her
lifetime; (d) it is also improbable that her purpose being to conceal
the will from her husband she would carry it around, even to the
hospital, in her purse which could for one reason or another be
opened by her husband; (e) if it is true that the husband demanded
the purse from Felina in the U.S.T. Hospital and that the will was
there, it is hard to believe that he returned it without destroying the
will, the theory of the petitioner being precisely that the will was
executed behind his back for fear he will destroy it.
SEC. 13. Certificate of allowance attached to proved

will. To be recorded in the Office of Register of Deeds.If the
court is satisfied, upon proof taken and filed, that the will was
duly executed, and that the testator at the time of its
execution was of sound and disposing mind, and not acting
under duress, menace, and undue influence, or fraud, a
certificate of its allowance, signed by the judge, and attested
by the seal of the court shall be attached to the will and the
will and certificate filed and recorded by the clerk. Attested
copies of the will devising real estate and of certificate of
allowance thereof, shall be recorded in the register of deeds
of the province in which the lands lie.
The New Civil Code effective in 1950 revived holographic wills in its
arts. 810-814. "A person may execute a holographic will which must
himself. It is subject to no other form and may be made in or out of
the Philippines, and need not be witnessed."
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 witness referred to in the
preceding paragraph, and if the court deem it necessary, expert
testimony may be resorted to. (619a)
Gan vs. Yap
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart
failure in the University of Santo Tomas Hospital, leaving properties
in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the
Manila court of first instance with a petition for the probate of a
holographic will allegedly executed by the deceased, Opposing the
petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during
her lifetime.
Sometime in 1950 after her last trip abroad, Felicidad Esguerra
mentioned to her first cousin, Vicente Esguerra, her desire to make a
will. She confided however that it would be useless if her husband
discovered or knew about it. Vicente consulted with Fausto E. Gan,
nephew of Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without any witness,
provided the document was entirely in her handwriting, signed and
dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5,
1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter
of Vicente), who was invited to read it. In the afternoon of that day,
Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who
again read it.
The trial judge refused to credit the petitioner's evidence for several
reasons, the most important of which were these: (a) if according to
his evidence, the decedent wanted to keep her will a secret, so that
her husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses
were unnecessary; (b) in the absence of a showing that Felina was a
confidant of the decedent it is hard to believe that the latter would
have allowed the former to see and read the will several times; (c) it
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The object of such requirements it has been said, is to close the door
against bad faith and fraud, to prevent substitution of wills, to
guarantee their truth and authenticity (Abangan vs. Abangan, 40
Phil., 476) and to avoid that those who have no right to succeed the
testator would succeed him and be benefited with the probate of
same. (Mendoza vs. Pilapil, 40 off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the
instrument is duly proved.
Now, in the matter of holographic wills, no such guaranties of truth
and veracity are demanded, since as stated, they need no witnesses;
provided however, that they are "entirely written, dated, and signed
by the hand of the testator himself." The law, it is reasonable to
suppose, regards the document itself as material proof of
authenticity, and as its own safeguard, since it could at any time, be
demonstrated to be or not to be in the hands of the testator
himself. "In the probate of a holographic will" says the New Civil
Code, "it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the testator. If the will
is contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent's
handwriting) and if the court deem it necessary, expert testimony
may be resorted to."
The witnesses so presented do not need to have seen the execution
of the holographic will. They may be mistaken in their opinion of the
handwriting, or they may deliberately lie in affirming it is in the
testator's hand. However, the oppositor may present other witnesses
who also know the testator's handwriting, or some expert witnesses,
who after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been
written by the hand of the deceased. (Sec. 50, Rule 123). And the
court, in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will.
At this point, before proceeding further, it might be convenient to
explain why, unlike holographic wills, ordinary wills may be proved by
testimonial evidence when lost or destroyed. The difference lies in
the nature of the wills. In the first, the only guarantee of authenticity
is the handwriting itself; in the second, the testimony of the
subscribing or instrumental witnesses (and of the notary, now). The
loss of the holographic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing witnesses are
available to authenticate.
In the case of ordinary wills, it is quite hard to convince three
witnesses (four with the notary) deliberately to lie. And then their lies
could be checked and exposed, their whereabouts and acts on the
particular day, the likelihood that they would be called by the testator,
their intimacy with the testator, etc. And if they were intimates or
trusted friends of the testator they are not likely to lend themselves to
any fraudulent scheme to distort his wishes. Last but not least, they
can not receive anything on account of the will.
46

Whereas in the case of holographic wills, if oral testimony were
admissible 9 only one man could engineer the whole fraud this way:
after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and
credible witnesses see and read the forgery; and the latter, having no
interest, could easily fall for it, and in court they would in all good
faith affirm its genuineness and authenticity. The will having been lost
the forger may have purposely destroyed it in an "accident" the
oppositors have no way to expose the trick and the error, because
the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of
them need be signed, the substitution of the unsigned pages, which
may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more
objectionable feature feasibility of forgery would be added to
the several objections to this kind of wills listed by Castan, Sanchez
Roman and Valverde and other well-known Spanish Commentators
and teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will, the three
subscribing witnesses would be testifying to a fact which they saw,
namely the act of the testator of subscribing the will; whereas in the
case of a lost holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an opinion
which can not be tested in court, nor directly contradicted by the
oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find
ourselves sharing the trial judge's disbelief. In addition to the dubious
circumstances described in the appealed decision, we find it hard to
believe that the deceased should show her will precisely to relatives
who had received nothing from it: Socorro Olarte and Primitivo
Reyes. These could pester her into amending her will to give them a
share, or threaten to reveal its execution to her husband Ildefonso
Yap. And this leads to another point: if she wanted so much to
conceal the will from her husband, why did she not entrust it to her
beneficiaries? Opportunity to do so was not lacking: for instance, her
husband's trip to Davao, a few days after the alleged execution of the
will.
In fine, even if oral testimony were admissible to establish and
probate a lost holographic will, we think the evidence submitted by
herein petitioner is so tainted with improbabilities and inconsistencies
that it fails to measure up to that "clear and distinct" proof required by
Rule 77, sec. 6. 11
Rodelas vs. Aranza
". . . On January 11, 1977, appellant filed a petition with the
Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as
Sp. Proc. No. 8432, was opposed by the appellees
Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:
"(3)
The alleged holographic will itself, and
not an alleged copy thereof, must be produced,
otherwise it would produce no effect, as held in
Gan v. Yap, 104 Phil. 509; and
The only question here is whether a holographic will which was
lost or can not 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
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the case of Gan 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.
WHEREFORE, the order of the lower court dated October 3, 1979,
denying appellant's motion for reconsideration dated August 9, 1979,
of the Order dated July 23, 1979, dismissing her petition to approve
the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
Azaola vs. Singson
"Briefly speaking, the following facts were established by
the petitioner; that on September 9, 1957, Fortunata S.
Vda. de Yance died at 13 Luskot, Quezon City, known to
be the last residence of said testatrix; that Francisco
Azaola, petitioner herein for probate of the holographic will,
submitted the said holographic will (Exh. C) whereby Maria
Milagros Azaola was made the sole heir as against the
nephew of the deceased Cesario Singson; that witness
Francisco Azaola testified that he saw the holographic will
(Exh. C) one month, more or less, before the death of the
testatrix, as the same was handed to him and his wife; that
the witness testified also that he recognized all the
signatures appearing in the holographic will (Exh. C) as the
handwriting of the testatrix and to reinforce said statement,
witness presented the mortgage (Exh. E), the special
power of attorney (Exh. F), and the general power of
attorney (Exh. F-1), besides the deeds of sale (Exhs. G
and G-1) including an affidavit (Exh. G-2), and that there
were further exhibited in court two residence certificates
(Exhs. H and H-1) to show the signatures of the testatrix,
for comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix
as well as the signatures appearing therein are the
signatures of the testatrix; that said witness, in answer to a
question of his counsel admitted that the holographic will
was handed to him by the testatrix, "apparently it must
have been written by her" (t.s.n., p. 11). However, on page
16 on the same transcript of the stenographic notes, when
the same witness was asked by counsel if he was familiar
with the penmanship and handwriting of the deceased
Fortunata Vda. de Yance, he answered positively in the
affirmative and when he was asked again whether the
penmanship referred to in the previous answer as
appearing in the holographic will (Exh. C) was hers
(testatrix'), he answered, "I would definitely say it is hers";
that it was also established in the proceedings that the
assessed value of the property of the deceased in Luskot,
Quezon City, is in the amount of P7,000.00."
The opposition to the probate was on the ground that (1) the
execution of the will was procured by undue and improper pressure
and influence on the part of the petitioner and his wife, and (2) that
the testatrix did not seriously intend the instrument to be her last will,
and that the same was actually written either on the 5th or 6th day of
August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently that the body
of the will was written in the handwriting of the testatrix."
47

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.
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 witnesses 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 acquainted with 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.
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 will 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 to decide 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.
In view of the foregoing, the decision appealed from is set aside, and
the records ordered remanded to the Court of origin, with instructions
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to hold a new trial in conformity with this opinion. But evidence

already on record shall not be retaken. No costs.
Codoy vs. Calugay
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and
Eufemia Patigas, devisees and legatees of the holographic will of the
deceased Matilde Seo Vda. de Ramonal, filed with the Regional
Trial Court, Misamis Oriental, Branch 18, a petition 3 for probate of
the holographic will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo
Vda. de Ramonal, was of sound and disposing mind when she
executed the will on August 30, 1978, that there was no fraud, undue
influence, and duress employed in the person of the testator, and the
will was written voluntarily. The assessed value of the decedents
property, including all real and personal property was about
P400,000.00, at the time of her death. 4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal
filed an opposition 5 to the petition for probate, alleging that the
holographic will was a forgery and that the same is even illegible.
This gives an impression that a "third hand" of an interested party
other than the "true hand" of Matilde Seo Vda. de Ramonal
executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing
on the will after every disposition is out of the ordinary. If the
deceased was the one who executed the will, and was not forced,
the dates and the signature should appear at the bottom after the
dispositions, as regularly done and not after every disposition. And
assuming that the holographic will is in the handwriting of the
deceased, it was procured by undue and improper pressure and
influence on the part of the beneficiaries, or through fraud and
trickery.
On December 12, 1990, respondents filed a notice of appeal, 8 and
in support of their appeal, the respondents once again reiterated the
testimony of the following witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad;
(5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
According to the Court of Appeals, Evangeline Calugay, Matilde
Ramonal Binanay and other witnesses definitely and in no uncertain
terms testified that the handwriting and signature in the holographic
will were those of the testator herself.Thus, upon the unrebutted
testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the Court of Appeals sustained the authenticity of
the holographic will and the handwriting and signature therein, and
allowed the will to probate.
In this petition, the petitioners ask whether the provisions of Article
811 of the Civil Code are permissive or mandatory. The article
provides, as a requirement for the probate of a contested
holographic will, that at least three witnesses explicitly declare that
the signature in the will is the genuine signature of the testator.
We are convinced, based on the language used, that Article 811 of
the Civil Code is mandatory. The word "shall" connotes a mandatory
order. We have ruled that "shall" in a statute commonly denotes an
imperative obligation and is inconsistent with the idea of discretion
and that the presumption is that the word "shall," when used in a
statute is mandatory." 11
Laws are enacted to achieve a goal intended and to guide against an
evil or mischief that aims to prevent. In the case at bar, the goal to
achieve is to give effect to the wishes of the deceased and the evil to
be prevented is the possibility that unscrupulous individuals who for
their benefit will employ means to defeat the wishes of the testator.
What Ms. Binanay saw were pre-prepared receipts and letters of the
deceased, which she either mailed or gave to her tenants. She did
not declare that she saw the deceased sign a document or write a
note. In her testimony it was also evident that Ms. Binanay kept the
fact about the will from petitioners, the legally adopted children of the
deceased. Such actions put in issue her motive of keeping the will a
secret to petitioners and revealing it only after the death of Matilde
Seo Vda. de Ramonal. So, the only reason that Evangeline can
give as to why she was familiar with the handwriting of the deceased
48

was because she lived with her since birth. She never declared that
she saw the deceased write a note or sign a document.
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.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The
records are ordered remanded to the court of origin with instructions
to allow petitioners to adduce evidence in support of their opposition
to the probate of the holographic will of the deceased Matilde Seo
Vda. de Ramonal.
E. Effect of Allowance of wills
The matter of due execution of the will and capacity of the testator
acquire the character of res judicata and cannot again be brought
into question, all judicial questions in connection therewith being for
once and forever closed.
On June 24, 1939 a petition for the probate of his will was filed in the
Court of First Instance of Sorsogon (Special Proceeding No. 3171).
The notice of hearing was duly published In that will. Florentino
bequeathed his one-half share in the conjugal estate to his second
wife, Tecla Dollentas, and, should Tecla predecease him, as was the
case, his one-half share would be assigned to the spouses Pedro
Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's
son by her first marriage, grew up under the care of Florentino: he
had treated Pedro as his foster child, and Pedro has rendered
services to Florentino and Tecla. Florentino likewise bequeathed his
separate properties consisting of three parcels of abaca land and
parcel of riceland to his protege (sasacuyang ataman) Adolfo
Fortajada, a minor.
On October 24, 1941, the testamentary heirs, the Gallanosa spouses
and Adolfo Fortajada, submitted a project of partition covering sixtyone parcels of land located in various parts of Sorsogon, large cattle
and several pieces of personal property which were distributed in
accordance with Florentino's will. The heirs assumed the obligations
of the estate amounting to P7,129.27 in the portion of P2,376.42 for
Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The
project of partition was approved by Judge Doroteo Amador in his
order of March 13, 1943, thus confirming the heirs' possession of
their respective shares. The testator's legal heirs did not appeal from
the decree of probate and from the order of partition and distribution.
On February 20, 1952, Leon Hitosis and the heirs of Florentino's
deceased brothers and sisters instituted an action in the Court of
First Instance of Sorsogon against Pedro Gallanosa for the recovery
of the said sixty-one parcels of land. They alleged that they, by
themselves or through their predecessors-in-interest, had been in
continuous possession of those lands en concepto de dueo and
that Gallanosa entered those lands in 1951 and asserted ownership
over the lands. They prayed that they be declared the owners of the
lands and that they be restored to the possession thereof. They also
claimed damages (Civil Case No. 696).
The plaintiffs did not appeal from that order of dismissal which should
have set the matter at rest. But the same plaintiffs or oppositors to
the probate of the will, and their heirs, with a persistence befitting a
more meritorious case, filed on September 21, 1967, or fifteen years
after the dismissal of Civil Case No. 696 and twenty-eight years after
the probate of the will, another action in the same court against the
Gallanosa spouses and Adolfo Fortajada for the "annulment" of the
will of Florentino Hitosis and for the recovery of the same sixty-one
parcels of land. They prayed for the appointment of a receiver.
The petitioners or the defendants below contend in this certiorari
case that the lower court has no jurisdiction to set aside the 1939
decree of probate and the 1952 order of dismissal in Civil Case No.
696 and that it acted with grave abuse of discretion in not dismissing
private respondents' 1967 complaint.
The issue is whether, under the facts set forth above, the private
respondents have a cause of action for the "annulment" of the will of
Florentino Hitosis and for the recovery of the sixty-one parcels of
land adjudicated under that will to the petitioners. We hold that the
lower court committed a grave abuse of discretion in reconsideration
its order of dismissal and in ignoring the 1939 testamentary case and
the 1952 Civil Case No. 696 which is the same as the instant 1967
case.
Gallanosa vs. Arcangel
What the plaintiffs seek is the "annulment" of a last will and

testament duly probated in 1939 by the lower court itself. The
proceeding is coupled with an action to recover the lands adjudicated
to the defendants by the same court in 1943 by virtue of the probated
will, which action is a resuscitation of the complaint of the same
parties that the same court dismissed in 1952. It is evident from the
allegations of the complaint and from defendants' motion to dismiss
that plaintiffs' 1967 action is barred by res judicata a double-barrelled
defense, and by prescription, acquisitive and extinctive, or by what
are known in the jus civile and the jus gentium as usucapio, longi
temporis possesio and praescriptio (See Ramos vs. Ramos, L19872, December 3, 1974, 61 SCRA 284).
The case involves the sixty-one parcels of land in Sorsogon left by

Florentino Hitosis, with an estimated value of P50,000, and claims
for damages exceeding one million pesos.
We say that the defense of res judicata, as a ground for the dismissal
of plaintiffs' 1967 complaint, is a two-pronged defense because (1)
the 1939 and 1943 decrees of probate and distribution in Special
The probate court does not look upon the intrinsic validity of the will.
However, it was held that the trial court may pass upon the intrinsic
validity even before its formal validity had been established.
Otherwise, the probate of the will might become an idle ceremony if
on its face it appears intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed
upon even before probated; the court should meet the issue.
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49

Proceeding No. 3171 and (2) the 1952 order of dismissal in Civil
Case No. 696 of the lower court constitute bars by former judgment
The 1939 decree of probate is conclusive as to the due execution or
formal validity of the will. That means that the testator was of sound
and disposing mind at the time when he executed the will and was
not acting under duress, menace, fraud, or undue influence; that the
will was signed by him in the presence of the required number of
witnesses, and that the will is genuine and is not a forgery.
Accordingly, these facts cannot again be questioned in a subsequent
proceeding, not even in a criminal action for the forgery of the will.
After the finality of the allowance of a will, the issue as to the
voluntariness of its execution cannot be raised anymore
It is a fundamental concept in the organization 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 date fixed
by law. Interest rei publicae ut finis sit litum. The very object for
which the courts were constituted was to put an end to
controversies. After the period for seeking relief from a final order or
judgment under Rule 38 of the Rules of Court has expired, a final
judgment or order can be set aside only on the grounds of (a) lack of
jurisdiction or lack of due process of law or (b) that the judgment was
obtained by means of extrinsic or collateral fraud. In the latter case,
the period for annulling the judgment is four years from the discovery
of the fraud
That ruling is a glaring error Article 1410 cannot possibly apply to last
wills and testaments. The trial court and plaintiffs' counsel relied
upon the case of Dingle vs. Guillermo, 48 O.G. 4410, allegedly
decided by this Court, which cited the ruling in Tipton vs. Velasco, 6
Phil. 67, that mere lapse of time cannot give efficacy to void
contracts, a ruling elevated to the category of a codal provision in
article 1410. The Dingle case was decided by the Court of Appeals.
Even the trial court did not take pains to verify the misrepresentation
of plaintiffs' counsel that the Dingle case was decided by this Court.
An elementary knowledge of civil law could have alerted the trial
court to the egregious error of plaintiffs' counsel in arguing that article
1410 applies to wills.
Roberts vs. Leonidas
The question in this case is whether a petition for allowance of wills
and to annul a partition, approved in an intestate proceeding by
Branch 20 of the Manila Court of First Instance, can be entertained
by its Branch 38 (after a probate in the Utah district court).
Antecedents. Edward M. Grimm, an American resident of Manila,
died at 78 in the Makati Medical Center on November 27, 1977. He
was survived by his second wife, Maxine Tate Grimm, and their two
children, named Edward Miller Grimm II (Pete) and Linda Grimm,
and by Juanita Grimm Morris and Ethel Grimm Roberts (McFadden),
his two children by a first marriage which ended in divorce (SubAnnexes A and B, pp. 36-47, Rollo).
He executed on January 23, 1959 two wills in San Francisco,
California. One will disposed of his Philippine estate which he
described as conjugal property of himself and his second wife. The
second will disposed of his estate outside the Philippines.
In both wills, the second wife and two children were favored. The two
children of the first marriage were given their legitimes in the will
disposing of the estate situated in this country. In the will dealing with
his property outside this country, the testator said: "I purposely have
made no provision in this will for my daughter, Juanita Grimm Morris,
or my daughter, Elsa Grimm McFadden (Ethel Grimm Roberts),
because I have provided for each of them in a separate will
disposing of my Philippine property." (First clause, pp. 43-47, Rollo).
The two wills and a codicil were presented for probate by Maxine
Tate Grimm and E. La Var Tate on March 7, 1978 in Probate No.
3720 of the Third Judicial District Court of Tooele County, Utah.
Juanita Grimm Morris of Cupertino, California and Mrs. Roberts of 15
C. Benitez Street, Horseshoe Village, Quezon City were notified of
the probate proceeding
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Two weeks later, or on April 25, 1978, Maxine and her two children
Linda and Pete, as the first parties, and Ethel, Juanita Grimm Morris
and their mother Juanita Kegley Grimm, as the second parties, with
knowledge of the intestate proceeding in Manila, entered into a
compromise agreement in Utah regarding the estate. It was signed
by David E. Salisbury and Donald B. Holbrook, as lawyers of the
parties, by Pete and Linda and the attorney-in-fact of Maxine and by
the attorney-in-fact of Ethel, Juanita Grimm Morris and Juanita
Kegley Grimm.
In that agreement, it was stipulated that Maxine, Pete and Ethel
would be designated as personal representatives (administrators) of
Grimm's Philippine estate (par. 2). It was also stipulated that
Maxine's one-half conjugal share in the estate should be reserved for
her and that would not be less than $1,500,000 plus the homes in
Utah and Santa Mesa, Manila (par. 4). The agreement indicated the
computation of the "net distributable estate". It recognized that the
estate was liable to pay the fees of the Angara law firm
Acting on the declaration of heirs and project of partition signed and
filed by lawyers Limqueco and Macaraeg (not signed by Maxine and
her two children), Judge Conrado M. Molina in his order of July 27,
1979 adjudicated to Maxine one-half (4/8) of the decedent's
Philippine estate and one-eighth (1/8) each to his four children or 121/2% (pp. 140-142, Record). No mention at all was made of the will
in that order.
Petition to annul partition and testate proceeding No. 134559. On
September 8, 1980, Rogelio A. Vinluan of the Angara law firm, in
behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower
court a petition praying for the probate of Grimm's two wills (already
probated in Utah), that the 1979 partition approved by the intestate
court be set aside and the letters of administration revoked, that
Maxine be appointed executrix and that Ethel and Juanita Morris be
ordered to account for the properties received by them and to return
the same to Maxine (pp. 25-35, Rollo).
Grimm's second wife and two children alleged that they were defraud
due to the machinations of the Roberts spouses, that the 1978 Utah
compromise agreement was illegal, that the intestate proceeding is
void because Grimm died testate and that the partition was contrary
to the decedent's wills.
Ethel filed a motion to dismiss the petition. Judge Leonidas denied it
for lack of merit in his order of October 27, 1980. Ethel then filed a
petition for certiorari and prohibition in this Court, praying that the
testate proceeding be dismissed, or, alternatively that the two
proceedings be consolidated and heard in Branch 20 and that the
matter of the annulment of the Utah compromise agreement be
heard prior to the petition for probate (pp. 22-23, Rollo).
Ruling. 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. Pao, L42088, 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. WHEREFORE, the petition is dismissed. The
temporary restraining order is dissolved. No costs.
Nepomuceno vs. CA
50

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
Leao, 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.
"Art IV. That since 1952, I have been living, as

man and wife, with one Sofia J. Nepomuceno,
whom I declare and avow to be entitled to may
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;"
The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the
situation constrains it to do and pass upon certain provisions of the
Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the
testator instituted the petitioner as universal heir and completely
preterited her surviving forced heirs. A will of this nature, no matter
how valid it may appear extrinsically, would be null and void.
Separate or latter proceedings to determine the intrinsic validity of
the testamentary provisions would be superfluous.
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.
"We are of the opinion that in view of certain unusual provisions of

the will, which are of dubious legality, and because of the motion to
withdraw the petition for probate (which the lower court assumed to
have been filed with the petitioner's authorization), the trial court
acted correctly in passing upon the will's intrinsic validity even before
its formal validity had been established. The probate of a will might
become an idle ceremony if on its face it appears to be intrinsically
void. Where practical considerations demand that the intrinsic validity
of the will be passed upon, even before it is probated, the court
should meet the issue
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.
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.
There appears to be no more dispute at this time over the extrinsic

validity of the Will. Both parties are agreed that the Will of Martin
Jugo was executed with all the formalities required by law and that
the testator had the mental capacity to execute his Will. The
petitioner states that she completely agrees with the respondent
court when in resolving the question of whether or not the probate
court correctly denied the probate of Martin Jugo's last Will and
Testament, The only issue, therefore, is the jurisdiction of the
respondent court to declare the testamentary provision in favor of the
petitioner as null and void.
The main issue raised by the petitioner is whether or not the

respondent court acted in excess of its jurisdiction when after
declaring the last Will and Testament of the deceased Martin Jugo
validly drawn, it went on to pass upon the intrinsic validity of the
testamentary provision in favor of herein petitioner.
There is no question from the records about the fact of a prior

existing marriage when Martin Jugo executed his Will. There is also
no dispute that the petitioner and Mr. Jugo lived together in an
ostensible marital relationship for 22 years until his death. It is also a
fact that on December 2, 1952, Martin Jugo and Sofia J.
Nepomuceno contracted a marriage before the Justice of the Peace
of Victoria, Tarlac. The man was then 51 years old while the woman
was 48. Nepomuceno now contends that she acted in good faith for
22 years in the belief that she was legally married to the testator.
The petitioner submits that the validity of the testamentary provision

in her favor cannot be passed upon and decided in the probate
proceedings but in some other proceedings because the only
purpose of the probate of a Will is to establish conclusively as
against everyone that a Will was executed with the formalities
required by law and that the testator has the mental capacity to
execute the same. The petitioner further contends that even if the
provisions of paragraph 1 of Article 739 of the Civil Code of the
Philippines were applicable, the declaration of its nullity could only be
made by the proper court in a separate action brought by the legal
wife for the specific purpose of obtaining a declaration of the nullity of
the testamentary provision in the Will in favor of the person with
whom the testator was allegedly guilty of adultery or concubinage.
Moreover, the prohibition in Article 739 of the Civil Code is against

the making of a donation between persons who are living in adultery
or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very
wordings of the Will invalidate the legacy because the testator
admitted he was disposing the properties to a person with whom he
had been living in concubinage. WHEREFORE, the petition is
DISMISSED for lack of merit.
X. DISALLOWANCE OF WILLS
We agree with the respondents. The respondent court acted within

its jurisdiction when after declaring the Will to be validly drawn, it
went on to pass upon the intrinsic validity of the Will and declared the
devise in favor of the petitioner null and void. The general rule is that
in probate proceedings, the court's area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will.
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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;
51

(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)
Art. 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)
Art. 1336. Violence or intimidation shall annul the obligation,
although it may have been employed by a third person who did
not take part in the contract. (1268)
Art. 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)
Art. 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)
T: A will void as to form does not transmit property. But it can give
rise to a natural obligation; so that even if a legatee named therein
cannot legally claim the legacy, the voluntary delivery thereof by the
intestate heir is valid.
Is a will executed by virtue of fraud upon testator susceptible of
ratification?
T: We submit that this conclusion overlooks the difference between
the law on wills and the law on contracts. In the law on contracts,
fraud merely makes the contract voidable; while in the law on wills,
fraud is a ground for the disallowance of the will, that is, it renders
the will void ab initio. There is nothing in the law on wills which allows
implied confirmation or ratification of a void will, while there are
provsions allowing it in the law on contracts.
However, the fact that the testOR did nor revoke his will after
knowledge of the alleged fraud may be evidence against the
existence of fraud.
Pascual vs. Dela Cruz
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On 2 January 1960, Catalina de la Cruz, single and without any

surviving descendant or ascendant, died at the age of 89 in her
residence at San Roque, Navotas, Rizal. On 14 January 1960, a
petition for the probate of her alleged will was filed in the Court of
First Instance of Rizal by Andres Pascual, who was named in the
said will as executor and sole heir of the decedent. 1
Opposing the petition, Pedro de la Cruz and 26 other nephews
and nieces of the late Catalina de la Cruz contested the validity of
the will on the grounds that the formalities required by law were not
complied with; that the testatrix was mentally incapable of disposing
of her properties by will at the time of its execution; that the will was
procured by undue and improper pressure and influence on the part
of the petitioner; and that the signature of the testatrix was obtained
through fraud.
After hearing, during which the parties presented their
respective evidences, the probate court rendered judgment
upholding the due execution of the will, and, as therein provided,
appointed petitioner Andres Pascual executor and administrator of
the estate of the late Catalina de la Cruz without bond. The
oppositors appealed directly to the Court, the properties involved
being valued at more than P300,000.00, raising only the issue of the
due execution of the will.
In this instance, oppositors-appellees claim that the lower
court erred in giving credence to the testimonies of the subscribing
witnesses and the notary that the will was duly executed,
notwithstanding the existence of inconsistencies and contradictions
in the testimonies, and in disregarding their evidence that the will
was not signed by all the witnesses in the presence of one another,
in violation of the requirement of the law.
In this jurisdiction, it is the observed rule that, where a will is
contested, the subscribing with are generally regarded as the best
qualified to testify on its due execution. However, it is similarly
recognized that for the testimony of such witnesses to be entitled to
full credit, it must be reasonable and unbiased, and not overcome by
competent evidence, direct or circumstantial. 2 For it must be
remembered that the law does not simply require the presence of
three instrumental witnesses; it demands that the witnesses be
credible. 3
In connection with the issue under consideration, we agree
with the trial judge that the contradictions and inconsistencies
appearing in the testimonies of the witnesses and the notary, pointed
out by the oppositors-appellants (such as the weather condition at
the time the will was executed; the sequence of the signing by the
witnesses; and the length of time it took to complete the act), relate
to unimportant details of the impressions of the witnesses about
certain details which could have been affected by the lapse of time
and the treachery of human memory, and which inconsistencies, by
themselves, would not alter the probative value of their testimonies
on the due execution of the will [cf. Peo. vs. Sigue, 86 Phil. 139-140
(3 years interval)].
Not having heard Jiongco testify, this court is not in a position to
contradict the appreciation of the trial court that the voice in the tape
recording was not really that of Jiongco. And considering that he
denied that fact under oath, that the tape recording was not
supported by truly impartial evidence, and was done without the
knowledge of the witness, we cannot see our way clear to rule that
Jiongco has been successfully impeached, and shown guilty of false
testimony. It would be dangerous to rule otherwise.
The second point that renders incredible the alleged assertion
of Jiongco in the tape recording, that he signed the testament only in
1958 or 1959, is that in the Notarial Registry of the notary, Gatdula,
the ratification of the testament appears among the entries for 1954,
as well as in the corresponding copies (Exhibit I) filed by him with
Bonifacio Sumulong, the employee in charge of the Notarial Section
of the Clerk of Court's office, who produced them at the trial upon
52

subpoena, and who testified to his having searched for and found
them in the vaults of the Clerk of Court's office. No evidence exists
that these documents were not surrendered and filed at the Clerk of
Court's office, as required by law, and in the regular course of official
duty. Certainly, the notary could not have reported in 1954 what did
not happen until 1958.
In view of the evidence, we do not feel justified in concluding
that the trial court erred in accepting the concordant testimony of the
instrumental witnesses as warranting the probate of the will in
question, taking into account the unexcelled opportunity of the court
a quo to observe the demeanor, and judge the credibility, of the
witness thereby. Furthermore, it would not be the first time in this
jurisdiction that a will has been admitted to probate even if the
instrumental witness testified contrary to the other two, provided the
court is satisfied, as in this case, that the will was executed and
attested in the manner provided by law (Fernandez vs. Tantoco, 49
Phil. 380; Tolentino vs. Francisco, 57 Phil. 742; Cuyugan vs. Baron,
69 Phil. 639; Ramirez vs. Butte, 100 Phil 635). There is greater
reason to admit the will to probate where only the testimony of one
witness is subjected to serious, if unsuccessful attack.
Contestants further assail the admission to probate on the
ground that the execution of the will was tainted by fraud and undue
influence exerted by proponent on the testarix, and affirm that it was
error for the lower court to have rejected their claim. Said the court in
this regard (Record on Appeal, page 87):
Before considering the correctness of these findings, it is worthwhile
to recall the basic principles on undue pressure and influence as laid
down by the jurisprudence of this Court: that to be sufficient to
avoid a will, the influence exerted must be of a kind that so
overpowers and subjugates the mind of the testator as to
destroy his free agency and make him express the will of
another rather than his own (Coso vs. Fernandez Deza, 42 Phil.
596; Icasiano vs. Icasiano, L-18979, 30 June 1964; Teotico vs. Del
Val, L-18753, 26 March 196); that the contention that a will was
obtained by undue influence or improper pressure cannot be
sustained on mere conjecture or suspicion, as it is enough that there
was opportunity to exercise undue influence, or a possibility that it
may have been exercised (Ozaeta vs. Cuartero, L-5597, 31 May
1956); that the exercise of improper pressure and undue influence
must be supported by substantial evidence that it was actually
exercised (Ozatea vs. Cuartero, ante; Teotico vs. Del Val, L-18753,
26 March 1965); that the burden is on the person challenging the will
to show that such influence was exerted at the time of its execution
(Teotico vs. Del Val, ante); that mere general or reasonable influence
is not sufficient to invalidate a will (Coso vs. Fernandez Deza, ante);
nor is moderate and reasonable solicitation and entreaty addressed
to the testator (Barreto vs. Reyes, L-5831-31, 31 January 1956), or
omission of relatives, not forced heirs, evidence of undue influence
(Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 416).
Tested against these rulings, the circumstances marshalled by
the contestants certainly fail to establish actual undue influence or
improper pressure exercised on the testarix by the proponent. Their
main reliance is on the assertion of the latter, in the course of his
testimony, that the deceased "did not like to sign anything unless I
knew it" (t.s.n., page 7, 27 January 1962), which does not amount to
proof that she would sign anything that proponent desired. On the
contrary, the evidence of contestants-appellants, that proponent
purchased a building in Manila for the testarix, placed the title in his
name, but caused the name "Catalina de la Cruz" to be painted
thereon in bold letters to mislead the deceased, even if true,
demonstrates that proponent's influence was not such as to
overpower to destroy the free will of the testarix. Because if the
mind of the latter were really subjugated by him to the extent
pictured by the contestants, then proponent had no need to
recourse to the deception averred.lawphi1.et
Nor is the fact that it was proponent, and not the testarix, who
asked Dr. Sanchez to be one of the instrumental witnesses evidence
of such undue influence, for the reason that the rheumetism of the
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testarix made it difficult for her to look for all the witnesses. That she
did not resort to relatives or friends is, likewise explainable: it would
have meant the disclosure of the terms of her will to those interested
in her succession but who were not favored by her, thereby exposing
her to unpleasant importunity and recriminations that an aged person
would naturally seek to avoid. The natural desire to keep the making
of a will secret can, likewise, account for the failure to probate the
testament during her lifetime.
We conclude that the trial court committed no error in finding
the appellant's evidence established at most grounds for suspicion
but fell far short of establishing actual exercise of improper pressure
or influence. Considering that testarix considered proponent as her
own son, to the extent that she expressed no objection to his being
made the sole heir of her sister, Florentina Cruz, in derogation of her
own rights, we find nothing abnormalin her instituting proponent also
as her own beneficiary. As stated by the Court in the Knutson case
The truth of the matter is that bequests and devises to those in whom
the testator has confidence and who have won his affection are more
likely to be free from undue influence that bequests or devises to
others. (In re Knutson's Will, 41 Pac. 2d 793). Appellants invoked
presumption of undue influence held to exist by American authorities
where the beneficiary participates in the drafting of execution of the
will favoring him; but since the will was prepared by Atty. Pascual,
although nephew of the proponent, we do not think the presumption
applies; for in the normal course of events, said attorney would follow
the instructions of the testatrix; and a member of the bar in good
standing may not be convicted of unprofessional conduct, or of
having conspired to falsify a statement, except upon clear proof.
The charge of fraud, being premised on the existence of
undue influence, needs no separate discussion. WHEREFORE, the
decree of probate appealed from is affirmed;
XI. LEGITIME
A. Concept.
Art. 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)
Three principal systems of distribution of hereditary property:
1. Absolute freedom of disposition
2. Total reservation
3. Partial reservation
T: Considering the customs and traditions of the Filipinos for the
sake of family solidarity, the present code preserved the system of
legitimes. However, changes have been made as follows:
1. with respect to the amounts of that coumpulsory heirs receive;
2. illegitimate children have been made compulsory heirs though with
a smaller legitime;
3. legitime of surviving spouse has been changed from a mere
usufruct to a full ownership.
4. eliminates the mejora which resulted in the increase of both the
legitime and the free portion
Thus, Justice JBL Reyes has this to say:
The increase of the legitime to as against the 1/3 in the old code,
and the suppression of the mejora, operate to limit the freedom of
choice of the testator to a greater extent than under the old code, for
the testator, under that law, could at least select the individual
descendants who should receive the third betterment.
Jurisprudence, however, interpreted the ultimate purpose of the
systems of legitime. It is a limitation upon the freedom of the testator
to dispose of his property. Its purpose is to protect those heirs, for
whom the testator is presumed to have an obligation to reserve
53

certain portions of his estate, from his unjust ire or weakness or
thoughtlessness.
Ratio of the free portion:
1. An owners jus disponendi
2. man as a member of society can entertain not only familial
affections, but also legitimate affections to his fellowmen,
thus, should not be absolutely be restrained from
disposing property according to dictates of generosity.
The legitime does not consist in determinate or specific property
which the testator must reserve for his compulsory heirs. It consists
of a part of fraction of the entire mass of the hereditary estate. The
standard for determination is fixed by law, but quantity may vary
according to number and relation of the heirs to the testator.
property of the decedent pass not to strangers but to his natural

successor.
Legitimated Children the NCC is silent as to this kind of children
but the Family code under Art. 272 grants the same rights to
legitimated as that of the legitimate. Hence they are included as a
compulsory heir.
Adopted Children Art. 189 of the FC provides that for civil
purposes, the adopted shall be deemed a legitimate child of the
adopters and both shall acquire reciprocal rights and obligations from
a parent-child relationship. Hence, considered as legitimate child of
the deceased adopting parent both as CH and LH.
Illegitimate Parents they are compulsory heirs only in the absence
of legitimate, or illegitimate children of the decedent as provided
under Art. 903.
B. Who are entitled?

