ART 814 substance, that the holographic Will

contained alterations, corrections, and

insertions without the proper
G.R. No. L-40207 September 28, 1984 authentication by the full signature of
the testatrix as required by Article 814
ROSA K. KALAW, petitioner, of the Civil Code reading:
vs.
HON. JUDGE BENJAMIN RELOVA, Art. 814. In case of any
Presiding Judge of the CFI of insertion, cancellation,
Batangas, Branch VI, Lipa City, and erasure or alteration in a
GREGORIO K. KALAW, respondents. holographic will the testator
must authenticate the
Leandro H. Fernandez for petitioner. same by his full signature.

Antonio Quintos and Jose M. Yacat for ROSA's position was that the
respondents. holographic Will, as first written, should
be given effect and probated so that
she could be the sole heir thereunder.
MELENCIO-HERRERA, J.: After trial, respondent Judge denied
probate in an Order, dated September
On September 1, 1971, private 3, 197 3, reading in part:
respondent GREGORIO K. KALAW,
claiming to be the sole heir of his The document Exhibit "C"
deceased sister, Natividad K. Kalaw, was submitted to the
filed a petition before the Court of First National Bureau of
Instance of Batangas, Branch VI, Lipa Investigation for
City, for the probate of her holographic examination. The NBI
Will executed on December 24, 1968. reported that the
handwriting, the signature,
The holographic Will reads in full as the insertions and/or
follows: additions and the initial
were made by one and the
My Last will and Testament same person.
Consequently, Exhibit "C"
In the name of God, Amen. was the handwriting of the
decedent, Natividad K.
I Natividad K. Kalaw Filipino 63years of
Kalaw. The only question is
age, single, and a resident of Lipa City,
whether the win, Exhibit
being of sound and disposing mind and
'C', should be admitted to
memory, do hereby declare thus to be
probate although the
my last will and testament.
alterations and/or
insertions or additions
1. It is my will that I'll be burried in the
above-mentioned were not
cemetery of the catholic church of Lipa
authenticated by the full
City. In accordance with the rights of
signature of the testatrix
said Church, and that my executrix
pursuant to Art. 814 of the
hereinafter named provide and erect at
Civil Code. The petitioner
the expose of my state a suitable
contends that the
monument to perpetuate my memory.
oppositors are estopped to
xxx xxx xxx assert the provision of Art.
814 on the ground that
The holographic Will, as first written, they themselves agreed
named ROSA K. Kalaw, a sister of the thru their counsel to submit
testatrix as her sole heir. Hence, on the Document to the NBI
FOR EXAMINATIONS.
1

November 10, 1971, petitioner ROSA

Page

K. Kalaw opposed probate alleging, in This is untenable. The

 parties did not agree, nor
was it impliedly
understood, that the
oppositors would be in
estoppel.
The Court finds, therefore,
that the provision of Article
814 of the Civil Code is
applicable to Exhibit "C".
Finding the insertions,
alterations and/or additions
in Exhibit "C" not to be
authenticated by the full
signature of the testatrix
Natividad K. Kalaw, the
Court will deny the
admission to probate of
Exhibit "C".
WHEREFORE, the petition
to probate Exhibit "C" as
the holographic will of
Natividad K. Kalaw is
hereby denied.
SO ORDERED.
From that Order, GREGORIO moved
for reconsideration arguing that since
the alterations and/or insertions were
the testatrix, the denial to probate of her
holographic Will would be contrary to
her right of testamentary disposition.
Reconsideration was denied in an
Order, dated November 2, 1973, on the
ground that "Article 814 of the Civil
Code being , clear and explicit, (it)
requires no necessity for interpretation."
From that Order, dated September 3,
1973, denying probate, and the Order
dated November 2, 1973 denying
reconsideration, ROSA filed this
Petition for Review on certiorari on the
sole legal question of whether or not
the original unaltered text after
subsequent alterations and insertions
were voided by the Trial Court for lack
of authentication by the full signature of
the testatrix, should be probated or not,
with her as sole heir.
Ordinarily, when a number of erasures,
corrections, and interlineations made by
the testator in a holographic Will litem
not been noted under his signature, ...
the Will is not thereby invalidated as a
whole, but at most only as respects the
particular words erased, corrected or
interlined.1 Manresa gave an Identical
commentary when he said "la omision
de la salvedad no anula el testamento,
segun la regla de jurisprudencia
establecida en la sentencia de 4 de
Abril de 1895." 2
However, when as in this case, the
holographic Will in dispute had only one
substantial provision, which was altered
by substituting the original heir with
another, but which alteration did not
carry the requisite of full authentication
by the full signature of the testator, the
effect must be that the entire Will is
voided or revoked for the simple reason
that nothing remains in the Will after
that which could remain valid. To state
that the Will as first written should be
given efficacy is to disregard the
seeming change of mind of the
testatrix. But that change of mind can
neither be given effect because she
failed to authenticate it in the manner
required by law by affixing her full
signature,
The ruling in Velasco, supra, must be
held confined to such insertions,
cancellations, erasures or alterations in
a holographic Will, which affect only the
efficacy of the altered words
themselves but not the essence and
validity of the Will itself. As it is, with the
erasures, cancellations and alterations
made by the testatrix herein, her real
intention cannot be determined with
certitude. As Manresa had stated in his
commentary on Article 688 of the
Spanish Civil Code, whence Article 814
of the new Civil Code was derived:
... No infringe lo dispuesto
en este articulo del Codigo
(el 688) la sentencia que
no declara la nulidad de un
testamento olografo que
contenga palabras
tachadas, enmendadas o
entre renglones no
salvadas por el testador
bajo su firnia segun
2
previene el parrafo tercero
Page
del mismo, porque, en
realidad, tal omision solo voluntad del testador
puede afectar a la validez manifiesta en el
o eficacia de tales documento. Asi lo advierte
palabras, y nunca al la sentencia de 29 de
testamento mismo, ya por Noviembre de 1916, que
estar esa disposicion en declara nulo un testamento
parrafo aparte de aquel olografo por no estar
que determine las salvada por el testador la
condiciones necesarias enmienda del guarismo
para la validez del ultimo del año en que fue
testamento olografo, ya extendido3(Emphasis
porque, de admitir lo ours).
contrario, se Ilegaria al
absurdo de que pequefias WHEREFORE, this Petition is hereby
enmiendas no salvadas, dismissed and the Decision of
que en nada afectasen a la respondent Judge, dated September 3,
parte esencial y respectiva 1973, is hereby affirmed in toto. No
del testamento, vinieran a costs.
anular este, y ya porque el
precepto contenido en SO ORDERED.
dicho parrafo ha de
entenderse en perfecta
armonia y congruencia con
el art. 26 de la ley del
Notariado que declara
nulas las adiciones
apostillas
entrerrenglonados,
raspaduras y tachados en
las escrituras matrices,
siempre que no se salven
en la forma prevenida,
paro no el documento que
las contenga, y con mayor
motivo cuando las palabras
enmendadas, tachadas, o
entrerrenglonadas no
tengan importancia ni
susciten duda alguna
acerca del pensamiento
del testador, o constituyan
meros accidentes de
ortografia o de purez
escrituraria, sin
trascendencia alguna(l).

