[G.R. No. 124099.

October 30, 1997]

MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, MARITES AGAPE, ESTABANA GALOLO, and CELSA AGAPE, petitioners,
vs. COURT OF APPEALS AND JULIO VIVARES, respondents.

DECISION

TORRES, JR., J.:

Unless legally flawed, a testators intention in his last will and testament is its life and soul which deserves reverential observance.

The controversy before us deals with such a case.

Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in
Special Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in this petition for review the decision of the Court of Appeals[1] dated
November 29, 1995, the dispositive portion of which reads:

WHEREFORE, premises considered, the judgment appealed from allowing or admitting the will of Torcuato J. Reyes to probate and directing the issuance of Letter
Testamentary in favor of petitioner Julio A. Vivares as executor without bond is AFFIRMED but modified in that the declaration that paragraph II of the Torcuato
Reyes' last will and testament, including subparagraphs (a) and (b) are null and void for being contrary to law is hereby SET ASIDE, said paragraphs (a) and (b) are
declared VALID. Except as above modified, the judgment appealed from is AFFIRMED.

SO ORDERED."[2]

The antecedent facts:

On January 3, 1992, Torcuato J. Reyes executed his last will and testament declaring therein in part, to wit:

xxx

II. I give and bequeath to my wife Asuncion Oning R. Reyes the following properties to wit:

a. All my shares of our personal properties consisting among others of jewelries, coins, antiques, statues, tablewares, furnitures, fixtures and the building;

b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in common with my brother Jose, situated in Municipalities of Mambajao, Mahinog,
Guinsiliban, Sagay all in Camiguin; real estates in Lunao, Ginoong, Caamulan, Sugbongcogon, Boloc-Boloc, Kinoguinatan, Balingoan, Sta. Ines, Caesta, Talisayan, all
in the province of Misamis Oriental.[3]

The will consisted of two pages and was signed by Torcuato Reyes in the presence of three witnesses: Antonio Veloso, Gloria Borromeo, and
Soledad Gaputan. Private respondent Julio A. Vivares was designated the executor and in his default or incapacity, his son Roch Alan S. Vivares.

Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a petition for probate of the will before the Regional Trial Court of
Mambajao, Camiguin. The petitioner was set for hearing and the order was published in the Mindanao Daily Post, a newspaper of general circulation,
once a week for three consecutive weeks. Notices were likewise sent to all the persons named in the petition.

On July 21, 1992, the recognized natural children of Torcuato Reyes with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes,
and the deceaseds natural children with Celsa Agape, namely Lyn and Marites Agape, filed an opposition with the following allegations: a) that the last
will and testament of Reyes was not executed and attested in accordance with the formalities of law; and b) that Asuncion Reyes Ebarle exerted undue
and improper influence upon the testator at the time of the execution of the will. The opposition further averred that Reyes was never married to and could
never marry Asuncion Reyes, the woman he claimed to be his wife in the will, because the latter was already married to Lupo Ebarle who was still then
alive and their marriage was never annulled. Thus Asuncion can not be a compulsory heir for her open cohabitation with Reyes was violative of public
morals.

On July 22, 1992, the trial court issued an ordering declaring that it had acquired jurisdiction over the petition and, therefore, allowed the presentation
of evidence. After the presentation of evidence and submission of the respective memoranda, the trial court issued its decision on April 23, 1993.

The trial court declared that the will was executed in accordance with the formalities prescribed by law. It, however, ruled that Asuncion Reyes,
based on the testimonies of the witnesses, was never married to the deceased Reyes, and, therefore, their relationship was an adulterous one. Thus:

The admission in the will by the testator to the illicit relationship between him and ASUNCION REYES EBARLE who is somebody elses, wife, is further bolstered,
strengthened, and confirmed by the direct testimonies of the petitioner himself and his two attesting witnesses during the trial.

In both cases, the common denominator is the immoral meretrecious, adulterous and adulterous and illicit relationship existing between the testator and the devisee
prior to the death of the testator, which constituted the sole and primary consideration for the devise or legacy, thus making the will intrinsically invalid. [4]
 The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the will which was declared null and void for being contrary to law
and morals. Hence, Julio Vivares filed an appeal before the Court of Appeals with the allegation that the oppositors failed to present any competent
evidence that Asuncion Reyes was legally married to another person during the period of her cohabitation with Torcuato Reyes.

On November 29, 1995, the Court of Appeals promulgated the assailed decision which affirmed the trial courts decision admitting the will for probate
but the modification that paragraph II including subparagraphs (a) and (b) were declared valid. The appellee court stated:

Considering that the oppositors never showed any competent, documentary or otherwise during the trial to show that Asuncion Oning Reyes marriage to the testator
was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the
subject Last Will and Testament, as void for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it
enough to overcome the very declaration of the testator that Asuncion Reyes is his wife. [5]

Dissatisfied with the decision of the Court of Appeals, the oppositors filed this petition for review.

Petitioners contend that the findings and conclusion of the Court of Appeals was contrary to law, public policy and evidence on record. Torcuato
Reyes and Asuncion Oning Reyes were collateral relatives up to the fourth civil degree. Witness Gloria Borromeo testified that Oning Reyes was her
cousin as her mother and the latters father were sister and brother. They were also nieces of the late Torcuato Reyes. Thus, the purported marriage of
the deceased Reyes and Oning Reyes was void ab initio as it was against public policy pursuant to Article 38 (1) of the Family Code. Petitioners further
alleged that Oning Reyes was already married to Lupo Ebarle at the time she was cohabiting with the testator hence, she could never contact any valid
marriage with the latter. Petitioners argued that the testimonies of the witnesses as well as the personal declaration of the testator, himself, were sufficient
to destroy the presumption of marriage. To further support their contention, petitioners attached a copy of the marriage certificate of Asuncion Reyes and
Lupo Ebarle.[6]

The petition is devoid of merit.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated.[7] Thus, the court
merely inquires on its due execution, whether or not it complies with the formalities prescribed by law, and the testamentary capacity of the testator. It
does not determine nor even by implication prejudge the validity or efficacy of the wills provisions. [8] The intrinsic validity is not considered since the
consideration thereof usually comes only after the will has been proved and allowed. There are, however, notable circumstances wherein the intrinsic
validity was first determined as when the defect of the will is apparent on its face and the probate of the will may become a useless ceremony if it is
intrinsically invalid.[9] The intrinsic validity of a will may be passed upon because practical considerations demanded it as when there is preterition of heirs
or the testamentary provisions are doubtful legality.[10] Where the parties agree that the intrinsic validity be first determined, the probate court may also do
so.[11]Parenthetically, the rule on probate is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what
the situation constrains it to do and pass upon certain provisions of the will. [12]

The case at bar arose from the institution of the petition for the probate of the will of the late Torcuato Reyes. Perforce, the only issues to be settled
in the said proceeding were: (1) whether or not the testator had animus testandi; (2) whether or not vices of consent attended the execution of the will; and
(3) whether or not the formalities of the will had been complied with. Thus, the lower court was not asked to rule upon the intrinsic validity or efficacy of the
provisions of the will. As a result, the declaration of the testator that Asuncion Oning Reyes was his wife did not have to be scrutinized during the probate
proceedings. The propriety of the institution of Oning Reyes as one of the devisees/legatees already involved inquiry on the wills intrinsic validity and which
need not be inquired upon by the probate court.

The lower court erroneously invoked the ruling in Nepomuceno vs. Court of Appeals (139 SCRA 206) in the instant case. In the case aforesaid, the
testator himself, acknowledged his illicit relationship with the devisee, to wit:

Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love an [sic] affection, for
all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comfort and represent
myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage.

Thus, the very tenor of the will invalidates the legacy because the testator admitted he was disposing of the properties to a person with whom he
had been living in concubinage.[13] To remand the case would only be a waste of time and money since the illegality or defect was already patent. This
case is different from the Nepomuceno case. Testator Torcuato Reyes merely stated in his will that he was bequeathing some of his personal and real
properties to his wife, Asuncion Oning Reyes. There was never an open admission of any illicit relationship. In the case of Nepomuceno, the testator
admitted that he was already previously married and that he had an adulterous relationship with the devisee.