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 by legal fiction;
children,
and
natural
Adopting parents they are not compulsory heirs of the adopted

child because Art. 190 of the FC only provides that they shall be legal
heirs of the deceased adopted and is silent as to their becoming
compulsory heir. This indicates that the latter was not intended.
Ratio: Adoption is for the benefit of the adopted, and unless the law
clearly intends to favor the adopter, all doubts should be resolved
against him. Because of the silence of the law on legitimes, he
cannot be entitiled to the legitime of the legitimate parents; and in the
law of testacy , he is not given, in general, the same rights as a
legitimate parent but only such as are specifically provided in Article
190 of the FC. Legitimes of CH are restrictions on the freedom of the
testator and must not be presumed but viewed strictly.
(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)
Compulsory heirs are those who succeed whether the testator likes it
or not and they cannot be deprived of their legitime except only by
disinheritance.
An heir, of whatever class is absolutely free to accept or renounce
the inheritance because the law on legitime is a restriction not on the
freedom of the heir to accept or repudiate, but on the freedom of
testator to dispose of his property.
Kinds of Compulsory heirs:
1.
Primary those who exclude other compulsory heirs ex.

Legit children & ascendants
2.
secondary succeed only in the absence of the primary.

ex. Legit parents & ascenadants
3.
Concurring succeed together with the primary and

secondary cannot be excluded by them. Ex. Widow/er &
illegit children
Legitimate children and ascendants in the ordinary course of

nature father or mother die ahead of the child; the law confers
preferential legitimary rights upon them. Thus the law intends that
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Illegitimate Children the FC abolished the distinctions in the old

civil code thus merging them to one group.
Social and humanitarian reasons justify this grant of rights. These
children are brought to the world without their fault and under
circumstances beyond their control. To leave illegitimate children w/o
successional rights not only weighs them down with the moral
handicap of their status but also denies them the material assistance
which they may need after their parents death so as not to become
social burdens.
They are not required to be recognized by putative parents but must
only prove their filiation.
In the enforcement of this new right it is the death of the parent which
determines the right of the child to succeed and not the birth of the
latter.
Surviving Spouse there should be a valid marriage between the
deceased and the surviving spouse. Thus, the following marriages
has different effect on the capacity of the widow or widower to
succeed:
1.
null and void marriages such as incestuous or bigamous

ones. Except in cases of bigamous marriages where two
wives contract in good faith with the same husband, both
are entitled to inherit equally from the deceased husband.
2.
Voidable marriages entitle the widow/er to legitime

because there exists a valid marriage until it is annulled.
Thus, once annulled before death of a spouse they are
incapacitated to inherit. However, pending the case of
annulment and one spouse dies the widow/er,
nevertheless, inherits the legitime because the marriage
can no longer be annulled after death of one.
54

3.
Legal separation of the spouses before death entitles the

widow/er the Legitime if he /she is the innocent spouse.
Unless reconciliation occurred before the death of the
spouse, the survivor will inherit regardless of his guilt. In
such case that the decree is pending upon death of one
spouse then the decision should be awaited. The fact that
the innocent spouse instituted the legal separation
manifest his desire to not to allow the guilty spouse to
benefir fro his estate. The accident of death should not
defeat this purpose.
4.
Separation in fact by amicable settlement does not

incapacitate the guilty spouse to inherit though there may
be valid grounds for legal separation there being no
judicial decree, the right of legitime is preserved.
Art. 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)
The article allows the legitimate and illegitimate descendants to
represent the illegitimate child who predecease his own parent. But
the illegitimate children of of an illegitimate child can represent the
latter only in the rights set forth in the preceding articles namely
894, 895, 896, 899, and 901.
The criticism on this article is that the law gives better rights to the
illegitimate children of an illegitimate child and not to the illegitimate
children of a legitimate child. This is absurd since the position of the
illegitimate children is no better than or equal to that of the legitimate
child. However, though unfair to the latter this is an express provision
of law which we are confronted with. Thus, dura lex sed lex
Rosales vs. Rosales
In this Petition for Review of two (2) Orders of the Court of First
Instance of Cebu the question raised is whether the widow whose
husband predeceased his mother can inherit from the latter, her
mother-in-law.
In the course of the intestate proceedings, the trial court issued an
Order dated June 16, 1972 declaring the following individuals the
legal heirs of the deceased and prescribing their respective share of
the estate Fortunato T. Rosales (husband) 1/4; Magna R. Acebes
(daughter), 1/4; Macikequerox Rosales, 1/4; and Antonio Rosales
(son), 1/4.
This declaration was reiterated by the trial court in its Order dated
February 4, 1975. These Orders notwithstanding, Irenea Rosales
insisted in getting a share of the estate in her capacity as the
surviving spouse of the late Carterio Rosales, son of the deceased,
claiming that she is a compulsory heir of her mother-in-law together
with her son, Macikequerox Rosales.
In sum, the petitioner poses two (2) questions for Our resolution.
First is a widow (surviving spouse) an intestate heir of her motherin-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.
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
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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.
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
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.
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. Accordingly, it is Our considered opinion, and We so hold,
that a surviving spouse is not an intestate heir of his or her parent-inlaw. WHEREFORE, in view of the foregoing, the Petition is hereby
DENIED for lack of merit, with costs against the petitioner. Let this
case be remanded to the trial court for further proceedings.
C. Concurrence of compulsory heirs and their legitimes.
Art. 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)
The enlargement of the legitime and the free portion to half each is
primarily the result of removal of the 1/3 mejora or betterment in the
old code where the testator disposes a portion in favor of his
legitimate children for their betterment or reward. The NCC
eliminated the mejora for the following reasons:
1.
The natural inequalities among children is but imaginary

and parent reward merely on better qualities of one
children
2.
such reward may be effected by the father or mother by

disposing of part or all of the free half
55

3.
the testator should have greater freedom to dispoe of his

estate by will
the supposed free portion is not always disposable by the testator; it

is expressly made subject to the rights of illegitimate children and the
surviving spouse. Only the remainder thereafter shall be disposable,
if there is any left.
Art. 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)
Art. 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)
Art. 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)
T: As to legitimate children, the law makes no distinction whether of
the previous marriage or the marriage dissolved by death, hence,
children in both cases are included
The surviving spouse concurring with legitimate children receives
only equal to the legitime of each of the legitimate children and
ascendants.
What if there are no legitimate children only descendants? Does
this mean that the spouse shall receive equal to each
descendants which may be even more than the number of
children of the deceased? NO. whatever the number of
descendants is immaterial the divisor is still the number of children
they represent because the descendants only inherit by
representation. Even if all the children repudiate the legitime the
divisor shall still be the number of children. But if only some of the
children repudiate, the basis of computation should be the number of
children who accept the inheritance
If the surviving spouse receives a devise or legacy, is he entitiled to
the same in addition to his legitime?
T: if the testator gives a devise or legacy to the surviving spouse, and
there is enough of the portion subject to his disposal which can cover
such devise or legacy, then the surviving spouse should get the
devise or legacy in addition to his legitime. To merge the devise or
legacy in the legitime would leave a part of the free portion
undisposed of; this is contrary to the policy of law against intestate
succession and against the express will of the testator. We believe,
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therefore, that the devise or legacy should be first taken from the
remaining disposable portion, and if there is any excess of the devise
or legacy over the disposable portion, that excess charged against or
merged in the legitime of the surviving spouse.
If however, the legitime of the surviving spouse is already protected
by the disposition giving him an amount or portion equivalent to that
legitime, then he cannot ask for more unless, the testator provides it
as addition to his legitime.
Art. 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)
Art. 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)
Art. 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 repealed by Article 176 of the Family Code which provides
that the legitime of each illegitimate children is one-half of that of
legitimate child.
Ratio: the law rewards more the fruits of legal unions, thus, giving
preference and greater portion of the hereditary estate. However, for
humanitarian reasons the illegitimate children should not be
disregarded because they are just as innocent and blameless as the
legitimate children for being born in this world beyond their control.
Limitations to the rights of Legitimate children:
1.
filiation must be proved
2.
their share comes only from the free portion
3.
surviving spouse is preferred over them, the legitme of the

spouse is satisfied first
4.
their share is susceptible of proportionate reduction if their

total legitimes exceeds the free portion
Art. 896. Illegitimate children who may survive with legitimate

parents or ascendants of the deceased shall be entitled to onefourth of the hereditary estate to be taken from the portion at
the free disposal of the testator. (841a)
56

Art. 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)
Art. 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)
The Family Code has already abolished the distinction between
natural and other illegitimate children placing them under one
category of illegitimate children.
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)
T: This seems to be an unjustified discrimination against the surviving
spouse because he receives a graeter or an equal amount when she
survives with either the IC or the LP but with both at the same time
she only receives a measly 1/8 of the estate. Undoubtedly, the code
seems to have wanted to save portion of the estate for the free
disposal of the deceased. This is not a sufficient justification for
discriminating against the surviving spouse and destroying the
balance between the legitimes, after vall, there are instances in w/c
the free portion is merely theoretical.
Art. 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)
Presupposes that the surviving spouse is the only compulsory heir.
T: We believe that this rule will apply only when the deceased is the
spouse who was at the point of death at the time of marriage; hence,
it will not apply when the spouse who was at the point of death at the
time of marriage is the one who survives, and the other is the one
who dies w/in three months after the marriage.
Ratio for the rule is the presumption that the marriage is contracted
exclusively for inheriting. However, this suspicion is erased if the
spouses had been living together as husband and wife for at least
five years on account of companionship and affection for such length
of time.
This distinction does not apply to intestacy
Art. 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.
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The other half shall be at the free disposal of the testator. (842a)
Art. 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)
It must be noted that in illegitimate filiation, the right to succeed in the
ascending line terminates with the parent of the deceased illegitimate
child. There is, therefore, no reciprocity of successional reights
between the illegitimate grandparent and the illegitimate grandchild.
P.D. 603; Art. 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:
(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.
D. Restrictions regarding the legitime
Art. 904. The testator cannot deprive his compulsory heirs of
their legitime, except in cases expressly specified by law.
Art. 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)
57

The legitime goes to the heir by operation of law and not by the will
of the testator; hence it cannot be subject to the freedom of the latter
to impose encumbrances, conditions and substitutions. Any
encumbrance is simply disregarded and considered as not written.
The CHs right to the legitime is free, unencumbered, and pure.
Art. 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)
1.
The future legitime between is merely an expectancy, and

the heir does not acquire any right over the same until
death of testator.
2.
The renunciation or compromise does not become valid by

the mere failure of the compulsory heirs to assert its
invalidity because the matter of its legal effect cannot be
left to the will of the parties.
3.
4.
5.
6.
all renunciations of future legitimes are void. However, a

mere statement made by a son of the properties ne has
received from his father, still living, for the purpose of
taking the same into account in case of partition in the
event the father dies, is not a renunciation or compromise
on future legitime.
Since the legitime is a part of the inheritance, and a
compromise is contract, it is obvious that all compromises
on future legitimes, by and between the heirs themselves
to the exclusion of the testator, must be held void if not
under this article, under the general prohibition of Art.
1347.
the nullity of the renunciation or compromise may be
claimed, not only by the CH who made it, by co-heirs
prejudiced thereby.
the giving of donations as advance of the legitime is not
prohibited by this article nor 1347 but governed by rules on
donation and the reduction thereof whenever inofficoius.
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. (815)
By the word testator, irt is believed thiat this principle applies only
when that which has been left is in a will or testament. If there is no
testatmentery disposition in his favor, the heir cannot ask for
completion of his legitime, because there is nothing to complete;
instead, there should be case of preterition or total omission, and in
such case the forced heir in the direct line is entitled to ask, not
merely for the completion of his legitime, but for the annulment of the
institution of heir.
But when it is not evedent that the testator has forgotten the
compulsory heir and it appears as a fact that the compulsory heir
had already received something in the way of advance upon his
legitime, it cannot be presumed that the testator had forgotten the
compulsory heir. There is no real preterition, although nothing has
been left by will to the CH. The purpose of Article 906 evidently is to
give the compulsory heir only that ehich has been reserved for him
by the law, nothing less nothing more. If he was not forgotten then he
is entitled only to that which the testator cannot deprive him.
Even when the CH has not been mentioned in the will or has not
been gien an advance on his legitime, if the testamentary
dispositions do not cover the entire estate but something is left
undisposed, and the CH is also a compulsory heir is also an intestate
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heir. The indisposed portion would pass by the rule of intestacy to the
CH; if it is not enough to cover his legitime, then he may ask for the
completion of such legitme. It is to be presumed that the testator
intended to give him the undisposed portion.
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. (817)
Only the CHs whose legitme has been impaired can avail of the right
to ask for the reduction of inofficious donations, devises, or legacies.
contracts.
object of a contract. (1271a)
It is essential that the object must be in existence at the time of
perfection of the contract, or that it has the possibility or potentiality
of coming into existence at some future time. By way of exception,
the law generally does not allow contracts on future inheritance. In
order to be future inheritance, the succession must not have been
opened at the time of the contract. A contract to fall within the
prohibition of this article, the following requisites are necessary: 1.
that the succession is yet to be opened. 2. the object forms part of
the inheritance. 3. the promissor has an expectant right over the
object which is purely hereditary in nature.
An agreement to partition an estate of a living person by those who
inherit from him is void. A contract renouncing the right to inherit from
one who is still alive is void.
After the death of the person, however, the properties and rights left
by him by way of inheritance can be the subject matter of a contract
among or by his heirs, even before a partition thereof has been
made, because the rights of the heirs are transmitted to them from
the death of the predecessor.
When the object of the contract is not a part of the inheritance, the
prohibition does not apply, even if delivery of such object is
dependent upon the death of one of the contracting parties. Thus, life
insurance contracts, and stipulations providing for reversion of
property donated in marriage settlements in the event of the death of
the donee, are valid. Likewise, if the right of the party over the thing
is not by virtue of succession, but as creditor, the contract does not
fall within the prohibition of this article. It has been held that in a
contract of purchase by co-owners, it is valid to stipulate that in the
event of death of any of them, those who survive will acquire the
share of the predeceased.
E. Determination of computation
Art. 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.
Steps to determine legitime:
1.
Determination of the value of the property which remains

at the time of the testators death; either by:
a.
judicial proceedings in the settlement of the

estate assisted by tax appraisers
58

b.
true value of the property not merely assessed

value for taxation purposes
of the the testator, just as any donation to stranger, subject to the

resk of reduction.
2.
determination of the obligations, debts, and charges which

have to be paid out or deducted from the value of the
property
If the donation to a stranger exceeds the free portion, then it will have
to be reduced as inofficious. The purpose of the law is not to prevent
the stranger from getting more from the inheritance, but to ascertain
that the CH do not get less than what pertains to them as legitime.
3.
the difference between the assets and the liabilities, giving

rise to the net hereditary estate;
4.
5.
addition to the net value of the estate of donations subject

to collation
Art. 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.
determination of the amount of legitimes by getting from

the total thus found the portion that the law provides as the
legitimes of each respective CH.
The remainder after deduction of the debts and charges is the net
hereditary estate.
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.
Collation, in the first concept is the imaginary or fictitious

reconstitution of the estate of the testator by mere mathematical
process of adding all that is donated during the lifrtime of the testator
to CH or strangers.
The second concept entails that property donated by the testator
during his lifetime must be brought back actually and returened to
the hereditary estate whenever it is found that such donation
exceeds the disposable portion of the estate. The purpose of which
is to complete the assets necessary for the payment of the shares of
the compulsory heirs.
(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)
Donation intervivos is preferred over disposition mortis causa. Ratio:
Collation is thus for the benefit of the CH, and not the creditors of the
decedent. The presence of the latter, however, must be determined
at the time of the testators death, not at the time the donation was
made. The value of the property donated, however, is determined on
the date the donations were made.
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)
Art. 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)
Art. 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)
Any donation to the grandchild is not subject to collation because the
same is not a CH but it may be charged against the free portion as a
donation to stranger.
When the donation to a compulsory heir exceeds his legitime, the
excess is chargeable against the free portion which is at the disposal
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1.
Donation intervivos are by nature irrevocable to allow

annulment on account of legacies and devise in excess of
free portion in effect allows the revocation to depend on
the will of the donor-testator.
2.
Donation is a bilateral act based on the sgreement of

donor and donee while a will is unilateral;
3.
Priority in time is priority in right.
The article provides a rule on preference to determine which devise

or legacy is to be reduced whenervr it execeeds the free portion or to
the extent that it impairs the legitime.
Art. 950 also provides the following order of reduction of legacy or
devise:
1.
remunatory legacy or devise;
2.
legacy or devise declared by testator to be preferred;
3.
legacies for support;
4.
legacies for education;
5.
specific determinate thing ehich form part of the estate;
6.
all others pro rata.
Where lies the distintion bet. 950 and 911?

Article 911 will apply as to the manner of reducing legacies:
59

a.
when reduction is necessary to

preserve legitime of CH from
impairment wheter there are donation
inter vivos;
division, or because it will lose or diminish its value or utitlity when so

divided. Hence, although the law specifically refers only to devise, it
should be considered applicable to all objects whether movable or
immovable, of the same nature, such as vessels.
b.
when although legitime has been

preserve by the testator, by giving
sufficient portion to cover legitime of
CH, thereare donations inter vivos
concurring with legacies or devises
within the free portion.
Query: if the reduction should be exactly of the value, does it

mean that the hir gets to retain it not being less than ? does not
absorb
Article 950 applies when the question of reduction is exclusively

among the legatees themselves, either because ther are no
compulsory heirs, or because the legitme of CH has already been
provided for by the testator in his will and there are no donation inter
vivos.
As to usufruct, use or habitation, or life annuity there shall be taken
into account the probable life of the beneficiary in accordance with
the American Tropical Experience table at 8% per annum.
It is submitted that the thing should be retained by the devisee. The

intention of the testaor in making a devise of a determinate object is
clearly so that the legatee may enjoy that particular property. Out of
respect for this intention, and since the will of the testator is the
governing law in the succession, the thing should be given to the
devisee in case he is entitled to half its value and the heirs the other
half.
Summary of Legitimes of Compulsory Heirs

1. Legitimate Children with other CH
c.
d.
e.
f.
g.
h.
Donations are reduced first the most recent ones with regard the
excess. Thus, priority in time priority in right. If several donations
made on the same date they are reduced pro rata
A property donated once alienated by donee cannot be set aside. It
would be dangerous to the stability of property and inimical to the
freedom of alienation.
2. Legitimate Parents & Ascendants w/ other CH

a.
b.
c.
d.
In the above instance, can the inofficious part of the donation be

taken from other proerty of the donee?
We believe that in such case the donee should be made to respond
fro the value of the excess or inofficoius part. It was the act of the
donee which made it impossible to recover the inofficoius part to the
hereditary estate. He is conclusively presumed to knoe that that the
donation stands the risk of reduction.
What if the donee is insolvent and cannot return anything to the
estate to complete the impaired legitime; who shall bear the loss?
It is submitted that that the amount to be returned by the insolvent
must be borne and paid by those whose donation are within the free
portion. As between the compulsory heir, whose rights are derived
from law, and the donees, whose rights spring from the will of the
deceased, the former should be protected from the impairment of
their shares.
Art. 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)
Art. 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)
LC alone
1 LC w/ SS- ,
2 or more LC w/ SS , same as 1 LC receives
LC w/ IC , half of 1 LC
1LC, SS, IC , , half of 1 LC
LCs, SS, IC , same as 1 LC, half of 1 LC
LPA alone 1/2

LPA w/ SS ,
LPA w/ IC ,
LPA, SS, IC , 1/8,
3. Illegitimate Children w/ other IC

a.
b.
IC alone
IC w/ SS 1/3, 1/3
4. Surviving Spouse alone

Except in articulo mortis marriage and spouse dies w/in 3 mos.
Surviving spouse entitled only to 1/3
5. Illegitimate Parents w/ other CH
a.
b.
c.
IP alone
IP w/ LC or IC excluded by the latter
IP w/ SS ,
COLLATION
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. (1035a)
Art. 1062. Collation shall not take place among compulsory
heirs if the donor should have so expressly provided, or if the
donee should repudiate the inheritance, unless the donation
should be reduced as inofficious. (1036)
Art. 1063. Property 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. (1037)
T: Division under this article means a material division, which is

inconvenient, because the the property is not susceptible of such
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60

Art. 1064. When the grandchildren, who survive with their
uncles, aunts, or cousins, inherit from their grandparents in
representation of their father or mother, they shall bring to
collation all that their parents, if alive, would have been obliged
to bring, even though such grandchildren have not inherited the
property.
They shall also bring to collation all that they may have received
from the decedent during his lifetime, unless the testator has
provided otherwise, in which case his wishes must be
respected, if the legitime of the co-heirs is not prejudiced. (1038)
Art. 1065. Parents are not obliged to bring to collation in the
inheritance of their ascendants any property which may have
been donated by the latter to their children. (1039)
Art. 1066. Neither shall donations to the spouse of the child be
brought to collation; but if they have been given by the parent to
the spouses jointly, the child shall be obliged to bring to
collation one-half of the thing donated. (1040)
Art. 1067. Expenses for support, education, medical attendance,
even in extraordinary illness, apprenticeship, ordinary
equipment, or customary gifts are not subject to collation.
(1041)
Art. 1068. Expenses incurred by the parents in giving their
children a professional, vocational or other career shall not be
brought to collation unless the parents so provide, or unless
they impair the legitime; but when their collation is required, the
sum which the child would have spent if he had lived in the
house and company of his parents shall be deducted therefrom.
(1042a)
Art. 1069. Any sums paid by a parent in satisfaction of the debts
of his children, election expenses, fines, and similar expenses
shall be brought to collation. (1043a)
Art. 1070. Wedding gifts by parents and ascendants consisting
of jewelry, clothing, and outfit, shall not be reduced as
inofficious except insofar as they may exceed one-tenth of the
sum which is disposable by will. (1044)
Art. 1071. The same things donated are not to be brought to
collation and partition, but only their value at the time of the
donation, even though their just value may not then have been
assessed.
Their subsequent increase or deterioration and even their total
loss or destruction, be it accidental or culpable, shall be for the
benefit or account and risk of the donee. (1045a)
Art. 1072. In the collation of a donation made by both parents,
one-half shall be brought to the inheritance of the father, and
the other half, to that of the mother. That given by one alone
shall be brought to collation in his or her inheritance. (1046a)
Art. 1073. The donee's share of the estate shall be reduced by
an amount equal to that already received by him; and his coheirs shall receive an equivalent, as much as possible, in
property of the same nature, class and quality. (1047)
Art. 1074. Should the provisions of the preceding article be
impracticable, if the property donated was immovable, the coheirs shall be entitled to receive its equivalent in cash or
securities, at the rate of quotation; and should there be neither
cash or marketable securities in the estate, so much of the other
property as may be necessary shall be sold at public auction.
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If the property donated was movable, the co-heirs shall only

have a right to select an equivalent of other personal property of
the inheritance at its just price. (1048)
Art. 1075. The fruits and interest of the property subject to
collation shall not pertain to the estate except from the day on
which the succession is opened.
For the purpose of ascertaining their amount, the fruits and
interest of the property of the estate of the same kind and
quality as that subject to collation shall be made the standard of
assessment. (1049)
Art. 1076. The co-heirs are bound to reimburse to the donee the
necessary expenses which he has incurred for the preservation
of the property donated to him, though they may not have
augmented its value.
The donee who collates in kind an immovable which has been
given to him must be reimbursed by his co-heirs for the
improvements which have increased the value of the property,
and which exist at the time the partition if effected.
As to works made on the estate for the mere pleasure of the
donee, no reimbursement is due him for them; he has, however,
the right to remove them, if he can do so without injuring the
estate. (n)
Art. 1077. Should any question arise among the co-heirs upon
the obligation to bring to collation or as to the things which are
subject to collation, the distribution of the estate shall not be
interrupted for this reason, provided adequate security is given.
(1050)
Dizon-Rivera vs. Dizon
On January 28, 1961, the testatrix, Agripina J. Valdez. a widow, died
in Angeles, Pampanga, and was survived by seven compulsory
heirs, to wit, six legitimate children named Estela Dizon, Tomas V.
Dizon, Bernardita Dizon, Marina Dizon (herein executrix-appellee),
Angelina Dizon and Josefina Dizon, and a legitimate grand-daughter
named Lilia Dizon, who is the only legitimate child and heir of Ramon
Dizon, a pre-deceased legitimate son of the said decedent. Six of
these seven compulsory heirs (except Marina Dizon, the executrixappellee) are the oppositors-appellants.
In her will, the testatrix divided, distributed and disposed of all her
properties appraised at P1,801,960.00 (except, two small parcels of
land appraised at P5,849.60, household furniture valued at
P2,500.00, a bank deposit in the sum of P409.95 and ten shares of
Pampanga Sugar Development Company valued at P350.00) among
her abovenamed heirs.
Testate proceedings were in due course commenced
2 and by
order dated March 13, 1961, the last will and testament of the
decedent was duly allowed and admitted to probate, and the
appellee Marina Dizon-Rivera was appointed executrix of the
testatrix' estate, and upon her filing her bond and oath of office,
letters testamentary were duly issued to her.
The real and personal properties of the testatrix at the time of her
death thus had a total appraised value of P1,811,695.60, and the
legitime of each of the seven compulsory heirs amounted to
P129,362.11.
3 (1/7 of the half of the estate reserved for the
legitime of legitimate children and descendants). 4 In her will, the
testatrix "commanded that her property be divided" in accordance
with her testamentary disposition, whereby she devised and
bequeathed specific real properties comprising practically the entire
bulk of her estate among her six children and eight grandchildren.
Under the oppositors' counter-project of partition, the testamentary
disposition made by the testatrix of practically her whole estate of
P1,801,960.01, as above stated, were proposed to be reduced to the
61

amounts set forth after the names of the respective heirs and
devisees totalling one-half
while the other half of the estate (P905,534.78) would he deemed as
constituting the legitime of the executrix-appellee and oppositorsappellants, to be divided among them in seven equal parts of
P129,362.11 as their respective legitimes.
The lower court, after hearing, sustained and approved the executrix'
project of partition, ruling that "(A)rticles 906 and 907 of the New Civil
Code specifically provide that when the legitime is impaired or
prejudiced, the same shall be completed and satisfied. While it is
true that this process has been followed and adhered to in the two
projects of partition, it is observed that the executrix and the
oppositors differ in respect to the source from which the portion or
portions shall be taken in order to fully restore the impaired legitime.
The proposition of the oppositors, if upheld, will substantially result in
a distribution of intestacy, which is in controversion of Article 791 of
the New Civil Code" adding that "the testatrix has chosen to favor
certain heirs in her will for reasons of her own, cannot be doubted.
This is legally permissible within the limitation of the law, as
aforecited." With reference to the payment in cash of some
P230,552.38, principally by the executrix as the largest beneficiary of
the will to be paid to her five co-heirs, the oppositors (excluding
Tomas Dizon), to complete their-impaired legitimes, the lower court
ruled that "(T)he payment in cash so as to make the proper
adjustment to meet with the requirements of the law in respect to
legitimes which have been impaired is, in our opinion, a practical and
valid solution in order to give effect to the last wishes of the testatrix."
m 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;
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.
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-oppositorappellant, Tomas, who admittedly were favored by the testatrix and
received in the partition by will more than their respective legitimes.
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
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given full validity and effect. Aside from the provisions of Articles 906
and 907 above quoted, other codal provisions support the executrixappellee's project of partition as approved by the lower court rather
than the counter-project of partition proposed by oppositorsappellants 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.
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."
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 of the 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 ease. 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.
With this resolution of the decisive issue raised by oppositorsappellants, 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.
62

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.
De Roma vs. CA
Candelaria de Roma had two legally adopted daughters, Buhay de
Roma and Rosalinda de Roma. She died intestate on April 30, 1971,
and administration proceedings were instituted in the Court of First
Instance of Laguna by the private respondent as guardian of
Rosalinda. Buhay was appointed administratrix and in due time filed
an inventory of the estate. This was opposed by Rosalinda on the
ground that certain properties earlier donated by Candelaria to
Buhay, and the fruits thereof, had not been included. 1
The properties in question consisted of seven parcels of coconut
land worth P10,297.50. 2 There is no dispute regarding their
valuation; what the parties cannot agree upon is whether these lands
are subject to collation. The private respondent vigorously argues
that it is, conformably to Article 1061 of the Civil Code. Buhay, for her
part, citing Article 1062, claims she has no obligation to collate
because the decedent prohibited such collation and the donation
was not officious.
The issue was resolved in favor of the petitioner by the trial court, *
which held that the decedent, when she made the donation in favor
of Buhay, expressly prohibited collation. Moreover, the donation did
not impair the legitimes of the two adopted daughters as it could be
accommodated in, and in fact was imputed to, the free portion of
Candelaria's estate. 3
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 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.
Locsin vs. CA
Mariano Locsin executed a Last Will and Testament instituting his
wife, Catalina, as the sole and universal heir of all his properties 3 .
The will was drawn up by his wife's nephew and trusted legal
adviser, Attorney Salvador Lorayes. Attorney Lorayes disclosed that
the spouses being childless, they had agreed that their properties,
after both of them shall have died should revert to their respective
sides of the family, i.e., Mariano's properties would go to his "Locsin
relatives" (i.e., brothers and sisters or nephews and nieces), and
those of Catalina to her "Jaucian relatives. 4 "
Don Mariano Locsin died of cancer on September 14, 1948 after a
lingering illness. In due time, his will was probated in Special
Proceedings No. 138, CFI of Albay without any opposition from both
sides of the family. As directed in his will, Doa Catalina was
appointed executrix of his estate. Her lawyer in the probate
proceedings was Attorney Lorayes. In the inventory of her husband's
estate 5 which she submitted to the probate court for approval, 6
Catalina declared that "all items mentioned from Nos. 1 to 33 are the
private properties of the deceased and form part of his capital at the
time of the marriage with the surviving spouse, while items Nos. 34
to 42 are conjugal." 7
Among her own and Don Mariano's relatives, Doa Catalina was
closest to her nephew, Attorney Salvador Lorayes, her nieces, Elena
Jaucian, Maria Lorayes-Cornelio and Maria Olbes-Velasco, and the
husbands of the last two: Hostilio Cornelio and Fernando Velasco. 8
Her trust in Hostilio Cornelio was such that she made him custodian
of all the titles of her properties; and before she disposed of any of
them, she unfailingly consulted her lawyer-nephew, Attorney
Salvador Lorayes. It was Atty. Lorayes who prepared the legal
documents and, more often than not, the witnesses to the
transactions were her nieces Elena Jaucian, Maria Lorayes-Cornelio,
Maria Olbes-Velasco, or their husbands. Her niece, Elena Jaucian,
was her life-long companion in her house.
On appeal, the order of the trial court was reversed, the respondent
court ** holding that the deed of donation contained no express
prohibition to collate as an exception to Article 1062. Accordingly, it
ordered collation and equally divided the net estate of the decedent,
including the fruits of the donated property, between Buhay and
Rosalinda. 4
Don Mariano relied on Doa Catalina to carry out the terms of their
compact, hence, nine (9) years after his death, as if in obedience to
his voice from the grave, and fully cognizant that she was also
advancing in years, Doa Catalina began transferring, by sale,
donation or assignment, Don Mariano's, as well as her own,
properties to their respective nephews and nieces. She made the
following sales and donations of properties which she had received
from her husband's estate, to his Locsin nephews and nieces:
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
Doa Catalina died on July 6, 1977. Four years before her death,
she had made a will on October 22, 1973 affirming and ratifying the
transfers she had made during her lifetime in favor of her husband's,
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63

and her own, relatives. After the reading of her will, all the relatives
agreed that there was no need to submit it to the court for probate
because the properties devised to them under the will had already
been conveyed to them by the deceased when she was still alive,
except some legacies which the executor of her will or estate,
Attorney Salvador Lorayes, proceeded to distribute.
In 1989, or six (6) years after Doa Catalina's demise, some of her
Jaucian nephews and nieces who had already received their
legacies and hereditary shares from her estate, filed action in the
Regional Trial Court of Legaspi City (Branch VIII, Civil Case No.
7152) to recover the properties which she had conveyed to the
Locsins during her lifetime, alleging that the conveyances were in
officious, without consideration, and intended solely to circumvent
the laws on succession. Those who were closest to Doa Catalina
did not join the action.
After the trial, judgment was rendered on July 8, 1985 in favor of the
plaintiffs (Jaucian), and against the Locsin defendants
The petition has merit and should be granted. The trial court and the
Court of Appeals erred in declaring the private respondents,
nephews and nieces of Doa 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 Doa 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 Doa
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 Doa 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.
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
Among Doa 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 Doa 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
5,000 sq.m. of the same lot to Jualian Locsin. 19
This Court finds no reason to disbelieve Attorney Lorayes' testimony
that before Don Mariano died, he and his wife (Doa 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 Doa
Catalina, he would not have spun a tale out of thin air that would also
prejudice his own interest.
Their desistance persuasively demonstrates that Doa Catalina
acted as a completely free agent when she made the conveyances in
favor of the petitioners. In fact, considering their closeness to Doa
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. Doa 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.
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
Doa 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
WHEREFORE, the petition for review is granted.
F. Freedom to dispose free portion
Art. 914. The testator may devise and bequeath the free portion
as he may deem fit.
The article reiterates the principle embodied already in article 842.
thus, superfluous and at some point misleading. In many cases, the
testator cannot really dispose of part or whole of the free portion,
because the legitimes of concurring compulsory heirs, like the
surviving spouse and illegitimate children when there are legitimate
children or descendants, are taken from the free portion. Hence, he
can only dispose that which is the remainder of the free portion when
this is partly consumed by the legitimes of concurring compulsory
heirs. The phrase, as he may deem fit, is therefore erroneous. The
testator does not absolute freedom over the free portion when
concurring CH are present and only to those qualified to succeed.
PRINCIPLES AFFECTING LEGITIME
XII. PRETERITION
For as early as 1957, or twenty-eight (28) years before her death,