Mas para que sea

aplicable la doctrina de
excepcion contenida en
este ultimo fallo, es preciso
que las tachaduras,
enmiendas o
entrerrenglonados sin
salvar saan de pala bras
que no afecter4 alteren ni
3

uarien de modo
Page

substancial la express
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA
AJERO, petitioners,
vs.
THE COURT OF APPEALS AND
CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private
respondent.
PUNO, J.:
This is an appeal by certiorari from the
Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840,
dated March 30, 1992, the dispositive
portion of which reads;
PREMISES
CONSIDERED, the
questioned decision of
November 19, 1988 of the
trial court is hereby
REVERSED and SET
ASIDE, and the petition for
probate is hereby
DISMISSED. No costs.
The earlier Decision was
rendered by the RTC of Quezon
City, Branch 94, 2 in Sp. Proc.
No. Q-37171, and the instrument
submitted for probate is the
holographic will of the late Annie
Sand, who died on November 25,
1982.
In the will, decedent named as
devisees, the following: petitioners
Roberto and Thelma Ajero, private
respondent Clemente Sand, Meriam S.
Arong, Leah Sand, Lilia Sand, Edgar
Sand, Fe Sand, Lisa S. Sand, and Dr.
Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners
instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic
will. They alleged that at the time of its
execution, she was of sound and
disposing mind, not acting under
duress, fraud or undue influence, and
was in every respect capacitated to
dispose of her estate by will.
Private respondent opposed the petition
on the grounds that: neither the
testament's body nor the signature
therein was in decedent's handwriting; it
contained alterations and corrections
which were not duly signed by
decedent; and, the will was procured by
petitioners through improper pressure
and undue influence. The petition was
likewise opposed by Dr. Jose Ajero. He
contested the disposition in the will of a
house and lot located in Cabadbaran,
Agusan Del Norte. He claimed that said
property could not be conveyed by
decedent in its entirety, as she was not
its sole owner.
Notwithstanding the oppositions, the
trial court admitted the decedent's
holographic will to probate. It
found, inter alia:
Considering then that the
probate proceedings herein
must decide only the
question of identity of the
will, its due execution and
the testamentary capacity
of the testatrix, this probate
court finds no reason at all
for the disallowance of the
will for its failure to comply
with the formalities
prescribed by law nor for
lack of testamentary
capacity of the testatrix.
For one, no evidence was
presented to show that the
will in question is different
from the will actually
executed by the testatrix.
The only objections raised
by the oppositors . . . are
that the will was not written
in the handwriting of the
testatrix which properly
refers to the question of its
due execution, and not to
the question of identity of
will. No other will was
alleged to have been
executed by the testatrix
other than the will herein
presented. Hence, in the
4
light of the evidence
Page
adduced, the identity of the
will presented for probate
must be accepted, i.e., the
will submitted in Court
must be deemed to be the
will actually executed by
the testatrix.
xxx xxx xxx
While the fact that it was
entirely written, dated and
signed in the handwriting of
the testatrix has been
disputed, the petitioners,
however, have
satisfactorily shown in
Court that the holographic
will in question was indeed
written entirely, dated and
signed in the handwriting of
the testatrix. Three (3)
witnesses who have
convincingly shown
knowledge of the
handwriting of the testatrix
have been presented and
have explicitly and
categorically identified the
handwriting with which the
holographic will in question
was written to be the
genuine handwriting and
signature of the testatrix.
Given then the aforesaid
evidence, the requirement
of the law that the
holographic will be entirely
written, dated and signed
in the handwriting of the
testatrix has been complied
with.
xxx xxx xxx
As to the question of the
testamentary capacity of
the testratix, (private
respondent) Clemente
Sand himself has testified
in Court that the testatrix
was completely in her
sound mind when he
visited her during her
birthday celebration in
1981, at or around which
time the holographic will in
question was executed by
the testatrix. To be of
sound mind, it is sufficient
that the testatrix, at the
time of making the will,
knew the value of the
estate to be disposed of,
the proper object of her
bounty, and the characterof
the testamentary act . . .
The will itself shows that
the testatrix even had
detailed knowledge of the
nature of her estate. She
even identified the lot
number and square meters
of the lots she had
conveyed by will. The
objects of her bounty were
likewise identified explicitly.
And considering that she
had even written a nursing
book which contained the
law and jurisprudence on
will and succession, there
is more than sufficient
showing that she knows
the character of the
testamentary act.
In this wise, the question of
identity of the will, its due
execution and the
testamentary capacity of
the testatrix has to be
resolved in favor of the
allowance of probate of the
will submitted herein.
Likewise, no evidence was
presented to show
sufficient reason for the
disallowance of herein
holographic will. While it
was alleged that the said
will was procured by undue
and improper pressure and
influence on the part of the
beneficiary or of some
other person, the evidence
adduced have not shown
any instance where
improper pressure or
influence was exerted on
the testatrix. (Private
respondent) Clemente
5
Sand has testified that the
Page
testatrix was still alert at
 the time of the execution of
the will, i.e., at or around
the time of her birth
anniversary celebration in
1981. It was also
established that she is a
very intelligent person and
has a mind of her own. Her
independence of character
and to some extent, her
sense of superiority, which
has been testified to in
Court, all show the
unlikelihood of her being
unduly influenced or
improperly pressured to
make the aforesaid will. It
must be noted that the
undue influence or
improper pressure in
question herein only refer
to the making of a will and
not as to the specific
testamentary provisions
therein which is the proper
subject of another
proceeding. Hence, under
the circumstances, this
Court cannot find
convincing reason for the
disallowance of the will
herein.
Considering then that it is a
well-established doctrine in
the law on succession that
in case of doubt, testate
succession should be
preferred over intestate
succession, and the fact
that no convincing grounds
were presented and proven
for the disallowance of the
holographic will of the late
Annie Sand, the aforesaid
will submitted herein must
be admitted to
3 duress, or the influence of
probate. (Citations
omitted.)
On appeal, said Decision was reversed,
and the petition for probate of
decedent's will was dismissed. The
Court of Appeals found that, "the
holographic will fails to meet the
requirements for its validity." 4 It held
that the decedent did not comply with
Articles 813 and 814 of the New Civil
Code, which read, as follows:
Art. 813: When a number
of dispositions appearing in
a holographic will are
signed without being dated,
and the last disposition has
a signature and date, such
date validates the
dispositions preceding it,
whatever be the time of
prior dispositions.
Art. 814: In case of
insertion, cancellation,
erasure or alteration in a
holographic will, the
testator must authenticate
the same by his full
signature.
It alluded to certain dispositions in the
will which were either unsigned and
undated, or signed but not dated. It also
found that the erasures, alterations and
cancellations made thereon had not
been authenticated by decedent.
Thus, this appeal which is impressed
with merit.
Section 9, Rule 76 of the Rules of Court
provides that will shall be disallowed in
any of the following cases:
(a) If not executed and
attested as required by
law;
(b) If the testator was
insane, or otherwise
mentally incapable to make
a will, at the time of its
execution;
(c) If it was executed under
fear, or threats;
(d) If it was procured by
undue and improper
pressure and influence, on
the part of the beneficiary,
or of some other person for
his benefit;
6
Page
 (e) If the signature of the (6) If the
testator was procured by testator acted
fraud or trick, and he did by mistake or
not intend that the did not intend
instrument should be his that the
will at the time of fixing his instrument he
signature thereto. signed should
be his will at
In the same vein, Article 839 of the time of
the New Civil Code reads: affixing his
signature
Art. 839: The will shall be thereto.
disallowed in any of the
following cases; These lists are exclusive; no other
grounds can serve to disallow a
(1) If the will. 5 Thus, in a petition to admit a
formalities holographic will to probate, the only
required by issues to be resolved are: (1) whether
law have not the instrument submitted is, indeed, the
been complied decedent's last will and testament; (2)
with; whether said will was executed in
accordance with the formalities
(2) If the prescribed by law; (3) whether the
testator was decedent had the necessary
insane, or testamentary capacity at the time the
otherwise will was executed; and, (4) whether the
mentally execution of the will and its signing
incapable of were the voluntary acts of the
making a will, decedent. 6
at the time of
its execution; In the case at bench, respondent court
held that the holographic will of Anne
(3) If it was Sand was not executed in accordance
executed with the formalities prescribed by law. It
through force held that Articles 813 and 814 of the
or under New Civil Code, ante, were not
duress, or the complied with, hence, it disallowed the
influence of probate of said will. This is erroneous.
fear, or
threats; We reiterate what we held in Abangan
vs. Abangan, 40 Phil. 476, 479
(4) If it was (1919), that:
procured by
undue and The object of the
improper solemnities surrounding
pressure and the execution of wills is to
influence, on close the door against bad
the part of the faith and fraud, to avoid
beneficiary or substitution of wills and
of some other testaments and to guaranty
person; their truth and authenticity.
Therefore, the laws on this
(5) If the subject should be
signature of interpreted in such a way
the testator as to attain these
was procured primordial ends. But, on
7
Page