We agree with the Court of Appeals that the trial court relied on uncorroborated testimonial evidence that Asuncion Reyes was still married to another
during the time she cohabited with the testator. The testimonies of the witnesses were merely hearsay and even uncertain as to the whereabouts or
existence of Lupo Ebarle, the supposed husband of Asuncion. Thus:

The foregoing testimony cannot go against the declaration of the testator that Asuncion Oning Reyes is his wife. In Alvarado v. City Government of Tacloban (supra)
the Supreme Court stated that the declaration of the husband is competent evidence to show the fact of marriage.

Considering that the oppositors never showed any competent evidence, documentary or otherwise during the trial to show that Asuncion Oning Reyes marriage to the
testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b)
of the subject Last Will and Testament, as void for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is
it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife.[14]

In the elegant language of Justice Moreland written decades ago, he said-

A will is the testator speaking after death. Its provisions have substantially the same force and effect in the probate court as if the testator stood before the court in full
life making the declarations by word of mouth as they appear in the will. That was the special purpose of the law in the creation of the instrument known as the last will
and testament. Men wished to speak after they were dead and the law, by the creation of that instrument, permitted them to do so. xxx All doubts must be resolved in
favor of the testators having meant just what he said. (Santos vs. Manarang, 27 Phil. 209).
 Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly a copy of the marriage certificate of Asuncion Reyes and
Lupo Ebarle. Their failure to present the said certificate before the probate court to support their position that Asuncion Reyes had an existing marriage
with Ebarle constituted a waiver and the same evidence can no longer be entertained on appeal, much less in this petition for review. This Court would no
try the case a new or settle factual issues since its jurisdiction is confined to resolving questions of law which have been passed upon by the lower
courts. The settled rule is that the factual findings of the appellate court will not be disturbed unless shown to be contrary to the evidence on the record,
which petitioners have not shown in this case.[15]

Considering the foregoing premises, we sustain the findings of the appellate court it appearing that it did not commit a reversible error in issuing the
challenged decision.

ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby AFFIRMED and the instant petition for review is DENIED for lack of
merit.

SO ORDERED.

Regalado, (Chairman), Romero, Puno, and Mendoza, JJ., concur.

G.R. No. 103554 May 28, 1993

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

Palma, Palma & Associates for petitioners.

Emilio Lumontad, Jr. for private respondents.

REGALADO, J.:

Presented for resolution by this Court in the present petition for review on certiorari is the issue of whether or not the attestation clause contained in the
last will and testament of the late Mateo Caballero complies with the requirements of Article 805, in relation to Article 809, of the Civil Code.

The records show that on December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a
last will and testament at his residence in Talisay, Cebu before three attesting witnesses, namely, Cipriano Labuca, Gregorio Cabando and Flaviano
Toregosa. The said testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary public, Atty. Filoteo Manigos, in the preparation of that
last will.1 It was declared therein, among other things, that the testator was leaving by way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do not appear to be
related to the testator.2

Four months later, or on April 4, 1979, Mateo Caballero himself filed a petition docketed as Special Proceeding No. 3899-R before Branch II of the then
Court of First Instance of Cebu seeking the probate of his last will and testament. The probate court set the petition for hearing on August 20, 1979 but
the same and subsequent scheduled hearings were postponed for one reason to another. On May 29, 1980, the testator passed away before his petition
could finally be heard by the probate court.3 On February 25, 1981, Benoni Cabrera, on of the legatees named in the will, sough his appointment as
special administrator of the testator's estate, the estimated value of which was P24,000.00, and he was so appointed by the probate court in its order of
March 6, 1981.4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator, instituted a second petition, entitled "In the Matter of the Intestate
Estate of Mateo Caballero" and docketed as Special Proceeding No. 3965-R, before Branch IX of the aforesaid Court of First Instance of Cebu. On
October 18, 1982, herein petitioners had their said petition intestate proceeding consolidated with Special Proceeding No. 3899-R in Branch II of the
Court of First Instance of Cebu and opposed thereat the probate of the Testator's will and the appointment of a special administrator for his estate.5

Benoni Cabrera died on February 8, 1982 hence the probate court, now known as Branch XV of the Regional Trial Court of Cebu, appointed William
Cabrera as special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an order for the return of the records of Special Proceeding
No. 3965-R to the archives since the testate proceeding for the probate of the will had to be heard and resolved first. On March 26, 1984 the case was
reraffled and eventually assigned to Branch XII of the Regional Trial Court of Cebu where it remained until the conclusion of the probate proceedings.6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners appeared as oppositors and objected to the allowance of the testator's
will on the ground that on the alleged date of its execution, the testator was already in the poor state of health such that he could not have possibly
executed the same. Petitioners likewise reiterated the issue as to the genuineness of the signature of the testator therein. 7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary public Atty. Filoteo Manigos, testified that the testator executed the
will in question in their presence while he was of sound and disposing mind and that, contrary to the assertions of the oppositors, Mateo Caballero was
in good health and was not unduly influenced in any way in the execution of his will. Labuca also testified that he and the other witnesses attested and
signed the will in the presence of the testator and of each other. The other two attesting witnesses were not presented in the probate hearing as the had
died by then.8

On April 5, 1988, the probate court rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:

. . . The self-serving testimony of the two witnesses of the oppositors cannot overcome the positive testimonies of Atty. Filoteo
Manigos and Cipriano Labuca who clearly told the Court that indeed Mateo Caballero executed the Last Will and Testament now
marked Exhibit "C" on December 5, 1978. Moreover, the fact that it was Mateo Caballero who initiated the probate of his Will during
his lifetime when he caused the filing of the original petition now marked Exhibit "D" clearly underscores the fact that this was indeed
his Last Will. At the start, counsel for the oppositors manifested that he would want the signature of Mateo Caballero in Exhibit "C"
examined by a handwriting expert of the NBI but it would seem that despite their avowal and intention for the examination of this
signature of Mateo Caballero in Exhibit "C", nothing came out of it because they abandoned the idea and instead presented Aurea
Caballero and Helen Caballero Campo as witnesses for the oppositors.
 All told, it is the finding of this Court that Exhibit "C" is the Last Will and Testament of Mateo Caballero and that it was executed in
accordance with all the requisites of the law.9

Undaunted by the said judgment of the probate court, petitioners elevated the case in the Court of Appeals in CA-G.R. CV No. 19669. They asserted
therein that the will in question is null and void for the reason that its attestation clause is fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator signing the will in their presence and that they also signed the will and all the pages thereof in
the presence of the testator and of one another.

On October 15, 1991, respondent court promulgated its decision 10 affirming that of the trial court, and ruling that the attestation clause in the last will of
Mateo Caballero substantially complies with Article 805 of the Civil Code, thus:

The question therefore is whether the attestation clause in question may be considered as having substantialy complied with the
requirements of Art. 805 of the Civil Code. What appears in the attestation clause which the oppositors claim to be defective is "we
do certify that the testament was read by him and the attestator, Mateo Caballero, has published unto us the foregoing will
consisting of THREE PAGES, including the acknowledgment, each page numbered correlatively in letters of the upper part of each
page, as his Last Will and Testament, and he has signed the same and every page thereof, on the spaces provided for his signature
and on the left hand margin in the presence of the said testator and in the presence of each and all of us (emphasis supplied).

To our thinking, this is sufficient compliance and no evidence need be presented to indicate the meaning that the said will was
signed by the testator and by them (the witnesses) in the presence of all of them and of one another. Or as the language of the law
would have it that the testator signed the will "in the presence of the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the testator and of one another." If not completely or ideally perfect in
accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in substantial compliance with the requirement of the
law." 11

Petitioners moved for the reconsideration of the said ruling of respondent court, but the same was denied in the latter's resolution of January 14,
1992, 12 hence this appeal now before us. Petitioners assert that respondent court has ruled upon said issue in a manner not in accord with the law and
settled jurisprudence on the matter and are now questioning once more, on the same ground as that raised before respondent court, the validity of the
attestation clause in the last will of Mateo Caballero.

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

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

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

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

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

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

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

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

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

An attestation clause refers to that part of an ordinary will whereby the attesting witnesses certify that the instrument has been executed before them and
to the manner of the execution the same. 19 It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed
by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. 20 It is made for the
purpose of preserving in a permanent form a record of the facts that attended the execution of a particular will, so that in case of failure of the memory of
the attesting witnesses, or other casualty, such facts may still be proved. 21
Under the third paragraph of Article 805, such a clause, the complete lack of which would result in the invalidity of the will, 22 should state (1) the number
of the pages used upon which the will is written; (2) that the testator signed, or expressly caused another to sign, the will and every page thereof in the
presence of the attesting witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of the will and all its
pages, and that saidwitnesses also signed the will and every page thereof in the presence of the testator and of one another.