Doa 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
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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,
64

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)
Art. 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)
The article does not necessarily refer to preterition. It refers to a child
or descendant omitted in a will.
The share of the omitted child is to be determined by other
provisions of law; once that is determined this article provides the
manner in which that share shall be satisfied.
This article suffers serious defects. The term cjold pr descendant
should be construed as compulsory heirs, in much the same way
that the first paragraph of article 909 has been construed by
commentators to refer to compulsory heirs.
Theree is patent fundamental mistake in the last sentence of the
article because it creates a confusion and does not express the true
intent of the law. It should have been reworded in this wise:
the share of the compulsory heir omitted in a will must first be taken
from the part of the estate not diposed of by will, if any; it that is not
sufficient, so much as may be necessary must be taken
PROPORTIONALLY FROM THE SHARES OF THE OTHER HEIRS
GIVEN TO THEM BY WILL
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. (815)
If there is no testamentary disposition in his favor, the heir cannot
ask for completion of his legitime, because there is nothing to
complete; instead there should be a case preterition or total
omission, and in such case the forced heir in the direct line is entitled
to ask, not merely for the completion of his legitime. But for the
annulment of the institution of heir.
Art. 918. Disinheritance without a specification of the cause, or
for a cause the truth of which, if contradicted, is not proved, or
which is not one of those set forth in this Code, shall annul the
institution of heirs insofar as it may prejudice the person
disinherited; but the devises and legacies and other
testamentary dispositions shall be valid to such extent as will
not impair the legitime. (851a)
This article pertain to effects of a disinheritance which does not have
one or more of the essential requisites for its validity. It likewise
applies to cases of reconciliation after a disinheritance has been
made.
The ineffective disinheritance does not affect the disposition of the
testator with respect to the free portion. The reason is the
disinheritance in this case refers only only to the legitime of the heir,
and therefore, it is only this portion that is affected by the nullity or
ineffectiveness of such disinheritance.
Where the disinheritance is ineffective in this case, the compulsory
heir must be given all that he is entitiled to receive as if the
disinheritance has not been made, without prejudice to lawful
dispositions made by the testator in favor of others.
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Aznar vs. Duncan

Edward E. Christensen, a citizen of California with domicile in the
Philippines, died leaving a will executed on March 5, 1951. The will
was admitted to probate by the Court of First Instance of Davao in its
decision of February 28, 1954. In that same decision the court
declared that Maria Helen Christensen Garcia (hereinafter referred to
as Helen Garcia) was a natural child of the deceased. The
declaration was appealed to this Court, and was affirmed in its
decision of February 14, 1958 (G.R. No. L-11484)
In another incident relative to the partition of the deceased's estate,
the trial court approved the project submitted by the executor in
accordance with the provisions of the will, which said court found to
be valid under the law of California. Helen Garcia appealed form the
order of approval, and this Court, on January 31, 1963, reversed the
same on the ground that the validity of the provisions of the will
should be governed by Philippine law, and returned the case to the
lower court with instructions that the partition be made as provided
by said law (G.R. No. L-16749)
On October 29, 1964, the Court of First Instance of Davao issued an
order approving the project of partition submitted by the executor,
dated June 30, 1964, wherein the properties of the estate were
divided equally between Maria Lucy Christensen Duncan (named in
the will as Maria Lucy Christensen Daney, and hereinafter referred to
as merely Lucy Duncan), whom the testator had expressly
recognized in his will as his daughter (natural) and Helen Garcia,
who had been judicially declared as such after his death. The said
order was based on the proposition that since Helen Garcia had
been preterited in the will the institution of Lucy Duncan as heir was
annulled, and hence the properties passed to both of them as if the
deceased had died intestate, saving only the legacies left in favor of
certain other persons, which legacies have been duly approved by
the lower court and distributed to the legatees.
The case is once more before us on appeal, this time by Lucy
Duncan, on the sole question of whether the estate, after deducting
the legacies, should pertain to her and to Helen Garcia in equal
shares, or whether the inheritance of Lucy Duncan as instituted heir
should be merely reduced to the extent necessary to cover the
legitimate of Helen Garcia, equivalent to 1/4 of the entire estate
The trial court ruled, and appellee now maintains, that there has
been preterition of Helen Garcia, a compulsory heir in the direct line,
resulting in the annulment of the institution of heir pursuant to Article
854 of the Civil Code, which provides:
On the other hand, appellant contends that this is not a case of
preterition, but is governed by Article 906 of the Civil Code, which
says: "Any compulsory heir to whom the testator has left by any title
less the legitime belonging to him may demand that the same be fully
satisfied," Appellant also suggests that considering the provisions of
the will whereby the testator expressly denied his relationship with
Helen Garcia, but left to her a legacy nevertheless, although less
than the amount of her legitime, she was in effect defectively
disinherited within the meaning of Article 918, which reads:
Thus, according to appellant, under both Articles 906 and 918, Helen
Garcia is entitled only to her legitime, and not to a share of the estate
equal that of Lucy Duncan as if the succession were intestate.
Article 854 is a reproduction of Article 814 of the Spanish Civil Code;
and Article 906 of Article 815. On the difference between preterition
of a compulsory heir and the right to ask for completion of his
legitime
Manresa defines preterition as the omission of the heir in the will,
either by not naming him at all or, while mentioning him as father,
son, etc., by not instituting him as heir without disinheriting him
expressly, nor assigning to him some part of the properties.
The question may be posed: In order that the right of a forced heir
may be limited only to the completion of his legitime (instead of the
annulment of the institution of heirs) is it necessary that what has
65

been left to him in the will "by any title," as by legacy, be granted to
him in his capacity as heir, that is, a titulo de heredero? In other
words, should he be recognized or referred to in the will as heir? This
question is pertinent because in the will of the deceased Edward E.
Christensen Helen Garcia is not mentioned as an heir indeed her
status as such is denied but is given a legacy of P3,600.00
Manresa cites particularly three decisions of the Supreme Court of
Spain dated January 16, 1895, May 25, 1917, and April 23, 1932,
respectively. In each one of those cases the testator left to one who
was a forced heir a legacy worth less than the legitime, but without
referring to the legatee as an heir or even as a relative, and willed
the rest of the estate to other persons. It was held that Article 815
applied, and the heir could not ask that the institution of heirs be
annulled entirely, but only that the legitimate be completed. (6
Manresa, pp. 438, 441.)
The foregoing solution is indeed more in consonance with the
expressed wished of the testator in the present case as may be
gathered very clearly from the provisions of his will. He refused to
acknowledge Helen Garcia as his natural daughter, and limited her
share to a legacy of P3,600.00. The fact that she was subsequently
declared judicially to possess such status is no reason to assume
that had the judicial declaration come during his lifetime his
subjective attitude towards her would have undergone any change
and that he would have willed his estate equally to her and to Lucy
Duncan, who alone was expressly recognized by him.
The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is
cited by appellees in support of their theory of preterition. That
decision is not here applicable, because it referred to a will where
"the testator left all his property by universal title to the children by
his second marriage, and (that) without expressly disinheriting the
children by h is first marriage, he left nothing to them or, at least,
some of them." In the case at bar the testator did not entirely omit
oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00
The estate of the deceased Christensen upon his death consisted of
399 shares of stocks in the Christensen Plantation Company and a
certain amount in cash. One-fourth (1/4) of said estate descended to
Helen Garcia as her legitime. Since she became the owner of her
share as of the moment of the death of the decedent (Arts. 774, 777,
Civil Code), she is entitled to a corresponding portion of all the fruits
or increments thereof subsequently accruing. These include the
stock dividends on the corporate holdings. The contention of Lucy
Duncan that all such dividends pertain to her according to the terms
of the will cannot be sustained, for it would in effect impair the right of
ownership of Helen Garcia with respect to her legitime.
One point deserves to be here mentioned. although no reference to it
has been made in the brief for oppositor-appellant. It is the institution
of substitute heirs to the estate bequeathed to Lucy Duncan in the
event she should die without living issue. This substitution results in
effect from the fact that under paragraph 12 of the will she is entitled
only to the income from said estate, unless prior to her decease she
should have living issue, in which event she would inherit in full
ownership; otherwise the property will go to the other relatives of the
testator named in the will. Without deciding this point, since it is not
one of the issues raised before us, we might call attention to the
limitations imposed by law upon this kind of substitution, particularly
that which says that it can never burden the legitime (Art. 864 Civil
Code), which means that the legitime must descend to the heir
concerned in fee simple.
Nuguid vs. Nuguid
Rosario Nuguid, a resident of Quezon City, died on December 30,
1962, single, without descendants, legitimate or illegitimate.
Surviving her were her legitimate parents, Felix Nuguid and Paz
Salonga Nuguid, and 6 brothers and sisters namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed
Nuguid. On May 18, 1963, petitioner Remedios Nuguid filed in the
Court of First Instance of Rizal a holographic will allegedly executed
by Rosario Nuguid on November 17, 1951, some 11 years before her
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demise. Petitioner prayed that said will be admitted to probate and

that letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the deceased Rosario
Nuguid, entered their opposition to the probate of her will. Ground
therefor, inter alia, is that by the institution of petitioner Remedios
Nuguid as universal heir of the deceased, oppositors who are
compulsory heirs of the deceased in the direct ascending line
were illegally preterited and that in consequence the institution is
void.
The court's order of November 8, 1963, held that "the will in question
is a complete nullity and will perforce create intestacy of the estate of
the deceased Rosario Nuguid" and dismissed the petition without
costs.
A peculiar situation is here thrust upon us. The parties shunted aside
the question of whether or not the will should he allowed probate.
For them, the meat of the case is the intrinsic validity of the will.
Normally, this comes only after the court has declared that the will
been duly authenticated. 2 But petitioner and oppositors, in the
court below and here on appeal, travelled on the issue of law, to wit:
Is the will intrinsically a nullity?
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 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 nullity of the provisions of the will in question. 3 After all, there
exists a justiciable controversy crying for solution.
Petitioner's sole assignment of error challenges the correctness of
the conclusion below that the will is a complete nullity. The statute we
are called upon to apply is Article 854 of the Civil Code. A
comprehensive understanding of the term preterition employed in the
law becomes a necessity.
And now, back to the facts and the law. The deceased Rosario
Nuguid left no descendants, legitimate or illegitimate. But she left
forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the
testament; tacitly, they were deprived of their legitime; neither were
they expressly disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anular siempre la institucin de
heredero, dando carcter absoluto a este ordenamiento," referring to
the mandate of Article 814, now 854 of the Civil Code. 9 The onesentence will here institutes petitioner as the sole, universal heir
nothing more. No specific legacies or bequests are therein provided
for. It is in this posture that we say that the nullity is complete.
Perforce, Rosario Nuguid died intestate.
Really, as we analyze the word annul employed in the statute, there
is no escaping the conclusion that the universal institution of
petitioner to the entire inheritance results in totally abrogating the will.
Because, the nullification of such institution of universal heir
without any other testamentary disposition in the will amounts to a
declaration that nothing at all was written. Carefully worded and in
clear terms, Article 854 offers no leeway for inferential interpretation.
Giving it an expansive meaning will tear up by the roots the fabric of
the statute. On this point, Snchez Romn cites the "Memoria annual
del Tribunal Supremo, correspondiente a 1908," which in our opinion
expresses the rule of interpretation, viz:
As aforesaid, there is no other provision in the will before us except
the institution of petitioner as universal heir. That institution, by itself,
is null and void. And, intestate succession ensues.
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
66

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 privacin expresa de la legitima constituye le
desheredacin. La privacin tcita de la misma se denomina
pretericin.
18 Snchez Romn 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 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," but 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, adquieren el
derecho a todo; deshereda dos, solo les corresponde un tercio o dos
tercios, 22 segn el caso." 23
This is best answered by a reference to the opinion of Mr. 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]l never have
application at all. And the remaining provisions contained
in said articles concerning the reduction of inofficious
legacies or betterments would be a surplusage because
they would be absorbed by article 817. 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 a
thing separate and distinct from legacies or betterment.
And they are separate and distinct not only because they
are distinctly and separately treated in said article but
because they are in themselves different. Institution of
heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property
bequeathed by a particular or special title. . . 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.
Reyes vs. Barretodatu
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When Bibiano Barretto died on February 18, 1936, in the

City of Manila, he left his share of these properties in a will
to Salud Barretto, mother of plaintiff's wards, and Lucia
Milagros Barretto and a small portion as legacies to his two
sisters Rosa Barretto and Felisa Barretto and his nephew
and nieces. The usufruct of the fishpond situated in barrio
San Roque, Hagonoy, Bulacan, abovementioned,
however, was reserved for his widow, Maria Gerardo. In
the
meantime,
Maria
Gerardo
was
appointed
administratrix. By virtue thereof, she prepared a project of
partition, which was signed by her in her own behalf and
as guardian of the minor Milagros Barretto. Said project of
Partition was approved by the Court of First Instance of
Manila on November 22, 1939. The distribution of the
estate and the delivery of the shares of the heirs followed
forthwith. As a consequence, Salud Barretto took
immediate possession of her share and secured the
cancellation of the original certificates of title and the
issuance of new titles in her own name.
Having thus lost this fight for a share in the estate of Maria
Gerardo, as a legitimate heir of Maria Gerardo, plaintiff
now falls back upon the remnant of the estate of the
deceased Bibiano Barretto, which was given in usufruct to
his widow Maria Gerardo. Hence, this action for the
recovery of one-half portion thereof.
This action afforded the defendant an opportunity to set up
her right of ownership, not only of the fishpond under
litigation, but of all the other properties willed and delivered
to Salud Barretto, for being a spurious heir, and not entitled
to any share in the estate of Bibiano Barretto, thereby
directly attacking the validity, not only of the project of
partition but of the decision of the court based thereon as
well.
The defendant contends that the Project of Partition from
which Salud acquired the fishpond in question is void ab
initio and Salud Barretto did not acquire any valid title
thereto, and that the court did not acquire any jurisdiction
of the person of the defendant, who was then a minor.' "
Finding for the defendant (now appellee), Milagros Barretto, the
lower court declared the project of partition submitted in the
proceedings for the settlement of the estate of Bibiano Barretto (Civil
Case No. 49629 of the Court of First Instance of Manila) to be null
and void ab initio (not merely voidable) because the distributee,
Salud Barretto, predecessor of plaintiffs (now appellants), was not a
daughter of the spouses Bibiano Barretto and Maria Gerardo. The
nullity of the project of partition was decreed on the basis of Article
1081 of the Civil Code of 1889 (then in force) providing as follows:
"A partition in which a person was believed to be an heir,
without being so, has been included, shall be null and
void."
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 (1/2) 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
67

heir, since there was here no preterition, or total omission, 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.
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.
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.
The only instance that we can think of in which a party
interested in a probate proceedings 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."
estate of Bibiano Barretto was judicially settled and distributed

appellants' predecessor, Salud Lim Boco Barretto, 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 place, granting 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 fouryear 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 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 articles 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 plaintiffappellant to reconvey to appellee Milagros Barretto Datu the
properties enumerated 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 Psu4709), 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.
37. Esculin vs. Esculin
". . . 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 partition 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."
On the 19th of January, 1899, Emilio Antonio Escuin de los Santos

executed a will before a notary public of Sevilla, Spain, stating
therein that he was a native of Cavite, the son of Francisco Escuin
and Eugenia de los Santos, the latter being deceased; that he was
married about six months previously to Maria Teresa Ponce de Leon,
and that he had no lawful descendants; the testator, however, stated
in clause three of his will, that in case he had a duly registered
successor, his child would be his sole and universal heir; but that if,
as would probably be the case, there should be no such heir, then in
clause four he named his said father Francisco Escuin, and his wife
Maria Teresa Ponce de Leon his universal heirs, they to divide the
estate in equal shares between them.
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 appellee's rights and entitles
her to relief. In the first place, there is no evidence that when the
Upon the will having been admitted to probate, commissioners were

appointed to consider claims against the estate, and, according to a
report presented to the Court of First Instance on the 20th of June,
1907, one claim was allowed amounting to 3,696.50 pesetas.
- jann -
The testator died on the 20th of January, 1899, as certified to by the

municipal court of Magdalena, Sevilla, on the 20th of March, 1900.
On the 30th of September, 1905, the court below found that Emilio
Escuin y Batac was the recognized natural child of the late Emilio
Escuin de los Santos, had by Julia Batac; that the testator was also
the natural son of the defendant Francisco Escuin and Eugenia de
los Santos, and was recognized by his father; and that the plaintiff
minor, Emilio Escuin y Batac, is one of the heirs of the late testator.
68

It appears in the proposed partition of the 3d of September, 1906,
that, according to the opinion of the administrator by whom it was
signed and the result of the proceedings, the property left by the
testator, in accordance with the accounts passed upon by the court,
amounted to
P8,268.02
Deducting this amount from the funds
of the estate, there remains a balance of 5,014.81
That the said credit of P1,321.40, equivalent to 3,696.50 pesetas,
allowed by the commissioners, is the only claim presented within the
legal term against the estate; that Francisco Escuin, the father of the
testator, his wife or widow, Teresa Ponce de Leon, and his natural
child, the minor Emilio Escuin y Batac, represented by his mother
and guardian Julia Batac, are entitled to the succession; that, by
setting aside one-third of the estate in favor of the natural son
recognized in accordance with article 842 of the Civil Code, there
only remains the question as to how the remaining two-thirds of the
inheritance shall be bestowed, taking into account the directions of
the testator in his will; that the same does not disclose that he had
left any child by his wife; that the latter, as the widow of the testator,
besides being a designated heir entitled to one-half of the hereditary
funds, is entitled to the usufruct of the portion fixed by the law, and
that the funds to be apportioned are composed wholly of cash or
ready money.
On the 30th of September, 1905, the court below found that Emilio
Escuin y Batac was the recognized natural child of the late Emilio
Escuin de los Santos, had by Julia Batac; that the testator was also
the natural son of the defendant Francisco Escuin and Eugenia de
los Santos, and was recognized by his father; and that the plaintiff
minor, Emilio Escuin y Batac, is one of the heirs of the late testator.
Until all the known creditors and the legatees have been paid, it shall
be understood that the estate is under administration, says article
1026 of the Civil Code, and in conformity with this legal provision the
supreme tribunal has established the doctrine that "only after
payment of all the obligations of the estate can the net amount
divisible among the heirs be known." (Decision of March 2, 1896.)
Section 753 of the Code of Civil Procedure confirms the provision of
the Civil Code and the legal doctrine mentioned above, inasmuch as
it provides that, after payment of the debts, funeral charges, and
expenses of administration, and the allowances for the expense of
maintenance of the family of the deceased, the court shall assign the
residue of the estate to the persons entitled to the same, naming the
persons and proportions or parts to which each is entitled, etc.
So that by reason of the claims made by the creditor of the estate of
Emilio Escuin de los Santos and by her natural son, duly recognized
by his father, an ordinary action should have been brought before the
Court of First Instance, from whose judgment appeal may be taken
to this court by means of the corresponding bill of exceptions under
the provisions of section 777 of the Code of Civil Procedure; and
while the ultimate decision in the matter of the said claims against
the resolution of the commissioners has not become final, and until
all the obligations of the estate have been paid, there can really be
no inheritance, nor can it be distributed among the persons
interested therein according to the will of the testator, or under the
provisions of the law.
With respect to the questions which form the basis of this litigation
and refer to the second assignment of errors, it should be noted that
the late testator did not leave any legitimate descendants or
ascendants, but did leave a recognized natural child, the appellant
minor, and a widow; that the said minor, Emilio Escuin y Batac, is the
general heir of his natural father, the said testator, who recognized
him while living (art. 807, Civil Code), and in the present case is
entitled to one-third of his estate, which amount constitutes the legal
portion of a natural child (art. 842 of the said code); and for the
reason that the minor was ignored by his natural father in his will, the
designation of heirs made therein was, as a matter of fact annulled
by force of law, in so far as the legal portion of the said minor was
thereby impaired. Legacies and betterments shall be valid, in so far
as they are not illegal, for the reason that a testator can not deprive
the heirs of their legal portions, except in the cases expressly
indicated by law. (Arts. 763, 813, 814, Civil Code.)
- jann -
As has been seen, the testator wished to dispose of his property in

his will, designating as heirs his natural father, Francisco Escuin, and
his wife, Maria Teresa Ponce de Leon, altogether ignoring his
recognized natural child who is his general heir. In view thereof, and
for the reason that he exceeded his rights, the said designation of
heirs became void in so far as it impaired the right of his general heir
and deprived him of his legal portion; the will, however, is valid with
respect to the two-thirds of the property which the testator could
freely dispose of. (Arts. 763, 764, 806, 813, 842, Civil Code.)
Notwithstanding the fact that the designation of heirs is annulled and
that the law recognizes the title of the minor, Escuin y Batac, to onethird of the property of his natural father, as his lawful and general
heir, it is not proper to assert that the late Emilio Escuin de los
Santos died intestate in order to establish the conclusion that his said
natural recognized child is entitled to succeed to the entire estate
under the provisions of article 939 of the Civil Code, inasmuch as in
accordance with the law a citizen may die partly testate and partly
intestate (art. 764, Civil Code). It is clear and unquestionable that it
was the wish of the testator to favor his natural father and his wife
with certain portions of his property which, under the law, he had a
right to dispose of by will, as he has done, provided the legal portion
of his general heir was not thereby impaired, the two former persons
being considered as legatees under the will.
The above-mentioned will is neither null, void, nor illegal in so far as
the testator leaves two-thirds of his property to his father and wife;
testamentary provisions impairing the legal portion of a general heir
shall be reduced in so far as they are illegal or excessive. (Art. 817,
Civil Code.) The partition of the property of the said testator shall be
proceeded with in accordance with the foregoing legal bases.
By virtue of the foregoing considerations it is our opinion that the
orders of the court below, of October 30, 1906, and August 24, 1907,
should be reversed, and upon receipt of a certified copy of this
decision the court below shall take action in accordance with the law
and the terms herein contained with respect to the claims and
appeals from the resolutions of the commissioners pending judicial
decision. So ordered.
Balanay vs. Martinez
Felix Balanay, Jr. appealed by certiorari from the order of the Court of
First Instance of Davao dated February 28, 1974, declaring illegal
and void the will of his mother, Leodegaria Julian, converting the
testate proceeding into an intestate proceeding and ordering the
issuance of the corresponding notice to creditors (Special Case No.
1808). The antecedents of the appeal are as follows:
Felix J. Balanay, Jr. filed in the lower court a petition dated February
27, 1973 for the probate of his mothers notarial will dated
September 5, 1970 which is written in English. In that will Leodegaria
Julian declared (a) that she was the owner of the "southern half" of
nine conjugal lots (par. II); (b) that she was the absolute owner of two
parcels of land which she inherited from her father (par. III), and (c)
that it was her desire that her properties should not be divided
among her heirs during her husbands lifetime and that their legitimes
should be satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husbands
death (he was eighty-two years old in 1973) her paraphernal lands
and all the conjugal lands (which she described as "my properties")
should be divided and distributed in the manner set forth in that part
of her will. She devised and partitioned the conjugal lands as if they
were all owned by her. She disposed of in the will her husbands onehalf share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the
will on the grounds of lack of testamentary capacity, undue influence,
preterition of the husband and alleged improper partition of the
conjugal estate. The oppositors claimed that Felix Balanay, Jr. should
collate certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an
affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he
withdrew his opposition to the probate of the will and affirmed that he
69

was interested in its probate. On the same date Felix Balanay, Sr.
signed an instrument captioned "Conformation (sic) of Division and
Renunciation of Hereditary Rights" wherein he manifested that out of
respect for his wifes will he "waived and renounced" his hereditary
rights in her estate in favor of their six children. In that same
instrument he confirmed the agreement, which he and his wife had
perfected before her death, that their conjugal properties would be
partitioned in the manner indicated in her will.
Montaa in his motion assailed the provision of the will which
partitioned the conjugal assets or allegedly effected a compromise of
future legitimes. He prayed that the probate of the will be withdrawn
and that the proceeding be converted into an intestate proceeding. In
another motion of the same date he asked that the corresponding
notice to creditors be issued.
The basic issue is whether the probate court erred in passing upon
the intrinsic validity of the will, before ruling on its allowance or
formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the
will, which are of dubious legality, and because of the motion to
withdraw the petition for probate (which the lower court assumed to
have been filed with the petitioners authorization), the trial court
acted correctly in passing upon the wills intrinsic validity even before
its formal validity had been established. The probate of a will might
become an idle ceremony if on its face it appears to be intrinsically
void. Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the
court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17
SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135,
December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April
30, 1965, 13 SCRA 693).
But the probate court erred in declaring in its order of February 28,
1974 that the will was void and in converting the testate proceeding
into an intestate proceeding notwithstanding the fact that in its order
of June 18, 1973 it gave effect to the surviving husbands conformity
to the will and to his renunciation of his hereditary rights which
presumably included his one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained
in a will does not result in the invalidity of the other dispositions,
unless it is to he presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been
made" (Art. 792, Civil Code). "Where some of the provisions of a will
are valid and others invalid, the valid parts will be upheld if they can
be separated from the invalid without defeating the intention of the
testator or interfering with the general testamentary scheme, or
doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half" of
the conjugal lands is contrary to law because, although she was a
coowner thereof, her share was inchoate and proindiviso (Art. 143,
Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38
Phil. 414). But that illegal declaration does not nullify the entire will. It
may be disregarded.
The provision of the will that the properties of the testatrix should not
be divided among her heirs during her husbands lifetime but should
be kept intact and that the legitimes should be paid in cash is
contrary to article 1080 of the Civil Code which reads:
"ART. 1080.
Should a person make a
partition of his estate by an act inter vivos, or by
will, such partition shall be respected, insofar as
it does not prejudice the legitime of the
compulsory heirs.
"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)"
- jann -
The testatrix in her will made a partition of the entire conjugal estate
among her six children (her husband had renounced his hereditary
rights and his one-half conjugal share). She did not assign the whole
estate to one or more children as envisaged in article 1080. Hence,
she had no right to require that the legitimes be paid in cash. On the
other hand, her estate may remain undivided only for a period of
twenty years. So, the provision that the estate should not be divided
during her husbands lifetime would at most be effective only for
twenty years from the date of her death unless there are compelling
reasons for terminating the coownership (Art. 1083, Civil Code).
Subject to the foregoing observations and the rules on collation, the
will is intrinsically valid and the partition therein may be given effect if
it does not prejudice the creditors and impair the legitimes. The
distribution and partition would become effective upon the death of
Felix Balanay, Sr. In the meantime, the net income should be
equitably divided among the children and the surviving spouse.
It should be stressed that by reason of the surviving husbands
conformity to his wifes will and his renunciation of his hereditary
rights, his one-half conjugal share be a part of his deceased wifes
estate. His conformity had the effect of validating the partition made
in paragraph V of the will without prejudice, of course, to the rights of
the creditors and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "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". Under article 930 of the Civil
Code "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."
In the instant case there is no doubt that the testatrix and her
husband intended to partition the conjugal estate in the manner set
forth in paragraph V of her will. It is true that she could dispose of by
will only her half of the conjugal estate (Art. 170, Civil Code) but
since the husband, after the dissolution of the conjugal partnership,
had assented to her testamentary partition of the conjugal estate,
such partition has become valid, assuming that the will may be
probated.
The instant case is different from the Nuguid case, supra, where the
testatrix instituted as heir her sister and preterited her parents. Her
will was intrinsically void because it preterited her compulsory heirs
in the direct line. Article 854 of the Civil Code provides that "the
preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall annul the institution of heir;
but the devises and legacies shall be valid insofar as they are not
inofficious." Since the preterition of the parents annulled the
institution of the sister of the testatrix and there were no legacies and
devises, total intestacy resulted (Art. 960[2], Civil Code).
In the instant case, the preterited heir was the surviving spouse. His
preterition did not produce intestacy. Moreover, he signified his
conformity to his wifes will and renounced his hereditary rights.
It results that the lower court erred in not proceeding with the probate
of the will as contemplated in its uncancelled order of June 18,
19713. Save in an extreme case where the will on its face is
intrinsically void, it is the probate courts duty to pass first upon the
formal validity of the will. Generally, the probate of the will is
mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479
and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12,
1967, 21 SCRA 428).
To give effect to the intention and wishes of the testatrix is the first
and principal law in the matter of testaments (Dizon-Rivera vs. Dizon,
L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable
to intestacy. An interpretation that will render a testamentary
disposition operative takes precedence over a construction that will
nullify a provision of the will (Arts. 788 and 791, Civil Code).
70

Testacy is favored. Doubts are resolved in favor of testacy especially
where the will evinces an intention on the part of the testator to
dispose of practically his whole estate. So compelling is the principle
that intestacy should be avoided and that the wishes of the testator
should prevail that sometimes the language of the will can be varied
for the purpose of giving it effect (Austria vs. Reyes, L-23079,
February 27, 1970, 31 SCRA 754, 762).
As far as is legally possible, the expressed desire of the testator
must be followed and the dispositions of the properties in his will
should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970,
33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as
expressed in his will because any disposition therein is better than
that which the law can make (Castro vs. Bustos, L-25913, February
28, 1969, 27 SCRA 327, 341).
Solano vs. CA
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia
(GARCIAS), claiming to be illegitimate children of Dr. Meliton
SOLANO, filed an action for recognition against him. In his Answer,
SOLANO denied paternity. On February 3, 1970, during the
pendency of the suit, SOLANO died. Petitioner ZONIA Ana Solano
was ordered substituted for the DECEDENT as the only surviving
heir mentioned in his Last Will and Testament probated on March 10,
1969, or prior to his death, in Special Proceedings No. 842 of the
same Court. ZONIA entered her formal appearance as a "substitute
defendant" on March 4, 1970 claiming additionally that she was the
sole heir of her father, SOLANO, and asking that she be allowed to
assume her duties as executrix of the probated Will with the least
interference from the GARCIAS who were "mere pretenders to be
illegitimate children of SOLANO".
In the hearing of May 13, 1970, the Trial Court specified the legal
issues to be treated in the parties' respective Memoranda as: 1) the
question of recognition of the GARCIAS; 2) the correct status of
ZONIA, and 3) the hereditary share of each of them in view of the
probated Will. 2
Appealed to the Court of Appeals by ZONIA, said Court affirmed the
judgment in toto (CA-G.R. No. 49018).
ZONIA seeks a reversal of that affirmance in this petition, which was
given due course.
At the outset, we should state that we are bound by the findings of
fact of both the Trial Court and the Appellate Court, particularly, the
finding that the GARCIAS and ZONIA are, in fact, illegitimate
children of the DECEDENT. The oral testimony and the documentary
evidence of record inevitably point to that conclusion, as may be
gleaned from the following background facts: SOLANO, a resident of
Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour
he met a French woman, Lilly Gorand, who became his second wife
in 1928. The union was short-lived as she left him in 1929. In the
early part of 1930, SOLANO started having amorous relations with
Juana Garcia, out of which affair was born Bienvenido Garcia on
March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935,
Emeteria Garcia was born (Exhibits "B" & "2"). Their birth certificates
and baptismal certificates mention only the mother's name without
the father's name. The facts establish, however, that SOLANO during
his lifetime recognized the GARCIAS as his children by acts of
support and provisions for their education.
In 1935, SOLANO started living with Trinidad Tuagnon. Three
children were born out of this relation but only petitioner ZONIA Ana
Tuagnon, born on July 26, 1941, is living. In her Birth Certificate, her
status was listed as "illegitimate"; her mother as Trinidad Tuagnon;
her father as "P.N.C." (Exhibit "V"), or "padre no conocido".
Directly challenged is the jurisdiction of the lower Court, in an action
for recognition: 1) to declare ZONIA as an illegitimate child of
SOLANO; 2) to order the division of the estate in the same action
despite the pendency of Special Proceedings No. 842; and 3) to
declare null and void the institution of heir in the Last Will and
Testament of SOLANO, which was duly probated in the same
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Special Proceedings No. 842, and concluding that total intestacy

resulted.
ZONIA additionally assails the jurisdiction of the Trial Court in
declaring null and void the institution of heir in SOLANO's will; in
concluding that total intestacy resulted therefrom; and distributing the
shares of the parties in SOLANO's estate when said estate was
under the jurisdiction and control of the Probate Court in Special
Proceedings No. 842.
Normally, this would be the general rule. However, a peculiar
situation is thrust upon us here. It should be recalled that SOLANO
himself instituted the petition for probate of the Will during his
lifetime, That proceeding was not one to settle the estate of a
deceased person that would be deemed terminated only upon the
final distribution of the residue of the hereditary estate. With the Will
allowed to probate, the case would have terminated except that it
appears that the parties, after SOLANO's death, continued to file
pleadings therein Secondly, upon motion of the GARCIAS, and over
the objection of ZONIA, the Trial Court ordered the impleading of the
estate of SOLANO and proceeded on that basis. In effect, therefore,
the two cases were consolidated. The records further disclose that
the action for recognition (Civil Case No. 3956) and Spec. Procs. No.
842 were pending before the same Branch of the Court and before
the same Presiding Judge. Thirdly, it is settled that the allowance of a
Will is conclusive only as to its due execution. 5 A probate decree is
not concerned with the intrinsic validity or legality of the provisions of
the Will. 6
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, preterited 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.
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
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.
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 preterition, 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:
Acain vs. CA
On May 29, 1984 petitioner Constantino Acain filed in the Regional
Trial Court of Cebu City Branch XIII, a petition for the probate of the
will of the late Nemesio Acain and for the issuance to the same
petitioner of letters testamentary, docketed as Special Proceedings
No. 591-A-CEB (Rollo, p. 29), on the premise that Nemesio Acain
died leaving a will in which petitioner and his brothers Antonio, Flores
and Jose and his sisters Anita, Concepcion, Quirina and Laura were
71