by fraud; the other hand, also one

 must not lose sight of the
fact that it is not the object
of the law to restrain and
curtail the exercise of the
right to make a will. So
when an interpretation
already given assures such
ends, any other
interpretation whatsoever,
that adds nothing but
demands more requisites
entirely unnecessary,
useless and frustrative of
the testator's last will, must
be disregarded.
For purposes of probating non-
holographic wills, these formal
solemnities include the subscription,
attestation, and acknowledgment
requirements under Articles 805 and
806 of the New Civil Code.
In the case of holographic wills, on the
other hand, what assures authenticity is
the requirement that they be totally
autographic or handwritten by the
testator himself, 7 as provided under
Article 810 of the New Civil Code, thus:
A person may execute a
holographic will which must
be entirely written, dated,
and signed by the hand of
the testator himself. It is
subject to no other form,
and may be made in or out
of the Philippines, and
need not be witnessed.
(Emphasis supplied.)
Failure to strictly observe other
formalities will not result in the
disallowance of a holographic will
that is unquestionably
handwritten by the testator.
A reading of Article 813 of the New Civil
Code shows that its requirement affects
the validity of the dispositions contained
in the holographic will, but not its
probate. If the testator fails to sign and
date some of the dispositions, the result
is that these dispositions cannot be
effectuated. Such failure, however,
does not render the whole testament
void.
Likewise, a holographic will can still be
admitted to probate, notwithstanding
non-compliance with the provisions of
Article 814. In the case of Kalaw
vs. Relova 132 SCRA 237 242 (1984),
this Court held:
Ordinarily, when a number
of erasures, corrections,
and interlineations made
by the testator in a
holographic Will have not
been noted under his
signature, . . . the Will is
not thereby invalidated as
a whole, but at most only
as respects the particular
words erased, corrected or
interlined. Manresa gave
an identical commentary
when he said "la omission
de la salvedad no anula el
testamento, segun la regla
de jurisprudencia
establecida en la sentencia
de 4 de Abril de
8
1985." (Citations omitted.)
Thus, unless the unauthenticated
alterations, cancellations or insertions
were made on the date of the
holographic will or on testator's
signature, 9 their presence does not
invalidate the will itself. 10 The lack of
authentication will only result in
disallowance of such changes.
It is also proper to note that the
requirements of authentication of
changes and signing and dating of
dispositions appear in provisions
(Articles 813 and 814) separate from
that which provides for the necessary
conditions for the validity of the
holographic will (Article 810). The
distinction can be traced to Articles 678
and 688 of the Spanish Civil Code, from
which the present provisions covering
holographic wills are taken. They read
as follows:
Art. 678: A will is called
holographic when the
testator writes it himself in
the form and with the
requisites required in
8
Page
Article 688.
 Art. 688: Holographic wills
may be executed only by
persons of full age.
In order that the will be
valid it must be drawn on
stamped paper
corresponding to the year
of its execution, written in
its entirety by the testator
and signed by him, and
must contain a statement
of the year, month and day
of its execution.
If it should contain any
erased, corrected, or
interlined words, the
testator must identify them
over his signature.
Foreigners may execute
holographic wills in their
own language.
dispose of the whole property, which
she shares with her father's other heirs.
IN VIEW WHEREOF, the instant
petition is GRANTED. The Decision of
the Court of Appeals in CA-G.R. CV
No. 22840, dated March 30, 1992, is
REVERSED and SET ASIDE, except
with respect to the invalidity of the
disposition of the entire house and lot in
Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of
Quezon City, Branch 94 in Sp. Proc.
No. Q-37171, dated November 19,
1988, admitting to probate the
holographic will of decedent Annie
Sand, is hereby REINSTATED, with the
above qualification as regards the
Cabadbaran property. No costs.
SO ORDERED.