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

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

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

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

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

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

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

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

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

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

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

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

It is our considered view that the absence of that statement required by law is a fatal defect or imperfection which must necessarily result in the
disallowance of the will that is here sought to be admitted to probate. Petitioners are correct in pointing out that the aforestated defect in the attestation
clause obviously cannot be characterized as merely involving the form of the will or the language used therein which would warrant the application of the
substantial compliance rule, as contemplated in the pertinent provision thereon in the Civil Code, to wit:
 Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in
the form of attestation or in the language used therein shall not render the will invalid if it is not proved that the will was in fact
executed and attested in substantial compliance with all the requirements of article 805" (Emphasis supplied.)

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

We believe that the further comment of former Justice J.B.L. Reyes34 regarding Article 809, wherein he urged caution in the application of the substantial
compliance rule therein, is correct and should be applied in the case under consideration, as well as to future cases with similar questions:

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

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

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

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

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

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

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

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

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

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

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

It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit inconsistency in doctrine. Yet here, unless
aided impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at variance. If we rely on one, we affirm. If
we rely on the other, we reverse.

In resolving this puzzling question of authority, three outstanding points may be mentioned. In the first place, the Mojal, decision was
concurred in by only four members of the court, less than a majority, with two strong dissenting opinions; the Quintana decision was
concurred in by seven members of the court, a clear majority, with one formal dissent. In the second place, the Mojal decision was
promulgated in December, 1924, while the Quintana decision was promulgated in December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the Quintana decision is believed more nearly to conform to the applicable
provisions of the law.

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED.
G.R. No. 151334 February 13, 2013

CAROLINA (CARLINA) VDA. DE FIGURACION, HEIRS OF ELENA FIGURACION-ANCHETA, namely: LEONCIO ANCHETA, JR., and ROMULO
ANCHETA, HEIRS OF HILARIA A. FIGURACION, namely: FELIPA FIGURACION-MANUEL, MARY FIGURACION-GINEZ, and EMILIA
FIGURACION-GERILLA, AND HEIRS OF QUINTIN FIGURACION, namely: LINDA M. FIGURACION, LEANDRO M. FIGURACION, II, and ALLAN M.
FIGURACION, Petitioners,
vs.
EMILIA FIGURACION-GERILLA, Respondent.

DECISION

REYES, J.:

At bar is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, assailing the Decision2 dated December 11, 2001 of the Court of
Appeals (CA) in CA-G.R. CV No. 58290, which reversed and set aside the Decision3 dated June 26, 1997 of the Regional Trial Court (RTC) of Urdaneta,
Pangasinan, Branch 49. The RTC decision (1) dismissed respondent Emilia Figuracion-Gerilla’s (Emilia) complaint for partition, annulment of
documents, reconveyance, quieting of title and damages, and (2) annulled the Affidavit of Self-Adjudication executed by petitioner Carolina (Carlina)
Vda. De Figuracion (Carolina).

The Facts

The parties are the heirs of Leandro Figuracion (Leandro) who died intestate in May 1958. Petitioner Carolina is the surviving spouse. The other
petitioners – Elena Figuracion-Ancheta, Hilaria A. Figuracion (Hilaria), Felipa Figuracion-Manuel (Felipa), Quintin Figuracion, and Mary Figuracion-Ginez
– and respondent Emilia were Carolina and Leandro’s children. 4

Subject of the dispute are two parcels of land both situated in Urdaneta, Pangasinan, which were acquired by Leandro during his lifetime. These
properties were: (1) Lot No. 2299 with a land area of 7,547 square meters originally covered by Transfer Certificate of Title (TCT) No. 4221-P;5 and (2)
Lot No. 705 measuring 2,900 square meters and covered by TCT No. 4220-P. Both lands were registered in the name of "Leandro Figuracion married to
Carolina Adviento". Leandro executed a Deed of Quitclaim over the above real properties in favor of his six (6) children on August 23, 1955. Their
shares, however, were not delineated with particularity because spouses Leandro and Carolina reserved the lots and its fruits for their expenses.

Also involved in the controversy is Lot No. 707 of the Cadastral Survey of Urdaneta, Pangasinan, with an area of 3,164 square meters originally owned
by Eulalio Adviento (Eulalio), covered by Original Certificate of Title (OCT) No. 15867 issued in his name on August 21, 1917. Eulalio begot Agripina
Adviento (Agripina) with his first wife Marcela Estioko (Marcela), whom Eulalio survived. When he remarried, Eulalio had another daughter, herein
petitioner Carolina, with his second wife, Faustina Escabesa (Faustina). 6

On November 28, 1961, Agripina7 executed a Deed of Quitclaim8 over the eastern half of Lot No. 707 in favor of her niece, herein respondent Emilia.

Soon thereafter or on December 11, 1962, petitioner Carolina executed an Affidavit of Self-Adjudication9adjudicating unto herself the entire Lot No. 707
as the sole and exclusive heir of her deceased parents, Eulalio and Faustina. 10 On the same date, Carolina also executed a Deed of Absolute
Sale11 over Lot No. 707 in favor of petitioners Hilaria and Felipa, who in turn immediately caused the cancellation of OCT No. 15867 and the issuance of
TCT No. 42244 in their names.12

In 1971, Emilia and her family went to the United States and returned to the Philippines only in 1981. Upon her return and relying on the Deed of
Quitclaim, she built a house on the eastern half of Lot No. 707.13

The legal debacle of the Figuracions started in 1994 when Hilaria and her agents threatened to demolish the house of Emilia who, in retaliation, was
prompted to seek the partition of Lot No. 707 as well as Lot Nos. 2299 and 705. The matter was initially brought before the Katarungang Pambarangay,
but no amicable settlement was reached by the parties. 14 On May 23, 1994, respondent Emilia instituted the herein Complaint15 for the partition of Lot
Nos. 2299, 705 and 707, annulment of the Affidavit of Self- Adjudication, Deed of Absolute Sale and TCT No. 42244, reconveyance of eastern half
portion of Lot No. 707, quieting of title and damages.

In opposition, the petitioners averred the following special and affirmative defenses: (1) the respondent’s cause of action had long prescribed and that
she is guilty of laches hence, now estopped from bringing the suit; (2) TCT No. 42244 in the name of Felipa and Hilaria have already attained
indefeasibility and conclusiveness as to the true owners of Lot No. 707; and (3) an action for partition is no longer tenable because Felipa and Hilaria
have already acquired rights adverse to that claimed by respondent Emilia and the same amount to a repudiation of the alleged co-ownership.16

During pre-trial conference, the issues were simplified into: (1) whether or not Lot Nos. 2299 and 705 are the exclusive properties of Leandro; and (2)
whether or not respondent Emilia is the owner of the eastern half of Lot No. 707. 17

On the basis of the evidence adduced by the parties, the RTC rendered its Decision dated June 26, 1997 disposing as follows:

WHEREFORE, premises considered, the complaint for partition, reconveyance, quieting of title and damages is hereby ordered dismissed whereas the
affidavit of self-adjudication[,] deed of sale and the transfer certificate of title involving Lot 707 are hereby declared null and void.
No costs.

SO ORDERED.18

The RTC ruled that a partition of Lot Nos. 2299 and 705 will be premature since their ownership is yet to be transmitted from Leandro to his heirs whose
respective shares thereto must still be determined in estate settlement proceedings. Anent Lot No. 707, the RTC held that petitioner Carolina transferred
only her one-half (½) share to Felipa and Hilaria and any conveyance of the other half pertaining to Agripina was void. While the RTC nullified
the Affidavit of Self-Adjudication, Deed of Absolute Sale and TCT No. 42244, it refused to adjudicate the ownership of the lot’s eastern half portion in
favor of respondent Emilia since a settlement of the estate of Eulalio is yet to be undertaken.19

Respondent Emilia appealed to the CA, which, in its Decision dated December 11, 2001, ruled that the RTC erred in refusing to partition Lot No. 707.
The CA explained that there is no necessity for placing Lot No. 707 under judicial administration since Carolina had long sold her ½ pro indiviso share to
Felipa and Hilaria. Thus, when Carolina sold the entire Lot No. 707 on December 11, 1962 as her own, the sale affected only her share and not that
belonging to her co-owner, Agripina. The proper action in such case is not the nullification of the sale, or for the recovery of possession of the property
owned in common from the third person, but for a division or partition of the entire lot. Such partition should result in segregating the portion belonging to
the seller and its delivery to the buyer.