instituted as heirs. The will allegedly executed by Nemesio Acain on
February 17, 1960 was written in Bisaya (Rollo, p. 27) with a
translation in English (Rollo, p. 31) submitted by petitioner without
objection raised by private respondents. The will contained
provisions on burial rites, payment of debts, and the appointment of
a certain Atty. Ignacio G. Villagonzalo as the executor of the
testament.
Obviously, Segundo pre-deceased Nemesio. Thus, it is the children
of Segundo who are claiming to be heirs, with Constantino as the
petitioner in Special Proceedings No. 591-A-CEB. After the petition
was set for hearing in the lower court on June 25, 1984 the
oppositors (respondents herein Virginia A. Fernandez, a legally
adopted daughter of the deceased and the latter's widow Rosa
Diongson Vda. de Acain) filed a motion to dismiss on the
following grounds: (1) the petitioner has no legal capacity to
institute these proceedings; (2) he is merely a universal heir and (3)
the widow and the adopted daughter have been preterited. (Rollo, p.
158). Said motion was denied by the trial judge.
The pivotal issue in this case is whether or not private respondents
have been preterited.
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 be effectual, without prejudice
to the right of representation."
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.
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. Leonidas, supra; Nuguid 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 v. Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of
merit and the questioned decision of respondent Court of Appeals
promulgated on August 30, 1985 and its Resolution dated October
23, 1985 are hereby AFFIRMED.
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 was 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.
XII. RESERVA TRONCAL
Preterition 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" (Manresa, as cited in Nuguid v. Nuguid, supra,
Maninang v. Court of Appeals, 114 SCRA [19821). 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.
2. confinement of property w/in a certain family for generations

incompatible with the principle of socialization of ownership
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
4. in reserve viudal, the surviving spouse is obliged to resrve

properties left by deceased spouse to his if she remarries, but the
concubine is not obliged, thus, giving ptotection to illegitimate
relation.
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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. (871)
A number of Reservas and Reversions where allowed under the old
civil code but they were eliminated under the new civil code leaving
only the Reserva Troncal. The elimination was in line with one of the
principal objectives of the new civil code in the law of succession;
namely, to prevent the estate from being entailed.
The following are some of the reasons for its abolition:
1. creates uncertainty in the pwnership of property, because of the
suspended ownership the reservista has no enthusiasm to preserve
or improve the property
3. reserve is limited to the legitimate members of the family, and the

father or mother of a natural child who inherits property from this
child, and who in turn acquired it from snother progenitor acquires
absolute dominion of the property w/o reservation.
Purpose of Reserva troncal
72

a. Resrve certain property in favor of certain relatives.
b. maintain as is possible, with respect to the property to which it
refers, a separation between the paternal and maternal lines, so that
property of one line may not pass to the other, or through them to
strangers.
Nature of Reserva
It creates a double resolutory condition to which the right of
ownership of the person obliged to reserve is subjected. The
resolutory condition, are first, the death of the ascendant obliged to
reserve, and, second, the survivial at that moment of the relatives
within the tird degree belonging to the line from which the property
came.
No reserve will exist in favor of illegitimate relatives, because the law
has not used qualifying terms natural or illegitimate with respect to
the descendant or ascendant or relatives it is to be presumed to refer
only to legitimate ones.
Relatives within the third degree:
1st degree
1. father or mother only when no descendants,
2nd degree
2. grandparents of the line where thw property came, brothers of full
blood or half-blood
3rd degree
3. great GP, uncles by consanguinity full or half-blood, and nephews
and nieces of full or half blood.
38. Sienes vs. Esparcia
Appellants commence this action below to secure judgments (1)
declaring null and void the sale executed by Paulina and Cipriana
Yaeso in favor of appellees, the spouses Fidel Esparcia and Paulina
Sienes; (2) ordering the Esparcia spouses to reconvey to appellants
Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan), Oriental
Negros; and (3) ordering all the appellees to pay, jointly and
severally, to appellants the sum of P500.00 as damages, plus the
costs of suit. In their answer appellees disclaimed any knowledge or
information regarding the sale allegedly made on April 20, 1951 by
Andrea Gutang in favor of appellants and alleged that if such sale
was made, the same was void on the ground that Andrea Gutang
had no right to dispose of the property subject matter thereof. They
further alleged that said property had never been in possession of
appellants, the truth being that appellees, as owners, had been in
continuous possession thereof since the death of Francisco Yaeso.
By way of affirmative defense and counterclaim, they further alleged
that on July 30, 1951, Paulina and Cipriana Yaeso, as the only
surviving heirs of Francisco Yaeso, executed a public instrument of
sale in favor of the spouses Fidel Esparcia and Paulina Sienes, the
said sale having been registered together with an affidavit of
adjudication executed by Paulina and Cipriana on July 18, 1951, as
sole surviving heirs of the aforesaid deceased; that since then the
Esparcias had been in possession of the property as owners.
From the above decision the Sienes spouses interposed the present
appeal, their principal contentions being, firstly, that the lower court
erred in holding that Lot 3368 of the Cadastral Survey of Ayuquitan
was a reservable property; secondly, in annuling the sale of said lot
executed by Andrea Gutang in their favor; and lastly, in holding that
Cipriana Yaeso, as reservee, was entitled to inherit said land.
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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 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 (6 Manresa 268-269; 6 Sanchez
Roman 1934). The 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 reservista, the rights
acquired by the transferee being revoked or resolved by the survival
of reservatorios at the time of 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, 63 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 as when Andrea Gutang died, Cipriano 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 Yaesco in favor of the spouse 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.
WHEREFORE, the appealed decision as above modified is
affirmed, with costs, and without prejudice to whatever action in
equity the Esparcia spouses may have against the Estate of Cipriana
Yaeso for the reconveyance of the property in question.
Florentino vs. Florentino
That Apolonio Isabelo Florentino II married the first time Antonia Faz
de Leon; that during the marriage he begot nine children called Jose,
Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro, and
Magdalena of the surname Florentino y de Leon; that on becoming a
widower he married the second time Severina Faz de Leon with
whom he had two children, Mercedes and Apolonio III of the
surname Florentino y de Leon; that Apolonio Isabelo Florentino II
died on February 13, 1890; that he was survived by his second wife
Severina Faz de Leon and the ten children first above mentioned;
73

that his eleventh son, Apolonio III, was born on the following 4th of
March 1890.
belonged within the third degree to the line from which such property
came.
That on January 17 and February 13, 1890, Apolonio Isabelo

Florentino executed a will before the notary public of Ilocos Sur,
instituting as his universal heirs his aforementioned ten children, the
posthumos ApoIonio III and his widow Severina Faz de Leon; that he
declared, in one of the paragraphs of said will, all his property should
be divided among all of his children of both marriages.
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.
That Apolonio Florentino III, the posthumos son of the second

marriage, died in 1891; that his mother, Severina Faz de Leon,
succeeded to all his property described in the complaint; that the
widow, Severina Faz de Leon died on November 18, 1908, leaving a
will instituting as her universal heiress her only living daughter,
Mercedes Florentino; that, as such heir, said daughter took
possession of all the property left at the death of her mother,
Severina Faz de Leon; that among same is included the property,
described in the complaint, which the said Severina Faz de Leon
inherited from her deceased son, the posthumos Apolonio, as
reservable property; that, as a reservist, the heir of the said
Mercedes Florentino deceased had been gathering for herself alone
the fruits of lands described in the complaint; that each and every
one of the parties mentioned in said complaint is entitled to oneseventh of the fruits of the reservable property described therein,
either by direct participation or by representation, in the manner
mentioned in paragraph 9 of the complaint.
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 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 ascendantreservists, acquire in fact the right of reservatarios
(persons 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
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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.
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 halfbrothers). 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.
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 legitime 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 the 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
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
74

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.
For this reason, in no manner can it be claimed that the legitime of
Mercedes Florentino, coming from the in heritance 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 lawfull 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.
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
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
reoervable 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, sixsevenths 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.
Chua vs. CFI
It appears that in the first marriage of Jose Frias Chua with Patricia
S. Militar alias Sy Quio, he sired three children, namely: Ignacio,
Lorenzo and Manuel, all surnamed Frias Chua. When Patricia S.
Militar died, Jose Frias Chua contracted a second marriage with
Consolacion de la Torre with whom he had a child by the name of
Juanito Frias Chua. Manuel Frias Chua died without leaving any
issue. Then in 1929, Jose Frias Chua died intestate leaving his
widow Consolacion de la Torre and his son Juanito Frias Chua of the
second marriage and sons Ignacio Frias Chua and Lorenzo Frias
Chua of his first marriage. In Intestate Proceeding No. 4816, the
lower court issued an order dated January 15, 1931 1 adjudicating,
among others, the one-half (1/2) portion of Lot No. 399 and the sum
of P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la
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Torre, the other half of Lot No. 399 in favor of Juanito Frias Chua, his
son in the second marriage; marriage; P3,000.00 in favor of Lorenzo
Frias Chua; and P1,550.00 in favor of Ignacio Frias, Chua , his sons
in the second marriage; By the virtue of said adjudication, Transfer
Certificate of Title No. TR-980 (14483) 2 dated April 28, 1932 was
issued by the Register of Deeds in the names of Consolacion de la
Torre and Juanito Frias Chua as owners-pro-indiviso of Lot No. 339.
On February 27, 1952, Juanito Frias Chua of the second marriage
died intestate without any issue. After his death, is mother
Consolacion de la Torre succeeded to his pro-indiviso share of her
son Juanito as a result of which Transfer Certificate of Title No.
31796 covering the whole Lot No. 399 was issued in her name. Then
on March 5, 1966, Consolacion de la Torre died intestate leaving no
direct heir either in the descending or ascending line except her
brother and sisters.
on May 11, 1966 before the respondent Court of First Instance of
Negros Occidental, Branch V, praying that the one-half (1/2) portion
of Lot No. 399 which formerly belonged to Juanito Frias Chua but
which passed to Consolacion de la Torre upon the latter's death, be
declared as reservable property for the reason that the lot in question
was subject to reserva troncal pursuant to Article 981 of the New
Civil code. private respondent as administratrix of the estate of the
Consolacion de la Torre and the heirs of the latter traversed
individually the complaint of petitioners. 4
On July 29, 1968, the respondent Court rendered a decision
dismissing the complaint of petitioners. Hence this instant petition.
The pertinent provision on reserva troncal under the New Civil Code
provides:
"ART. 891.
The ascendant who inherits
from his descendant any property which the
latter may have required 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 Iron which said property
came."
Pursuant to the foregoing provision, in order that a property may be
impressed with a reservable character the following requisites must
exist, to wit: (1) that the property was acquired by a descendant from
an ascendant or from a brother or sister by gratuitous title; (2) that
said descendant died without an issue: (3) that the property is
inherited by another ascendant by operation of law; and (4) that there
are relatives within the third degree belonging to the line from which
said property came. 5 In the case before Us, all of the foregoing
requisites are present. Thus, as borne out by the records, Juanito
Frias Chua of the second marriage died intestate in 1952; he died
without leaving any issue; his pro-indiviso of 1/2 share of Lot No. 399
was acquired by his mother, Consolacion de la Torre by operation of
law. When Consolacion de la Torre died, Juanito Frias Chua who
died intestate had relatives within the third degree. These relatives
are Ignacio Frias Chua and Dominador Chua and Remedios Chua,
the supposed legitimate children of the deceased Lorenzo Frias
Chua, who are the petitioners herein.
The crux of the problem in instant petition is focused on the first
requisite of reserva troncal whether the property in question as
acquired by Juanito Frias Chua from his father, Jose Frias Chua,
gratuitously or not. In resolving this point, the respondent Court said:
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
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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.
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, it is gratuitous. It does not matter if later the court
orders one of the heirs, in this case Juanito Frias Chua, to pay the
Standard 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. As far as the deceased Jose Frias Chua is concerned the
transmission of the property to his heirs is gratuitous. This being the
case the lot in question is subject to reserva troncal under Art. 891 of
the New Civil Code.
De papa vs. Camacho
They stipulate that Romana Tioco during her lifetime gratuitously
donated four (4) parcels of land to her niece Toribia Tioco (legitimate
sister of plaintiffs), which parcels of land are presently covered by
Transfer Certificates of Title Nos. A-64165, 64166 and 64167 of the
Registry of Deeds of Manila, copies of which are attached to this
stipulation as Annexes 'B', 'B-1', and 'B-2'.
They stipulate that Toribia Tioco died intestate in 1915, survived by
her husband, Eustacio Dizon, and their two legitimate children,
Faustino Dizon and Trinidad Dizon (mother of defendant Dalisay D.
Tongko-Camacho) and leaving the afore-mentioned four (4) parcels
of land as the inheritance of her said two children in equal proindiviso shares.
They stipulate that in 1937, Faustino Dizon died intestate, single and
without issue, leaving his one-half (1/2) pro-indiviso share in the
seven (7) parcels of land above-mentioned to his father, Eustacio
Dizon, as his sole intestate heir, who received the said property
subject to a reserva troncal which was subsequently annotated on
the Transfer Certificates of Title Annexes 'B', 'B-l', 'B-2', 'C' and 'C-1'.
They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and
her rights and interests in the parcels of land abovementioned were
inherited by her only legitimate child, defendant Dalisay D. TongkoCamacho, subject to the usufructuary right of her surviving husband,
defendant Primo Tongko. They stipulate that on June 14, 1965,
Eustacio Dizon died intestate, survived his only legitimate
descendant, defendant Dalisay D. Tongko-Camacho.
The parties agree that defendant Dalisay D. Tongko-Camacho now
owns one-half (1/2) of all the seven (7) parcels of land
abovementioned as her inheritance from her mother, Trinidad DizonTongko.
The parties hereby agree to submit for judicial determination in this
case the legal issue of whether defendant Dalisay D. TongkoCamacho is entitled to the whole of the seven (7) parcels of land in
question, or whether the plaintiffs, as third degree relatives of
Faustino Dizon are reservatarios (together with said defendant) of
the one-half pro-indiviso share therein which was inherited by
Eustacio Dizon from his son Faustino Dizon, and entitled to threefourths (3/4) of said one-half pro-indiviso share, or three-eights (3/8)
of said seven (7) parcels of land, and, therefore, to three eights (3/8)
of the rentals collected and to be collected by defendant Dalisay P.
Tongko Camacho from the tenants of said parcels of land, minus the
expenses and/or real estate taxes corresponding to plaintiffs' share
in the rentals.
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In view of the fact that the parties are close blood relatives and have
acted upon legal advice in pursuing their respective claims, and in
order to restore and preserve harmony in their family relations, they
hereby waive all their claims against each other for damages (other
than legal interest on plaintiffs' share in the rentals which this
Honorable Court may deem proper to award), attorney's fees and
expenses of litigation which shall be borne by the respective parties."
1
The issue raised is whether, as contended by the plaintiffs-appellees
and ruled by the lower Court, all relatives of the praepositus within
the third degree in the appropriate line succeed without distinction to
the reservable property upon the death of the reservista, as seems to
be implicit in Art. 891 of the Civil Code, which reads: or, as asserted
by the defendant-appellant, the rights of said relatives are subject to,
and should be determined by, the rules on intestate succession.
That question has already been answered in Padura vs. Baldovino,
3 where the reservatario was survived by eleven nephews and
nieces of the praepositus in the line of origin, four of whole blood and
seven of half blood, and the claim was also made that all eleven
were entitled to the reversionary property in equal shares. This
Court, speaking through Mr. Justice J.B.L. Reyes, declared the
principles of intestacy to be controlling, and ruled that the nephews
and nieces of whole blood were each entitled to a share double that
of each of the nephews and nieces of half blood in accordance with
Article 1006 of the Civil Code.
"The issue in this appeal may be formulated as follows: In a case of
reserva troncal where the only reservatarios (reserves) surviving the
reservista, and belonging to the line of origin, are nephews of the
descendant (prepositus), but some are nephews of the half blood
and the others are nephews of the whole blood, should the reserved
properties be apportioned among them equally, or should the
nephews of the whole blood take a share twice as large as that of the
nephews of the half blood?
The case is one of first impression and has divided the Spanish
commentators on the subject. After mature reflection, we have
concluded that the position of the appellants is correct. The reserva
troncal is a special rule designed primarily to assure the return of the
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
(reservista).
"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 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 . . ."
Proximity of degree and right of representation are basic principles of
ordinary intestate succession; so is the rule that whole blood brothers
and nephews are entitled to a share double that of brothers and
nephews of half blood. If in determining the rights of the reservatarios
inter se, proximity of degree and the right of representation of
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nephews are made to apply, the rule of double share for immediate
collaterals of the whole blood should be likewise operative.
In other words, the reserva troncal merely determines the group of
relatives (reservatarios) to whom the property should be returned;
but within that group, the individual right to the property should be
decided by the applicable rules of ordinary intestate succession,
since Art. 891 does not specify otherwise. This conclusion is
strengthened by the circumstance that the reserva being an
exceptional case, its application should be limited to what is strictly
needed to accomplish the purpose of the law.
Reversion of the reservable property being governed by the rules on
intestate succession, the plaintiffs-appellees must be held without
any right thereto because, as aunt and uncles, respectively, of
Faustino Dizon (the praepositus), they are excluded from the
succession by his niece, the defendant-appellant, although they are
related to him within the same degree as the latter.
It will be seen that under the preceding articles, brothers and sisters
and nephews and nieces inherited ab intestato ahead of the
surviving spouse, while other collaterals succeeded only after the
widower or widow. The present Civil Code of the Philippines merely
placed the spouse on a par with the nephews and nieces and
brothers and sisters of the deceased, but without altering the
preferred position of the latter vis a vis the other collaterals."
This conclusion is fortified by the observation, also made in Padura,
supra, that as to the reservable property, the reservatarios do not
inherit from the reservista, but from the descendant praepositus:
". . . It is likewise clear that the reservable property is no part of the
estate of the reservista, who may not dispose of it by will, as long as
there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 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.
"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 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 strayed during the
reservista's lifetime. The authorities are all agreed that there being
reservatarios that survive the reservista, the matter must be deemed
to have enjoyed 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 the prepositus (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 . . ."
Had the reversionary property passed directly from the praepositus,
there is no doubt that the plaintiffs-appellees would have been
excluded by the defendant-appellant under the rules of intestate
succession. There is no reason why a different result should obtain
simply because "the transmission of the property was delayed by the
interregnum of the reserva;" 6 i.e., the property took a "detour"
through an ascendant thereby giving rise to the reservation
before its transmission to the reservatario. Upon the stipulated facts,
and by virtue of the rulings already cited, the defendant-appellant
Dalisay Tongko-Camacho is entitled to the entirety of the
reversionary property to the exclusion of the plaintiffs-appellees.
XIV. RESERVA ADOPTIVA
(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:
(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.
Teotica vs. Del Val Chan
Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in
the City of Manila leaving properties worth P600,000.00. She left a
will written in Spanish which she executed at her residence in No. 2
Legarda St., Quiapo, Manila. She affixed her signature at the bottom
of the will and on the left margin of each and every page thereof in
the presence of Pilar Borja, Pilar G. Sanchez, and Modesto
Formilleza, who in turn affixed their signatures below the attestation
clause and on the left margin of each and every page of the will in
the presence of the testatrix and of each other. Said will was
acknowledged before Notary Public Niceforo S. Agaton by the
testatrix and her witnesses.
Among the many legacies and devises made in the will was one of
P20,000.00 to Rene A. Teotico, married to the testatrix's niece
named Josefina Mortera. To said spouses the testatrix left the
usufruct of her interest in the Calvo building, while the naked
ownership thereof she left in equal parts to her grandchildren who
are the legitimate children of said spouses. The testatrix also
instituted Josefina Mortera as her sole and universal heir to all the
remainder of her properties not otherwise disposed of in the will.
Ana del Val Chan, claiming to be an adopted child of Francisca
Mortera, a deceased sister of the testatrix, as well as an
acknowledged natural child of Jose Mortera, a deceased brother of
the same testatrix, filed on September 2, 1955 an opposition to the
probate of the will alleging the following grounds: (1) said will was not
executed as required by law; (2) the testatrix was physically and
mentally incapable to execute the will at the time of its execution; and
(3) the will was executed under duress, threat or influence of fear.
P.D. 603; Art. 39. Effects of Adoption. - The adoption shall:
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77

After the parties had presented their evidence, the probate court
rendered its decision on November 10, 1960 admitting the will to
probate but declaring the disposition made in favor of Dr. Rene
Teotico void with the statement that the portion to be vacated by the
annulment should pass to the testatrix's heirs by way of intestate
succession.
The motions for reconsideration above adverted to having been
denied, both petitioner and oppositor appealed from the decision, the
former from that portion which nullifies the legacy in favor of Dr.
Rene Teotico and declares the vacated portion as subject of
succession in favor of the legal heirs, and the latter from that portion
which admits the will to probate. And in this instance both petitioner
and oppositor assign several error which, stripped of non-essentials,
may be boiled down to the following: (1) Has oppositor Ana del Val
Chan the right to intervene in this proceeding?; (2) Has the will in
question been duly admitted to probate?; and (3) Did the probate
court commit an error in passing on the intrinsic validity of the
provisions of the will and in determining who should inherit the
portion to be vacated by the nullification of the legacy made in favor
of Dr. Rene Teotico?
It is a well-settled rule that in order that a person may be allowed to
intervene in a probate proceeding he must have an interest in the
estate, or in the will, or in the property to be affected by it either as
executor or as a claimant of the estate (Ngo The Hua vs. Chung Kiat
Hua, et al., L-17091, September 30, 1963); and an interested party
has been defined as one who would be benefitted by the estate such
as an heir or one who has a claim against the estate like a creditor
(Idem.). On the other hand, in Saguinsin vs. Lindayag, et al., L17750, December 17, 1962, this Court said:
"According to Section 2, Rule 80 of the Rules of Court, a petition for
letters of administration must be filed by an 'interested person.' An
interested party has been defined in this connection as one who
would be benefitted by the estate, such as an heir, or one who has a
claim against the estate, such as a creditor (Intestate Estate of Julio
Magbanwa 40 O.G., 1171). And it is well settled in this jurisdiction
that in civil actions as well as special proceedings, the interest
required in order that a person may be a party thereto must be
material and direct, and not merely indirect or contingent. (Trillana
vs. Crisostomo, G. R. No. L-3370, August 22, 1951; Rapinosa vs.
Barrion, 70 Phil. 311)."
The question now may be asked: Has oppositor any interest in any
of the provisions of the will, and, in the negative, would she acquire
any right to the estate in the event that the will is denied probate?
Under the terms of the will, oppositor has no right to intervene
because she has no interest in the estate either as heir, executor, or
administrator, nor does she have any claim to any property affected
by the will, because it nowhere appears therein any provision
designating her as heir, legatee or devisee of any portion of the
estate. She has also no interest in the will either as administratrix or
executrix. Neither has she any claim against any portion of the estate
because she is not a co-owner thereof, and while she previously had
an interest in the Calvo building located in Escolta, she had already
disposed of it long before the execution of the will.
"'Between the natural child and the legitimate relatives of the father
or mother who acknowledged it, the Code denies any right of
succession. They cannot be called relatives and they have no right to
inherit. Of course, there is a blood tie, but the law does not recognize
it. In this, article 943 is based upon the reality of the facts and upon
the presumptive will of the interested parties; the natural child is
disgracefully looked down upon by the legitimate family; the
legitimate family is, in turn, hated by the natural child; the latter
considers the privileged condition of the former and the resources of
which it is thereby deprived; the former, in turn, sees in the natural
child nothing but the product of sin, a palpable evidence of a blemish
upon the family. Every relation is ordinarily broken in life; the law
does no more them recognize this truth, by avoiding further grounds
of resentment.' (7 Manresa, 3d ed., p. 110.)"
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The oppositor cannot also derive comfort from the fact that she is an
adopted child of Francisca Mortera because under our law the
relationship established by adoption is limited solely to the adopter
and the adopted does not extend to the relatives of the adopting
parents or of the adopted child except only as expressly provided for
by law. Hence, no relationship is created between the adopted and
the collaterals of the adopting parents. As a consequence, the
adopted is an heir of the adopter but not of the relatives of the
adopter.
"The relationship established by the adoption, however, is limited to
the adopting parent, and does not extend to his other relatives,
except as expressly provided by law. Thus, the adopted child cannot
be considered as a relative of the ascendants and collaterals of the
adopting parents, nor of the legitimate children which they may have
after the adoption, except that the law imposes certain impediments
to marriage by reason of adoption. Neither are the children of the
adopted considered as descendants of the adopter. The relationship
created is exclusively between, the adopter and the adopted, and
does not extend to the relatives of either." (Tolentino, Civil Code of
the Philippines, Vol. 1, p. 652)
We have examined the evidence on the matter and we are fully in
accord with the foregoing observation. Moreover, the mere claim that
Josefina Mortera and her husband Rene Teotico had the opportunity
to exert pressure on the testatrix simply because she lived in their
house several years prior to the execution of the will and that she
was old and suffering from hypertension in that she was virtually
isolated from her friends for several years prior to her death is
insufficient to disprove what the instrumental witnesses had testified
that the testatrix freely and voluntarily and with full consciousness of
the solemnity of the occasion executed the will under consideration.
The exercise of improper pressure and undue influence must be
supported by substantial evidence and must be of a kind that would
overpower and subjugate the mind of the testatrix as to destroy her
free agency and make her express the will of another rather than her
own (Coso vs. Deza, 42 Phil., 596). The burden is on the person
challenging the will that such influence was exerted at the time of its
execution, a matter which here was not done, for the evidence
presented not only is sufficient but was disproved by the testimony
the instrumental witnesses.
The question of whether the probate court could determine the
intrinsic validity of the provisions of a will has been decided by this
Court in a long line of decisions among which the following may be
cited: "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."
"To establish conclusively as against everyone, and once for all, the
facts that a will was executed with the formalities required by law and
that the testator was in a condition to make a will, is the only purpose
of the proceedings under the new code for the probate of a will. (Sec.
625.) The judgment in such proceedings determines and can
determine nothing more. In them the court has no power to pass
upon the validity of any provisions made in the will. It can not decide,
for example, that a certain legacy is void and another one valid."
II. DISINHERITANCE
Art. 915. A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes expressly
stated by law. (848a)
Disinheritance may be defined as the act by which the testator, for a
just cause, deprives a compulsory heir of his right to the legitime.
It is a means given to the testator to punish such of his compulsory
heirs who have committed acts which render them unworthy of
benefit or generosity. The law saves the testator from the pain of
seeing a portion of his property pass forcibly to an ungrateful heir or
to one who may have brought dishonor to him.
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A disinheritance totally excludes the disinherited heir from the
inheritance not only the legitme but the entire amount that he would
have received as intestate heir.
Ratio: the law of intestacy is merely the presumed will of the testator,
and cannot prevail over the expressed will in the form of a valid
disinheritance. If the disinheritance deprives the compulsory heir of
his legitime reserved by law to him all the more that he should be
deprived of the portion which ca nbe freely disposed of.
As to the intestate heirs such as the collateral relatives or those
within the fifth civil degree of consanguinity the testator may
disinherit them for any reason at all. They are not heirs protected by
law as a compulsory heir designated. Since they are mere heirs of
the presumed will their succession depends only upon the discretion
of the testator or his presumed will when none was made.
Art. 916. Disinheritance can be effected only through a will
wherein the legal cause therefor shall be specified. (849)
Art. 917. The burden of proving the truth of the cause for
disinheritance shall rest upon the other heirs of the testator, if
the disinherited heir should deny it. (850)
Requisites of disinheritance:
1.
heir must be designated by name as to leave no

doubt;
2.
must be for cause provided by law;
3.
made in the will;
4.
made expressly stating the causes in the will;
5.
cause msut be certain, true , and proved
6.
must be unconditional;
7.
must be total
There can be no extension of the causes for disinheritance by

analogy. The causes assigned by the testator may be graver or more
serious than those given by the law, but if they are not among those
enumerated by the law, the disinheritance will be ineffective.
The will must be valid. Otherwise, the disinheritance will not be
effective.
The law does not admit tacit disinheritance.
The last will of a person may be expressed in different statements, all
of them combined being considered as one last expression of his will
mortis causa. There will be a valid disinheritance if the cause for it
has been expressed in one statement, and the disinheritance is
made in another, provided that the necessary connection between
the cause and the disinheritance is clearly established.
As a general rule, a disineritance must be unconditional. But when
the disinheritance is made in the form of a conditional pardon, it is
generally considered as walid. In such case, there is an existing legal
cause for disinheritance, but the pardon for such cause is made
dependent upon some condition. The condition, however, should be
related to the cause for disinheritance, and not by a mere caprice or
whim of the testator. Ir is clear that it is the conditional pardon, and
not the conditional disinheritance, properly speaking, that is
allowable.
A partial disinheritance with partial pardon is inconceivable. The

offense is one; it cannot be separated into component parts. The
testator cannot be partly offended and partly not.
Art. 918. Disinheritance without a specification of the cause, or
for a cause the truth of which, if contradicted, is not proved, or
which is not one of those set forth in this Code, shall annul the
institution of heirs insofar as it may prejudice the person
disinherited; but the devises and legacies and other
testamentary dispositions shall be valid to such extent as will
not impair the legitime. (851a)
This article pertain to effects of a disinheritance which does not have
one or more of the essential requisites for its validity. It likewise
applies to cases of reconciliation after a disinheritance has been
made.
The ineffective disinheritance does not affect the disposition of the
testator with respect to the free portion. The reason is the
disinheritance in this case refers only only to the legitime of the heir,
and therefore, it is only this portion that is affected by the nullity or
ineffectiveness of such disinheritance.
Where the disinheritance is ineffective in this case, the compulsory
heir must be given all that he is entitiled to receive as if the
disinheritance has not been made, without prejudice to lawful
dispositions made by the testator in favor of others.
Art. 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
parent or ascendant who disinherits such child or
descendant;
(6) Maltreatment of the testator by word or deed, by
the child or descendant;
(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. (756, 853, 674a)
Attempt against the life includes all the different degrees of
commission of the crime, such as attempted, frustrated, and
consummated. It is essential though, that the heir be convicted
despite the following:
a.
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prescription of penalty;
79

b.
pardon and amnesty both of which

imply conviction;
c.
mere accomplice in the crime
Exception on attempt against the life are the following:

1.
intention is lacking
2.
conviction for mere reckless imprudence or negligence

though mitigated
3.
justifying circumstance under the RPC
4.
accessory after the fact
5.
prosecution dismissed even if provisional only
6.
prescription of the crime
7.
appeal to the higher court reverses conviction
Elements od false accusation:

1.
act of accusing the testator;
2.
judicial declaration that such accusation is false;
3.
offense charged is punishable be 6 years imprisonment.
The heir convicted of adultery or concubinage with the spouse of

testator is disinherited by the law. But the law does not provide when
the testator himself is guilty of adultery. In such case article 1028 will
apply in relation to article 729, prohibition to donate to a paramour.
Judicial demand for support is not necessary. The law does not
require it, the question of whether there has been a refusal to give
such support without justifiable cause is open to proof if the
disinherited child or descendant denies it. Article 303 gives cause for
the termination of the obligation the support and these are justifiable
grounds to refuse support except of course the death of the preson
entitiled to support.
Art. 303. The obligation to give support shall also cease:
(1) Upon the death of the recipient;
(2) When the resources of the obligor have been reduced
to the point where he cannot give the support without
neglecting his own needs and those of his family;
(3) When the recipient may engage in a trade, profession,
or industry, or has obtained work, or has improved his
fortune in such a way that he no longer needs the
allowance for his subsistence;
(4) When the recipient, be he a forced heir or not, has
committed some act which gives rise to disinheritance;
(5) When the recipient is a descendant, brother or sister of
the obligor and the need for support is caused by his or
her bad conduct or by the lack of application to work, so
long as this cause subsists. (152a)
slander addressed directly against the testator himself conviction,

though, is not necessary. Except when:
1.
unintentional;
2.
on account of lack of discernment due to tender age or

mental incapacity
What is dishonorable or disgraceful life is largely a matter of

appreciation and opinion. If denied, the burden of proof is lodeged to
the others interested in the estate. Ultimately, it is the opinion of the
court which will be the basis of the disinheritance.
The conviction of the crime which carries the penalty of Civil
interdiction must be by final judgement.
Art. 920. The following shall be sufficient causes for the

disinheritance of parents or ascendants, whether legitimate or
illegitimate:
(1) When the parents have abandoned their children or
induced their daughters to live a corrupt or immoral
life, or attempted against their virtue;
(2) When the parent or ascendant has been convicted
of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(3) When the parent or ascendant has accused the
testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation
has been found to be false;
(4) When the parent or ascendant has been convicted
of adultery or concubinage with the spouse of the
testator;
(5) When the parent or ascendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or to change one already made;
(6) The loss of parental authority for causes specified
in this Code;
(7) The refusal to support the children or descendants
without justifiable cause;
(8) An attempt by one of the parents against the life of
the other, unless there has been a reconciliation
between them. (756, 854, 674a)
Abandonment should be understood in a general sense, so as to
include failure to give due care, attention, and support.
What is corrupt and immoral life will ultimately be MATTER OF
JUDICIAL APPRAISAL and opinion, if the parent denies this cause
for disinheritance. The acts which the daughter has been indiuced by
the parent to commit should be proved. Daughters in the article must
be construed to include all female descendants.
Attempt against the virtue does not require final conviction. It is
enough that he has committed acts which would have amounted to
rape, seduction, or acts of lasciviousness, against such daughter.
Loss of parental are provided for in the Family Code.
Maltreatment by deed covers all acts of violence against the testator

short of an attempt against the life. Maltreatment by word amounts to
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80

Art. 229. Unless subsequently revived by a final judgment, parental
authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in
a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the
party concerned of parental authority; or
(5) Upon judicial declaration of absence or incapacity of
the person exercising parental authority. (327a)
Art. 230. Parental authority is suspended upon conviction of the
parent or the person exercising the same of a crime which carries
with it the penalty of civil interdiction. The authority is automatically
reinstated upon service of the penalty or upon pardon or amnesty of
the offender. (330a)
Art. 231. The court in an action filed for the purpose in a related case
may also suspend parental authority if the parent or the person
exercising the same:
Art. 921. The following shall be sufficient causes for

disinheriting a spouse:
(1) When the spouse has been convicted of an attempt
against the life of the testator, his or her descendants,
or ascendants;
(2) When the spouse has accused the testator of a
crime for which the law prescribes imprisonment of
six years or more, and the accusation has been found
to be false;
(3) When the spouse by fraud, violence, intimidation,
or undue influence cause the testator to make a will or
to change one already made;
(4) When the spouse has given cause for legal
separation;
(5) When the spouse has given grounds for the loss of
parental authority;
(6) Unjustifiable refusal to support the children or the
other spouse. (756, 855, 674a)
It is the fact of having given cause for the legal separation which is
the ground; in other words, it is necessary that the legal separation
be actually obtained.
(1) Treats the child with excessive harshness or cruelty;