This separation and distinction adds

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

The Court of Appeals further held that

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

As a general rule, courts in probate

proceedings are limited to pass only
upon the extrinsic validity of the will
sought to be probated. However, in
exceptional instances, courts are not
powerless to do what the situation
constrains them to do, and pass upon
certain provisions of the will. 11 In the
case at bench, decedent herself
indubitably stated in her holographic will
that the Cabadbaran property is in the
name of her late father, John H. Sand
(which led oppositor Dr. Jose Ajero to
question her conveyance of the same in
its entirety). Thus, as correctly held by
respondent court, she cannot validly
9
Page
G.R. No. L-26306 April 27, 1988
TESTATE ESTATE OF THE LATE
GREGORIO VENTURA MARIA
VENTURA, executrix- appellant,
MIGUEL VENTURA and JUANA
CARDONA, heirs-appellants,
vs.
GREGORIA VENTURA and HER
HUSBAND, EXEQUIEL VICTORIO,
MERCEDES VENTURA and HER
HUSBAND, PEDRO D.
CORPUZ, oppositors-appellees.
PARAS, J.:
This is an appeal from the order of the
Court of First Instance of Nueva Ecija,
Guimba, Branch V in Special
Proceedings No. 812, Testate of the
late Gregorio Venture, dated October 5,
1965, removing the appellant Maria
Ventura as executrix and administratrix
of the estate of the late Gregorio
Ventura, and in her place appointing
the appellees Mercedes Ventura and
Gregoria Ventura as joint
administratrices of the estate. (Record
on Appeal, pp. 120-131.)
Appellant Maria Ventura is the
illegitimate daughter of the deceased
Gregorio Ventura while Miguel Ventura
and Juana Cardona are his son and
saving spouse who are also the brother
and mother of Maria Ventura. On the
other hand, appellees Mercedes and
Gregoria Ventura are the deceased's
legitimate children with his former wife,
the late Paulina Simpliciano (Record on
Appeal, p. 122) but the paternity of
appellees was denied by the deceased
in his will (Record on Appeal, p. 4).
On December 14,1953, Gregorio
Ventura filed a petition for the probate
of his will which did not include the
appellees and the petition was
docketed as Special Proceedings No.
812 (Record on Appeal, pp. 1-3). In the
said will, the appellant Maria Ventura,
although an illegitimate child, was
named and appointed by the testator to
be the executrix of his will and the
administratrix of his estate (Record on
Appeal, p. 7).
In due course, said will was admitted to
probate on January 14,1954 (Record
on Appeal, pp. 8-10). Gregorio Ventura
died on September 26,1955. On
October 10, 1955, the appellant Maria
Ventura filed a motion for her
appointment as executrix and for the
issuance of letters testamentary in her
favor (Record on Appeal, pp. 10-11).
On October 17, 1955, Maria Ventura
was appointed executrix and the
corresponding letters testamentary was
issued in her favor (Record on Appeal,
pp. 11-12).
On or about July 26, 1956, Maria
Ventura submitted an inventory of the
estate of Gregorio Ventura (Record on
Appeal, pp. 12-20).
On June 17,1960, she filed her
accounts of administration for the years
1955 to 1960, inclusive. (Record on
Appeal, pp. 20-27). Said account of
administration was opposed by the
spouses Mercedes Ventura and Pedro
Corpuz on July 25, 1960 (Record on
Appeal, pp. 27-33) and by Exequiel
Victorio and Gregoria Ventura on
August 5,1963 (Record on Appeal, pp.
46-50). Both oppositions assailed the
veracity of the report as not reflecting
the true income of the estate and the
expenses which allegedly are not
administration expenses. But on
January 25, 1961, Maria Ventura filed a
motion to hold in abeyance the
approval of the accounts of
administration or to have their approval
without the opposition of the spouses
Mercedes Ventura and Pedro Corpuz
and Gregoria Ventura and Exequiel
Victorio on the ground that the question
of the paternity of Mercedes Ventura
and Gregoria Ventura is still pending
final determination before the Supreme
Court and that should they be adjudged
the adulterous children of testator, as
claimed, they are not entitled to inherit
nor to oppose the approval of the
counts of administration (Record on
Appeals, pp. 33-36). Spouses
10
Mercedes Ventura and Pedro Corpuz
Page
filed on February 2, 1961 their
opposition to the motion to hold in
abeyance the approval of the accounts
of administration on the ground that
Mercedes and Gregoria Ventura had
already been declared by the Court of
First Instance in Civil Cases No. 1064
and 1476, which cases are supposed to
be pending before the Supreme Court,
as the legitimate children of Gregorio
Ventura, hence, they have reason to
protect their interest (Record on
Appeal, pp. 36-39). On February
9,1961, the motion to hold in abeyance
the approval of the accounts was
denied (Record on Appeal, pp. 39-40).
It appears that on July 12, 1963, the
Court set the case for pre-trial on
August 7, 1963 in connection with the
accounts of the executrix Maria Ventura
dated June 17, 1960 and the Motion to
Annul Provision of Will dated July
14,1962 of Mercedes Ventura (Record
on Appeal, p. 45).
On October 22, 1963, four motions
were filed by Mercedes Ventura and
Gregoria Ventura, namely: (1) motion to
remove the executrix Maria Ventura
which was supplemented on April 27,
1965; (2) motion to require her to
deposit the harvest of palay of the
property under administration in a
bonded warehouse; (3) motion to
render an accounting of the proceeds
and expenses of Administration; and (4)
motion to require her to include in the
inventory of the estate certain excluded
properties (Record on Appeal, pp. 50-
53; 71). An opposition to said motions
was filed by the heirs Juana Cardona
and Miguel Ventura and by the
executrix Maria Ventura herself (Record
on Appeal, pp. 56-61; 61-70 and 71).
On motion of counsel for Exequiel
Victorio and Gregoria Ventura the joint
motions to require an Up-to-date
Accounting and to Require Executrix
Ventura to Include Excluded Properties
in Her Inventory were ordered
withdrawn (Order dated February 2,
1965, Record on Appeal, p. 73). The
other two motions were however set for
hearing.
The grounds of aforesaid joint motions
to remove the executrix Maria Ventura
are: (1) that she is grossly incompetent;
(2) that she has maliciously and
purposely concealed certain properties
of the estate in the inventory; (3) that
she is merely an illegitimate daughter
who can have no harmonious relations
with the appellees; (4) that the executrix
has neglected to render her accounts
and failed to comply with the Order of
the Court of December 12, 1963,
requiring her to file her accounts of
administration for the years 1961 to
1963 (Record on Appeal, pp. 70 and
75-76) and the Order of June 11, 1964,
reiterating aforesaid Order of December
12, 1963 (Record on Appeal, p. 76);
and (5) that she is with permanent
physical defect hindering her from
efficiently performing her duties as an
executrix (Record on Appeal, pp. 50-53
and 74-79).
On May 17, 1965, the executrix Maria
Ventura finally submitted her accounts
of administration covering the period
1961 to 1965 (Record on Appeal, pp.
79-84) which were again opposed by
the spouses Exequiel Victorio and
Gregoria Ventura on September 21,
1965 and by the spouses Mercedes
Ventura and Pedro Corpuz on
September 29, 1965 (Record on
Appeal, pp. 106-120). On June 2, 1965,
the executrix filed her supplemental
opposition to the aforesaid four
motions, and prayed that the joint
supplemental motion to remove the
executrix be denied or held in abeyance
until after the status of Mercedes and
Gregoria Ventura as heirs of the
testator is finally decided (Record on
Appeal, pp. 85-1 01). On June 3, 1965,
the Court, finding that the estate taxes
have not been paid, ordered the
administratrix to pay the same within
thirty (30) days. On September 13,
1965, the lower court denied the
suspension of the proceedings and
deferred the resolution of the joint
motion to remove executrix Maria
Ventura until after the examination of
the physical fitness of said executrix to
undertake her duties as such. Also, it
11
ordered the deposit of all palay to be
Page
harvested in the next agricultural year
and subsequent years to be deposited
in a bonded warehouse to be selected
by the Court and the palay so deposited
shall not be withdrawn without the
express permission of the Court
(Record on Appeal, pp. 103-105). On
September 21, 1965, spouses Exequiel
Victorio and Gregoria Ventura filed their
opposition to the accounts of
administration of Maria Ventura dated
May 17, 1965, while that of spouses
Mercedes Ventura and Pedro Corpuz
was filed on September 29, 1965, both
oppositions alleging among others that
said accounts do not reflect the true
and actual income of the estate and
that the expenses reported thereunder
are fake, exhorbitant and speculative
(Record on Appeal, pp. 106-120).
Miguel Ventura assign the following
errors allegedly committed by the
probate court:
ASSIGNMENT OF
ERRORS
I
The lower court erred in
ordering the removal of
Maria Ventura as executrix
and administratrix of the
will and estate of the
deceased Gregorio
Ventura without giving her
full opportunity to be heard
and to present all her
evidence.