The CA, however, agreed with the RTC that a partition of Lot Nos. 2299 and 705 is indeed premature considering that there is a pending legal
controversy with respect to Lot No. 705 and the accounting of the income from Lot No. 2299 and of the expenses for the last illness and burial of
Leandro and Carolina, for which the lots appear to have been intended.

Accordingly, the decretal portion of the CA decision reads:

WHEREFORE, premises considered, the present appeal is hereby GRANTED and the decision appealed from in Civil Case No. U-5826 is hereby
VACATED and SET ASIDE. A new judgment is hereby rendered declaring Lot No. 707 covered by TCT No. 42244 to be owned by appellant Emilia
Figuracion-Gerilla [herein respondent], ½ pro indiviso share, appellee Felipa Figuracion [herein petitioner], ¼ pro indiviso share, and appellee Hilaria
Figuracion [herein petitioner], ¼ pro indiviso share, who are hereby directed to partition the same and if they could not agree on a partition, they may
petition the trial court for the appointment of a commissioner to prepare a project of partition, in accordance with the procedure as provided in Rule 69 of
the 1997 Rules of Civil Procedure, as amended.

No pronouncement as to costs.

SO ORDERED.20

Respondent Emilia appealed the CA’s decision to the Court, docketed as G.R. No. 154322. In a Decision promulgated on August 22, 2006, the Court
denied the appeal, concurring with the CA’s ruling that a partition of Lot Nos. 2299 and 705 would be inappropriate considering that: (1) the ownership of
Lot No. 705 is still in dispute; and (2) there are still unresolved issues as to the expenses chargeable to the estate of Leandro.

The present petition involves the appeal of the petitioners who attribute this sole error committed by the CA:

THE DECISION RENDERED BY THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW AND EXISTING JURISPRUDENTIAL DICTA
LAID DOWN BY THE HONORABLE SUPREME COURT.21

In view of the Court’s ruling in G.R. No. 154322, the ensuing discussion shall concern only Lot No. 707.

The Arguments of the Parties

The petitioners argue that respondent Emilia has no valid basis for her claim of ownership because the Deed of Quitclaim executed in her favor by
Agripina was in fact a deed of donation that contained no acceptance and thus, void. The petitioners attached a copy of the Deed of Quitclaim and
stressed on the following portions, viz:

I, AGRIPINA ESTIOKO ADVIENTO, of le[ga]l age, Filipino citizen, single and a resident [of] San Vicenter (sic), Urdaneta City, Pangasinan, for and in
consideration of the sum of ONE PESO ([P]1.00), Philippine Currency and the services rendered by my niece EMILIA FIGURACION, 20 years old,
single, Filipino citizen and a resident of San Vicente, Urdaneta City, Pangasinan, do hereby by these presentsw (sic) RENOUNCE, RELEASE and
forever QUITCLAIM in favor of EMILIA FIGURACION, her heirs, and assigns the ONE[-]HALF (1/2) eastern portion of the following parcel of land more
particularly described and bounded as follows to wit[.] 22

They further aver that the Deed of Quitclaim is riddled with defects that evoke questions of law, because: (a) it has not been registered with the Register
of Deeds, albeit, allegedly executed as early as 1961; (b) a certification dated June 3, 2003 issued by the Office of the Clerk of Court (OCC) of the RTC
of Urdaneta, Pangasinan, shows that it does not have a copy of the Deed of Quitclaim; (c) the Office of the National Archives which is the depository of
old and new notarized documents has no record of the Deed of Quitclaim as evidenced by a certification dated May 19, 2003;23 and (d) Atty. Felipe V.
Abenojar, who supposedly notarized the Deed of Quitclaim was not commissioned to notarize in 1961 per the certification dated June 9, 2003 from the
OCC of the RTC of Urdaneta, Pangasinan.24

Respondent Emilia, on the other hand, contends that the Deed of Quitclaim should be considered an onerous donation that requires no acceptance as it
is governed by the rules on contracts and not by the formalities for a simple donation. 25

The Court’s Ruling

Issues not raised before the courts a quo cannot be raised for the first time in a petition filed under Rule 45

Records show that there is a palpable shift in the defense raised by the petitioners before the RTC and the CA.

In the Pre-Trial Order26 of the RTC dated April 4, 1995, the parties agreed to limit the issue with regard to Lot No. 707 as follows: whether or not
respondent Emilia is the owner of the eastern half portion of Lot No. 707. The petitioners’ supporting theory for this issue was that "the Deed of
Quitclaim dated November 28, 1961 was rendered ineffective by the issuance of [TCT No. 42244] in the name of Felipa and Hilaria." 27 On appeal to the
CA, however, the petitioners raised a new theory by questioning the execution and enforceability of the Deed of Quitclaim. They claimed that it is
actually a donation that was not accepted in the manner required by law.28

The inconsistent postures taken by the petitioners breach the basic procedural tenet that a party cannot change his theory on appeal as expressly
adopted in Rule 44, Section 15 of the Rules of Court, which reads:

Sec. 15. Questions that may be raised on appeal.  Whether or not the appellant has filed a motion for new trial in the court below, he may include in his
assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties.

Fortifying the rule, the Court had repeatedly emphasized that defenses not pleaded in the answer may not be raised for the first time on appeal. When a
party deliberately adopts a certain theory and the case is decided upon that theory in the court below, he will not be permitted to change the same on
appeal, because to permit him to do so would be unfair to the adverse party.29 The Court had likewise, in numerous times, affirmed that points of law,
theories, issues and arguments not brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court, as
these cannot be raised for the first time at such late stage. Basic considerations of due process underlie this rule. It would be unfair to the adverse party
who would have no opportunity to present further evidence material to the new theory, which it could have done had it been aware of it at the time of the
hearing before the trial court.30

While a party may change his theory on appeal when the factual bases thereof would not require presentation of any further evidence by the adverse
party in order to enable it to properly meet the issue raised in the new theory, 31this exception does not, however, obtain in the case at hand.

Contrary to the petitioners’ assertion, the Court finds that the issues on the supposed defects and actual nature of the Deed of Quitclaim are questions of
fact that require not only a review or re-evaluation of the evidence already adduced by the parties but also the reception of new evidence as the
petitioners themselves have acknowledged when they attached in the petition several certifications32 in support of their new argument. It is settled that
questions of fact are beyond the province of a Rule 45 petition since the Court is not a trier of facts.33

Accordingly, the Court will not give due course to the new issues raised by the petitioners involving the nature and execution of the Deed of
Quitclaim. For their failure to advance these questions during trial, the petitioners are now barred by estoppel 34 from imploring an examination of the
same.

The respondent can compel the

partition of Lot No. 707

The first stage in an action for partition is the settlement of the issue of ownership. Such an action will not lie if the claimant has no rightful interest in the
subject property. In fact, the parties filing the action are required by the Rules of Court to set forth in their complaint the nature and the extent of their title
to the property. It would be premature to effect a partition until and unless the question of ownership is first definitely resolved.35

Here, the respondent traces her ownership over the eastern half of Lot No. 707 from the Deed of Quitclaim executed by Agripina, who in turn, was the
co-owner thereof being one of the legitimate heirs of Eulalio. It is well to recall that the petitioners failed to categorically dispute the existence of the Deed
of Quitclaim. Instead, they averred that it has been rendered ineffective by TCT No. 42244 in the name of Felipa and Hilaria―this contention is, of
course, flawed.

Mere issuance of a certificate of title in the name of any person does not foreclose the possibility that the real property may be under coownership with
persons not named in the certificate, or that the registrant may only be a trustee, or that other parties may have acquired interest over the property
subsequent to the issuance of the certificate of title. 36 Stated differently, placing a parcel of land under the mantle of the Torrens system does not mean
that ownership thereof can no longer be disputed. The certificate cannot always be considered as conclusive evidence of ownership.37 In this case, co-
ownership of Lot No. 707 was precisely what respondent Emilia was able to successfully establish, as correctly found by the RTC and
affirmed by the CA.