(2) Gives the child corrupting orders, counsel or example;
Art. 55. A petition for legal separation may be filed on any of the
following grounds:
(3) Compels the child to beg; or
(1) Repeated physical violence or grossly abusive conduct

directed against the petitioner, a common child, or a child
of the petitioner;
(4) Subjects the child or allows him to be subjected to acts

of lasciviousness.
(2) Physical violence or moral pressure to compel the

petitioner to change religious or political affiliation;
The grounds enumerated above are deemed to include cases which

have resulted from culpable negligence of the parent or the person
exercising parental authority.
(3) Attempt of respondent to corrupt or induce the

petitioner, a common child, or a child of the petitioner, to
engage in prostitution, or connivance in such corruption or
inducement;
If the degree of seriousness so warrants, or the welfare of the child

so demands, the court shall deprive the guilty party of parental
authority or adopt such other measures as may be proper under the
circumstances.
The suspension or deprivation may be revoked and the parental
authority revived in a case filed for the purpose or in the same
proceeding if the court finds that the cause therefor has ceased and
will not be repeated. (33a)
Art. 232. If the person exercising parental authority has subjected the
child or allowed him to be subjected to sexual abuse, such person
shall be permanently deprived by the court of such authority. (n)
There are temporary loss of parental authority which causes
disinheritance but will the recovery of authority revoke the
disinheritance? No. the cause for disinheritance subsists even when
parental authority is regained. The reason advanced is that the real
cause for disinheritance is not the loss of the parental authority, but
the fact of having committed something sufficient to occasion such
loss. The right to inherit is odious, because it involves the deprivation
of property; this fact, together with the fact that disinheritaqnce is an
exception to the rules of legitime justifies a strict construction.
Attempt against the life does not require conviction of the offending
parent. But the reconciliation between the offending parent and the
parent against whose life the attempt was made deprives the child of
the right to disinherit the offender.
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(4) Final judgment sentencing the respondent to

imprisonment of more than six years, even if pardoned;
(5) Drug addiction
respondent;
or
habitual
alcoholism
of
the
(6) Lesbianism or homosexuality of the respondent;

(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child by
nature or by adoption. (9a)
Art. 63. The decree of legal separation shall have the following
effects:
(1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits earned by
the absolute community or the conjugal partnership, which
81

shall be forfeited in accordance with the provisions of
Article 43(2);
(3) The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of Article
213 of this Code; and
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent spouse shall be
revoked by operation of law. (106a)
Art. 922. A subsequent reconciliation between the offender and

the offended person deprives the latter of the right to disinherit,
and renders ineffectual any disinheritance that may have been
made. (856)
General pardon is not sufficient. The pardon must expressly refer to
the heir disinherited and specifically to the acts causing the
disinheritance. Such pardon must be accepted by the heir. There
must be a real reconciliation between the parties.
There are some grounds for disinheritance which are also causes for
incapacity by reason of unworthiness. What then would be the effect
of a subsequent reconciliation between the parties, if a disinheritance
has already been made on any of the grounds which are also causes
for unworthiness?
Same effect, the heir may inherit as a CH and intestate. Incapacity
by reason of unworthiness is merely an expression of the implied will
of a person who has not expressed his intention in a will. If the
express intention, manifested by the testator in a disinheriting clause
in a will, is rendered ineffective by a subsequent reconciliation, how
can the implied intention be logically held to exist?
If a disinheritance has been made, and then reconciliation takes
place, it will be the same as if there had been no disinheritance. The
disinheritance does not legally exist, and the rights established by
law in favor of the person provisionally disinherited recover their
supremacy over the express disposition of thetestator.
Disinheritance may be revoked by:
1. reconciliation;
2. subsequent institution of the disinherited heir;
3. the nullity of the will containing the disinheritance, such as
when denied probate.
amount that pertains to him as intestate heir and not only that as
compulsory heir.
XVI. INSTITUTION OF HEIRS
A. In General
Art. 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)
The will of the testator is the supreme law which succession is
governed, thus, the beneficiaries under the will must be designated
with clearness so that there can be no doubt as to who are intended
by the testator.
Since the institution of heirs and the designation of legatees and
devisees spring exclusively from the will of the testator, only the
portion of the inheritance that is subject to the disposal of the testator
would be affected by such institution or designation. It cannot affect
the portion known as the legitime.
Art. 785. The duration or efficacy of the designation of heirs,
devisees or legatees, or the determination of the portions which
they are to take, when referred to by name, cannot be left to the
discretion of a third person. (670a)
T: The matters mentioned in this article are testamentary in nature;
they constitute expressions of the will or disposition of the testator.
Hence, pursuant to Art. 784, it cannot be delegated.
B: The ff. constitute the essence of will making or the exercise of the
disposing power, and thus, non-delegable:
4.
the designation of heirs, devisees, legatees;
5.
the duration or efficacy of such designation including such

things as conditions, terms, substitutions
6.
the determination of the portions they are to recieve
Art. 787. The testator may not make a testamentary disposition

in such manner that another person has to determine whether
or not it is to be operative. (n)
Once revoked it cannot be renewed except for other causes

subsequent to the revocation. Thus, after reconciliation a new
disinheritance can be based only on new grounds.
Art. 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.
Art. 923. The children and descendants of the person

disinherited shall take his or her place and shall preserve the
rights of compulsory heirs with respect to the legitime; but the
disinherited parent shall not have the usufruct or administration
of the property which constitutes the legitime. (857)
The heir may be instituted to succeed to the whole or to an aliquot

part of the inheritance. The existence of the institution does not
depend upon the designation or name which the testator gives to his
testamentary disposition.
The causes of disinheritance are personal to the disinherited heir; he

alone is at fault, and nobody else should suffer the effects of such
culpability. His children and ascendants therefore should not be
penalized for acts not imputable to them.
The article allows the children and descendants of the person
disinherited to take his place and retain the rights of compulsory
heirs in respect to the legitime.
The disinherited person can be represented only if he is a child or
descendant, a disinherited ascendant or spouse cannot be
represented. Right of representation applies.
The representation should extend to everything that would have
passed to the disinherited heir by operation of law; this includes the
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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)
Art. 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.
The article pertains to the principle of freedom of distribution by will.
The extent of his freedom of disposition depends upon the existence,
knid, and number of compulsory heirs. When there are CH the law
limits this freedom to such extent that legitime is not impaired.
Besides the civil law, special laws also restrict this freedom such as
the Public Land Act which vests upon the heirs of the applicant or
82

grantee the ownership of land in such case that the latter dies. Thus,
he does not have free disposal of the subject land.
The body of the deceased testator will not pass under his will or
become part of the estate because it is not a property. But the
testator may be allowed to such extent for scientific or educational
purposes.
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)
Art. 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)
Art. 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 the other proof, the person instituted cannot be
identified, none of them shall be an heir. (773a)
Art. 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)
T: The first part of this article pertains to patent or extrinsic ambiguity
which appears upon the face of the instrument such as when the
testator gives a devise or legacy to SOME of the six children of his
cousin Juan
The second part pertains to latent or intrinsic ambiguity which cannot
be seen from a mere perusal or reading of the will but appears only
upon consideration of extrinsic circumstances, such as giving legacy
to my cousin Pedro, when I fact he has two cousins named Pedro.
Thus. It occurs when:
3.
two or more persons or things answer the name or

description;
4.
misdescription of the beneficiary or the gift
Extrinsic evidence is admissible to show the situation of the testator

and all the relevant facts and circumstances surrounding him at the
time of making the will, for the purpose of explaining or resolving
patent ambiguity.
B: method of resolving ambiguity, whether latent or patent is any
evidence admissible and relevant excluding the oral declarations of
testator as to his intention.
T: the testator whose lips have been sealed by death can no longer
deny or affirm the truth of what witnesses may say he declared,
would create confusion and give rise to false claims.
Art. 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)
Art. 786. The testator may entrust to a third person the
distribution of specific property or sums of money that he may
leave in general to specified classes or causes, and also the
designation of the persons, institutions or establishments to
which such property or sums are to be given or applied. (671a)
T: the third person here does not make any disposition, but simply
carries out details in the execution of the testamentary disposition
made by the testator himself in the will.
B: for this article to take effect the testator must determine the ff:
5.
the property or amount of money given and;
6.
the class or cause to be benefited
and the ff. may be delegated:

3.
designation of persons, institutions, or establishments

within the class or cause;
4.
the manner of distribution.
Art. 846. Heirs instituted without designation of shares shall

inherit in equal parts. (765)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Austria vs. Reyes
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of
First Instance of Rizal (Special Proceedings 2457) a petition for
probate, ante mortem, of her last will and testament. The probate
was opposed by the present petitioners Ruben Austria, Consuelo
Austria-Benta and Lauro Austria Mozo, and still others who, like the
petitioner, are nephews and nieces of Basilia. This opposition was,
however, dismissed and the probate of the will allowed after due
hearing.
Ratio for the exclusion: B: can a dead man refute a tale?
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83

The bulk of the estate of Basilia, admittedly, was destined under the
will to pass on to the respondents Perfecto Cruz, Benita CruzMeez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of
whom had been assumed and declared by Basilia as her own legally
adopted children.
Finally, on November 5, 1959, the present petitioners filed in the
same proceedings a petition in intervention for partition alleging in
substance that they are the nearest of kin of Basilia, and that the five
respondents Perfecto Cruz, et al., had not in fact been adopted by
the decedent in accordance with law, in effect rendering these
respondents mere strangers to the decedent and without any right to
succeed as heirs.
In the meantime, the contending sides debated the matter of
authenticity or lack of it of the several adoption papers produced and
presented by the respondents. On motion of the petitioners Ruben
Austria, et al., these documents were referred to the National Bureau
of Investigation for examination and advice. N.B.I. report seems to
bear out the genuineness of the documents, but the petitioners,
evidently dissatisfied with the results, managed to obtain a
preliminary opinion from a Constabulary questioned-document
examiner whose views undermine the authenticity of the said
documents. The petitioners Ruben Austria, et al., thus moved the
lower court to refer the adoption papers to the Philippine
Constabulary for further study. The petitioners likewise located
former personnel of the court which appeared to have granted the
questioned adoption, and obtained written depositions from two of
them denying any knowledge of the pertinent adoption 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 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."
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
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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 estate 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
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dispose of practically his whole estate, 2 as was done in this case.
Moreover, so compelling is the principle that intestacy should be
avoided and the wishes of the testator allowed to prevail, that we
could even vary the language of the will for the purpose of giving it
effect. 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
Art. 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)
Art. 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)
Art. 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)
Art. 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)
B. Kinds of Institution
Art. 871. The institution of an heir may be made conditionally, or
for a certain purpose or cause. (790a)
Viuda de Kilayko vs. Tengco
These consolidated cases seek to annul the orders
1 dated
September 20, 1978, January 7, 1977 and January 31, 1977 of the
then Court of First Instance of Negros Occidental, Branch IV,
respectively, cancelling the notice of lis pendens filed by Celsa L.
Vda. de Kilayko, et al. with the Register of Deeds of Negros
Occidental, denying the motion for reconsideration of the order dated
September 20, 1976 filed by Celsa L. Vda. de Kilay ko, et al., and
holding in abeyance the resolution of defendants' motion to dismiss.
On January 28, 1968, Maria Lizares y Alunan died without any issue
leaving said "testamento" in the possession and custody of her
niece, Eustaquia Lizares. 3 On February 6, 1968, Eustaquia filed a
petition for the settlement of the testate estate of Maria Lizares y
Alunan, before the Court of First Instance of Negros Occidental,
Branch IV, docketed as Special Proceedings No. 8452. 4
On July 10, 1968, Eustaquia filed a project of partition 6 which was
granted by the probate court in an order dated January 8, 1971.
Simultaneously, said court declared the heirs, devisees, legatees and
usufructuaries mentioned in the project of partition as the only heirs,
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devisees, legatees and usufructuaries of the estate; adjudicated to

them the properties respectively assigned to each and every one of
them, and ordered the Register of Deeds of Negros Occidental and
Bacolod City to effect the corresponding transfer of the real
properties to said heirs as well as the transfer of shares, stocks, and
dividends in different corporations, companies and partnerships in
the name of Maria Lizares to the heirs and legatees, and the closure
of the testate proceedings of Maria Lizares. 7
A year later or on November 23, 1973, Eustaquia Lizares died single
without any descendant.
11 In due time, Rodolfo Lizares and
Amelo Lizares were appointed joint administrators of Eustaquia's
intestate estate.
On the strength of the testamentary provisions contained in
paragraphs 10 and 11 of the will of Maria Lizares, which were
allegedly in the nature of a simple substitution, Celsa Vda. de
Kilayko, Encarnacion Vda. de Panlilio, and Remedios Vda. de Guinto
(hereinafter collectively referred to as Celsa L. Vda. de Kilayko, et
al.) filed a motion in Special Proceedings No. 8452 to reopen once
again the testate estate proceedings of Maria Lizares. They prayed
among others that a substitute administrator be appointed; that the
order dated January 8, 1971 be reconsidered and amended by
declaring them as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of
Hda. Matab-ang, both of which form an aggregate area of 33
hectares; that the Register of Deeds of Negros Occidental, after such
amendment, be ordered to register at the back of their respective
certificates of title, the order of probate and a "declaration" that
movants are the heirs of said properties, and correspondingly issue
new certificates of title in their names. 12
Two (2) sets of intestate heirs of the deceased Eustaquia Lizares
namely: Socorro L. Vda. de Escario, Rodolfo Lizares, Mario Lizares,
Lucrecia Gustilo, and Aurora Lizares Wagner opposed the aforesaid
motion. They alleged that the court had no more jurisdiction to
reopen the testate estate proceedings of Maria Lizares as the order
of closure had long become final and that the testamentary
provisions sought to be enforced are null and void. 13
On April 13, 1977, the joint administrators filed before this Court a
petition for certiorari, prohibition and/or mandamus with prayer for a
writ of preliminary injunction. It was docketed as G.R. No. L-45965.
Petitioners contend that the lower court had no jurisdiction over Civil
Case No. 11639 as it involves the interpretation of the will of Maria
Lizares, its implementation and/or the adjudication of her properties.
They assert that the matter had been settled in Special Proceedings
No. 8452 which had become final and unappealable long before the
complaint in Civil Case No. 11639 was filed, and therefore, the cause
of action in the latter case was barred by the principle of res judicata.
They aver that the claim of Celsa, Encarnacion and Remedios,
sisters of Maria Lizares, over the properties left by their niece
Eustaquia and which the latter had inherited by will from Maria
Lizares, was groundless because paragraphs 10 and 11 of Maria's
will on which Celsa L. Vda. de Kilayko, et al. base their claim,
conceived of a fideicommissary substitution of heirs. Petitioners
contend that said provisions of the will are not valid because under
Article 863 of the Civil Code, they constitute an invalid
fideicommissary substitution of heirs.
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
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 . . . 37 A project of partition is merely a
proposal for the distribution of the hereditary estate which the court
85

may accept or reject. It is the court that makes that distribution of the
estate and determines the persons entitled thereto. 38
paragraphs be considered as providing for a vulgar or simple

substitution.
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.
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
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 effected 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.
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 then in law or estate. 44
Granting that res judicata has not barred the institution of Civil Case
No. 11639, the contention of Celsa L. Vda. de Kilay ko 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 Kilay ko, et al., neither may said
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With respect to the cancellation of the notice of lis pendens on the

properties involved, there is no merit in the contention of Celsa L.
Vda. de Kilay ko, 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 Kilay ko, 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.
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 876. Any purely potestative condition imposed upon an heir
must be fulfilled by him as soon as he learns of the testator's
death.
86

This rule shall not apply when the condition, already complied
with, cannot be fulfilled again. (795a)
Art. 877. If the condition is casual or mixed, it shall be sufficient
if it happens 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Institution with a Term
Art. 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)
Art. 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)
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Art. 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)
Modal Institutions
Art. 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)
Art. 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)
XVII. SUBSTITUTION OF HEIRS
Art. 857. Substitution is the appointment of another heir so that
he may enter into the inheritance in default of the heir originally
instituted. (n)
Art. 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)
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. (774)
Art. 860. Two or more persons may be substituted for one; and
one person for two or more heirs. (778)
Art. 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)
Art. 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)
87

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
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)
Art. 864. A fideicommissary substitution can never burden the
legitime. (782a)
Art. 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)
Art. 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)
Art. 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 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)
Art. 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)
Art. 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)
Palacios vs. Ramirez
The main issue in this appeal is the manner of partitioning the testate
estate of Jose Eugenio Ramirez among the principal beneficiaries,
namely: his widow Marcelle Demoron de Ramirez; his two
grandnephews Roberto and Jorge Ramirez; and his companion
Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French
who lives in Paris, while the companion Wanda is an Austrian who
lives in Spain. Moreover, the testator provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on
December 11, 1964, with only his widow as compulsory heir. His will
was admitted to probate by the Court of First Instance of Manila,
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Branch X, on July 27, 1965. Maria Luisa Palacios was appointed

administratrix of the estate. On June 23, 1966, the administratrix
submitted a project of partition as follows: the property of the
deceased is to be divided into two parts. One part shall go to the
widow "en pleno dominio" in satisfaction of her legitime; the other
part or "free portion" shall go to Jorge and Roberto Ramirez "en nuda
propriedad." Furthermore, one third (1/3) of the free portion is
charged with the widow's usufruct and the remaining two-third (2/3)
with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds:
(a) that the provisions for vulgar substitution in favor of Wanda de
Wrobleski with respect to the widow's usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's
usufruct are invalid because of the first heirs (Marcelle and Wanda)
survived the testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not related to
the second heirs or substitutes within the first degree, as provided in
Article 863 of the Civil Code; (c) that the grant of a usufruct over real
property in the Philippines in favor of Wanda de Wrobleski, who is an
alien, violates Section 5, Article XIII of the Philippine Constitution;
and that (d) the proposed partition of the testator's interest in the
Santa Cruz (Escolta) Building between the widow Marcelle, and the
appellants, violates the testator's express will to give this property to
them. Nonetheless, the lower court approved the project of partition
in its order dated May 3, 1967. It is this order which Jorge and
Roberto have appealed to this Court.
The widow's legitime.
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.
The substitutions.
It may be useful to recall that "Substitution is the appointment 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." (III 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
88

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,
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 is 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."
"Scaevola, Maura, and Traviesas construe 'degree' as
designation, substitution, or transmission. The Supreme
Court of Spain has decidedly adopted this construction.
From this point of view, there can be only one transmission
or substitution, and the substitute need not be related to
the first heir. Manresa, Morell, and Sanchez Roman,
however, construe the word 'degree' as generation, and
the present Code has obviously followed this
interpretation, by providing that the substitution shall not
go beyond one degree 'from the heir originally instituted.'
The Code thus clearly indicates that the second heir must
be related to and be one generation from the first heir.
"From this, it follows that the fideicommissary can only be
either a child or a parent of the first heir. These are the
only relatives who are one generation or degree from the
fiduciary." (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).
The usufruct of Wanda.
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.
Crisologo vs. Singson
Action for partition commenced by the spouses Consolacion
Florentino and Francisco Crisologo against Manuel Singson in
connection with a residential lot located at 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 proindiviso of said
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property and that Consolacion Florentino owned the other half by

virtue of the provisions of the duly probated last will of Doa 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 proindiviso of the property
in question, and that, therefore, she was not entitled to demand
partition thereof.
It is admitted that Doa 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,
and her nieces Rosario, Emilia and Trinidad, and her grandniece
Consolacion, all surnamed Florentino.
The issue to be decided is whether the testamentary disposition
above-quoted provided for what is called sustitucin vulgar or for a
sustitucin 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 preceding
paragraph, unless the testator has otherwise provided."
"ART. 781. Fidei-comissary 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.
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 dar") or shall belong in equal parts to the
testatrix's three brothers, Evaristo, Manuel and Dionisio, or their
forced heirs, should anyone of them the ahead of Consolacion
Florentino. If this clause created what is known as sustitucin 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 sustitucin 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
89

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 that person cannot be other than
the fideicomisarrio. (6 Manreza, 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 ("obligacin
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 deathwhether 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 Da. Leona Singson established a mere sustitucin
vulgar, the substitution of 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.
In view of the foregoing, the appealed judgment is affirmed, with
costs.
Art. 870. The dispositions of the testator declaring all or part of
the estate inalienable for more than twenty years are void. (n)
XVII. LEGACIES AND DEVISEES

Art. 924. All things and rights which are within the commerce of
man be bequeathed or devised. (865a)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 930. The legacy or devise of a thing belonging to another
person is void, if the testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, though not
belonging to the testator when he made the will, afterwards
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becomes his, by whatever title, the disposition shall take effect.

(862a)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
90

Art. 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)
Art. 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)
Art. 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)
Art. 941. A legacy of generic personal property shall be valid
even if there be no things of the same kind in the estate.
Art. 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)
Art. 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)
Art. 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)
Art. 948. If the legacy or device 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)
Art. 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)
A devise of indeterminate real property shall be valid only if

there be immovable property of its kind in the estate.
Art. 950. If the estate should not be sufficient to cover all the
legacies or devises, their payment shall be made in the
following order:
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)
(1) Remuneratory legacies or devises;

(2) Legacies or devises declared by the testator to be
preferential;
Art. 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)
(3) Legacies for support;
Art. 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)
Art. 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)
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(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)
Art. 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)
Art. 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)
91

Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Fernandez vs. Dimagiba

It appears from the record that on January 19, 1955, Ismaela
Dimagiba, now respondent, submitted to the Court of First Instance a
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petition for the probate of the purported will of the late Benedicta de
los Reyes, executed on October 22, 1930, and annexed to the
petition. The will instituted the petitioner as the sole heir of the estate
of the deceased. The petition was set for hearing, and in due time,
Dionisio Fernandez, Eusebio Reyes and Luisa Reyes, and one
month later, Mariano, Cesar, Leonor and Paciencia, all surnamed
Reyes, all claiming to be heirs intestate of the decedent, filed
oppositions to the probate asked. Grounds advanced for the
opposition were forgery, vices of consent of the testatrix, estoppel by
laches of the proponent, and revocation of the will by two deeds of
conveyance of the major portion of the estate made by the testatrix in
favor of the proponent in 1943 and 1944, but which conveyances
were finally set aside by this Supreme Court in a decision
promulgated on August 3, 1954, in cases G.R. Nos. L-5618 and L5620 (unpublished).
Oppositors Fernandez and Reyes petitioned for reconsideration
and/or new trial, insisting that the issues of estoppel and revocation
be considered and resolved; whereupon, on July 27, 1959, the Court
overruled the claim that proponent was in estoppel to ask for the
probate of the will, but "reserving unto the parties the right to raise
the issue of implied revocation at the opportune time."
On February 27, 1962, after receiving further evidence on the issue
whether the execution by the testatrix of deeds of sale of the larger
portion of her estate in favor of the testamentary heir, made in 1943
and 1944, subsequent to the execution of her 1930 testament, had
revoked the latter under Article 957(2) of the 1950 Civil Code (Art.
869 of the Civil Code of 1889), the trial Court resolved against the
oppositors and held the will of the late Benedicta de los Reyes
"unaffected and unrevoked by the deeds of sale." Whereupon, the
oppositors elevated the case to the Court of Appeals.
In this instance, both sets of oppositors-appellants pose three main
issues: (a) whether or not the decree of the Court of First Instance
allowing the will to probate had become final for lack of appeal; (b)
whether or not the order of the Court of origin dated July 27, 1959,
overruling the estoppel invoked by oppositors-appellants had
likewise become final; and (c) whether or not the 1930 will of
Benedicta de los Reyes had been impliedly revoked by her execution
of deeds of conveyance in favor of the proponent on March 26, 1943
and April 3, 1944.
There being no controversy that the probate decree of the Court
below was not appealed on time, the same had become final and
conclusive. Hence, the appellate courts may no longer revoke said
decree nor review the evidence upon which it is made to rest. Thus,
the appeal belatedly lodged against the decree was correctly
dismissed.
The alleged revocation implied from the execution of the deeds of
conveyance in favor of the testamentary heir is plainly irrelevant to
and separate from the question of whether the testament was duly
executed. For one, if the will is not entitled to probate, or its probate
is denied, all questions of revocation becomes superfluous: in law,
there is no such will and hence there would be nothing to revoke.
Then, again, the revocation invoked by the oppositors-appellants is
not an express one, but merely implied from subsequent acts of thetestatrix allegedly evidencing an abandonment of the original
intention to bequeath or devise the properties concerned. As such,
the revocation would not affect the will itself, but merely the particular
devise or legacy. Only the total and absolute revocation can preclude
probate of the revoked testament (Trillana vs. Crisostomo, supra).
As to the issue of estoppel, we have already ruled in Guevara vs.
Guevara, 98 Phil. 249, that the presentation and probate of a will are
requirements of public policy, being primarily designed to protect the
testator's expressed wishes, which are entitled to respect as a
consequence of the decedent's ownership and right of disposition
within legal limits. Evidence of it is the duty imposed on a custodian
of a will to deliver the same to the Court, and the fine and
imprisonment prescribed for its violation (Revised Rule 75) It would
be non-sequitur to allow public policy to be evaded on the pretext of
estoppel. Whether or not the order overruling the allegation of
estoppel is still appealable or not, the defense is patently
unmeritorious and the Court of Appeals correctly so ruled.
92

The last issue, that of revocation, is predicated on paragraph 2 of
Article 957 of the Civil Code of 1
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
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. 324325) 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 voided 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
held that there was in fact an alienation that could produce a
revocation of the anterior bequest.
Belen vs. BPI
Benigno Diaz executed a codicil on September 29, 1944 On
November 7, 1944, Benigno Diaz died; and the aforesaid codicil,
together with the will, was admitted to probate in Special
Proceedings No. 894 of the same Court of First Instance of Manila.
The proceedings for the administration of the estate of Benigno Diaz
were closed in 1950 and the estate was thereafter put under the
administration of the appellee Bank of the Philippine Islands, as
trustee for the benefit of the legatees.
Filomena Diaz died on February 8, 1954, leaving two legitimate
children, Milagros Belen de Olaguera, married, with seven (7)
legitimate children, and Onesima D. Belen, single.
On March 19, 1958, Onesima D. Belen filed a petition in Special
Proceedings No. 9226, contending that the amount that would have
appertained to Filomena Diaz under the codicil should now be
divided (equally) only between herself and Milagros Belen de
Olaguera, as the surviving children of the said deceased, to the
exclusion, in other words, of the seven (7) legitimate children of
Milagros Belen de Olaguera. The court, in its order of May 23, 1958,
denied, as we initially pointed out, Onesima's petition.
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
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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 descendientes legitimos," as used in the codicil, should be
interpreted to mean descendants nearest in 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 the actual meaning of the provision
"El resto se distribuira a las siguientes personas que aun viven, o a
sus descendientes legitimos",
it is undeniable that by this clause the testator ordained a simple
substitution (sustitucion vulgar) with a plurality of substitutes for each
legatee. This form of substitution is authorized by the first part 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 descendants
(children and grandchildren) of the legatee, as a class; or do 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, grandchildren 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 varietur
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,
But the ratio legis (that among a testator's relatives the closest are
dearest) obviously does not apply where the beneficiaries are
relatives of another person (the legatee) and not 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 analogy? 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 exclude all the farther relatives and the right of
representation does not operate.
The result would be that by applying to the descendants of Filomena
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 codicil (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 legatees, 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".
There is no doubt that, the testator's intention being the cardinal rule
of succession in the absence of compulsory (forced) heirs, he could
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have rendered inoperative all the articles mentioned, if he had so
desired. But without any other supporting circumstances, we deem it
extremely conjectural to hold that by the simple expression "o a sus
descendientes 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 a succession per capita
or per stirpes. 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 courts of England
and the United States. The established rule in England from an early
date was that the word 'descendants' or the word 'issue', unexplained
by anything in the context of the instrument, means all persons
descending lineally from another, to the remotest degree, and
includes persons so descended, even though their parents are living,
and that such descendants take per capita and not per stirpes."
"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 Tennessee. . . . 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 the
instrument, children do not take concurrently 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 grandchildren.
LEGAL OF INTESTATE SUCCESSION
XIX. GENERAL PROVISIONS
A. In General
Art. 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)
Art. 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)
Rosales vs. Rosales
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In this Petition for Review of two (2) Orders of the Court of First
Instance of Cebu the question raised is whether the widow whose
husband predeceased his mother can inherit from the latter, her
mother-in-law.
In the course of the intestate proceedings, the trial court issued an
Order dated June 16, 1972 declaring the following individuals the
legal heirs of the deceased and prescribing their respective share of
the estate Fortunato T. Rosales (husband) 1/4; Magna R. Acebes
(daughter), 1/4; Macikequerox Rosales, 1/4; and Antonio Rosales
(son), 1/4.
This declaration was reiterated by the trial court in its Order dated
February 4, 1975. These Orders notwithstanding, Irenea Rosales
insisted in getting a share of the estate in her capacity as the
surviving spouse of the late Carterio Rosales, son of the deceased,
claiming that she is a compulsory heir of her mother-in-law together
with her son, Macikequerox Rosales.
In sum, the petitioner poses two (2) questions for Our resolution.
First is a widow (surviving spouse) an intestate heir of her motherin-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.
There is no provision in the Civil Code which states that a
widow (surviving spouse) is an intestate heir of her mother-inlaw. 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.
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
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.
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
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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. Accordingly, it is Our considered opinion, and We so hold,
that a surviving spouse is not an intestate heir of his or her parent-inlaw. WHEREFORE, in view of the foregoing, the Petition is hereby
DENIED for lack of merit, with costs against the petitioner. Let this
case be remanded to the trial court for further proceedings.
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.
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)
Delos Santos vs. Dela Cruz
From the record of this case, we cull the following salient facts: On
May 21, 1965, Gertrudes de los Santos filed a complaint for specific
performance against Maximo de la Cruz, alleging, among others,
that on August 24, 1963, she and several co-heirs, including the
defendant, executed an extrajudicial partition agreement (a copy of
which was attached to the complaint) over a certain portion of land
with an area of around 20,000 sq. m.; that the parties thereto had
agreed to adjudicate three (3) lots to the defendant, in addition to his
corresponding share, on condition that the latter would undertake the
development and subdivision of the estate which was the subject
matter of the agreement, all expenses in connection therewith to be
defrayed from the proceeds of the sale of the aforementioned three
(3) lots; that in spite of demands by the plaintiff, by the other co-heirs,
and by the residents of the subdivision, the defendant refused to
perform his aforesaid obligation although he had already sold the
aforesaid lots. The plaintiff prayed the court to order the defendant to
comply with his obligation under the extra-judicial partition
agreement and to pay the sum of P1,000.00 as attorney's fees and
costs.
In his answer, the defendant admitted the due execution of the
extrajudicial partition agreement, but set up the affirmative defenses
that the plaintiff had no cause of action against him because the said
agreement was void with respect to her, for the reason that the
plaintiff was not an heir of Pelagia de la Cruz, deceased owner of the
property, and was included in the extrajudicial partition agreement by
mistake; and that although he had disposed of the three lots
adjudicated to him, nevertheless the proceeds of the sale were not
sufficient to develop and improve properly the subdivided estate. The
answer contained a counterclaim wherein the defendant alleged that
the plaintiff had likewise sold her share in the estate for P10,000.00,
and that the extrajudicial partition agreement being void insofar as
the latter was concerned, he was entitled to one-fourth (1/4) of the
proceeds as his share by way of reversion. The defendant prayed
that the complaint be dismissed; that the extrajudicial partition
agreement be declared void with respect to the plaintiff; and, on his
counterclaim, that the plaintiff be ordered to pay him the sum of
P2,500.00.
In its decision dated November 3, 1966, the court a quo held that the
defendant, being a party to the extrajudicial partition agreement, was
estopped from raising in issue the right of the plaintiff to inherit from
the decedent Pelagia de la Cruz; hence, he must abide by the terms
of the agreement. The court ordered the defendant "to perform his
obligations to develop Lots 1, 2 and 3 of (LRC) Psd-29561 as
described on page 2 of the Extrajudicial Partition Agreement"
(meaning, apparently, that the defendant should develop the
subdivision because said Lots 1, 2 and 3 were intended to be sold
for this purpose), and to pay the plaintiff the sum of P2,000.00 as
actual damages, the sum of P500.00 as attorney's fees, and the
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costs. No disposition was made of defendant's counterclaim. The

defendant filed a "Motion for New Trial' but the same was denied.
Hence, this appeal.
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 pre-deceasing 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
an heir of the decedent. We are convinced that she is not. Plaintiffappellee 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 . . ."
In the present case, the relatives "nearest in degree" to Pelagia de la
Cruz are her nephews and nieces, one of whom is defendantappellant. 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.
It is quite apparent that in executing the partition agreement, the
parties thereto were laboring under the erroneous belief that plaintiffappellee was one of the legal heirs of Pelagia de la Cruz. Plaintiffappellee not being such an 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 an 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 enforced.
The extrajudicial partition agreement being void with respect to
plaintiff-appellee, she may not be heard to assert estoppel against
defendant-appellant. Estoppel cannot be predicated on a void
contract (17 Am. Jur. 605), or on acts which are prohibited by law or
are against public policy
The award of actual damages in favor of plaintiff-appellee cannot be
sustained in view of the conclusion we have arrived at above.
Furthermore, actual or compensatory damages must be duly proved
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(Article 2199, Civil Code). Here, no proof of such damages was
presented inasmuch as the case was decided on a stipulation of
facts and no evidence was adduced before the trial court.
Such being the case, defendant-appellant is apparently correct in his
contention that the lower court erred in not passing on his
counterclaim and, consequently, in not sentencing appellee to turn
over to him his corresponding share of said portion received by
appellee under the void partition. Remote relatives or unrelated
persons who unduly received and took possession of the property of
a deceased person without any right, by virtue of a null and void
partition, must restore it to the legitimate successor in the inheritance
(De Torres vs. De Torres, et al., supra). Of course, if such share has
already been disposed of by appellee to a bona fide purchaser, as
seems to be indicated in the unproven allegations of the
counterclaim, We cannot render judgment awarding any specific
amount to defendant-appellant as his proportionate share of the
proceeds of such sale for the reason that, as already stated above,
this aspect of the counterclaim has not been touched upon in the
stipulation of facts nor has it been supported by evidence which
appellant should have presented in the lower court but did not.
C. Right Representation
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. (942a)
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. (n)
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.
(925)
Art. 973. In order that representation may take place, it is
necessary that the representative himself be capable of
succeeding the decedent. (n)
Art. 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)
Art. 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)
Art. 976. A person may represent him whose inheritance he has
renounced. (928a)
Art. 977. Heirs who repudiate their share may not be
represented. (929a)
Art. 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)
Art. 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)
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Art. 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)
Art. 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)
together with brothers and sisters of the half blood, the former
shall be entitled to a share double that of the latter. (949)
Art. 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)
succeed per capita or per stirpes, in accordance with the rules
laid down for the brothers and sisters of the full blood. (915)
Teotica vs. Del Val Chan
Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in
the City of Manila leaving properties worth P600,000.00. She left a
will written in Spanish which she executed at her residence in No. 2
Legarda St., Quiapo, Manila. She affixed her signature at the bottom
of the will and on the left margin of each and every page thereof in
the presence of Pilar Borja, Pilar G. Sanchez, and Modesto
Formilleza, who in turn affixed their signatures below the attestation
clause and on the left margin of each and every page of the will in
the presence of the testatrix and of each other. Said will was
acknowledged before Notary Public Niceforo S. Agaton by the
testatrix and her witnesses.
Among the many legacies and devises made in the will was one of
P20,000.00 to Rene A. Teotico, married to the testatrix's niece
named Josefina Mortera. To said spouses the testatrix left the
usufruct of her interest in the Calvo building, while the naked
ownership thereof she left in equal parts to her grandchildren who
are the legitimate children of said spouses. The testatrix also
instituted Josefina Mortera as her sole and universal heir to all the
remainder of her properties not otherwise disposed of in the will.
Ana del Val Chan, claiming to be an adopted child of Francisca
Mortera, a deceased sister of the testatrix, as well as an
acknowledged natural child of Jose Mortera, a deceased brother of
the same testatrix, filed on September 2, 1955 an opposition to the
probate of the will alleging the following grounds: (1) said will was
not executed as required by law; (2) the testatrix was physically and
mentally incapable to execute the will at the time of its execution;
and (3) the will was executed under duress, threat or influence of
fear.
After the parties had presented their evidence, the probate court
rendered its decision on November 10, 1960 admitting the will to
probate but declaring the disposition made in favor of Dr. Rene
Teotico void with the statement that the portion to be vacated by the
annulment should pass to the testatrix's heirs by way of intestate
succession.
The motions for reconsideration above adverted to having been
denied, both petitioner and oppositor appealed from the decision, the
former from that portion which nullifies the legacy in favor of Dr. Rene
Teotico and declares the vacated portion as subject of succession in
favor of the legal heirs, and the latter from that portion which admits
the will to probate. And in this instance both petitioner and oppositor
assign several error which, stripped of non-essentials, may be boiled
down to the following: (1) Has oppositor Ana del Val Chan the right to
intervene in this proceeding?; (2) Has the will in question been duly
admitted to probate?; and (3) Did the probate court commit an error
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in passing on the intrinsic validity of the provisions of the will and in
determining who should inherit the portion to be vacated by the
nullification of the legacy made in favor of Dr. Rene Teotico?
It is a well-settled rule that in order that a person may be allowed to
intervene in a probate proceeding he must have an interest in the
estate, or in the will, or in the property to be affected by it either as
executor or as a claimant of the estate (Ngo The Hua vs. Chung Kiat
Hua, et al., L-17091, September 30, 1963); and an interested party
has been defined as one who would be benefitted by the estate such
as an heir or one who has a claim against the estate like a creditor
(Idem.). On the other hand, in Saguinsin vs. Lindayag, et al., L17750, December 17, 1962, this Court said:
"According to Section 2, Rule 80 of the Rules of Court, a petition for
letters of administration must be filed by an 'interested person.' An
interested party has been defined in this connection as one who
would be benefitted by the estate, such as an heir, or one who has a
claim against the estate, such as a creditor (Intestate Estate of Julio
Magbanwa 40 O.G., 1171). And it is well settled in this jurisdiction
that in civil actions as well as special proceedings, the interest
required in order that a person may be a party thereto must be
material and direct, and not merely indirect or contingent. (Trillana
vs. Crisostomo, G. R. No. L-3370, August 22, 1951; Rapinosa vs.
Barrion, 70 Phil. 311)."
The question now may be asked: Has oppositor any interest in any
of the provisions of the will, and, in the negative, would she acquire
any right to the estate in the event that the will is denied probate?
Under the terms of the will, oppositor has no right to intervene
because she has no interest in the estate either as heir, executor, or
administrator, nor does she have any claim to any property affected
by the will, because it nowhere appears therein any provision
designating her as heir, legatee or devisee of any portion of the
estate. She has also no interest in the will either as administratrix or
executrix. Neither has she any claim against any portion of the estate
because she is not a co-owner thereof, and while she previously had
an interest in the Calvo building located in Escolta, she had already
disposed of it long before the execution of the will.
does not extend to the relatives of either." (Tolentino, Civil Code of