On October 5, 1965, the court a quo, II

finding that the executrix Maria Ventura
has squandered the funds of the estate, The lower court erred in
was inefficient and incompetent, has finding that the executrix
failed to comply with the orders of the Maria Ventura had
Court in the matter of presenting up-to- squandered and dissipated
date statements of accounts and the funds of the estate
neglected to pay the real estate taxes under her administration.
of the estate, rendered the questioned
decision, the dispositive portion of III
which reads:
The lower court erred in
WHEREFORE, Maria finding that the executrix
Ventura is hereby removed Maria Ventura was
as executrix and inefficient and incompetent.
administratrix of the estate
and in her place Mercedes IV
Ventura and Gregoria
That, considering the
Ventura are hereby
circumtances surrounding
appointed joint a tratrices
the case, the lower court
of the estate upon filing by
erred in finding that the
each of them of a bond of
failure of Maria Ventura to
P 7,000.00. Let letters of
submit her periodical
administration be issued to
account had justified her
Mercedes Ventura and
removal as executrix.
Gregoria Ventura upon
their qualification.
V
IT IS SO ORDERED.
The lower court erred in
considering as an
(Record on Appeal pp.
established fact that the
120-131).
appellees Mercedes
Hence, this appeal. Ventura and Gregoria
Ventura are the legitimate
12

In their brief, appellants Maria Ventura daughters of the deceased

Gregorio Ventura.
Page

and spouses Juana Cardona and

VI administratrix thereof is
legally justified.
The lower court erred in
finding that the devises and X
bequests in favor of Maria
Ventura and Miguel Considering that there are
Ventura as specified in in fact two (2) factions
paragraph 8 of the last Will representing opposite
and Testament of the late interests in the estate, the
Gregorio Ventura have lower court erred in not
ipso facto been annulled. appointing Juana Cardona,
or Miguel Ventura, as one
VII of the two (2)
administratrices.' (Joint
The lower court erred in Brief for the Appellants, pp.
allowing the appellees 1-4)
Mercedes Ventura and
Gregoria Ventura to On July 19,1967, Atty. Arturo Tolentino
intervene in the hearing of (representing appellees Mercedes
the accounts of Ventura and Pedro Corpuz) and Atty.
administration submitted by Jose J. Francisco (representing
the executrix Maria Gregoria and Exequiel Victoria), having
Ventura and/or in not failed to submit their respective briefs
suspending the hearing of within the period for the purpose, which
the said accounts until the expired on July 2 and May 29,1967,
said appellees have finally respectively, the Supreme Court
established their status as Resolved to consider this case
legitimate children of the submitted for decision WITHOUT SAID
deceased Gregorio APPELLEES' BRIEF (Rollo, p. 152).
Ventura.
The crucial issue in this case is whether
VIII or not the removal of Maria Ventura as
executrix is legally justified. This issue
The lower court erred in has, however, become moot and
appointing (even without a academic in view of the decision of this
proper petition for Court in related cases.
appointment and much
less a hearing on the At the outset, it is worthy to note that
appointment of) the aside from the instant special
appellees Mercedes proceedings, there are two other civil
Ventura and Gregoria cases involving the estate of the
Ventura who have an deceased Gregoria Ventura, namely,
adverse interest as joint Civil Cases Nos. 1064 and 1476. Civil
administratrices of the Case No. 1064 was filed on December
estate of the deceased 2, 1952 by herein appellee Gregoria
Gregorio Ventura. Ventura in the Court of First Instance of
Nueva Ecija, Branch I, against the other
IX appellees herein Mercedes Ventura
and their father, Gregorio Ventura.
The lower court erred in Later Mercedes Ventura joined cause
not appointing the surviving with Gregoria Ventura. (Record on
widow, Juana Cardona, or Appeal, p. 95). Gregoria and Mercedes
Miguel Ventura, as Ventura claimed that they are the
administratrix of the estate legitimate children of Gregorio Ventura
of Gregorio Ventura in and his wife Paulina Simpliciano, who
13