The status of Agripina and Carolina as the legitimate heirs of Eulalio is an undisputed fact. As such heirs, they became co-owners of Lot No. 707 upon
the death of Eulalio on July 20, 1930. Since Faustina was predeceased by Eulalio, she likewise became a co-owner of the lot upon Eulalio’s death.
Faustina’s share, however, passed on to her daughter Carolina when the former died on October 18, 1949. The Affidavit of Self-Adjudication executed
by Carolina did not prejudice the share of Agripina because it is not legally possible for one to adjudicate unto himself an entire property he was not the
sole owner of. A co-owner cannot alienate the shares of her other co-owners – nemo dat qui non habet.38

Hence, Lot No. 707 was a co-owned property of Agripina and Carolina. As co-owners, each of them had full ownership of her part and of the fruits and
benefits pertaining thereto. Each of them also had the right to alienate the lot but only in so far as the extent of her portion was affected.39

Thus, when Carolina sold the entire Lot No. 707 on December 11, 1962 to Hilaria and Felipa without the consent of her co-owner Agripina, the
disposition affected only Carolina’s pro indiviso share, and the vendees, Hilaria and Felipa, acquired only what corresponds to Carolina’s share. A co-
owner is entitled to sell his undivided share; hence, a sale of the entire property by one co-owner without the consent of the other co-owners is not null
and void and only the rights of the co-owner/seller are transferred, thereby making the buyer a co-owner of the property.40
Accordingly, the deed of sale executed by Carolina in favor of Hilaria and Felipa was a valid conveyance but only insofar as the share of Carolina in the
co-ownership is concerned. As Carolina’s successors-in-interest to the property, Hilaria and Felipa could not acquire any superior right in the property
than what Carolina is entitled to or could transfer or alienate after partition.

In a contract of sale of co-owned property, what the vendee obtains by virtue of such a sale are the same rights as the vendor had as co-owner, and the
vendee merely steps into the shoes of the vendor as co-owner.41 Hilaria and Felipa did not acquire the undivided portion pertaining to Agripina, which
has already been effectively bequeathed to respondent Emilia as early as November 28, 1961 thru the Deed of Quitclaim. In turn, being the successor-
in-interest of Agripina’s share in Lot No. 707, respondent Emilia took the former’s place in the co-ownership and as such co-owner, has the right to
compel partition at any time.42

The respondent’s right to demand

for partition is not barred by
acquisitive prescription or laches

The petitioners posit that the issuance of TCT No. 42244 in the name of Hilaria and Felipa over Lot No. 707 on December 11, 1962 was an express
repudiation of the co-ownership with respondent Emilia. Considering the period of time that has already lapsed since then, acquisitive prescription has
already set in and the respondent is now barred by laches from seeking a partition of the subject lot.

The contention is specious.

Co-heirs or co-owners cannot acquire by acquisitive prescription the share of the other co-heirs or co-owners absent a clear repudiation of the co
ownership.43 The act of repudiation, as a mode of terminating co-ownership, is subject to certain conditions, to wit: (1) a co-owner repudiates the co-
ownership; (2) such an act of repudiation is clearly made known to the other co-owners; (3) the evidence thereon is clear and conclusive; and (4) he has
been in possession through open, continuous, exclusive, and notorious possession of the property for the period required by law.44

The petitioners failed to comply with these conditions. The act of Hilaria and Felipa in effecting the registration of the entire Lot No. 707 in their names
thru TCT No. 42244 did not serve to effectively repudiate the co-ownership. The respondent built her house on the eastern portion of the lot in 1981
without any opposition from the petitioners. Hilaria also paid realty taxes on the lot, in behalf of the respondent, for the years 1983-1987.45 These events
indubitably show that Hilaria and Felipa failed to assert exclusive title in themselves adversely to Emilia. Their acts clearly manifest that they recognized
the subsistence of their co-ownership with respondent Emilia despite the issuance of TCT No. 42244 in 1962. Their acts constitute an implied
recognition of the co-ownership which in turn negates the presence of a clear notice of repudiation to the respondent. To sustain a plea of prescription, it
must always clearly appear that one who was originally a joint owner has repudiated the claims of his co-owners, and that his co-owners were apprised
or should have been apprised of his claim of adverse and exclusive ownership before the alleged prescriptive period began to run. 46

In addition, when Hilaria and Felipa registered the lot in their names to the exclusion of Emilia, an implied trust was created by force of law and the two
of them were considered a trustee of the respondent’s undivided share. 47 As trustees, they cannot be permitted to repudiate the trust by relying on the
registration. In Ringor v. Ringor,48 the Court had the occasion to explain the reason for this rule:

A trustee who obtains a Torrens title over a property held in trust for him by another cannot repudiate the trust by relying on the
registration. A Torrens Certificate of Title in Jose’s name did not vest ownership of the land upon him. The Torrens system does not create or vest title.
It only confirms and records title already existing and vested. It does not protect a usurper from the true owner. The Torrens system was not intended to
foment betrayal in the performance of a trust. It does not permit one to enrich himself at the expense of another. Where one does not have a rightful
claim to the property, the Torrens system of registration can confirm or record nothing. Petitioners cannot rely on the registration of the lands in Jose’s
name nor in the name of the Heirs of Jose M. Ringor, Inc., for the wrong result they seek. For Jose could not repudiate a trust by relying on a Torrens
title he held in trust for his co-heirs.1âwphi1 The beneficiaries are entitled to enforce the trust, notwithstanding the irrevocability of the Torrens title. The
intended trust must be sustained.49 (Citations omitted and emphasis ours)

Further, records do not reflect conclusive evidence showing the manner of occupation and possession exercised by Hilaria and Felipa over the lot from
the time it was registered in their names. The only evidence of possession extant in the records dates back only to 1985 when Hilaria and Felipa
declared the lot in their names for taxation purposes.50 Prescription can only produce all its effects when acts of ownership, or in this case, possession,
do not evince any doubt as to the ouster of the rights of the other co-owners. Hence, prescription among co-owners cannot take place when acts of
ownership exercised are vague or uncertain.51

Moreover, the evidence relative to the possession, as a fact upon which the alleged prescription is based, must be clear, complete and conclusive in
order to establish said prescription without any shadow of doubt; and when upon trial it is not shown that the possession of the claimant has been
adverse and exclusive and opposed to the rights of the others, the case is not one of ownership, and partition will lie. 52 The petitioners failed to muster
adequate evidence of possession essential for the reckoning of the 10-year period for acquisitive prescription.

The express disavowal of the co-ownership did not happen on December 11, 1962 when TCT No. 42244 was issued but in 1994 when Hilaria attempted
to demolish Emilia’s house thus explicitly excluding her from the co-ownership. It was the only time that Hilaria and Felipa made known their denial of the
co-ownership. On the same year, the respondent instituted the present complaint for partition; hence, the period required by law for acquisitive period to
set in was not met.

Anent laches, the Court finds it unavailing in this case in view of the proximity of the period when the co-ownership was expressly repudiated and when
the herein complaint was filed. Laches is the negligence or omission to assert a right within a reasonable time, warranting a presumption that the party
entitled to assert it has abandoned it or declined to assert it.53 More so, laches is a creation of equity and its application is controlled by equitable
considerations. It cannot be used to defeat justice or perpetrate fraud and injustice. Neither should its application be used to prevent the rightful owners
of a property from recovering what has been fraudulently registered in the name of another. 54

Partition of Lot No. 707

Under the Old Civil Code55 which was then in force at the time of Eulalio and Marcela’s marriage, Lot No. 707 was their conjugal property. 56 When
Marcela died, one-half of the lot was automatically reserved to Eulalio, the surviving spouse, as his share in the conjugal partnership.57 Marcela’s rights
to the other half, in turn, were transmitted to her legitimate child, Agripina and surviving spouse Eulalio.58 Under Article 834 of the Old Civil Code, Eulalio
was entitled only to the usufruct of the lot while the naked ownership belonged to Agripina. When he remarried, Eulalio’s one half portion of the lot
representing his share in the conjugal partnership and his usufructuary right over the other half were brought into his second marriage with Faustina.59

When Eulalio died on July 20, 1930, ¼ portion of the lot was reserved for Faustina as her share in the conjugal partnership. 60 The remaining ¼ were
transmitted equally to the widow Faustina and Eulalio’s children, Carolina and Agripina.61 However, Faustina is only entitled to the usufruct of the third
available for betterment.62

The usufructuary of Eulalio over the ½ portion inherited by Agripina earlier was merged with her naked ownership. 63Upon the death of Faustina, the
shares in Lot No. 707 which represents her share in the conjugal partnership and her inheritance from Eulalio were in turn inherited by
Carolina64 including Faustina’s usufructuary rights which were merged with Carolina’s naked ownership. 65

Consequently, Agripina is entitled to 5/8 portion of Lot No. 707 while the remaining 3/8 pertains to Carolina. Thus, when Carolina sold Lot No. 707 to
Hilaria and Felipa, the sale affected only 3/8 portion of the subject lot. Since the Deed of Quitclaim, bequeathed only the ½ eastern portion of Lot No.
707 in favor of Emilia instead of Agripina’s entire 5/8 share thereof, the remaining 1/8 portion shall be inherited by Agripina’s nearest collateral
relative,66 who, records show, is her sister Carolina.