the Philippines, Vol. 1, p. 652)
We have examined the evidence on the matter and we are fully in
accord with the foregoing observation. Moreover, the mere claim that
Josefina Mortera and her husband Rene Teotico had the opportunity
to exert pressure on the testatrix simply because she lived in their
house several years prior to the execution of the will and that she
was old and suffering from hypertension in that she was virtually
isolated from her friends for several years prior to her death is
insufficient to disprove what the instrumental witnesses had testified
that the testatrix freely and voluntarily and with full consciousness of
the solemnity of the occasion executed the will under consideration.
The exercise of improper pressure and undue influence must be
supported by substantial evidence and must be of a kind that would
overpower and subjugate the mind of the testatrix as to destroy her
free agency and make her express the will of another rather than her
own (Coso vs. Deza, 42 Phil., 596). The burden is on the person
challenging the will that such influence was exerted at the time of its
execution, a matter which here was not done, for the evidence
presented not only is sufficient but was disproved by the testimony
the instrumental witnesses.
The question of whether the probate court could determine the
intrinsic validity of the provisions of a will has been decided by this
Court in a long line of decisions among which the following may be
cited: "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."
"To establish conclusively as against everyone, and once for all, the
facts that a will was executed with the formalities required by law and
that the testator was in a condition to make a will, is the only purpose
of the proceedings under the new code for the probate of a will. (Sec.
625.) The judgment in such proceedings determines and can
determine nothing more. In them the court has no power to pass
upon the validity of any provisions made in the will. It can not decide,
for example, that a certain legacy is void and another one valid."
Diaz vs. IAC
"'Between the natural child and the legitimate relatives of the father
or mother who acknowledged it, the Code denies any right of
succession. They cannot be called relatives and they have no right to
inherit. Of course, there is a blood tie, but the law does not recognize
it. In this, article 943 is based upon the reality of the facts and upon
the presumptive will of the interested parties; the natural child is
disgracefully looked down upon by the legitimate family; the
legitimate family is, in turn, hated by the natural child; the latter
considers the privileged condition of the former and the resources of
which it is thereby deprived; the former, in turn, sees in the natural
child nothing but the product of sin, a palpable evidence of a blemish
upon the family. Every relation is ordinarily broken in life; the law
does no more them recognize this truth, by avoiding further grounds
of resentment.' (7 Manresa, 3d ed., p. 110.)"
The oppositor cannot also derive comfort from the fact that she is an
adopted child of Francisca Mortera because under our law the
relationship established by adoption is limited solely to the adopter
and the adopted does not extend to the relatives of the adopting
parents or of the adopted child except only as expressly provided for
by law. Hence, no relationship is created between the adopted and
the collaterals of the adopting parents. As a consequence, the
adopted is an heir of the adopter but not of the relatives of the
adopter.
"The relationship established by the adoption, however, is limited to
the adopting parent, and does not extend to his other relatives,
except as expressly provided by law. Thus, the adopted child cannot
be considered as a relative of the ascendants and collaterals of the
adopting parents, nor of the legitimate children which they may have
after the adoption, except that the law imposes certain impediments
to marriage by reason of adoption. Neither are the children of the
adopted considered as descendants of the adopter. The relationship
created is exclusively between, the adopter and the adopted, and
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Private respondent filed a Petition dated January 23, 1976 with the
Court of First Instance of Cavite in Sp. Proc. Case No. B-21, "In The
Matter of the Intestate Estate of the late Simona Pamuti Vda. de
Santero," praying among other things, that the corresponding letters
of Administration be issued in her favor and that she be appointed as
special administratrix of the properties of the deceased Simona
Pamuti Vda. de Santero.
It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona
Pamuti Vda. de Santero who together with Felisa's mother Juliana
were the only legitimate children of the spouses Felipe Pamuti and
Petronila Asuncion; 2) that Juliana married Simon Jardin and out of
their union were born Felisa Pamuti and another child who died
during infancy; 3) that Simona Pamuti Vda. de Santero is the widow
of Pascual Santero and the mother of Pablo Santero; 4) that Pablo
Santero was the only legitimate son of his parents Pascual Santero
and Simona Pamuti Vda. de Santero; 5) that Pascual Santero died in
1970; Pablo Santero in 1973 and Simona Santero in 1976; 6) that
Pablo Santero, at the time of his death was survived by his mother
Simona Santero and his six minor natural children to wit: four minor
children with Anselma Diaz and two minor children with Felixberta
Pacursa.
Petitioner Anselma Diaz, as guardian of her minor children, filed her
"Opposition and Motion to Exclude Felisa Pamuti-Jardin dated March
13, 1980, from further taking part or intervening in the settlement of
the intestate estate of Simona Pamuti Vda. de Santero, as well as in
the intestate estate of Pascual Santero and Pablo Santero.
On May 20, 1980, Judge Ildefonso M. Bleza issued an order
excluding Felisa Jardin "from further taking part or intervening in the
settlement of the intestate estate of Simona Pamuti Vda. de Santero,
as well as in the intestate estates of Pascual Santero and Pablo
97

Santero and declared her to be, not an heir of the deceased Simona
Pamuti Vda. de Santero." 3
mother Simona Pamuti Vda. de Santero, because of the barrier

provided for under Art. 992 of the New Civil Code.
After her Motion for Reconsideration was denied by the trial court in
its order dated November 1, 1980, Felisa P. Jardin filed her appeal to
the Intermediate Appellate Court in CA-G.R. No. 69814-R. A decision
4 was rendered by the Intermediate Appellate Court on December
14, 1983 (reversing the decision of the trial court) the dispositive
portion of which reads "WHEREFORE, finding the Order appealed
from not consistent with the facts and law applicable, the same is
hereby set aside and another one entered sustaining the Orders of
December 1 and 9, 1976 declaring the petitioner as the sole heir of
Simona Pamuti Vda. de Santero and ordering oppositors-appellees
not to interfere in the proceeding for the declaration of heirship in the
estate of Simona Pamuti Vda. de Santero."
"In the Spanish Civil Code of 1889 the right of

representation was admitted only within the legitimate
family; so much so that Article 943 of that Code prescribed
that an illegitimate child can not inherit ab intestato from
the legitimate children and relatives of his father and
mother. The Civil Code of the Philippines apparently
adhered to this principle since it reproduced Article 943 of
the Spanish Code in its own Art. 992, but with fine
inconsistency, in subsequent articles (990, 995 and 998)
our Code allows the hereditary portion of the illegitimate
child to pass to his own descendants, whether legitimate or
illegitimate. So that while Art, 992 prevents the illegitimate
issue of a legitimate child from representing him in the
intestate succession of the grandparent, the illegitimates of
an illegitimate child can now do so. This difference being
indefensible and unwarranted, in the future revision of the
Civil Code we shall have to make a choice and decide
either that the illegitimate issue enjoys in all cases the right
of representation, in which case Art. 992 must be
suppressed; or contrariwise maintain said article and
modify Articles 995 and 998. The first solution would be
more in accord with an enlightened attitude vis-a-vis
illegitimate children. (Reflections on the Reform of
Hereditary Succession, JOURNAL of the Integrated Bar of
the Philippines, First Quater, 1976, Volume 4, Number 1,
pp. 40-41).
The real issue in this case may be briefly stated as follows who
are the legal heirs of Simona Pamuti Vda. de Santero her niece
Felisa Pamuti Jardin or her grandchildren (the natural children of
Pablo Santero)?
The dispute at bar refers only to the intestate estate of Simona
Pamuti Vda. de Santero and the issue here is whether oppositorsappellees (petitioners herein) as illegitimate children of Pablo
Santero could inherit from Simona Pamuti Vda. de Santero, by right
of representation of their father Pablo Santero who is a legitimate
child of Simona Pamuti Vda. de Santero.
Now then what is the appropriate law on the matter? Petitioners
contend in their pleadings that Art. 990 of the New Civil Code is the
applicable law on the case. They contend that said provision of the
New Civil Code modifies the rule in Article 941 (Old Civil Code) and
recognizes the right of representation (Art. 970) to descendants,
whether legitimate or illegitimate and that Art. 941, Spanish Civil
Code denied illegitimate children the right to represent their
deceased parents and inherit from their deceased grandparents, but
that Rule was expressly changed and/or amended by Art. 990 New
Civil Code which expressly grants the illegitimate children the right to
represent their deceased father (Pablo Santero) in the estate of their
grandmother (Simona Pamuti)" 5
Petitioners' contention holds no water. Since the hereditary conflict
refers solely to the intestate estate of Simona Pamuti Vda. de
Santero, who is the legitimate mother of Pablo Santero, the
applicable law is the provision of Art. 992 of the Civil Code which
reads as follows:
ART. 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).
Pablo Santero is a legitimate child, he is not an illegitimate child. On
the other hand, the oppositors (petitioners herein) are the illegitimate
children of Pablo Santero.
It is therefore clear from Article 992 of the New Civil Code that the
phrase "legitimate children and relatives of his father or mother"
includes Simona Pamuti Vda. de Santero as the word "relative"
includes all the kindred of the person spoken of. 7 The record shows
that from the commencement of this case the only parties who
claimed to be the legitimate heirs of the late Simona Pamuti Vda. de
Santero are Felisa Pamuti Jardin and the six minor natural or
illegitimate children of Pablo Santero. Since petitioners herein are
barred by the provisions of Article 992, the respondent Intermediate
Appellate Court did not commit any error in holding Felisa PamutiJardin to be the sole legitimate heir to the intestate estate of the late
Simona Pamuti Vda. de Santero.
WHEREFORE, this petition is hereby DISMISSED, and the assailed
decision is hereby AFFIRMED
Debacayo vs. Feraris
Melodia Ferraris was a resident of Cebu City until 1937 when she
transferred to Intramuros, Manila. She was known to have resided
there continuously until 1944. Thereafter, up to the filing on
December 22, 1960 of the petition for the summary settlement of her
estate, she has not been heard of and her whereabouts are still
unknown. More than ten (10) years having elapsed since the last
time she was known to be alive, she was declared presumptively
dead for purposes of opening her succession and distributing her
estate among her heirs.
Article 992 of the New Civil Code provides a barrier or iron curtain in
that it prohibits absolutely a succession ab intestato between the
illegitimate child and the legitimate children and relatives of the
father or mother of said legitimate child. They may have a natural tie
of blood, but this is not recognized by law for the purposes of Art.
992. Between the legitimate family and the illegitimate family there is
presumed to be an intervening antagonism and incompatibility. The
illegitimate child is disgracefully looked down upon by the legitimate
family; the family is in turn, hated by the illegitimate child; the latter
considers the privileged condition of the former, and the resources of
which it is thereby deprived; the former, in turn, sees in the
illegitimate child nothing but the product of sin, palpable evidence of
a blemish broken in life; the law does no more than recognize this
truth, by avoiding further grounds of resentment. 6
Melodia Ferraris left properties in Cebu City, consisting of one third

(1/3) share in the estate of her aunt, Rosa Ferraris, valued at
P6,000.00, more or less, and which was adjudicated to her in Special
Proceeding No. 13-V of the same court.
Thus, petitioners herein cannot represent their father Pablo Santero

in the succession of the letter to the intestate estate of his legitimate
The sole issue to be resolved in this case is: Who should inherit the
intestate estate of a deceased person when he or she is survived
only by collateral relatives, to wit: an aunt and the children of a
- jann -
The deceased Melodia Ferraris left no surviving direct descendant,

ascendant, or spouse, but was survived only by collateral relatives,
namely, Filomena Abellana de Bacayo, an aunt, and half- sister of
decedent's father, Anacleto Ferraris; and by Gaudencia, Catalina,
Conchita, and Juanito, all surnamed Ferraris, her nieces and
nephew, who were the children of Melodia's only brother of full blood,
Arturo Ferraris, who pre-deceased her (the decedent). These two
classes of heirs claim to be the nearest intestate heirs and seek to
participate in the estate of said Melodia Ferraris.
98

brother who predeceased him or her? Otherwise, will the aunt concur
with the children of the decedent's brother in the inheritance or will
the former be excluded by the latter?
paragraph of his commentaries to Article 1009 (Vol. II, p. 439) (which

counsel for appellants had unethically omitted to quote), Tolentino
expressly states:
Against the above ruling, petitioner-appellant contends in the present

appeal that she is of the same or equal degree of relationship as the
oppositors-appellees, three degrees removed from the decedent;
and that under article 975 of the New Civil Code no right or
representation could take place when the nieces and nephew of the
decedent do not concur with an uncle or aunt, as in the case at bar,
but rather the former succeed in their own right.
"Other Collaterals. The last of the relatives of the

decedent to succeed in intestate succession are the
collaterals other than brothers or sisters or children of
brothers or sisters. They are, however, limited to relatives
within the fifth degree. Beyond this, we can safely say,
there is hardly any affection to merit the succession of
collaterals. Under the law, therefore, persons beyond the
fifth degree are no longer considered as relatives, for
successional purposes.
We agree with appellants that as an aunt of the deceased, she is as

far distant as the nephews from the decedent (three degrees) since
in the collateral line to which both kinds of relatives belong degrees
are counted by first ascending to the common ancestor and then
descending to the heir (Civil Code, Art. 966). Appellant is likewise
right in her contention that nephews and nieces alone do not inherit
by right of representation (i.e., per stirpes) unless concurring with
brothers or sisters of the deceased, as provided expressly by Article
975:
"ART. 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."
"Article 1009 does not state any order of preference.

However, this article should be understood in connection
with the general rule that the nearest relatives exclude the
farther. Collaterals of the same degree inherit in equal
parts, there being no right of representation. They succeed
without distinction of lines or preference among them on
account of the whole blood relationship." (Italics supplied)
We, therefore, hold, and so rule, that under our laws of succession, a
decedent's uncles and aunts may not succeed ab intestato so long
as nephews and nieces of the decedent survive and are willing and
qualified to succeed.
Corpus vs. Corpus
Nevertheless, the trial court was correct when it held that, in case of
intestacy, nephews and nieces of the de cujus exclude all other
collaterals (aunts and uncles, first cousins, etc.) from the succession.
This is readily apparent from articles 1001, 1004, 1005, and 1009 of
the Civil Code of the Philippines, that provided as follows:
Under the last article (1009), the absence of brothers, sisters,
nephews and nieces of the decedent is a precondition to the other
collaterals (uncles, cousins, etc.) being called to the succession. This
was also and more clearly the case under the Spanish Civil Code of
1889, that immediately preceded the Civil Code now in force (R. A.
386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as
follows:
Teodoro R. Yangco died in Manila on April 20, 1939 at the age of

seventy-seven years. His will dated August 29, 1934 was probated in
the Court of First Instance of Manila in Special Proceeding No.
54863. The decree of probate was affirmed in this Court's 1941
decision in Corpus vs. Yangco, 73 Phil. 527. The complete text of the
will is quoted in that decision.
Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona
Arguelles, the widow of Tomas Corpus. Before her union with Luis
Rafael Yangco, Ramona had begotten five children with Tomas
Corpus, two of whom were the aforenamed Pablo Corpus and Jose
Corpus.
"ART. 952.
In the absence of brothers or sisters
and of nephews or nieces, children of the former, whether
of the whole blood or not, the surviving spouse, if not
separated by a final decree of divorce shall succeed to the
entire estate of the deceased."
"ART. 954.
Should there be neither brothers nor
sisters, nor children of brothers or sisters, nor a surviving
spouse, the other collateral relatives shall succeed to the
estate of deceased.
Pursuant to the order of the probate court, a project of partition dated

November 26, 1945 was submitted by the administrator and the
legatees named in the will. That project of partition was opposed by
the estate of Luis R. Yangco whose counsel contended that an
intestacy should be declared because the will does not contain an
institution of heir. It was also opposed by Atty. Roman A. Cruz, who
represented Juanita Corpus, Pedro Martinez and Juliana de Castro.
Juanita Corpus was already dead when Atty. Cruz appeared as her
counsel.
The latter shall succeed without distinction of lines or

preference among them by reason of the whole blood."
The probate court in its order of December 26, 1946 approved the
project of partition. It held that in certain clauses of the will the
testator intended to conserve his properties not in the sense of
disposing of them after his death but for the purpose of preventing
that "tales bienes fuesen malgastados o desfilpar rados por los
legatarios" and that if the testator intended a perpetual prohibition
against alienation, that condition would be regarded "como no puesta
o no existente". It concluded that "no hay motivos legales o morales
para que la sucession de Don Teodoro R. Yangco sea declarada
intestada."
It will be seen that under the preceding articles, brothers and sisters
and nephews and nieces inherited ab intestato ahead of the
surviving spouse, while other collaterals succeeded only after the
widower or widow. The present Civil Code of the Philippines merely
placed the spouse on a par with the nephews and nieces and
brothers and sisters of the deceased, but without altering the
preferred position of the latter vis a vis the other collaterals.
Appellants quote paragraph 2 of Tolentino's commentaries to Article
1009 of the present Civil Code as declaring that Article 1009 does
not establish a rule of preference. Which is true as to "other
collaterals", since preference among them is according to their
proximity to the decedent, as established by Article 962, paragraph
1.
"ART. 962.
the right of representation when it properly takes place."
On September 20, 1949, the legatees executed an agreement for the

settlement and physical partition of the Yangco estate. The probate
court approved that agreement and noted that the 1945 project of
partition was pro tanto modified. That did not set at rest the
controversy over the Yangco estate.
The trial court in its decision of July 2, 1956 dismissed the action on
the grounds of res judicata and laches. It held that the intrinsic
validity of Yangco's will was passed upon in its order dated
December 26, 1946 in Special Proceeding No. 54863 approving the
project of partition for the testator's estate.
But Tolentino does not state that nephews and nieces concur with
other collaterals of equal degree. On the contrary, in the first
- jann -
99

Appellant Corpus contends in this appeal that the trial court erred in
holding (1) that Teodoro R. Yangco was a natural child, (2) that his
will had been duly legalized, and (3) that plaintiff's action is barred by
res judicata and laches.
In the disposition of this appeal, it is not necessary to resolve
whether Yangco's will had been duly legalized and whether the
action of Tomas Corpus is barred by res judicata and laches. The
appeal may be resolved by determining whether Juanita Corpus, the
mother of appellant Tomas Corpus, was a legal heir of Yangco. Has
Tomas Corpus a cause of action to recover his mother's supposed
intestate share in Yangco's estate?
To answer that question, it is necessary to ascertain Yangco's
filiation. The trial court found that Yangco "a su muerte tambien le
sbrevivieron Luis y Paz appellidados Yangco, hermanos naturales
reconocidos por su padre natural Luis R. Yangco". The basis of the
trial court's conclusion that Teodoro R. Yangco was an acknowledged
natural child and not a legitimate child was the statement in the will
of his father, Luis Rafael Yangco, dated June 14, 1907, that Teodoro
and his three other children were his acknowledged natural children.
On the other hand, the children of Ramona Arguelles and Tomas
Corpus are presumed to be legitimate. A marriage is presumed to
have taken place between Ramona and Tomas. Semper praesumitur
pro matrimonio. It is disputably presumed "That a man and a woman
deporting themselves as husband and wife have entered into a
lawful contract of marriage"; "that a child born in lawful wedlock,
there being no divorce, absolute or from bed and board, is
legitimate", and "that things have happened according to the ordinary
course of nature and the ordinary habits of life" (Sec. 5[z], [bb] and
[cc], Rule 131, Rules of Court).
Since Teodoro R. Yangco was an acknowledged natural child or was
illegitimate and since Juanita Corpus was the legitimate child of Jose
Corpus, himself a legitimate child, we hold that appellant Tomas
Corpus has no cause of action for the recovery of the supposed
hereditary share of his mother, Juanita Corpus, as a legal heir, in
Yangco's estate. Juanita Corpus was not a legal heir of Yangco
because there is no reciprocal succession between legitimate and
illegitimate relatives. The trial court did not err in dismissing the
complaint of Tomas Corpus.
Appellant Corpus concedes that if Teodoro R. Yangco was a natural
child, he (Tomas Corpus) would have no legal personality to
intervene in the distribution of Yangco's estate (p. 8, appellant's
brief).
The rule in article 943 is now found in article 992 of the Civil Code
which provides that "an illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his father or
manner from the illegitimate child".
That rule is based on the theory that the illegitimate child is
disgracefully looked upon by the legitimate family while the legitimate
family is, in turn, hated by the illegitimate child. The law does not
recognize the blood tie and seeks to avoid further grounds of
resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185-6).
Under articles 944 and 945 of the spanish Civil Code, "if an
acknowledged natural or legitimated child should die without issue,
either legitimate or acknowledged, the father or mother who
acknowledged such child shall succeed to its entire estate; and if
both acknowledged it and are alive, they shall inherit from it share
and share alike. In default of natural ascendants, natural and
legitimated children shall be succeeded by their natural brothers and
sisters in accordance with the rules established for legitimate
brothers and sisters." Hence, Teodoro R. Yangco's half brothers on
the Corpus side, who were legitimate, had no right to succeed to his
estate under the rules of intestacy.
Following the rule in article 992, formerly article 943, it was held that
the legitimate relatives of the mother cannot succeed her illegitimate
child. By reason of that same rule, the natural child cannot represent
- jann -
his natural father in the succession to the estate of the legitimate

grandparent (Llorente vs. Rodriguez, 10 Phil. 585; Centeno vs.
Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The natural
daughter cannot succeed to the estate of her deceased uncle, a
legitimate brother of her natural mother (Anuran vs. Aquino and Ortiz,
38 Phil. 29).
XX. ORDER OF INTESTATE SUCCESSION

A. Descending Direct Line
1.
Estate of legitimate decedent

a. Illegitimate children
Art. 983. If illegitimate children survive with legitimate children,

the shares of the former shall be in the proportions prescribed
by Article 895. (n)
Art. 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to the entire
estate of the deceased. (939a)
Art. 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)
Art. 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)
Art. 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)
Corpus vs. Corpus
Teodoro R. Yangco died in Manila on April 20, 1939 at the age of
seventy-seven years. His will dated August 29, 1934 was probated in
the Court of First Instance of Manila in Special Proceeding No.
54863. The decree of probate was affirmed in this Court's 1941
decision in Corpus vs. Yangco, 73 Phil. 527. The complete text of the
will is quoted in that decision.
Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona
Arguelles, the widow of Tomas Corpus. Before her union with Luis
Rafael Yangco, Ramona had begotten five children with Tomas
Corpus, two of whom were the aforenamed Pablo Corpus and Jose
Corpus.
Pursuant to the order of the probate court, a project of partition dated
November 26, 1945 was submitted by the administrator and the
legatees named in the will. That project of partition was opposed by
the estate of Luis R. Yangco whose counsel contended that an
intestacy should be declared because the will does not contain an
institution of heir. It was also opposed by Atty. Roman A. Cruz, who
represented Juanita Corpus, Pedro Martinez and Juliana de Castro.
Juanita Corpus was already dead when Atty. Cruz appeared as her
counsel.
The probate court in its order of December 26, 1946 approved the
project of partition. It held that in certain clauses of the will the
testator intended to conserve his properties not in the sense of
disposing of them after his death but for the purpose of preventing
that "tales bienes fuesen malgastados o desfilpar rados por los
legatarios" and that if the testator intended a perpetual prohibition
100

against alienation, that condition would be regarded "como no puesta
o no existente". It concluded that "no hay motivos legales o morales
para que la sucession de Don Teodoro R. Yangco sea declarada
intestada."
On September 20, 1949, the legatees executed an agreement for the
settlement and physical partition of the Yangco estate. The probate
court approved that agreement and noted that the 1945 project of
partition was pro tanto modified. That did not set at rest the
controversy over the Yangco estate.
The trial court in its decision of July 2, 1956 dismissed the action on
the grounds of res judicata and laches. It held that the intrinsic
validity of Yangco's will was passed upon in its order dated
December 26, 1946 in Special Proceeding No. 54863 approving the
project of partition for the testator's estate.
Appellant Corpus contends in this appeal that the trial court erred in
holding (1) that Teodoro R. Yangco was a natural child, (2) that his
will had been duly legalized, and (3) that plaintiff's action is barred by
res judicata and laches.
In the disposition of this appeal, it is not necessary to resolve
whether Yangco's will had been duly legalized and whether the
action of Tomas Corpus is barred by res judicata and laches. The
appeal may be resolved by determining whether Juanita Corpus, the
mother of appellant Tomas Corpus, was a legal heir of Yangco. Has
Tomas Corpus a cause of action to recover his mother's supposed
intestate share in Yangco's estate?
To answer that question, it is necessary to ascertain Yangco's
filiation. The trial court found that Yangco "a su muerte tambien le
sbrevivieron Luis y Paz appellidados Yangco, hermanos naturales
reconocidos por su padre natural Luis R. Yangco". The basis of the
trial court's conclusion that Teodoro R. Yangco was an acknowledged
natural child and not a legitimate child was the statement in the will
of his father, Luis Rafael Yangco, dated June 14, 1907, that Teodoro
and his three other children were his acknowledged natural children.
On the other hand, the children of Ramona Arguelles and Tomas
Corpus are presumed to be legitimate. A marriage is presumed to
have taken place between Ramona and Tomas. Semper praesumitur
pro matrimonio. It is disputably presumed "That a man and a woman
deporting themselves as husband and wife have entered into a
lawful contract of marriage"; "that a child born in lawful wedlock,
there being no divorce, absolute or from bed and board, is
legitimate", and "that things have happened according to the ordinary
course of nature and the ordinary habits of life" (Sec. 5[z], [bb] and
[cc], Rule 131, Rules of Court).
Since Teodoro R. Yangco was an acknowledged natural child or was
illegitimate and since Juanita Corpus was the legitimate child of Jose
Corpus, himself a legitimate child, we hold that appellant Tomas
Corpus has no cause of action for the recovery of the supposed
hereditary share of his mother, Juanita Corpus, as a legal heir, in
Yangco's estate. Juanita Corpus was not a legal heir of Yangco
because there is no reciprocal succession between legitimate and
illegitimate relatives. The trial court did not err in dismissing the
complaint of Tomas Corpus.
Appellant Corpus concedes that if Teodoro R. Yangco was a natural
child, he (Tomas Corpus) would have no legal personality to
intervene in the distribution of Yangco's estate (p. 8, appellant's
brief).
The rule in article 943 is now found in article 992 of the Civil Code
which provides that "an illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his father or
manner from the illegitimate child".
That rule is based on the theory that the illegitimate child is
disgracefully looked upon by the legitimate family while the legitimate
family is, in turn, hated by the illegitimate child. The law does not
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recognize the blood tie and seeks to avoid further grounds of

resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185-6).
Under articles 944 and 945 of the spanish Civil Code, "if an
acknowledged natural or legitimated child should die without issue,
either legitimate or acknowledged, the father or mother who
acknowledged such child shall succeed to its entire estate; and if
both acknowledged it and are alive, they shall inherit from it share
and share alike. In default of natural ascendants, natural and
legitimated children shall be succeeded by their natural brothers and
sisters in accordance with the rules established for legitimate
brothers and sisters." Hence, Teodoro R. Yangco's half brothers on
the Corpus side, who were legitimate, had no right to succeed to his
estate under the rules of intestacy.
Following the rule in article 992, formerly article 943, it was held that
the legitimate relatives of the mother cannot succeed her illegitimate
child. By reason of that same rule, the natural child cannot represent
his natural father in the succession to the estate of the legitimate
grandparent (Llorente vs. Rodriguez, 10 Phil. 585; Centeno vs.
Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The natural
daughter cannot succeed to the estate of her deceased uncle, a
legitimate brother of her natural mother (Anuran vs. Aquino and Ortiz,
38 Phil. 29).
Leonardo vs. CA
From the record, it appears that Francisca Reyes who died intestate
on July 12, 1942 was survived by two (2) daughters, Maria and
Silvestra Cailles, and a grandson, Sotero Leonardo, the son of her
daughter, Pascuala Cailles who predeceased her. Sotero Leonardo
died in 1944, while Silvestra Cailles died in 1949 without any issue.
On October 29, 1964, petitioner Cresenciano Leonardo, claiming to
be the son of the late Sotero Leonardo, filed a complaint for
ownership of properties, sum of money and accounting in the Court
of First Instance of Rizal seeking judgment (1) to be declared one of
the lawful heirs of the deceased Francisca Reyes, entitled to one-half
share in the estate of said deceased jointly with defendant, private
respondent herein, Maria Cailles, (2) to have the properties left by
said Francisca Reyes, described in the complaint, partitioned
between him and defendant Maria Cailles, and (3) to have an
accounting of all the income derived from said properties from the
time defendants took possession thereof until said accounting shall
have been made, delivering to him his share therein with legal
interest.
Answering the complaint, private respondent Maria Cailles asserted
exclusive ownership over the subject properties and alleged that
petitioner is an illegitimate child who cannot succeed by right of
representation. For his part, the other defendant, private respondent
James Bracewell, claimed that said properties are now his by virtue
of a valid and legal deed of sale which Maria Cailles had
subsequently executed in his favor. These properties were allegedly
mortgaged to respondent Rural Bank of Paraaque, Inc. sometime in
September 1963.
I
"RESPONDENT COURT ERRED IN HOLDING THAT THE
PROPERTIES IN QUESTION ARE THE EXCLUSIVE
PROPERTIES OF PRIVATE RESPONDENTS.
II
"RESPONDENT COURT ERRED IN HOLDING THAT
PETITIONER HAS NOT ESTABLISHED HIS FILIATION.
III
"RESPONDENT COURT ERRED IN HOLDING THAT
PETITIONER, AS THE GREAT GRANDSON OF
FRANCISCA REYES, HAS NO LEGAL RIGHT TO
INHERIT BY REPRESENTATION."
To begin with, the Court of Appeals found the subject properties to be
the exclusive properties of the private respondents.
"After declaring it in her name, Maria Cailles paid the realty
taxes starting from 1918 up to 1948. Thereafter as she and
101

her son Narciso Bracewell, left for Nueva Ecija, Francisca
Reyes managed the property and paid the realty tax of the
land. However, for unexplained reasons, she paid and
declared the same in her own name. Because of this,
plaintiff decided to run after this property, erroneously
thinking that as the great grandson of Francisca Reyes, he
had some proprietary right over the same.
"After declaring it in her name, Maria Cailles likewise paid the realty
tax in 1917 and continued paying the same up to 1948. Thereafter
when she and her son, Narciso Bracewell, established their
residence in Nueva Ecija, Francisca Reyes administered the property
and like in the first case, declared in 1949 the property in her own
name. Thinking that the property is the property of Francisca Reyes,
plaintiff filed the instant complaint, claiming a portion thereof as the
same allegedly represents the share of his father.
"Going to the issue of filiation, plaintiff claims that he is the
son of Sotero Leonardo, the son of one of the daughters
(Pascuala) of Francisca Reyes. He further alleges that
since Pascuala predeceased Francisca Reyes, and that
his father, Sotero, who subsequently died in 1944, survived
Francisca Reyes, plaintiff can consequently succeed to the
estate of Francisca Reyes by right of representation.
"Since his supposed right will either rise or fall on the
proper evaluation of this vital evidence, We have minutely
scrutinized the same, looking for that vital link connecting
him to the family tree of the deceased Francisca Reyes.
However, this piece of evidence does not in any way lend
credence to his tale.
"This is because the name of the child described in the
birth certificate is not that of the plaintiff but a certain
'Alfredo Leonardo' who was born on September 13, 1938
to Sotero Leonardo and Socorro Timbol. Other than his
bare allegation, plaintiff did not submit any durable
evidence showing that the 'Alfredo Leonardo' mentioned in
the birth certificate is no other than he himself. Thus, even
without taking time and space to go into further details, We
may safely conclude that plaintiff failed to prove his filiation
which is a fundamental requisite in this action where he is
claiming to be an heir in the inheritance in question." 4
That is likewise a factual finding which may not be disturbed in this
petition for review in the absence of a clear showing that said finding
is not supported by substantial evidence, or that there was a grave
abuse of discretion on the part of the court making the finding of fact.
Referring to the third assignment of error, even if it is true that
petitioner is the child of Sotero Leonardo, still he cannot, by right of
representation, claim a share of the estate left by the deceased
Francisca Reyes considering that, as found again by the Court of
Appeals, he was born outside wedlock as shown by the fact that
when he was born on September 13, 1938, his alleged putative
father and mother were not yet married, and what is more, his
alleged father's first marriage was still subsisting. At most, petitioner
would be an illegitimate child who has no right to inherit ab intestato
from the legitimate children and relatives of his father, like the
deceased Francisca Reyes. (Article 992, Civil Code of the
Philippines.)
2. Estate of Illegitimate decedent
a. Legitimate children and descendant
Art. 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)
Art. 987. In default of the father and mother, the ascendants
nearest in degree shall inherit.
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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