case the removal of Maria died in 1943, and asked that one-half of
Page

Ventura as executrix and the properties described in the

complaint be declared as the share of
their mother in the conjugal partnership,
with them as the only forced heirs of
their mother Paulina (Joint Brief for the
Appellants, pp. 53-68).
Subsequently, Civil Case No. 1476 was
filed by Alipio, Eufracia and Juliana, all
surnamed Simpliciano, against
Gregorio Ventura and the two sisters,
Mercedes and Gregoria Ventura, before
the Court of First Instance of Nueva
Ecija, Branch I. They alleged that as the
only children of Modesto Simpliciano,
sole brother of Paulina Simpliciano,
they, instead of Mercedes and Gregoria
Ventura, whom they claimed are
adulterous children of Paulina with
another man, Teodoro Ventura and as
such are not entitled to inherit from her,
are the ones who should inherit the
share of Paulina Simpliciano in the
conjugal Partnership with Gregorio
Ventura (Joint Brief For The
Appealant,pp.69-79)
It appears that on November 4, 1959,
after a joint hearing of Civil Cases Nos.
1064 and 1476, the lower court
rendered its judgment, the dispositive
portion of which reads as follows:
WHEREFORE, judgment is
hereby rendered declaring
Mercedes Ventura and
Gregoria Ventura to be the
ligitimate daughters of
Paulina Simpliciano and
Gregorio Ventura;
declaring that as such
ligitimate daughters of
Paulina Simpliciano they
are entitled to 1/2 of the
properties described in
paragraph six of the
complaint; ordering the
defendant Maria Ventura,
as administratrix of the
estate of Gregorio Ventura
to pay to Mercedes
Ventura and Gregorio
Ventura the amount of P
19,074.09 which shall be
divided equally between
Mercedes and Gregoria
Ventura declaring
Mercedes Ventura and
Pedro Corpuz are the
exclusive owners of the
property describe in the
certificate of Title Nos. T-
1102, 212, T-1213, T-1214,
Exhibits 32, 33, 34 and 35,
respectively; ordering
Mercedes Ventura and
Pedro D. Corpuz to pay to
the conjugal partnership of
Gregorio Ventura and
Paulina Simpliciano the
sum of P100,000.00, one-
half of which shall pertain
to the estate of Gregorio
Ventura and the other half
to the estate of Paulina
Simpliciano to whom
Mercedes and Gregoria
Ventura have succeeded,
to be divided between
Mercedes and Gregoria in
equal parts; and dismissing
Civil Case No. 1476. The
parties are urged to arrive
at an amicable partition of
the properties herein
adjudicated within twenty
days from receipt of this
decision. Upon their failure
to do so, the Court shall
appoint commissioners to
divide the properties in
accordance with the terms
of the decision. Without
pronouncements as to
costs. (Emphasis
supplied). (Joint Brief for
the Appellants, pp. 3738.)
Thereafter, on July 14, 1962, Mercedes
Ventura filed a motion to annul the
provisions of the will of the deceased
Gregorio Ventura in Special
Proceedings No. 812, which motion
was opposed by Miguel Ventura and
Juana Cardona and later by Maria
Ventura. They claimed that the decision
dated November 4,1959 in Civil Cases
Nos. 1064 and 1476 was not yet final.
On February 26,1964, the court
annulled the institution of the heirs in
the probated will of Gregorio Ventura.
The motion for reconsideration of the
14
aforesaid order filed by executrix Maria
Page
Ventura was denied on June 11, 1964.
Accordingly, Maria Ventura appealed
the February 26, 1964 and June 11,
1964 orders of the probate court in
Special Proceedings No. 812 before the
Supreme Court and was docketed as
G.R. No. L-23878. On May 27,1977,
this Court, through then Associate
Justice Antonio P. Barredo, ruled, as
follows:
And so, acting on
appellees' motion to
dismiss appeal, it is Our
considered opinion that the
decision in Civil Cases
Nos.1064 and 1476
declaring that appellees
Mercedes and Gregoria
Ventura are the ligimate
children of the deceased
Gregorio Ventura and his
wife, Paulina Simpliciano,
and as such are entitled to
the annulment of the
institution of heirs made in
the probated will of said
deceased became final
and executory upon the
finality of the order,
approving ther partition
directed in the decision in
question. We need not
indulge in any discussion
as to whether or not, as of
the time the orders here in
question were issued by
the trial court said decision
had the nature of an
interlocutory order only. To
be sure, in the case of
Miranda, aforementioned,
the opinion of the majority
of the Court may well be
invoked against appellant's
pose. In any event, even if
the Court were minded to
modify again Miranda and
go back to Fuentebella and
Zaldariaga — and it is not,
as of now — there can be
no question that the
approval by the trial court
in Civil Cases Nos. 1064
and 1476 of the partition
report of the
commissioners appointed
for the purpose, one of
whom, Emmanuel Mariano,
is the husband of
appellant, put a definite
end to those cases, leaving
nothing else to be done in
the trial court. That order of
approval is an appealable
one, and inasmuch as no
appeal has been taken
from the same, it is beyond
dispute that the decision in
controversy has already
become final and
executory in all respects.
Hence, the case at bar has
become moot and
academic. (Ventura vs.
Ventura, 77 SCRA 159,
May 27,1977)
Under Article 854 of the Civil Code, "the
pretention or omission of one, some, or
all of the compulsory heirs in the direct
line, whether living at the time of the
execution of the will or born after the
death of the testator, shall annul the
institution of heir; but the devises and
legacies shall be valid insofar as they
are not inofficious," and as a result,
intestacy follows, thereby rendering the
previous appointment of Maria Ventura
as executrix moot and academic. This
would now necessitate the appointment
of another administrator, under the
following provision:
Section 6, Rule 78 of the Rules of
Court:
When and to whom letters
of administration granted.-If
no executor is named in
the will, or the executor or
executors are incompetent,
refuse the trust, or fail to
give bond, or a person dies
intestate, a petition shall be
granted:
(a) To the surviving
husband or wife, as the
case may be or next of kin,
or both, in the discretion of
the court, or to such person
as such surviving husband
15
or wife, or both, in the
Page
discretion of the court, or to
 such person as such Juana Cardona and Miguel Ventura is
surviving husband or wife, hereby DISMISSED.
or next of kin, requests to
have appointed, if SO ORDERED.
competent and willing to
serve;"