In sum, the CA committed no reversible error in holding that the respondent is entitled to have Lot No. 707 partitioned. The CA judgment must, however,
be modified to conform to the above-discussed apportionment of the lot among Carolina, Hilaria, Felipa and Emilia.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 58290 dated December 11, 2001, is AFFIRMED with
MODIFICATIONS as follows: (1) 3/8 portion of Lot No. 707 shall pertain in equal shares to Hilaria Figuracion and Felipa Figuracion-Manuel; (2) ½
portion of Lot. No. 707 shall pertain to Emilia Figuracion-Gerilla; and (3) 1/8 portion of Lot No. 707 shall pertain to the estate of Carolina (Carlina) Vda.
De Figuracion. The case is REMANDED to the Regional Trial Court of Urdaneta, Pangasinan, Branch 49, who is directed to conduct a PARTITION BY
COMMISSIONERS and effect the actual physical partition of the subject property, as well as the improvements that lie therein, in the foregoing manner.
The trial court is DIRECTED to appoint not more than three (3) competent and disinterested persons, who should determine the technical metes and
bounds of the property and the proper share appertaining to each co-owner, including the improvements, in accordance with Rule 69 of the Rules of
Court. When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without great prejudice to the interest
of the parties, the court a quo may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such sum or
sums of money as the commissioners deem equitable, unless one of the parties interested ask that the property be sold instead of being so assigned, in
which case the court shall order the commissioners to sell the real estate at public sale, and the commissioners shall sell the same accordingly, and
thereafter distribute the proceeds of the sale appertaining to the just share of each co-owner. No pronouncement as to costs.

SO ORDERED.
[G.R. No. 127827. March 5, 2003]

ELEUTERIO, ANATALIA, JOSELITO, ROGELIO, EVANGELINE, NOEL, GUILLERMO, LORENZO, DOMINGO, AMADO, and VICTORIA, all surnamed
LOPEZ, petitioners, vs. THE HONORABLE COURT OF APPEALS, and spouses MARCELINO and CRISTINA S. LOPEZ, FELISA LOPEZ
and RAMON CORTEZ, ZOILO LOPEZ, LEONARDO LOPEZ and LEONILA LOPEZ and spouses ROGELIO M. AMURAO and NOAMI T.
AMURAO, respondents.

DECISION

PUNO, J.:

Before us is a petition for review on certiorari of the Decision[1] dated September 30, 1996 of the Court of Appeals in C.A.-G.R. CV No. 43837, which
affirmed with modification the Decision dated March 30, 1993 of the Regional Trial Court of Antipolo, Rizal, Branch 71, in Civil Case No. 677-A.

The evidence shows that in 1920, Fermin Lopez occupied, possessed, and declared for taxation purposes a parcel of public land containing an area
of 19 hectares, 48 ares, 88 centares, more or less, situated in Makatubong, Barrio De la Paz, Antipolo, Rizal. He filed a homestead application over the
land, but his application was not acted upon until his death in 1934. When he died, he was survived by the following: (1) Hermogenes Lopez, now deceased,
leaving his children, respondents Marcelino, Felisa, Zoilo, and Leonardo, all surnamed Lopez, as his heirs; (2) petitioner Eleuterio Lopez; (3) Juan Lopez,
now deceased, leaving his children, Guillermo, Lorenzo, Domingo, Amado, and Victoria, all surnamed Lopez, as his heirs;[2] and (4) Nazario, now
deceased, leaving his wife, petitioner Anatalia, and children, petitioners Joselito, Rogelio, Evangeline and Noel, all surnamed Lopez, as his heirs.

Following Fermins death, Hermogenes, being the eldest child, worked and introduced additional improvements on the land. In 1936, he inquired
from the Bureau of Lands the status of his late fathers application for a homestead grant. An official[3] of the bureau informed him that the application
remained unacted upon and suggested that he file a new application. Following the suggestion, Hermogenes filed a homestead application in his own
name, which was docketed as No. 138612. After ascertaining that the land was free from claim of any private person, the Bureau approved his application.
In 1939, Hermogenes submitted his final proof of compliance with the residency and cultivation requirements of the law. The land was surveyed and a
resulting plan, H-138612, was approved by the Director of Lands, who thereafter ordered the issuance of the homestead patent. The patent was later
transmitted to the Register of Deeds of Rizal for transcription and issuance of the corresponding certificate of title in his name.

Unaware that he has been awarded a homestead patent, Hermogenes executed on February 11, 1956 an Extra-judicial Partition of the disputed
land with his brothers - petitioner Eleuterio, Juan, and Nazario. On September 12, 1958, however, the three executed a Deed of Absolute Sale of their
share in the land in favor of Hermogenes. The succeeding year, Hermogenes applied with the Land Registration Commission for the registration of the
property in his name. This was docketed as LRC Case No. 2531. To his surprise, he found that the land has been registered in the names of Fernando
Gorospe, Salvador de Tagle, Rosario de Tagle, Beatriz de Suzuarrequi and Eduardo Santos, who collectively opposed his application.

In December 1959, Hermogenes filed a complaint for the annulment of the free patent and title against these persons before the Court of First
Instance of Rizal,[4] docketed as Civil Case No. 5957. Some of the defendants moved for its dismissal alleging that Hermogenes was not a real party in
interest since he previously sold his right to the land to one Ambrocio Aguilar on July 31, 1959. The case was dismissed.

Aguilar instituted on November 18, 1976 a new civil action before the CFI of Rizal,[5] docketed as Civil Case No. 24873. It was similar to Civil Case
No. 5957 except for the change in plaintiff and the addition of the Bureau of Lands as co-defendant. On April 15, 1982, the lower court declared Aguilar
as the absolute owner of the land and OCT No. 537 and all subsequent certificates of title emanating therefrom as void ab initio. This decision was
affirmed in toto by the Court of Appeals. In G.R. No. 90380, we affirmed the decision of the appellate court in a decision promulgated on September 13,
1990.[6]

After the April 15, 1982 decision of the CFI, and while the case was on appeal, respondent Lopezes, as heirs of Hermogenes (who died on August
20, 1982), filed a complaint against Aguilar before the RTC of Antipolo, Rizal. The July 14, 1984 complaint was for the cancellation of the deed of sale
executed by Hermogenes in favor of Aguilar dated July 31, 1959 and/or reconveyance. It was docketed as Civil Case No. 463-A. On February 5, 1985,
the lower court declared the deed of absolute sale null and void ab initio and the respondents as the true and absolute owner of the disputed land. Aguilar
sought relief with the Court of Appeals, which affirmed in toto the decision of the RTC in a Decision promulgated on August 18, 1987.[7] In G.R. No. 81092,
we denied Aguilars petition for review in a resolution dated April 6, 1998 for having been filed late.

On April 25, 1985, after the RTC of Antipolo rendered its February 5, 1987 decision in Civil Case No. 463-A and pending its appeal, respondent
Lopezes sold a large portion of the disputed property to respondent spouses Amurao.

On May 31, 1985, petitioners Eleuterio, Anatalia, Joselito, Rogelio, Evangeline and Noel, all heirs of Nazario Lopez, along with Guillermo, Lorenzo,
Domingo, Amado, and Victoria, all heirs of Juan Lopez, instituted the present action against the respondents before the RTC of Antipolo, Rizal, Branch
71, docketed as Civil Case No. 677-A. They prayed, among others, that they be declared co-owners of the property subject matter hereof and that private
respondents be ordered to reconvey to them 3/5 thereof as its co-owners, or in the alternative, to pay its value. On June 26, 1985, respondents filed their
Answer with Compulsory Counterclaim alleging that they are the absolute owners of the contested land on the basis of the homestead grant to their
predecessor-in-interest, Hermogenes.