Art. 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to the entire
estate of the deceased. (939a)
Art. 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)
Art. 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)
Art. 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. (944)
Art. 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)
b.
Illegitimate children and descendant

B. Surviving Spouse
Art. 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)
Art. 996. If a widow or widower and legitimate children or
descendants are left, the surviving spouse has in the
102

succession the same share as that of each of the children.
(834a)
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)
Art. 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)
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)
Art. 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)
Art. 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)
Art. 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)
Santillon vs. Miranda
On November 21, 1953, Santillon died without testament in Tayug,
Pangasinan, his residence, leaving one son Claro, and his wife,
Perfecta Miranda. During his marriage, Pedro acquired several
parcels of land located in that province.
About four years after his death, Claro Santillon filed a petition for
letters of administration. Opposition to said petition was entered by
the widow Perfecta Miranda and the spouses Benito U. Miranda and
Rosario Corrales on the following grounds: (a) that the properties
enumerated in the petition were all conjugal, except three parcels
which Perfecta Miranda claimed to be her exclusive properties; (b)
that Perfecta Miranda by virtue of two documents had conveyed 3/4
of her undivided share in most of the properties enumerated in the
petition to said spouses Benito and Rosario; (c) that administration of
the estate was not necessary, there being a case for partition
pending; and (d) that if administration was necessary at all, the
oppositor Perfecta Miranda and not the petitioner was better qualified
for the post. It appears that subsequently, oppositor Perfecta Miranda
was appointed administratrix of the estate.
On April 25, 1961, Claro filed a "Motion to Declare Share of Heirs"
and to resolve the conflicting claims of the parties with respect to
their respective rights in the estate. Invoking Art. 892 of the New Civil
Code, he insisted that after deducting 1/2 from the conjugal
properties as the conjugal share of Perfecta, the remaining 1/2 must
be divided as follows: 1/4 for her and 3/4 for him. Oppositor Perfecta,
on the other hand, claimed that besides her conjugal half, she was
entitled under Art. 996 of the New Civil Code, to another 1/2 of the
remaining half. In other words, Claro claimed 3/4 of Pedro's
inheritance, while Perfecta claimed 1/2.
From this order, petitioner Claro Santillon has appealed to this Court.
Two questions of law are involved. The first, raised in Perfecta's
Motion to Dismiss Appeal, is whether the order of the lower court is
appealable. And the second, raised in appellant's lone assignment of
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error, is: How shall the estate of a person who dies intestate be
divided when the only survivors are the spouse and one legitimate
child?
The Second Issue: Petitioner rests his claim to 3/4 of his father's
estate on Art. 892, of the New Civil Code which provides that:
"If only the legitimate child or descendant of the deceased
survives, the widow or widower shall be entitled to onefourth of the hereditary estate. . . .'
As she gets one-fourth, therefore, I get 3/4, says Claro. Perfecta, on
the other hand, cites Art. 996 which provides:
"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."
Replying to Perfecta's claim, Claro says the article is unjust and
inequitable to the extent that it grants the widow the same share as
that of the children in intestate succession, whereas in testate, she is
given 1/4 and the only child 1/2.
Oppositor Perfecta Miranda, on the other hand, contends that Art.
996 should control, regardless of its alleged inequity, being as it is, a
provision on intestate succession involving a surviving spouse and a
legitimate child, inasmuch as in statutory construction, the plural
word "children" includes the singular, "child".
Art. 892 of the New Civil Code falls under the chapter on
Testamentary Succession; whereas Art. 996 comes under the
chapter on Legal or Intestate Succession. Such being the case, it is
obvious that Claro cannot rely on Art. 892 to support his claim to 3/4
of his father's estate. Art. 892 merely fixes the legitime of the
surviving spouse and Art. 888 thereof, the legitime of children in
testate succession. While it may indicate the intent of the law with
respect to the ideal shares that a child and a spouse should get
when they concur with each other, it does not fix the amount of
shares that such child and spouse are entitled to when intestacy
occurs. Because if the latter happens, the pertinent provision on
intestate succession shall apply; i. e. Art. 996.
This is, remember, intestate proceedings. In the New Civil Code's
chapter in legal or intestate succession, the only article applicable is
Art. 996. Our colleague Mr. Justice J. B. L. Reyes, professor of Civil
Law, is quoted as having expressed the opinion that under this
article, when the widow survives with only one legitimate child, they
share the estate in equal parts. 1 Senator Tolentino in his
commentaries writes as follows:
"One child Surviving. If there is only one legitimate child
surviving with the spouse, since they share equally, onehalf of the estate goes to the child and the other half goes
to the surviving spouse. Although the law refers to
"children or descendants," the rule in statutory construction
that the plural can be understood to include the singular is
applicable in his case." (Tolentino, Civil Code of the
Philippines, Vol. III, p. 436.)
The theory of those holding otherwise, seems to be premised on
these propositions: (a) Art. 996 speaks of "children," therefore it does
not apply when there is only one "child"; consequently Art. 892 (and
Art. 888) should be applied, thru a process of judicial construction
and analogy; (b) Art. 996 is unjust or unfair because whereas in
testate succession, the widow is assigned one-fourth only (Art. 892),
she would get 1/2 in intestate. Children: It is a maxim of statutory
construction that words in plural include the singular. 2 So Art. 996
could or should be read (and so applied): "if the widow or widower
and a legitimate child are left, the surviving spouse has the same
share as that of the child." Indeed, if we refuse to apply the article to
this case on the ground that "child" is not included in "children", the
consequences would be tremendous, because "children" will not
include "child"
103

In fact, those who say, "children" in Art. 996 does not include "child"
seem to be inconsistent when they argue from the premise that "in
testate succession the only legitimate child gets one-half and the
widow, one-fourth." The inconsistency is clear, because the only
legitimate child gets one-half under Art. 888, which speaks of
"children", not "child". So if "children" in Art. 888 includes "child", the
same meaning should be given to Art. 996.
survivors, all shall inherit in equal shares without distinction as

to the origin of the property. (950)
Unfairness of Art. 996. Such position, more clearly stated is this:

In testate succession, where there is only one child of the marriage,
the child gets one-half, and the widow or widower one-fourth. But in
intestate, if Art. 996 is applied now, the child gets one-half, and the
widow or widower one-half. Unfair or inequitable, they insist.
Art. 1009. Should there be neither brothers nor sisters nor

children of brothers or sisters, the other collateral relatives shall
succeed to the estate.
On this point, it is not correct to assume that in testate succession

the widow or widower "gets only one-fourth." She or he may get onehalf if the testator so wishes. So, the law virtually leaves it to each
of the spouses to decide (by testament) whether his or her only child
shall get more than his or her survivor.
C. Ascending Direct line
1.
Legitimate parents and ascendants
Art. 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)
Art. 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)
Art. 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, onehalf shall go to the paternal and the other half to the
maternal ascendants. In each line the division shall be
made per capita. (937)
2.
Illegitimate parents
Art. 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. (944)
D. Collateral Line
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. (946a)
Art. 1004. Should the only survivors be brothers and sisters of
the full blood, they shall inherit in equal shares. (947)
Art. 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)
together with brothers and sisters of the half blood, the former
shall be entitled to a share double that of the latter. (949)
Art. 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
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succeed per capita or per stirpes, in accordance with the rules
laid down for the brothers and sisters of the full blood. (915)
The latter shall succeed without distinction of lines or

preference among them by reason of relationship by the whole
blood. (954a)
Art. 1010. The right to inherit ab intestato shall not extend
beyond the fifth degree of relationship in the collateral line.
(955a)
E. The State
Art. 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)
Art. 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)
Art. 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)
Art. 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)
PROVISIONS COMMON TO TESTATE AND INTESTATE
SUCCESSION
XXI. Right of Accretion
Art. 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)
Art. 1016. In order that the right of accretion may take place in a
testamentary succession, it shall be necessary:
104

(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)
Art. 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)
Art. 1018. In legal succession the share of the person who
repudiates the inheritance shall always accrue to his co-heirs.
(981)
Art. 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)
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. (986)
Art. 1023. Accretion shall also take place among devisees,
legatees and usufructuaries under the same conditions
established for heirs. (987a)
XXII. Partition and Distribution of Estate
A.
Partition
Art. 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)
Art. 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)
Art. 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)
Art. 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)
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Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
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)
Art. 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)
Art. 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)
Alsua-Betts vs. CA
Sps. Doromal vs. CA, Javellana
105

Lot 3504 of the cadastral survey of Iloilo, situated in the poblacion of
La Paz, one of its districts, with an area of a little more than 2-1/2
hectares was originally decreed in the name of the late Justice
Antonio Horilleno, in 1916, under Original Certificate of Title No.
1314, Exh. A; but before he died, on a date not particularized in the
record, he executed a last will and testament attesting to the fact
that it was a co-ownership between himself and his brothers and
sisters, Exh. C; so that the truth was that the owners or better
stated, the co-owners were; beside Justice Horilleno, 'Luis, Soledad,
Fe, Rosita, Carlos and Esperanza,'
oral and documentary proofs, sought to show that as co-owner, she

had the right to redeem at the price stated in the deed of sale, Exh.
2, namely P30,000.00 of the same; but defendants in answer, and in
their evidence, oral and documentary sought to show that plaintiff
had no more right to redeem, and that if ever she should have, that it
should be at the true and real price by them paid, namely, the total
sum of P115,250.00, and trial judge, after hearing the evidence,
believed defendants, that plaintiff had no more right, to redeem,
because, 'Plaintiff was informed of the intended sale of the 6/7 share
belonging to the Horillenos.'
all surnamed Horilleno, and since Esperanza had already died, she
was succeeded by her only daughter and heir herein plaintiff.
Filomena Javellana, in the proportion of 1/7 undivided ownership
each; now then, even though their right had not as yet been
annotated in the title, the co-owners led by Carlos, and as to
deceased Justice Antonio Horilleno, his daughter Mary, sometime
since early 1967, had wanted to sell their shares, or if possible if
Filomena Javellana were agreeable, to sell the entire property, and
they hired an acquaintance Cresencia Harder, to look for buyers,
and the latter came to interest defendants, the father and son,
named Ramon Doromal, Sr. and Jr., and in preparation for the
execution of the sale, since the brothers and sisters Horilleno were
scattered in various parts of the country, Carlos in Ilocos Sur, Mary
in Baguio, Soledad and Fe, in Mandaluyong, Rizal, and Rosita in
Basilan City, they all executed various powers of attorney in favor of
their niece, Mary H. Jimenez Exh. 1-8, they also caused preparation
of a power of attorney of identical tenor for signature by plaintiff,
Filomena Javellana, Exh. M, and sent it with a letter of Carlos, Exh.
7 dated 18 January, 1968 unto her thru Mrs. Harder, and here,
Carlos informed her that the price was P4.00 a square meter,
although it now turns out according to Exh. 3 that as early as 22
October, 1967, Carlos had received in check as earnest money from
defendant Ramon Doromal, Jr., the sum of P5,000.00 and the price
therein agreed upon was five (P5.00) pesos a square meter, as
indeed in another letter also of Carlos to Plaintiff in 5 November,
1967, Exh. 6, he had told her that the Doromals had given the
earnest money of P5,000.00 at P5.00 a square meter, at any rate,
plaintiff not being agreeable, did not sign the power of attorney, and
the rest of the co-owners went ahead with their sale of their 6/7,
Carlos first seeing to it that the deed of sale by their common
attorney in fact, Mary H. Jimenez be signed and ratified as it was
signed and ratified in Candon, Ilocos Sur, on 15 January, 1968, Exh.
2, then brought to Iloilo by Carlos in the same month, and because
the Register of Deeds of Iloilo refused to register right away, since
the original registered owner, Justice Antonio Horilleno was already
dead, Carlos had to ask as he did, hire Atty. Teotimo Arandela to file
a petition within the cadastral case, on 26 February, 1968, for the
purpose, Exh. C, after which Carlos returned to Luzon, and after
compliance with the requisites of publication, hearing and notice, the
petition was approved, and we now see that on 29 April, 1968,
Carlos already back in Iloilo went to the Register of Deeds and
caused the registration of the order of the cadastral court approving
the issuance of a new title in the name of the co-owners, as well as
of the deed of sale to the Doromals, as a result of which on that
same date, a new title was issued TCT No. 23152, in the name of
the Horillenos to 6/7 and plaintiff Filomena Javellana to 1/7, Exh. D,
only to be cancelled on the same day under TCT No. 23153, Exh. 2,
already in the names of the vendees Doromals for 6/7 and to herein
plaintiff, Filomena Javellana, 1/7, and the next day 30 April, 1968,
the Doromals paid unto Carlos by check, the sum of P97,000.00
Exh. 1, of Chartered Bank which was later substituted by check of
Phil. National Bank, because there was no Chartered Bank Branch
in Ilocos Sur, but besides this amount paid in check, the Doromals
according to their evidence still paid an additional amount in cash of
P18,250.00 since the agreed price was P5.00 a square meter; and
thus was consummated the transaction, but it is here where
complications set in.
Upon these facts, the Court of Appeals reversed the trial court's
decision and held that although respondent Javellana was informed
of her co-owners' proposal to sell the land in question to petitioners
she was, however, "never notified . . . least of all, in writing", of the
actual execution and registration of the corresponding deed of sale,
hence, said respondent's right to redeem had not yet expired at the
time she made her offer for that purpose thru her letter of June 10,
1968 delivered to petitioners on even date. The intermediate court
further held that the redemption price to be paid by respondent
should be that stated in the deed of sale which is P30,000
notwithstanding that the preponderance of the evidence proves that
the actual price paid by petitioners was P115,250.
plaintiff's lawyer, Atty. Arturo H. Villanueva, bringing with him her

letter of that date and then and there said lawyer manifested to the
Doromals that he had the P30,000.00 with him in cash, and
tendered it to them, for the exercise of the legal redemption, the
Doromals were aghast, and refused, and the very next day, as has
been said, 11 June, 1968, plaintiff filed this case, and in the trial, thru
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We cannot agree with petitioners Petitioners do not question

respondent's right to redeem, she being admittedly a 1/7 co-owner of
the property in dispute. The thrust of their first assignment of error is
that for purposes of Article 1623 of the Civil Code which provides
that:"ART. 1623.The right of legal pre-emption or redemption shall
not be exercised except within thirty days from the notice in writing
by the prospective vendor, or by the vendor, as the case may be. The
deed of sale shall not be recorded in the Registry of Property, unless
accompanied by an affidavit of the vendor that he has given written
notice thereof to all possible redemptioners. The right of redemption
of co-owners excludes that of adjoining owners."
the letters sent by Carlos Horilleno to respondent and dated January
18, 1968, Exhibit 7, and November 5, 1967, Exhibit 6, constituted
the required notice in writing from which the 30-day period fixed in
said provision should be computed. But to start with, there is no
showing that said letters were in fact received by respondent and
when they were actually received. Besides, petitioners do not
pinpoint which of these two letters, their dates being more than two
months apart, is the required notice. In any event, as found by the
appellate court, neither of said letters referred to a consummated
sale.
The fact alone that in the later letter of January 18, 1968 the price
indicated was P4.00 per square meter while in that of November 5,
1967, what was stated was P5.00 per square meter negatives the
possibility that a "price definite" had already been agreed upon.
While P5,000 might have indeed been paid to Carlos in October,
1967, there is nothing to show that the same was in the concept of
the earnest money contemplated in Article 1482 of the Civil Code,
invoked by petitioner, as signifying perfection of the sale. Viewed in
the backdrop of the factual milieu thereof extant in the record, We
are more inclined to believe that the said P5,000 were paid in the
concept of earnest money as the term was understood under the Old
Civil Code, that is, as a guarantee that the buyer would not back out,
considering that it is not clear that there was already a definite
agreement as to the price then and that petitioners were decided to
buy 6/7 only of the property should respondent Javellana refuse to
agree to part with her 1/7 share.
We are of the considered opinion and so hold that for purposes of
the co-owner's right of redemption granted by Article 1620 of the
Civil Code, the notice in writing which Article 1623 requires to be
made to the other co-owners and from receipt of which the 30-day
period to redeem should be counted is a notice not only of a
perfected sale but of the actual execution and delivery of the deed of
sale. This is implied from the latter portion of Article 1623 which
requires that before a register of deeds can record a sale by a coowner, there must be presented to him, an affidavit to the effect that
the notice of the sale had been sent in writing to the other coowners.
106

The only other pivotal issue raised by petitioners relates to the price
which respondent offered for the redemption in question. In this
connection, from the decision of the Court of Appeals, We gather that
there is "decisive preponderance of evidence" establishing "that the
price paid by defendants was not that stated in the document, Exhibit
2, of P30,000 but much more, at least P97,000, according to the
check, Exhibit 1, if not a total of P115,250.00 because another
amount in cash of P18,250 was paid afterwards." It is, therefore, the
contention of petitioners here that considering said finding of fact of
the intermediate court, it erred in holding nevertheless that "the
redemption price should be that stated in the deed of sale."
Again, petitioners' contention cannot be sustained. As stated in the
decision under review, the trial court found that "the consideration of
P30,000 only was placed in the deed of sale to minimize the
payment of the registration fees, stamps and sales tax." With this
undisputed fact in mind, it is impossible for the Supreme Court to
sanction petitioners' pragmatic but immoral posture. Being patently
violative of public policy and injurious to public interest, the
seemingly wide practice of understating considerations of
transactions for the purpose of evading taxes and fees due to the
government must be condemned and all parties guilty thereof must
be made to suffer the consequences of their ill-advised agreement to
defraud the state. Verily, the trial court fell short of its devotion and
loyalty to the Republic in officially giving its stamp of approval to the
stand of petitioners and even berating respondent Javellana as
wanting to enrich herself "at the expense of her own blood relatives
who are her aunts, uncles and cousins." On the contrary, said "blood
relatives" should have been sternly told, as We here hold, that they
are in pari-delicto with petitioners in committing tax evasion and
should not receive any consideration from any court in respect to the
money paid for the sale in dispute. Their situation is similar to that of
parties to an illegal contract. 1
1st According to Art. 1619'Legal redemption is the right to be
subrogated, upon the same terms and conditions stipulated in the
contract, in the place of one who acquires a thing by purchase or
dation in payment, or by any other transaction whereby ownership is
transmitted by onerous title.' pp. 471-472, New Civil Code, If it be
argued that foregoing solution would mean unjust enrichment for
plaintiff, it need only be remembered that plaintiff's right is not
contractual, but a mere legal one, the exercise of a right granted by
the law, and the law is definite that she can subrogate herself in
place of the buyer,'upon the same terms and conditions stipulated in
the contract,' in the words of Art. 1619, and here the price.
'stipulated in the contract' was P30,000.00, in other words, if this be
possible enrichment on the part of Filomena, it was not unjust but
just enrichment because permitted by the law; if it still be argued that
plaintiff would thus be enabled to abuse her right, the answer simply
is that what she is seeking to enforce is not an abuse but a mere
exercise of a right; if it he stated that just the same, the effect of
sustaining plaintiff would be to promote not justice but injustice, the
answer again simply is that this solution is not unjust because it only
binds the parties to make good their solemn representation to
possible redemptioners on the price of the sale, to what they had
solemnly averred in a public document required by the law to be the
only basis for that exercise of redemption;" (Pp. 24-27, Record.)
WHEREFORE, the decision of the Court of Appeals is affirmed, with
costs against petitioners.
Alonzo vs. CA
The question is sometimes asked, in serious inquiry or in curious
conjecture, whether we are a court of law or a court of justice. Do we
apply the law even if it is unjust or do we administer justice even
against the law? Thus queried, we do not equivocate. The answer is
that we do neither because we are a court both of law and of justice.
We apply the law with justice for that is our mission and purpose in
the scheme of our Republic. This case is an illustration.
Five brothers and sisters inherited in equal pro indiviso shares a
parcel of land registered in the mane of their deceased parents
under OCT No. 10977 of the Registry of Deeds of Tarlac. 1
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On March 15, 1963, one of them, Celestino Padua, transferred his

undivided share of the herein petitioners for the sum of P550.00 by
way of absolute sale. 2 One year later, on April 22, 1964, Eustaquia
Padua, his sister, sold her own share to the same vendees, in an
instrument denominated "Con Pacto de Retro Sale," for the sum of
P440.00. 3
By virtue of such agreements, the petitioners occupied, after the said
sales, an area corresponding to two-fifths of the said lot, representing
the portions sold to them. The vendees subsequently enclosed the
same with a fence. In 1975, with their consent, their son Eduardo
Alonzo and his wife built a semi-concrete house on a part of the
enclosed area. 4
On February 25, 1976, Mariano Padua, one of the five co-heirs,
sought to redeem the area sold to the spouses Alonzo, but his
complaint was dismissed when it appeared that he was an American
citizen. 5 On May 27, 1977, however, Tecla Padua, another co-heir,
filed her own complaint invoking the same right of redemption
claimed by her brother. 6
The only real question in this case, therefore, is the correct
interpretation and application of the pertinent law as invoked,
interestingly enough, by both the petitioners and the private
respondents. This is Article 1088 of the Civil Code, providing as
follows:
"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 by the
vendor."
Thus, according to Justice J.B.L. Reyes, who was the ponente of the
Court, furnishing the co-heirs with a copy of the deed of sale of the
property subject to redemption would satisfy the requirement for
written notice. "So long, therefore, as the latter (i.e., the
redemptioner) is informed in writing of the sale and the particulars
thereof," he declared, "the thirty days for redemption start running."
As "it is thus apparent that the Philippine legislature in Article 1623
deliberately selected a particular method of giving notice, and that
notice must be deemed exclusive," the Court held that notice given
by the vendees and not the vendor would not toll the running of the
30-day period.
The petition before us appears to be an illustration of the Holmes
dictum that "hard cases make bad laws" as the petitioners obviously
cannot argue against the fact that there was really no written notice
given by the vendors to their co-heirs. Strictly applied and
interpreted, Article 1088 can lead to only one conclusion, to wit, that
in view of such deficiency, the 30-day period for redemption had not
begun to run, much less expired in 1977.
Thus, we interpret and apply the law not independently of but in
consonance with justice. Law and justice are inseparable, and we
must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular case
because of its peculiar circumstances. In such a situation, we are not
bound, because only of our nature and functions, to apply them just
the same, in slavish obedience to their language. What we do
instead is find a balance between the word and the will, that justice
may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not
unfeelingly apply the law as it is worded, yielding like robots to the
literal command without regard to its cause and consequence.
"Courts are apt to err by sticking too closely to the words of a law," so
we are warned, by Justice Holmes again, "where these words import
a policy that goes beyond them." 13 While we admittedly may not
legislate, we nevertheless have the power to interpret the law in such
a way as to reflect the will of the legislature. While we may not read
into the law a purpose that is not there, we nevertheless have the
right to read out of it the reason for its enactment. In doing so, we
107

defer not to "the letter that killeth" but to "the spirit that vivifieth," to
give effect to the lawmaker's will.
WHEREFORE, the petition is granted. The decision of the

respondent court is REVERSED
In requiring written notice, Article 1088 seeks to ensure that the

redemptioner is properly notified of the sale and to indicate the date
of such notice as the starting time of the 30-day period of
redemption. Considering the shortness of the period, it is really
necessary, as a general rule, to pinpoint the precise date it is
supposed to begin, to obviate any problem of alleged delays,
sometimes consisting of only a day or two.
Was there a valid notice? Granting that the law requires the notice to
be written, would such notice be necessary in this case? Assuming
there was a valid notice although it was not in writing, would there be
any question that the 30-day period for redemption had expired long
before the complaint was filed in 1977?
Bautista vs. Grino-Aquino
In the face of the established facts, we cannot accept the private

respondents' pretense that they were unaware of the sales made by
their brother and sister in 1963 and 1964. By requiring written proof
of such notice, we would be closing our eyes to the obvious truth in
favor of their palpably false claim of ignorance, thus exalting the
letter of the law over its purpose. The purpose is clear enough: to
make sure that the redemptioners are duly notified. We are satisfied
that in this case the other brothers and sisters were actually
informed, although not in writing, of the sales made in 1963 and
1964, and that such notice was sufficient.
Now, when did the 30-day period of redemption begin?
While we do not here declare that this period started from the dates
of such sales in 1963 and 1964, we do say that sometime between
those years and 1976, when the first complaint for redemption was
filed, the other co-heirs were actually informed of the sale and that
thereafter the 30-day period started running and ultimately expired.
This could have happened any time during the interval of thirteen
years, when none of the co-heirs made a move to redeem the
properties sold. By 1977, in other words, when Tecla Padua filed her
complaint, the right of redemption had already been extinguished
because the period for its exercise had already expired.
"While the general rule is, that to charge a party with
laches in the assertion of an alleged right it is essential
that he should have knowledge of the facts upon which he
bases his claim, yet if the circumstances were such as
should have induced inquiry, and the means of
ascertaining the truth were readily available upon inquiry,
but the party neglects to make it, he will be chargeable
with laches, the same as if he had known the facts." 15
It was the perfectly natural thing for the co-heirs to wonder why the
spouses Alonzo, who were not among them, should enclose a
portion of the inherited lot and build thereon a house of strong
materials. This definitely was not the act of a temporary possessor or
a mere mortgagee. This certainly looked like an act of ownership.
Yet, given this unseemly situation, none of the co-heirs saw fit to
object or at least inquire, to ascertain the facts, which were readily
available. It took all of thirteen years before one of them chose to
claim the right of redemption, but then it was already too late.
We realize that in arriving at our conclusion today, we are deviating
from the strict letter of the law, which the respondent court
understandably applied pursuant to existing jurisprudence. The said
court acted properly as it had no competence to reverse the
doctrines laid down by this Court in the above-cited cases. In fact,
and this should be clearly stressed, we ourselves are not
abandoning the De Conejero and Buttle doctrines. What we are
doing simply is adopting an exception to the general rule, in view of
the peculiar circumstances of this case.
Can the property of the surviving husband be the subject of an

extrajudicial partition of the estate of the deceased wife? This is the
singular issue in this petition.
In Civil Case No. 4033-P, petitioners instituted an action in the Court
of First Instance of Rizal to declare the deed of extrajudicial partition,
deed of absolute sale, Transfer Certificates of Title Nos. 14182,
14186 and 15665 all of Registry of Deeds of Pasay City and Tax
Declaration No. 5147, null and void.
That both parties admit that the land in question was registered in the
name of petitioner Manuel Bautista under T.C.T No. 2210, and the
latter inherited this land from his father, Mariano Bautista;
Both petitioners and private respondents admit that on Dec. 22,
1966, a Deed of Extrajudicial Partition was executed. Private
respondents were signatories to the deed, and the signature of
petitioner Manuel Bautista was supposed to appear in that
document, although petitioner Manuel Bautista denied having signed
that Extrajudicial Partition;
Both parties admit that upon registration of the Deed of Extrajudicial
Partition, T.C.T. No. 2210 was cancelled and in lieu thereof, T.C.T.-T14182 was issued; The parties admit that the private respondents,
with the exception of Manolito Bautista, executed a Deed of Absolute
Sale in favor of Manolito Bautista of that property;Upon registration of
the Deed of Sale, T.C.T.-T-14182 was cancelled and in lieu thereof,
T.C.T. No. T-14186 was issued to Manolito Bautista; n August 7,
1969, Manolito Bautista executed a Deed of Sale in favor of the other
private respondents and upon registration of said Deed of Sale,
T.C.T. Nos. T-15665, T-15666, T-15667, T-15668, T-15669, T-15670,
T-15671, were issued to private respondents;
Parties admit that petitioner Manuel Bautista married his second wife
Emiliana Tamayo;
Parties admit that Manuel Bautista and his second wife, Emiliana
Tamayo, had only a child, Evangeline Bautista, born on April 29,
1949;
That the property in question was the subject matter of extrajudicial
partition of property on December 22, 1966, among the heirs of the
late Juliana Nojadera, the first wife of Manuel Bautista;
Manuel Bautista denied participation in the Extrajudicial Partition of
Property;
On August 1, 1974, all the parties agreed to submit to the NBI the
questioned signature of Manuel Bautista;
That the NBI concluded that the questioned document was authentic.
(Pp. 37-38, rollo; pp. 2-3 of decision of respondent court).
In a decision of January 14, 1983, the trial court dismissed the
complaint with costs against plaintiffs. On appeal, a decision was
rendered in due course by the Court of Appeals on August 3, 1987,
affirming the decision of the trial court.
PUBLIC
RESPONDENTS
AUTHORIZED
THE
EXTRAJUDICIAL
PARTITION
OF
FUTURE
INHERITANCE IN CLEAR VIOLATION OF ARTICLE 1347
OF THE NEW CIVIL CODE;
PUBLIC
RESPONDENTS
AUTHORIZED
THE
PRETERITION
OF
PETITIONER
EVANGELINE
BAUTISTA IN VIOLATION OF THE LAW ON
SUCCESSION." (P. 7, petition for review; p. 8, rollo)
The petition is impressed with merit.
The co-heirs in this case were undeniably informed of the sales

although no notice in writing was given them. And there is no doubt
either that the 30-day period began and ended during the 14 years
between the sales in question and the filing of the complaint for
redemption in 1977, without the co-heirs exercising their right of
redemption. These are the justifications for this exception.
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The findings of facts of both the trial court and the respondent
Appellate Court that the signature of Manuel Bautista in the
questioned Deed of Extrajudicial Partition is authentic, as examined
by the NBI, can no longer be questioned in this proceeding.
Nevertheless, even granting that the signature of Manuel Bautista in
the questioned Extrajudicial Deed of Partition is genuine, an
108

examination of the document based on admitted and proven facts
renders the document fatally defective. The extrajudicial partition was
supposed to be a partition without court intervention of the estate of
the late Juliana Nojadera, first wife of Manuel Bautista, constituting
the subject property. In the same document Manuel Bautista appears
to have waived his right or share in the property in favor of private
respondents.
However, the property subject matter of said extrajudicial partition
does not belong to the estate of Juliana Nojadera. It is the exclusive
property of Manuel Bautista who inherited the same from his father
Mariano Bautista, which was registered in his name under T.C.T. No.
2210.
Under Section 1, Rule 74 of the Rules of Court an extrajudicial
settlement of the Estate applies only to the estate left by the
decedent who died without a will, and with no creditors, and the heirs
are all of age or the minors are represented by their judicial or legal
representatives. If the property does not belong to the estate of the
decedent certainly it cannot be the subject matter of an extrajudicial
partition.
As the subject property does not belong to the estate of Juliana
Nojadera, the Deed of Extrajudicial Partition, is void ab initio being
contrary to law. To include in an extrajudicial partition property which
does not pertain to the estate of the deceased would be to deprive
the lawful owner thereof of his property without due process of law.
Only property of the estate of the decedent which is transmitted by
succession can be the lawful subject matter of an extrajudicial
partition. In this case, the said partition obviously prejudices the right
of Manuel Bautista as exclusive owner of the property.
The said partition also effectively resulted in the preterition of the
right of Evangeline Bautista as a compulsory heir of Manuel Bautista,
daughter of the latter by his second marriage. It is difficult to believe
that Manuel Bautista would wittingly overlook and ignore the right of
her daughter Evangeline to share in the said property. It is not
surprising that he denied signing the said document. Moreover,
private respondents knew Evangeline Bautista who is their half-sister
to be a compulsory heir. The court finds that her preterition was
attended with bad faith hence the said partition must be rescinded.
The Court observes that after the execution of said extrajudicial
partition and issuance of the title in their names, private respondents
except Manolito Bautista in turn executed a deed of absolute sale of
the property in favor of the latter in whose name the title was also
issued. And yet soon thereafter another deed of sale was executed
this time by Manolito Bautista selling back the same property to
private respondents in whose names the respective titles were thus
subsequently issued. This series of transactions between and among
private respondents is an indication of a clever scheme to place the
property beyond the reach of those lawfully entitled thereto.
Moreover, such extrajudicial partition cannot constitute a partition of
the property during the lifetime of its owner, Manuel Bautista.
Partition of future inheritance is prohibited by law.
As said Extrajudicial Partition dated December 22, 1966, of property
belonging exclusively to petitioner Manuel Bautista, is null and void
ab initio it follows that all subsequent transactions involving the same
property between and among the private respondents are also null
and void.
Delos Santos vs. Dela Cruz
From the record of this case, we cull the following salient facts: On
May 21, 1965, Gertrudes de los Santos filed a complaint for specific
performance against Maximo de la Cruz, alleging, among others,
that on August 24, 1963, she and several co-heirs, including the
defendant, executed an extrajudicial partition agreement (a copy of
which was attached to the complaint) over a certain portion of land
with an area of around 20,000 sq. m.; that the parties thereto had
agreed to adjudicate three (3) lots to the defendant, in addition to his
corresponding share, on condition that the latter would undertake the
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development and subdivision of the estate which was the subject

matter of the agreement, all expenses in connection therewith to be
defrayed from the proceeds of the sale of the aforementioned three
(3) lots; that in spite of demands by the plaintiff, by the other co-heirs,
and by the residents of the subdivision, the defendant refused to
perform his aforesaid obligation although he had already sold the
aforesaid lots. The plaintiff prayed the court to order the defendant to
comply with his obligation under the extra-judicial partition agreement
and to pay the sum of P1,000.00 as attorney's fees and costs.
In his answer, the defendant admitted the due execution of the
extrajudicial partition agreement, but set up the affirmative defenses
that the plaintiff had no cause of action against him because the said
agreement was void with respect to her, for the reason that the
plaintiff was not an heir of Pelagia de la Cruz, deceased owner of the
property, and was included in the extrajudicial partition agreement by
mistake; and that although he had disposed of the three lots
adjudicated to him, nevertheless the proceeds of the sale were not
sufficient to develop and improve properly the subdivided estate. The
answer contained a counterclaim wherein the defendant alleged that
the plaintiff had likewise sold her share in the estate for P10,000.00,
and that the extrajudicial partition agreement being void insofar as
the latter was concerned, he was entitled to one-fourth (1/4) of the
proceeds as his share by way of reversion. The defendant prayed
that the complaint be dismissed; that the extrajudicial partition
agreement be declared void with respect to the plaintiff; and, on his
counterclaim, that the plaintiff be ordered to pay him the sum of
P2,500.00.
In its decision dated November 3, 1966, the court a quo held that the
defendant, being a party to the extrajudicial partition agreement, was
estopped from raising in issue the right of the plaintiff to inherit from
the decedent Pelagia de la Cruz; hence, he must abide by the terms
of the agreement. The court ordered the defendant "to perform his
obligations to develop Lots 1, 2 and 3 of (LRC) Psd-29561 as
described on page 2 of the Extrajudicial Partition Agreement"
(meaning, apparently, that the defendant should develop the
subdivision because said Lots 1, 2 and 3 were intended to be sold for
this purpose), and to pay the plaintiff the sum of P2,000.00 as actual
damages, the sum of P500.00 as attorney's fees, and the costs. No
disposition was made of defendant's counterclaim. The defendant
filed a "Motion for New Trial' but the same was denied. Hence, this
appeal.
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 pre-deceasing 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
an heir of the decedent. We are convinced that she is not. Plaintiffappellee 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.
the right of representation when it properly takes place . . ."
In the present case, the relatives "nearest in degree" to Pelagia de la
Cruz are her nephews and nieces, one of whom is defendant-
109