xxx xxx xxx

In the case at bar, the surviving spouse

of the deceased Gregorio Ventura is
Juana Cardona while the next of kin
are: Mercedes and Gregoria Ventura
and Maria and Miguel Ventura. The
"next of kin" has been defined as those
persons who are entitled under the
statute of distribution to the decedent's
property (Cooper vs. Cooper, 43 Ind. A.
620, 88 NE 341). It is generally said
that "the nearest of kin, whose interest
in the estate is more preponderant, is
preferred in the choice of administrator.
'Among members of a class the
strongest ground for preference is the
amount or preponderance of interest.
As between next of kin, the nearest of
kin is to be preferred." (Cabanas, et al.
vs. Enage et al., 40 Off. Gaz. 12 Suppl.
227; citing 12 Am. Jur. Sec. 77, p. 416,
cited in Francisco Vicente J., The
Revised Rules of Court in the
Philippines, Vol. V-B 1970 Ed., p. 23).

As decided by the lower court and

sustained by the Supreme Court,
Mercedes and Gregoria Ventura are the
legitimate children of Gregorio Ventura
and his wife, the late Paulina
Simpliciano. Therefore, as the nearest
of kin of Gregorio Ventura they are
entitled to preference over the
illegitimate children of Gregorio
Ventura, namely: Maria and Miguel
Ventura. Hence, under the aforestated
preference provided in Section 6 of
Rule 78, the person or persons to be
appointed administrator are Juana
Cardona, as the surviving spouse, or
Mercedes and Gregoria Ventura as
nearest of kin, or Juana Cardona and
Mercedes and Gregoria Ventura in the
discretion of the Court, in order to
represent both interests.

PREMISES CONSIDERED, the appeal

16

interposed by appellants Maria Ventura,

Page
[G.R. No. 48840. December 29, 1943.]
ERNESTO M. GUEVARA, Petitioner-
Appellant, v. ROSARIO GUEVARA
and her husband PEDRO
BUISON, Respondents-Appellees.
Primicias, Abad, Mencias & Castillo
for Appellant.
Pedro C. Quinto for Appellees.
SYLLABUS
1. WILLS; PRESENTATION OF WILL
FOR PROBATE IS MANDATORY;
SETTLEMENT OF ESTATE ON BASIS
OF INTESTACY WHEN DECEDENT
LEFT A WILL, AGAINST THE LAW. —
We hold that under section 1 of Rule
74, in relation to Rule 76, if the
decedent left a will and no debts and
the heirs and legatees desire to make
an extrajudicial partition of the estate,
they must first present that will to the
court for probate and divide the estate
in accordance with the will. They may
not disregard the provisions of the will
unless those provisions are contrary to
law. Neither may they do away with the
presentation of the will to the court for
probate, because such suppression of
the will is contrary to law and public
policy. The law enjoins the probate of
the will and public policy requires it,
because unless the will is probated and
notice thereof given to the whole world,
the right of a person to dispose of his
property by will may be rendered
nugatory, as is attempted to be done in
the instant case. Absent legatees and
devisees, or such of them as may have
no knowledge of the will, could be
cheated of their inheritance thru the
collusion of some of the heirs who
might agree to the partition of the estate
among themselves to the exclusion of
others.
2. ID.; ID.; ID. — Even if the decedent
left no debts and nobody raises any
question as to the authenticity and due
execution of the will, none of the heirs
may sue for the partition of the estate in
accordance with that will without first
securing its allowance or probate of the
court: first, because the law expressly
provides that "no will shall pass either
real or personal estate unless it is
proved and allowed in the proper court"
; and, second, because the probate of a
will, which is a proceeding in rem,
cannot be dispensed with and
substituted by any other proceeding,
judicial or extrajudicial, without
offending against public policy designed
to effectuate the testator’s right to
dispose of his property by will in
accordance with law and to protect the
rights of the heirs and legatees under
the will thru the means provided by law,
among which are the publication and
the personal notices to each and all of
said heirs and legatees. Nor may the
court approve and allow the will
presented in evidence in such an action
for partition, which is one in personam,
any more than it could decree the
registration under the Torrens system
of the land involved in an ordinary
action for reivindicacion or partition.
3. TORRENS REGISTRATION;
REGISTRATION DOES NOT AFFECT
RIGHTS OF PARTITION BETWEEN
LEGATEES. — It results that the
interested parties consented to the
registration of the land in question in
the name of E. M. G. alone subject to
the implied trust on account of which he
is under obligation to deliver and
convey to them their corresponding
shares after all the debts of the original
owner of said land had been paid. Such
finding does not constitute a reversal of
the decision and decree of registration,
which merely confirmed the petitioner’s
title; and in the absence of any
intervening innocent third party, the
petitioner may be compelled to fulfill the
promise by virtue of which he acquired
his title. That is authorized by section
70 of the Land Registration Act, cited
by the Court of Appeals, and by the
decision of this Court in Severino v.
Severino, 44 Phil., 343, and the cases
therein cited.
DECISION
17
OZAETA, J.:
Page