After the pre-trial on November 27, 1987, trial ensued. In the August 28, 1986 hearing petitioners counsel failed to appear, causing the case to be
dismissed. The dismissal, however, was reconsidered upon motion of petitioners counsel, and the case was again set for hearing. In the scheduled hearing
of October 17, 1986, counsel for respondent was absent. Upon proper motion, petitioners were allowed to present their evidence ex-parte on December
5, 1986. Following the presentation of ex-parte evidence, the case was deemed submitted for resolution.

On June 25, 1987, the court a quo rendered a decision in favor of the petitioners ordering the division of the disputed lot in equal portions among
the four children of Fermin or their heirs. Respondents failed to appeal the decision but on September 10, 1987, they filed a petition for relief from judgment,
alleging that accident/excusable negligence prevented them from attending the trial and that they have a good, substantial and meritorious defense. On
December 28, 1989, the court a quo set aside its decision dated June 25, 1987 and ordered a pre-trial conference.
 On January 30, 1990, respondents filed a Motion to Admit Amended Answer alleging for the first time that petitioners have already sold to
Hermogenes their shares in the contested property. Petitioners opposed the motion on the ground that the amendments constituted substantial alteration
of the theory of the defense. On February 13, 1990, the court a quo allowed respondents to amend the answer. When their motion for reconsideration was
denied, petitioners elevated the issue directly to this court via a Petition for Certiorari. On April 25, 1990, we denied the petition for failure to comply with
the requirements of Circular 1-88, with a further pronouncement that, besides, even if the petition were admitted, the same would still be dismissed as the
Court finds that no grave abuse of discretion was committed by public respondent. Trial on the merits once more proceeded in the court a quo.

While the case was on trial, complainants therein Guillermo, Lorenzo, Domingo, Amado and Victoria, all children of Juan Lopez, entered into a
compromise agreement with the respondent Lopezes, heirs of Hermogenes, recognizing the latters ownership and possession of the property subject of
the case. They confirmed the sale made by their father Juan to Hermogenes. On July 20, 1992, the court a quo rendered a partial decision approving the
compromise agreement.[8]

On March 30, 1993, the court a quo rendered a Decision dismissing the complaint, the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered:

1. Ordering the dismissal of the case;

2. Declaring Hermogenes Lopez as the exclusive owner of the property in question;

3. Ordering the plaintiffs to pay the defendants the amount of P20,000.00 as attorneys fees; and

4. Ordering plaintiffs to pay the costs.

SO ORDERED.[9]

Feeling aggrieved, petitioners appealed to the Court of Appeals, which affirmed with modification the above Decision, thus:

Finally, We have to delete and disallow the award of attorneys fees for want of factual and legal premise in the text of the appealed Decision.

IN VIEW OF ALL THE FOREGOING, the decision appealed from is AFFIRMED with a modification that the award of attorneys fees is deleted. Costs against the
appellants.[10]

Hence, the present course of action where petitioners contend:

I. The Honorable Court of Appeals in ruling that the propriety of the grant of respondents petition for relief from judgment has been rendered moot is not in accord with
the decisions of this Honorable Supreme Court.

II. The Court of Appeals ruling that Fermin Lopez, the common predecessor-in-interest, was not entitled to the grant of the homestead patent, hence petitioners are not
co-owners of the disputed property is not in accord with the evidence and the decisions of this Honorable Supreme Court.

III. The Court of Appeals ruling that the statement or declarations in the extra-judicial partition (Exh. N); the special power of attorney (Exh. O); and the letter dated
January 11, 1984 (Exh. Q) were based on a wrong assumption that the property is owned by their common predecessor-in-interest -- is not in accord with the evidence
and decisions of this Honorable Supreme Court.

IV. The Court of Appeals committed reversible error in ruling that the forged absolute deed of sale dated September 12, 1958 has no bearing on the respondents claim
over the disputed property.

V. The Court of Appeals in not ruling that the remedy of partition is available to the petitioners is not in accord with law.

VI. The Court of Appeals ruling that laches applies to the herein (sic) who are close relatives is not in accord with the decisions of this Honorable Supreme Court. [11]

First, the procedural issue. Petitioners contend that the grant of relief from judgment is erroneous as the respondents did not substantiate their
allegation of fraud, accident, mistake, or excusable negligence which unjustly deprived them of a hearing. They add that while respondents had ample
opportunity to avail of other remedies, such as a motion for reconsideration or an appeal, from the time they received a copy of the decision on July 10,
1987, yet they did not do so.

Rule 38 of the 1997 Rules of Civil Procedure governs the petition for relief from judgment. Sections 2 and 3 of the Rules provide:

Section 2. Petition for relief from judgment, order or other proceedings. - When a judgment or final order is entered, or any other proceeding is thereafter taken against
a party in any court through fraud, accident, mistake or excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order
or proceeding be set aside.[12]

Section 3. Time for filing petition; contents and verification. - A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty
(60) days after the petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than six (6) months after such judgment or final order
was entered or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake or excusable negligence relied upon, and the
facts constituting the petitioners good and substantial cause of action or defense, as the case may be. [13]
 We find that respondents were deprived of their right to a hearing due to accident. In the October 17, 1986 hearing, their counsel was absent due to
asthma, which disabled him and made it difficult for him to talk. Similarly, when petitioners presented their evidence ex-parte on December 5, 1986, the
counsel for the respondents again failed to appear as he experienced another severe asthma attack. On both occasions, his absence is clearly excusable.

Nor is there any doubt that respondents were able to show that they have a good and substantial defense. They attached to their affidavit of merit
the following documents:[14] the decision of the Court of First Instance of Pasig in Civil Case No. 5957 entitled Hermogenes Lopez v. Fernando Gorospe, et
al.; the decision also of the Pasig CFI, in Civil Case No. 24873, entitled Ambrocio Aguilar v. Fernando Gorospe; the decisions of the lower and appellate
courts in the case of Marcelino Lopez, et al. v. Ambrocio Aguilar; the decision of the Municipal Trial Court of Antipolo in the case of Ambrocio Aguilar v.
Santos; and the Deed of Sale executed by and between Hermogenes and his brothers - petitioner Eleuterio, Nazario and Juan. The ruling in the foregoing
cases recognized the absolute ownership and possession of respondents predecessor-in-interest, Hermogenes Lopez. The deed showed that petitioner
Eleuterio, Juan and Nazario sold their rights and interests in the contested lot to their brother Hermogenes.

Time and again, we have stressed that the rules of procedure are not to be applied in a very strict and technical sense. The rules of procedure are
used only to help secure and not override substantial justice.[15] If a stringent application of the rules would hinder rather than serve the demands of
substantial justice, the former must yield to the latter.[16]

We now address the substantive issues. The most pivotal is the petitioners contention that the appellate court erred in holding that they are not co-
owners of the disputed property. They argue that Fermin, their predecessor-in-interest, has complied with all the requirements of the Public Land Act
pertaining to a homestead grant, and is therefore entitled to a patent as a matter of right. They claim that Fermin filed a homestead application over the
land, cultivated at least one-fifth of it, and resided on it for at least one year.Upon his death, they argue that they became its co-owners through succession.