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.
It is quite apparent that in executing the partition agreement, the
parties thereto were laboring under the erroneous belief that plaintiffappellee was one of the legal heirs of Pelagia de la Cruz. Plaintiffappellee not being such an 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 an 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 enforced.
The extrajudicial partition agreement being void with respect to
plaintiff-appellee, she may not be heard to assert estoppel against
defendant-appellant. Estoppel cannot be predicated on a void
contract (17 Am. Jur. 605), or on acts which are prohibited by law or
are against public policy
The award of actual damages in favor of plaintiff-appellee cannot be
sustained in view of the conclusion we have arrived at above.
Furthermore, actual or compensatory damages must be duly proved
(Article 2199, Civil Code). Here, no proof of such damages was
presented inasmuch as the case was decided on a stipulation of
facts and no evidence was adduced before the trial court.
Such being the case, defendant-appellant is apparently correct in his
contention that the lower court erred in not passing on his
counterclaim and, consequently, in not sentencing appellee to turn
over to him his corresponding share of said portion received by
appellee under the void partition. Remote relatives or unrelated
persons who unduly received and took possession of the property of
a deceased person without any right, by virtue of a null and void
partition, must restore it to the legitimate successor in the inheritance
(De Torres vs. De Torres, et al., supra). Of course, if such share has
already been disposed of by appellee to a bona fide purchaser, as
seems to be indicated in the unproven allegations of the
counterclaim, We cannot render judgment awarding any specific
amount to defendant-appellant as his proportionate share of the
proceeds of such sale for the reason that, as already stated above,
this aspect of the counterclaim has not been touched upon in the
stipulation of facts nor has it been supported by evidence which
appellant should have presented in the lower court but did not.
B.
Effects of Partition
Art. 1091. A partition legally made confers upon each heir the
exclusive ownership of the property adjudicated to him. (1068)
Art. 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)
Art. 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
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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)
Art. 1094. An action to enforce the warranty among heirs must
be brought within ten years from the date the right of action
accrues. (n)
Art. 1095. If a credit should be assigned as collectible, the coheirs 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 coheir, and should be collected, in whole or in part, the amount
collected shall be distributed proportionately among the heirs.
(1072a)
Art. 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)
Guilas vs. CFI of Pampanga
It appears from the records that Jacinta Limson de Lopez, of
Guagua, Pampanga was married to Alejandro Lopez y Siongco.
They had no children.
On April 28, 1936, Jacinta executed a will instituting her husband
Alejandro as her sole heir and executor (pp. 20-21, rec.).
In a Resolution dated October 26, 1953 in Sp. Proc. No. 894 entitled
"En el Asunto de la Adopcion de la Menor Juanita Lopez y Limson"
(pp. 92-94, 103, rec.), herein petitioner Juanita Lopez, then single
and now married to Federico Guilas, was declared legally adopted
daughter and legal heir of the spouses Jacinta and Alejandro. After
adopting legally herein petitioner Juanita Lopez, the testatrix Doa
Jacinta did not execute another will or codicil so as to include Juanita
Lopez as one of her heirs.
Nevertheless, in a project of partition dated March 19, 1960 executed
by both Alejandro Lopez and Juanita Lopez-Guilas, the right of
Juanita Lopez to inherit from Jacinta was recognized and Lots Nos.
3368 and 3441 (Jacinta's paraphernal property), described and
embraced in Original Certificate of Title No. 13092, both situated in
Bacolor, Pampanga
In an order dated April 23, 1960, the lower court approved the said
project of partition and directed that the records of the case be sent
to the archieves, upon payment of the estate and inheritance taxes (
On April 10, 1964, herein petitioner Juanita Lopez-Guilas filed a
separate ordinary action to set aside and annul the project of
partition, which case was docketed as Civil Case 2539 entitled
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"Juanita Lopez-Guilas vs. Alejandro Lopez" in the Court of First
Instance of Pampanga, on the ground of lesion, preterition and fraud,
and pray further that Alejandro Lopez be ordered to submit a
statement of accounts of all the crops and to deliver immediately to
Juanita lots nos. 3368 and 3441 of the Bacolor Cadastre, which were
allocated to her under the project of partition (p. 132, rec.).
In an order dated April 27, 1966, the lower court denied Juanita's
motion to set aside the order of October 2, 1964 on the ground that
the parties themselves agreed to suspend resolution of her petition
for the delivery of her shares until after the civil action for annulment
of the project of partition has been finally settled and decided (Annex
"O", p. 72, rec.).
1069-1070). In the case at bar, the motion filed by petitioner for the
delivery of her share was filed on July 20, 1964, which is just more
than 3 years from August 28, 1961 when the amended project of
partition was approved and within 5 years from April 23, 1960 when
the original project of partition was approved. Clearly, her right to
claim the two lots allocated to her under the project of partition had
not yet expired. And in the light of Section 1 of Rule 90 of the
Revised Rules of Court of 1964 and the jurisprudence above cited,
the order dated December 15, 1960 of the probate court closing and
terminating the probate case did not legally terminate the testate
proceedings, for her share under the project of partition has not been
delivered to her.
Juanita filed a motion dated May 9, 1966 for the reconsideration of

the order dated April 27, 1966 (Annex "P", pp. 73-77, rec.), to which
Alejandro filed an opposition dated June 8, 1966 (Annex "Q", pp.
112-113, rec.).
While it is true that the order dated October 2, 1964 by agreement of

the parties suspended resolution of her petition for the delivery of her
shares until after the decision in the civil action for the annulment of
the project of partition (Civil Case 2539) she filed on April 10, 1964;
the said order lost its validity and efficacy when the herein petitioner
filed on June 11, 1965 an amended complaint in said Civil Case 2539
wherein she recognized the partial legality and validity of the said
project of partition insofar as the allocation in her favor of lots Nos.
3368 and 3441 in the delivery of which she has been insisting all
along
Subsequently, Alejandro filed a motion dated July 25, 1966; praying

that the palay deposited with Fericsons and Ideal Rice Mill by the ten
(10) tenants of the two parcels in question be delivered to him
(Annex "R", pp. 114-116, rec.), to which Juanita filed an opposition
dated July 26, 1966 (Annex "S", pp. 117-121, rec.).
In an order dated September 8, 1966, the lower court denied the
motion for reconsideration of the order dated April 27, 1966, and
directed Fericsons Inc. and the Ideal Rice Mills to deliver to Alejandro
or his representative the 229 cavans and 46 kilos and 325 and 1/2
cavans and 23 kilos of palay respectively deposited with the said rice
mills upon the filing by Alejandro of a bond in the amount of
P12,000.00 duly approved by the court (Annex "T", pp. 122-127
rec.).
Hence, this petition for certiorari and mandamus.
The position of petitioner Juanita Lopez-Guilas should be sustained
and the writs prayed for granted.
The probate court loses jurisdiction of an estate under administration
only after the payment of all the debts and the remaining estate
delivered to the heirs entitled to receive the same. The finality of the
approval of the project of partition by itself alone does not terminate
the probate proceeding (Timbol vs. Cano, 1 SCRA 1271, 1276, L15445, April 29, 1961; Siguiong vs. Tecson, 89 Phil., pp. 28-30). As
long as the order of the distribution of the estate has not been
complied with, the probate proceedings cannot be deemed closed
and terminated (Siguiong vs. Tecson, supra.); because a judicial
partition is not final and conclusive and does not prevent the heir
from bringing an action to obtain his share, provided the prescriptive
period therefor has not elapsed (Mari vs. Bonilla, 83 Phil., 137). The
better practice, however, for the heir who has not received his share,
is to demand his share through a proper motion in the same probate
or administration proceedings, or for reopening of the probate or
administrative proceedings if it had already been closed, and not
through an independent action, which would be tried by another
court or Judge which may thus reverse a decision or order of the
probate on intestate court already final and executed and re-shuffle
properties long ago distributed and disposed of (Ramos vs. Ortuzar,
89 Phil., 730, 741-742; Timbol vs. Cano, supra.; Jingco vs. Daluz, L5107, April 24, 1953, 92 Phil. 1082; Roman Catholic vs Agustines, L14710, March 29, 1960, 107 Phil., 455, 460-461).
Section 1 of Rule 90 of the Revised Rules of Court of 1964 as
worded, which secures for the heirs or legatees the right to "demand
and recover their respective shares from the executor or
administrator, or any other person having the same in his
possession", re-states the aforecited doctrines.
The case of Austria vs. Heirs of Ventenilla (99 Phil. 1068) does not
control the present controversy; because the motion filed therein for
the removal of the administratrix and the appointment of a new
administrator in her place was rejected by the court on the ground of
laches as it was filed after the lapse of about 38 years from October
5, 1910 when the court issued an order settling and deciding the
issues raised by the motion (L-10018, September 19, 1956, 99 Phil.,
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De los Santos vs. Dela Cruz (see previous chapter)

Agutines vs. CFI
A nine-hectare land in Marilao, Bulacan, is the subject of a threecornered dispute between Severo Valenzuela on one side and the
relatives of his deceased wife Generosa Agustines on the other, with
the Archbishop of Manila as intervenor.
In August, 1934, Generosa Agustines died leaving a will which was
subsequently submitted for probate in the Court of First Instance of
Bulacan in special proceedings No. 4944. Having no children, she
named her surviving husband Severo Valenzuela the universal heir,
but she specified some bequests. There was opposition to the
approval of the will; however, after some negotiations, the sister
(Josefa) and the nephews and nieces of the decedent (the other
petitioners in this special civil action) executed on February 8, 1935,
an extrajudicial partition with the respondent Severo Valenzuela,
expressing conformity with the probate of the testament and dividing
the properties of the deceased. They promised specifically to respect
the wishes of the testatrix,
Other items of the estate were apportioned among the signers of the
deed of partition, which, submitted for approval, was confirmed by
the probate court on October 31, 1936, in an order directing the
administrator to deliver the respective shares to the heirs or legatees
after paying the corresponding inheritance taxes. No appeal was
ever taken from such order.
Years passed. Severo Valenzuela failed to transmit the lot or part
thereof to the parish church of Polo or to the Roman Catholic
Archbishop of Manila. Wherefore, in May, 1944, the Agustines
connections, petitioners herein, filed a complaint against Severo
Valenzuela (civil case No. 158) seeking the return to them of that
nine-hectare lot in Quiririt, alleging his breach of trust, plus
renunciation on the part of the church of Polo that had reportedly
neglected to demand compliance with the beneficial legacy.
After the liberation and after they had become aware of Valenzuela's
act that tended to frustrate their civil action No. 158, the petitioners
herein submitted motions for reconsideration, the main theme of
which was that the said last order amended the decree of distribution
of October 31, 1936, which had become final long ago. All was to no
avail. Hence they started this special civil action to annul the order of
December 2, 1944, on the concrete proposition that the court had no
jurisdiction to issue it, the order of October 31, 1936, having become
final and executory eight years before. They contend, first, that under
the will, and in accordance with the partition approved by the court in
1936, the Polo church was entitled to nine hectares in the Quiririt
farm of Generosa. They argue next that when that church repudiated
111

the nine-hectare lot, it again became a part of the whole Quiririt
property which, under the partition, had been adjudicated to them.
On the other hand, Severo Valenzuela's position is that the whole
nine-hectare realty was awarded to him, subject to his obligation to
donate to the Polo church such portion thereof as he may designate
in his discretion.
The intervenor, the Archbishop of Manila, representing the Polo
church, shares the petitioner's opinion that a nine-hectare lot had
been granted to said church. He maintains, however, that no
voluntary renunciation of the legacy ever took place.
It will be recalled that the will of Generosa Agustines
contained a provision directing her husband to donate a
portion of her Quiririt farm not exceeding nine hectares to
the Polo church. What was the share of the church of Polo
under the will and the extrajudicial partition?
After examining and analyzing the circumstances of this litigation, we
reach the conclusion that, as contended by petitioners and the
intervenor, the extrajudicial partition definitely allotted a nine-hectare
parcel to the Polo church. Supposing, that under the will Valenzuela's
discretion included the determination of the area to be transferred
and not merely the selection of the site where the nine- hectare
portion is to be segregated still it seems clear that in the partition
he elected or agreed that a nine-hectare portion shall be conveyed to
the Polo church for masses.
It is markworthy that, in addition to the nine-hectare portion, the deed
mentions another parcel of three hectares exclusively given to
Valenzuela. If the parties had not contemplated a nine-hectare
donation to the Polo church, but empowered Valenzuela to fix the
area subsequently, they would have assigned to him 12 hectares,
with the provision that he will separate therefrom such portion as he
may desire to convey to the parish of Polo. They did not say so.
Instead they clearly stipulated that nine hectares were destined for
"misas" (to the Church), and that three hectares would be reserved
for him.
It is quite probable that if Generosa's kin had known, in the course of
bargaining, that Valenzuela would not deliver all the nine hectares to
the Polo church but would retain eight hectares thereof, they would
not have ceded to him an additional lot of three hectares.
Proof positive that he had no choice as to the number of hectares is
the fact that for eight years he never exercised it, keeping for himself
in breach of trust the fruits of all the land. He might have ideas
repugnant to the religious beliefs of his wife in regard to the
celebration of masses for the dead. But as a man of honor, as the
surviving partner, he had no excuse to set his own notions against
those of his departed spouse, especially on a subject that concerned
the disposition of her own properties. The will of the testatrix is law
1 . And his action in fixing one hectare, when his wife bequeathed a
portion not exceeding nine hectares is surely such abuse of
discretion (if he had any) that will not easily commend itself to judicial
approbation.
To make ourselves clear, we must state at the risk of repetition that
although under the provisions of the will Severo Valenzuela might
have elected to transfer to the Polo church a portion less than nine
hectares, however, in the deed of partition he agreed exercising
his discretion to assign nine hectares for masses (to the Polo
church). It must be emphasized that in the distribution of the
decedent's assets, we must face the deed of partition which bears
the court's fiat. The last will becomes secondary in value. Important
to bear this distinction in mind, because both in Valenzuela's motion
and in the court's order approving the assignment of one hectare,
only the will was quoted, and not the extrajudicial partition.
Valenzuela's motion invoking the will exclusively induced the court
into error.
A third reason to hold that the document of partition deeded nine
hectares to the Polo church is the fact that the court and the parties
considered it a final settlement of all the rights of all concerned, the
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court approving it in toto and ordering the administrator to deliver to

the beneficiaries their respective portions or legacies. The court's
order even wrote finish to the expediente. And the parties, including
Severo Valenzuela regarded it as final for eight years, until he found
it necessary, for his own interests, to make another move indirectly
amending the final settlement of October, 1936. Now then, if that
partition avowedly settled the estate and accomplished its
distribution, the implication is unavoidable that it left nothing to future
judicial action or determination. Consequently it did not contemplate
any subsequent fixing by Valenzuela, and approval by the court, of
the portion to be transmitted to the Church of Polo. The parties
deemed it final because the rights of all beneficiaries were therein
defined with certainty. Therefore, the attempt by the surviving
husband to modify it eight years thereafter was completely beyond
the pale of the law.
C.
Recission and Nullity of Partition
Art. 1097. A partition may be rescinded or annulled for the same

causes as contracts. (1073a)
Art. 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)
Art. 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)
Art. 1100. The action for rescission on account of lesion shall
prescribe after four years from the time the partition was made.
(1076)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Art. 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)
Revised Rules of Court
112

RULE 90
DISTRIBUTION AND PARTITION OF THE ESTATE
SECTION 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 the 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 or provided 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.
SEC. 2. Questions as to advancement to be
determined.Questions as to advancement made, or
alleged to have been made, by the deceased to any heir may
be heard and determined by the court having jurisdiction of
the estate proceedings; and the final order of the court
thereon shall be binding on the person raising the questions
and on the heir.
SEC. 3. By whom expenses of partition paid.If at the
time of the distribution the executor or administrator has
retained sufficient effects in his hands which may lawfully be
applied for the expenses of partition of the properties
distributed, such expenses of partition may be paid by such
executor or administrator when it appears equitable to the
court and not inconsistent with the intention of the testator;
otherwise, they shall be paid by the parties in proportion to
their respective shares or interest in the premises, and the
apportionment shall be settled and allowed by the court, and,
if any person interested in the partition does not pay his
proportion or share, the court may issue an execution in the
name of the executor or administrator against the party not
paying for the sum assessed.
SEC. 4. Recording the order of partition of estate.
Certified copies of final orders and judgments of the court
relating to the real estate or the partition thereof shall be
recorded in the registry of deeds of the province where the
property is situated.
XXIII. EXECUTORS AND ADMINISTRATORS

Art. 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)
Art. 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)
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Art. 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)
Relevant provisions from the Rules of Court
RULE 78
LETTERS TESTAMENTARY AND OF ADMINISTRATION,
WHEN AND TO WHOM ISSUED
SECTION 1. Who are incompetent to serve as a
executors or administrators.No person is competent to
serve as executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute
the duties of the trust by reason of drunkenness,
improvidence, or want of understanding or integrity, or
by reason of conviction of an offense involving moral
turpitude.
SEC. 2. Executor of executor not to administer estate.
The executor of an executor shall not, as such, administer
the estate of the first testator.
SEC. 3. Married women may serve.A married woman
may serve as executrix or administratrix, and the marriage of
a single woman shall not affect her authority so to serve
under a previous appointment
SEC 4 Letters testamentary issued when will allowed.
When a will has been proved and allowed, the court shall
issue letters testamentary thereon to the person named as
executor therein, if he is competent, accepts the trust, and
gives bond as required by these rules
SEC. 5. Where some coexecutors disqualified others
may act.When all of the executors named in a will can not
act because of incompetency, refusal to accept the trust, or
failure to give bond, on the part of one or more of them,
letters testamentary may issue to such of them as are
competent, accept and give bond, and they may perform the
duties and discharge the trust required by the will.
SEC. 6. When and to whom letters of administration
granted.If no executor is named in the will, or the executor
or executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, administration shall be
granted:
(a) To the surviving husband or wife, as the
case may be, or next of kin, or both, in the discretion of
the court, or to such person as such surviving husband
or wife, or next of kin, requests to have appointed, if
competent and willing to serve;
(b) If such surviving husband or wife, as the
case may be, or next of kin, or the person selected by
them, be incompetent or unwilling, or if the husband or
widow, or next of kin, neglects for thirty (30) days after
the death of the person to apply for administration or to
request that administration be granted to some other
person, it may be granted to one or more of the
principal creditors, if competent and willing to serve;
113

(c) If there is no such creditor competent and
willing to serve, it may be granted to such other person
as the court may select.
RULE 81
BONDS OF EXECUTORS AND ADMINISTRATORS
SECTION 1. Bond to be given before issuance of
letters. Amount. Conditions.Before an executor or
administrator enters upon the execution of his trust, and
letters testamentary or of administration issue, he shall give a
bond, in such sum as the court directs, conditioned as
follows:
(a) To make and return to the court, within
three (3) months, a true and complete inventory of all
goods, chattels, rights, credits, and estate of the
deceased which shall come to his possession or
knowledge or to the possession of any other person for
him;
(b) To administer according to these rules,
and, if an executor, according to the will of the testator,
all goods, chattels, rights, credits, and estate which
shall at any time come to his possession or to the
possession of any other person for him, and from the
proceeds to pay and discharge all debts, legacies, and
charges on the same, or such dividends thereon as
shall be decreed by the court;
(c) To render a true and just account of his
administration to the court within one (1) year, and at
any other time when required by the court;
(d) To perform all orders of the court by him to
be performed.
SEC. 2. Bond of executor where directed in will. When
further bond required.If the testator in his will directs that
the executor serve without bond, or with only his Individual
bond, he may be allowed by the court to give bond in such
sum and with such surety as the court approves conditioned
only to pay the debts of the testator; but the court may
require of the executor a further bond in case of a change in
his circumstances, or for other sufficient cause, with the
conditions named in the last preceding section.
SEC. 3. Bonds of joint executors and administrators.
When two or more persons are appointed executors or
administrators the court may take a separate bond from
each, or a joint bond from all.
SEC. 4. Bond of special administrator.A special
administrator before entering upon the duties of his trust shall
give a bond, in such sum as the court directs, conditioned
that he will make and return a true inventory of the goods,
chattels, rights, credits, and estate of the deceased which
come to his possession or knowledge, and that he will truly
account for such as are received by him when required by
the court, and will deliver the same to the person appointed
executor or administrator, or to such other person as may be
authorized to receive them.
RULE 84
GENERAL POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS
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SECTION 1. Executor or administrator to have access

to partnership books and property. How right enforced.The
executor or administrator of the estate of a deceased partner
shall at all times have access to, and may examine and take
copies of, books and papers relating to the partnership
business, and may examine and make invoices of the
property belonging to such partnership; and the surviving
partner or partners, on request, shall exhibit to him all such
books, papers, and property in their hands or control. On the
written application of such executor or administrator, the
Court having jurisdiction of the estate may order any such
surviving partner or partners to freely permit the exercise of
the rights, and to exhibit the books, papers, and property, as
in this section provided, and may punish any partner failing to
do so for contempt.
SEC. 2. Executor or administrator to keep buildings in
repair.An executor or administrator shall maintain in
tenantable repair the houses and other structures and fences
belonging to the estate, and deliver the same in such repair
to the heirs or devisees when directed so to do by the court.
SEC. 3. Executor or administrator to retain whole estate
to pay debts, and to administer estate not willed.An
executor or administrator shall have the right to the
possession and management of the real as well as the
personal estate of the deceased so long as it is necessary for
the payment of the debts and the expenses of administration.
RULE 86
CLAIMS AGAINST ESTATE
SECTION 1. Notice to creditors to be issued by court.
Immediately after granting letters testamentary or of
administration, the court shall issue a notice requiring all
persons having money claims against the decedent to file
them in the office of the clerk of said court.
SEC. 2. Time within which claims shall be filed.In the
notice provided in the preceding section, the court shall state
the time for the filing of claims against the estate, which shall
not be more than twelve (12) nor less than six (6) months
after the date of the first publication of the notice. However, at
any time before an order of distribution is entered, on
application of a creditor who has failed to file his claim within
the time previously limited, the court may, for cause shown
and on such terms as are equitable, allow such claim to be
filed within a time not exceeding one (1) month.
SEC. 3. Publication of notice to creditors.Every
executor or administrator shall, immediately alter the notice
to creditors is issued, cause the same to be published three
(3) weeks successively in a newspaper of general circulation
in the province, and to be posted for the same period in four
public places in the province, and in two public places in the
municipality where the decedent last resided
SEC. 4. Filing copy of printed notice.Within ten (10)
days after the notice has been published and posted n
accordance with the preceding section, the executor or
administrator shall file or cause to be filed in the court a
printed copy of the notice accompanied with an affidavit
setting forth the dates of the first and last publication thereof
and the name of the newspaper in which the same is printed.
SEC. 5. Claims which must be filed under the notice. If
not filed, barred; exceptions.All claims for money against
the decedent, arising from contract, express or implied,
114

whether the same be due, not due, or contingent, all claims
for funeral expenses and expenses for the last sickness of
the decedent, and judgment for money against the decedent,
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.
SEC. 6. Solidary obligation of decedent.Where the
obligation of the decedent is solidary with another debtor, the
claim shall be filed against the decedent as if he were the
only debtor, without prejudice to the right of the estate to
recover contribution from the other debtor. In a joint
obligation of the decedent, the claim shall be confined to the
portion belonging to him.
SEC. 7. Mortgage debt due from estate.A creditor
holding a claim against the deceased secured by mortgage
or other collateral security, may abandon the security and
prosecute his claim in the manner provided in this rule, and
share in the general distribution of the assets of the estate; or
he may foreclose his mortgage or realize upon his security,
by action in court, making the executor or administrator a
party defendant, and if there is a judgment for a deficiency,
after the sale of the mortgaged premises, or the property
pledged, in the foreclosure or other proceedings to realize
upon the security, he may claim his deficiency judgment in
the manner provided in the preceding section; or he may rely
upon his mortgage or other security alone, and foreclose the
same at any time within the period of the statute of
limitations, and in that event he shall not be admitted as a
creditor, and shall receive no share in the distribution of the
other assets of the estate; but nothing herein contained shall
prohibit the executor or administrator from redeeming the
property mortgaged or pledged, by paying the debt for which
it is held as security, under the direction of the court, if the
court shall adjudge it to be for the best interest of the estate
that such redemption shall be made.
SEC. 8. Claim of executor or administrator against an
estate.If the executor or administrator has a claim against
the estate he represents, he shall give notice thereof, in
writing, to the court, and the court shall appoint a special
administrator, who shall, in the adjustment of such claim,
have the same power and be subject to the same liability as
the general administrator or executor in the settlement of
other claims. The court may order the executor or
administrator to pay to the special administrator necessary
funds to defend such claim.
SEC. 9. How to file a claim. Contents thereof Notice to
executor or administrator.A claim may be filed by delivering
the same with the necessary vouchers to the clerk of court
and by serving a copy thereof on the executor or
administrator. If the claim be founded on a bond, bill, note, or
any other instrument, the original need not be filed, but a
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copy thereof with all indorsements shall be attached to the

claim and filed therewith. On demand, however, of the
executor or administrator, or by order of the court or judge,
the original shall be exhibited, unless it be lost or destroyed,
in which case the claimant must accompany his claim with
affidavit or affidavits containing a copy or particular
description of the instrument and stating its loss or
destruction. When the claim is due, it must be supported by
affidavit stating the amount justly due, that no payments have
been made thereon which are not credited, and that there are
no offsets to the same, to the knowledge of the affiant. If the
claim is not due, or is contingent, when filed, it must also be
supported by affidavit stating the particulars thereof. When
the affidavit is made by a person other than the claimant, he
must set forth therein the reason why it is not made by the
claimant. The claim once filed shall be attached to the record
of the case in which the letters testamentary or of
administration were issued, although the court, in its
discretion, and as a matter of convenience, may order all the
claims to be collected in a separate folder.
SEC. 10. Answer of executor or administrator. Offsets.
Within fifteen (15) days after service of a copy of the claim
on the executor or administrator, he shall file his answer
admitting or denying the claim specifically, and setting forth
the substance of the matters which are relied upon to support
the admission or denial. If he has no knowledge sufficient to
enable him to admit or deny specifically, he shall state such
want of knowledge. The executor or administrator in his
answer shall allege in offset any claim which the decedent
before death had against the claimant, and his failure to do
so shall bar the claim forever. A copy of the answer shall be
served by the executor or administrator on the claimant. The
court in its discretion may extend the time for filing such
answer.
SEC. 11. Disposition of admitted claim.Any claim
admitted entirely by the executor or administrator shall
immediately be submitted by the clerk to the court who may
approve the same without hearing; but the court, in its
discretion, before approving the claim, may order that known
heirs, legatees, or devisees be notified and heard. If upon
hearing, an heir, legatee, or devisee opposes the claim, the
court may, in its discretion, allow him fifteen (15) days to file
an answer to the claim in the manner prescribed in the
preceding section.
SEC. 12. Trial of contested claim.Upon the filing of an
answer to a claim, or upon the expiration of the time for such
filing, the clerk of court shall set the claim for trial with notice
to both parties. The court may refer the claim to a
commissioner.
SEC. 13. Judgment appealable.The judgment of the
court approving or disapproving a claim, shall be filed with
the record of the administration proceedings with notice to
both parties, and is appealable as in ordinary cases. A
judgment against the executor or administrator shall be that
he pay, in due course of administration, the amount
ascertained to be due, and it shall not create any lien upon
the property of the estate, or give to the judgment creditor
any priority of payment.
SEC. 14. Costs.When the executor or administrator,
in his answer, admits and offers to pay part of a claim, and
the claimant refuses to accept the amount offered in
satisfaction of his claim, if he fails to obtain a more favorable
judgment, he cannot recover costs, but must pay to the
executor or administrator costs from the time of the offer.
115

Where an action commenced against the deceased for
money has been discontinued and the claim embraced
therein presented as in this rule provided, the prevailing party
shall be allowed the costs of his action up to the time of its
discontinuance.
ACTIONS BY AND AGAINST EXECUTORS AND

ADMINISTRATORS
administrator, may cite a person entrusted by an executor or

administrator with any part of the estate of the deceased to
appear before it, and may require such person to render a
full account, on oath, of the money, goods, chattels, bonds,
accounts, or other papers belonging to such estate as came
to his possession in trust for such executor or administrator,
and of his proceedings thereon; and if the person so cited
refuses to appear to render such account, the court may
punish him for contempt as having disobeyed a lawful order
of the court.
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 actions 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.
SEC. 8. Embezzlement before letters issued.If a

person, before the granting of letters testamentary or of
administration on the estate of the deceased, embezzles or
alienates any of the money, goods, chattels, or effect of such
deceased, such person shall be liable to an action in favor of
the executor or administrator of the estate for double the
value of the property sold, embezzled, or alienated, to be
recovered for the benefit of such estate.
SEC. 2. Executor or administrator may bring or defend

actions which survive.For the recovery or protection of the
property or rights of the deceased, an executor or
administrator may bring or defend, in the right of the
deceased, actions for causes which survive.
SEC. 9. Property fraudulent conveyed by deceased

may be recovered. When executor or administrator must
bring action.When there is a deficiency of assets in the
hands of an executor or administrator for the payment of
debts and expenses of administration, and the deceased in
his lifetime had conveyed real or personal property, or a right
or interest therein, or debt or credit, with intent to defraud his
creditors or to avoid any right debt, or duty; or had so
conveyed such property, right, interest, debt, or creditors, and
the subject of the attempted conveyance would be liable to
attachment by any of them in his lifetime, the executor or
administrator may commence and prosecute to final
judgment an action for the recovery of such property, right,
interest, debts, or credit for the benefit of the creditors; but
he shall not be bound to commence the action unless the
creditors making the application pay such part of the costs
and expenses, or give security therefor to the executor or
administrator, as the court deems equitable.
RULE 87
SEC. 3. Heir may not sue until share assigned.When

an executor or administrator is appointed and assumes the
trust, no action to recover the title or possession of lands or
for damages done to such lands shall be maintained against
him by an heir or devisee until there is an order of the court
assigning such lands to such heir or devisee or until the time
allowed for paying debts has expired.
SEC. 4. Executor or administrator may compound with
debtor.With the approval of the court, an executor or
administrator may compound with the debtor of the deceased
for a debt due, and may give a discharge of such debt on
receiving a just dividend of the estate of the debtor.
SEC. 5. Mortgage due estate may be foreclosed.A
mortgage belonging to the estate of a deceased person, as
mortgagee or assignee of the right of a mortgagee, may be
foreclosed by the executor or administrator.
SEC. 6. Proceedings when property concealed,
embezzled, or fraudulently conveyed.If an executor or
administrator, heir, legatee, creditor, or other individual
interested in the estate of the deceased, complains to the
court having jurisdiction of the estate that a person is
suspected of having concealed, embezzled, or conveyed
away any of the money, goods, or chattels of the deceased,
or that such person has in his possession or has knowledge
of any deed, conveyance, bond, contracts, or other writing
which contains evidence of or tends to disclose the right, title,
interest, or claim of the deceased to real or personal estate,
or the last will and testament of the deceased, the court may
cite such suspected person to appear before it and may
examine him on oath on the matter of such complaint; and if
the person so cited refuses to appear, or to answer on such
examination such interrogatories as are put to him, the court
may punish him for contempt, and may commit him to prison
until he submits to the order of the court. The interrogatories
put to any such person, and his answers thereto, shall be in
writing and shall be filed in the clerks office.
SEC. 10. When creditor may bring action. Lien for cost.
When there is such a deficiency of assets, and the
deceased in his lifetime had made or attempted such a
conveyance, as is stated in the last preceding section, and
the executor and administrator has not commenced the
action therein provided for, any creditor of the estate may,
with the permission of the court, commence and prosecute to
final judgment, in the name of the executor or administrator, a
like action for the recovery of the subject of the conveyance
or attempted conveyance for the benefit of the creditors. But
the action shall not be commenced until the creditor has filed
in a court a bond executed to the executor or administrator, in
an amount approved by the judge, conditioned to indemnify
the executor or administrator against the costs and expenses
incurred by reason of such action. Such creditor shall have a
lien upon any judgment recovered by him in the action for
such costs and other expenses incurred therein as the court
deems equitable. Where the conveyance or attempted
conveyance has been made by the deceased in his lifetime
in favor of the executor or administrator, the action which a
creditor may bring shall be in the name of all the creditors,
and permission of the court and filing of bond as above
prescribed, are not necessary.
SEC. 7. Person entrusted with estate compelled to

render account.The court, on complaint of an executor or
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Wills & Succession/ Atty Uribe

Devisees and legatees are persons to whom gifts of real and

A. Definition and Concepts

(1) Legitimate children and descendants, with respect to their

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

(2) In default of the foregoing, legitimate parents and ascendants,

Art. 712. Ownership is acquired by occupation and by intellectual

(3) The widow or widower;

Division per capita entails a division of the estate

Division per stirpes is made when a sole

4. The free portion of the estate of the deceased is likewise

Wills & Succession/ Atty Uribe

If the deceased never resided in the Philippines, the whole estate

The latter shall succeed without distinction of lines or preference

The court, at the instance of an interested party, or on its own

when there are no brothers whether the full of half

Art. 1014. If a person legally entitled to the estate of the deceased

When a person dies intestate, leaving no compulsory

A direct line is that constituted by the series of degrees among

The estate becomes subject to appropriation by

In view of this, the law awards the property to the

The reversion of the res nullius property can only be

Wills & Succession/ Atty Uribe

In such cases as above, the shares would have

Art. 969. If the inheritance should be repudiated by the nearest

Art. 1034. In order to judge the capacity of the heir, devisee or

provisions, shall be regulated by the national law of the person

If the institution, devise or legacy should be conditional, the time

Art. 16 par. (2)."However, intestate and testamentary

Art. 1039. Capacity to succeed is governed by the law of the

Art. 1039."Capacity to succeed is governed by the law of the nation

In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be

Art. 16. Real property as well as personal property is subject to

the law which governs Adoracion Campo's will is the law of

Wills & Succession/ Atty Uribe

Who may succeed?

Art. 1024. Persons not incapacitated by law may succeed by will or

the second paragraph above merely enunciates a

Kinds of Incapacity: a) absolute or per se and b)

Art. 1025. In order to be capacitated to inherit, the heir, devisee or

The preceding paragraph shall apply when the testator has

Wills & Succession/ Atty Uribe

being no substitution nor accretion as to the said ricelands, the same

Who are incapable of succeeding?

Art. 1027. The following are incapable of succeeding:

Wills & Succession/ Atty Uribe

action for legal separation belonging to the innocent

action to annul marriage

obligation to give legal support except those expressly

Art. 1033. The cause of unworthiness shall be without effect if

right to receive support

right of patria potestas

right of the guardian

Art. 1036. Alienations of hereditary property, and acts of

right of donor to revoke donation due to ingratitude of

12. rights from public law such as suffrage and public

(8) Any person who falsifies or forges a supposed will of the

Effect of alienations by the excluded heir

Rights of the excluded Heir

Art. 1035. If the person excluded from the inheritance by reason

The following rules are laid down

rights which are purely personal are by their nature and

rights which are patrimonial or relating to property are, as