We do not agree. Homestead settlement is one of the modes by which public lands suitable for agricultural purposes are disposed of.[17] Its object is
to provide a home for each citizen of the state, where his family may shelter and live beyond the reach of financial misfortune, and to inculcate in individuals
those feelings of independence which are essential to the maintenance of free institutions. [18]

The record is bereft of any evidence as to when Fermin exactly filed his homestead application over the lot in controversy, but it must have been
filed after 1920, the year he first occupied and possessed the land, and before 1934, the year he died. During this period, Act No. 2874 was the governing
law.[19] Section 12 thereof provides:

Sec. 12. Any citizen of the Philippine Islands or of the United States, over the age of eighteen years, or the head of a family, who does not own more than twenty-four
hectares of land in said Islands or has not had any benefit of any gratuitous allotment of more than twenty-four hectares of land since the occupation of the Philippine
Islands by the United States, may enter a homestead of not exceeding twenty-four hectares of agricultural land of the public domain. [20]

A person who is legally qualified has to file his application for a homestead patent with the Bureau of Lands. If in order, the application shall be
approved by the Director. The applicant will be authorized to enter the land upon payment of an entry fee of five pesos. [21] Within six months after approval
of the application, the applicant has to improve and cultivate the land. [22] He must cultivate at least one-fifth of the land for a period of not less than two
years nor more than five years from the date of approval of the application. [23]He must also continuously reside in the same municipality where the
homestead is located, or in an adjacent municipality, for at least one year. [24] He must finally present his final proof to the Bureau of Lands that he has
complied with the cultivation and residency requirements.[25]

It bears emphasis that Act No. 2874 requires that for an application to be valid, it must be approved by the Director of Lands. This is expressly
mandated by Section 13 of the law, viz:

Sec. 13. Upon filing of an application for a homestead, the Director of Lands, if he finds that the application should be approved, shall do so and authorize the
applicant to take possession of the land upon the payment of ten pesos, Philippine currency, as entry fee. Within six months from and after the date of the approval of
the application, the applicant shall begin to work the homestead, otherwise he shall lose his prior right to the land.[26] (emphasis supplied)

This provision gives the Director of Lands discretion to approve or deny an application. He is not a mere automaton who must perfunctorily approve
an application upon its filing. He is tasked to satisfy himself that, among others, the application papers meet the requirements of the law, the land is a
disposable public land, and the land is not subject of a previous valid application.[27] Only when he finds the application sufficient in form and substance
should he favorably act on it. Otherwise, he should deny it.

The application of Fermin unfortunately remained unacted upon up to the time of his death. It was neither approved nor denied by the Director, as
the Bureau failed to process it. Hence, he could not have acquired any vested rights as a homestead applicant over the property because his
application was never acted upon.

Reliance on the cases of Davao Grains, Inc. v. IAC[28] and Balboa v. Farrales[29] by the petitioners is misplaced. Those two had different factual
backdrops. In both Davao Grains, Inc. and Balboa, the disputed lots were subject of valid applications for public land grants. The valid applications
became our bases for ruling that once an applicant has complied with the cultivation, residency and other requirements of Act No. 2874, which entitle him
to a patent for a particular tract of land, he is deemed to have already acquired by operation of law not only a right to a grant, but a grant of the government
for it is not necessary that a certificate of title be issued in order that said grant may be sanctioned by the courts - an application therefor being sufficient
under the provisions of Section 47 of Act No. 2874.[30]

A valid application is sadly lacking in the case of Fermin. This circumstance prevented him from acquiring any vested right over the land and fully
owning it at the time of his death. Conformably, his heirs did not inherit any property right from him.[31]

Had the application of Fermin been duly approved, his heirs would have succeeded him in his rights and obligations with respect to the land he has
applied for. Sec. 103 of Act No. 2874 covers such a contingency, thus:

Sec. 103. If at any time the applicant or grantee shall die before the issuance of the patent or the final grant of the land, or during the life of the lease, or while the
applicant or grantee still has obligations pending towards the Government, in accordance with this Act, he shall be succeeded in his rights and obligations with respect
to the land applied for or granted or leased under this Act by his widow, who shall be entitled to have issued to her the patent or final concession if she shows that she
has complied with the requirement therefore, or in case he has left no widow or the widow refuses the succession, he shall be succeeded by the person or persons who
are his heirs by law and who shall be subrogated in all his rights and obligations for the purposes of this Act. [32]

The failure of the Bureau of Lands to act on the application of Fermin up to the time of his death, however, prevented his heirs to be subrogated in all his
rights and obligations with respect to the land applied for.
 Perforce, at the time Hermogenes applied for a homestead grant over the disputed property, it was still part of alienable public land. As he applied
for it in his own name, his application inures to his sole benefit. After complying with the cultivation and residency requirements, he became a grantee of
a homestead patent over it, thereby making him its absolute and exclusive owner. [33]

Petitioners, however, claim that Hermogenes and his heirs, respondent Lopezes, recognized their rights as co-owners of the disputed property, as
shown by the following documents: an Extra-judicial Partition of the real property executed by Hermogenes and his brothers - petitioner Eleuterio, Nazario,
and Juan;[34] a Special Power of Attorney to sell the lot in question executed by petitioner Eleuterio, Nazario and Juan in favor of Hermogenes;[35] and a
letter dated January 16, 1984, which contains the statement that petitioners are co-heirs of the property, and which respondent Marcelino Lopez
signed.[36] Petitioners argue that respondents are precluded from denying the contents of these documents based on the principle of estoppel by deed.
They add that while only Hermogenes applied for a homestead grant, nonetheless, there was an agreement among the brothers that his application was
for and in behalf of all them.

These arguments fail to impress. Estoppel by deed is a bar which precludes one party from asserting as against the other party and his privies any
right or title in derogation of the deed, or from denying the truth of any material facts asserted in it. [37] The principle is that when a man has entered into a
solemn engagement by deed, he shall not be permitted to deny any matter which he has asserted therein, for a deed is a solemn act to any part of which
the law gives effect as the deliberate admission of the maker.[38] It promotes the judicious policy of making certain formal documents final and conclusive
of their contents.[39]

A void deed, however, will not work, and may not be the basis of, an estoppel.[40] Covenants do not work an estoppel unless the deed in which they
are contained is itself a valid instrument.[41] In the case at bar, the deed and instruments at issue were void. The extra-judicial partition and the special
power of attorney to sell did not have an object certain, which is the subject matter of the deed. The disputed land cannot be their object because petitioners
do not have any right or interest over it. They are not its co-owners as it is owned absolutely by Hermogenes. Well to note, the two instruments were
executed on the mistaken assumption that Hermogenes and his brothers inherited the property from Fermin. Moreover, at the time the documents were
made, Hermogenes was unaware that he was granted a homestead patent. As correctly ruled by the appellate court, estoppel does not operate to confer
property rights where there are none.[42]

Apropos the letter dated January 16, 1984,[43] suffice it to state that we agree with the trial courts pronouncement that respondent Marcelino Lopez
signed it merely to gain the favors of his uncle Eleuterio Lopez and in no way does it constitute an admission that the plaintiffs (petitioners herein) are co-
owners of the property.[44] Under these circumstances, respondents cannot be held guilty of estoppel by deed.

The claim of the petitioners that Hermogenes filed the application in behalf of all the heirs of Fermin pursuant to a previous agreement does not hold
water. There is paucity of evidence in support of this allegation. Aside from the uncorroborated testimony of petitioner Eleuterio, petitioners were not able
to present other proof of the agreement. Besides, we cannot easily give credence to such a claim considering that under Act No. 2874, an applicant must
personally comply with the legal requirements for a homestead grant. He must possess the necessary qualifications. He must cultivate the land and reside
on it himself. It would be a circumvention of the law if an individual were permitted to apply in behalf of another, as the latter may be disqualified or might
not comply with the residency and cultivation requirements.

In respect of the fourth assigned error, we find that petitioners attack on the authenticity and validity of the Deed of Absolute Sale dated September
12, 1958, where petitioner Eleuterio, Juan, and Nazario allegedly sold their share in the disputed property to Hermogenes, bereft of merit. It did not change
the fact that no co-ownership existed among Hermogenes and his brothers. Hermogenes is the absolute owner of the disputed property just as his brothers
do not own any share in it. Hence, they cannot validly sell anything to Hermogenes by virtue of the deed.

Prescinding from the lack of co-ownership, petitioners argument that they are entitled to have the land partition must be rejected. Partition, in general,
is the separation, division and assignment of a thing held in common among those to whom it may belong. [45]The purpose of partition is to put an end to
co-ownership.[46] It seeks a severance of the individual interests of each co-owner, vesting in each a sole estate in specific property and giving to each one
a right to enjoy his estate without supervision or interference from the other.[47] Not being co-owners of the disputed lot, petitioners cannot demand its
partition. They do not have any interest or share in the property upon which they can base their demand to have it divided.

Petitioners last argument that they are not guilty of laches in enforcing their rights to the property is irrelevant. Laches is the negligence or omission
to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it has abandoned it or declined to assert it.[48] It does
not involve mere lapse or passage of time, but is principally an impediment to the assertion or enforcement of a right, which has become under the
circumstances inequitable or unfair to permit.[49] Petitioners insistence that they are not negligent in asserting their right over the property proceeds from
the wrong premise that they have a right to enforce over the disputed property as co-owners. There can be no delay in asserting a right where the right
does not exist.

IN VIEW WHEREOF, finding no cogent reason to reverse the impugned Decision of the Court of Appeals, the petition is DENIED for lack of merit.

SO ORDERED.