Ernesto M. Guevara and Rosario
Guevara, legitimate son and natural
daughter, respectively, of the deceased
Victorino L. Guevara, are litigating here
over their inheritance from the latter.
The action was commenced on
November 12, 1937, by Rosario
Guevara to recover from Ernesto
Guevara what she claims to be her
strict ligitime as an acknowledged
natural daughter of the deceased — to
wit, a portion of 423,492 square meters
of a large parcel of land described in
original certificate of title No. 51691 of
the province of Pangasinan, issued in
the name of Ernesto M. Guevara —
and to order the latter to pay her
P6,000 plus P2,000 a year as damages
for withholding such legitime from her.
The defendant answered the complaint
contending that whatever right or rights
the plaintiff might have had, had been
barred by the operation of law.
It appears that on August 26, 1931,
Victorino L. Guevara executed a will
(exhibit A), apparently with all the
formalities of the law, wherein he made
the following bequests: To his
stepdaughter Candida Guevara, a pair
of earrings worth P150 and a gold chain
worth P40; to his son Ernesto M.
Guevara, a gold ring worth P180 and all
the furniture, pictures, statues, and
other religious objects found in the
residence of the testator in Poblacion
Sur, Bayambang, Pangasinan; "a mi
hija Rosario Guevara," a pair of
earrings worth P120; to his stepson Pio
Guevara, a ring worth P120; and to his
wife by second marriage, Angustia
Posadas, various pieces of jewelry
worth P1,020.
He also made the following devises: "A
mis hijos Rosario Guevara y Ernesto M.
Guevara y a mis hijastros, Vivencio,
Eduviges, Dionisia, Candida y Pio,
apellidados Guevara," a residential lot
with its improvements situate in the
town of Bayambang, Pangasinan,
having an area of 960 square meters
and assessed at P540; to his wife
Angustia Posadas he confirmed the
donation propter nuptias theretofore
made by him to her of a portion of 25
hectares of the large parcel of land of
259-odd hectares described in plan
Psu-66618. He also devised to her a
portion of 5 hectares of the same parcel
of land by way of complete settlement
of her usufructuary right.
He set aside 100 hectares of the same
parcel of land to be disposed of either
by him during his lifetime or by his
attorney-in-fact Ernesto M. Guevara in
order to pay all his pending debts and
to defray his expenses and those of his
family up to the time of his death.
The remander of said parcel of land he
disposed of in the following manner:
"(d). — Toda la porcion restante de mi
terreno arriba descrito, de la extension
superficial aproximada de ciento
veintinueve (129) hectareas setenta
(70) areas, y veinticinco (25)
centiareas, con todas sus mejoras
existentes en la misma, dejo y
distribuyo, pro-indiviso, a mis siguientes
herederos como sigue:
"A mi hijo legitimo, Ernesto M. Guevara,
ciento ocho (108) hectareas, ocho (8)
areas y cincuenta y cuatro (54)
centiareas, hacia la parte que colinda al
Oeste de las cien (100) hectareas
referidas en el inciso (a) de este parrafo
del testamento, como su propiedad
absoluta y exclusiva, en la cual
extension superficial estan incluidas
cuarenta y tres (43) hectareas,
veintitres (23) areas y cuarenta y dos
(42) centiareas que le doy en concepto
de mejora.
"A mi hija natural reconocida, Rosario
Guevara, veintiun (21) hectareas,
sesenta y un (61) areas y setenta y un
(71) centiareas, que es la parte
restante.
"Duodecimo. — Nombro por la
presente como Albacea Testamentario
a mi hijo Ernesto M. Guevara, con
relevacion de fianza. Y una vez
legalizado este testamento, y en cuanto
18
sea posible, es mi deseo, que los
Page
herederos y legatarios aqui nombrados
se repartan extrajudicialmente mis
bienes de conformidad con mis
disposiciones arriba consignadas."
Subsequently, and on July 12, 1933,
Victorino L. Guevara executed a deed
of sale (exhibit 2) in favor of Ernesto M.
Guevara whereby he conveyed to him
the southern half of the large parcel of
land of which he had theretofore
disposed by the will above mentioned,
in consideration of the sum of P1 and
other valuable considerations, among
which were the payment of all his debts
and obligations amounting to not less
than P16,500, his maintenance up to
his death, and the expenses of his last
illness and funeral expenses. As to the
northern half of the same parcel of land,
he declared: "Hago constar tambien
que reconozco a mi referido hijo
Ernesto M. Guevara como dueño de la
mitad norte de la totalidad y conjunto
de los referidos terrenos por haberlos
comprado de su propio peculio del Sr.
Rafael T. Puzon a quien habia vendido
con anterioridad."
On September 27, 1933, final decree of
registration was issued in land
registration case No. 15174 of the
Court of First Instance of Pangasinan,
and pursuant thereto original certificate
of title No. 51691 of the same province
was issued on October 12 of the same
year in favor of Ernesto M. Guevara
over the whole parcel of land described
in the deed of sale above referred to.
The registration proceeding had been
commenced on November 1, 1932, by
Victorino L. Guevara and Ernesto M.
Guevara as applicants, with Rosario,
among others, as oppositor; but before
the trial of the case Victorino L.
Guevara withdrew as applicant and
Rosario Guevara and her co-oppositors
also withdrew their opposition, thereby
facilitating the issuance of the title in the
name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L.
Guevara died. His last will and
testament, however, was never
presented to the court for probate, nor
has any administration proceeding ever
been instituted for the settlement of his
estate. Whether the various legatees
mentioned in the will have received
their respective legacies or have even
been given due notice of the execution
of said will and of the dispositions
therein made in their favor, does not
affirmatively appear from the record of
this case. Ever since the death of
Victorino L. Guevara, his only legitimate
son Ernesto M. Guevara appears to
have possessed the land adjudicated to
him in the registration proceeding and
to have disposed of various portions
thereof for the purpose of paying the
debts left by his father.
In the meantime Rosario Guevara, who
appears to have had her father’s last
will and testament in her custody, did
nothing judicially to invoke the
testamentary dispositions made therein
in her favor, whereby the testator
acknowledged her as his natural
daughter and, aside from certain
legacies and bequests, devised to her a
portion of 21.6171 hectares of the large
parcel of land described in the will. But
a little over four years after the
testator’s demise, she (assisted by her
husband) commenced the present
action against Ernesto M. Guevara
alone for the purpose hereinbefore
indicated; and it was only during the
trial of this case that she presented the
will to the court, not for the purpose of
having it probated but only to prove that
the deceased Victorino L. Guevara had
acknowledged her as his natural
daughter. Upon that proof of
acknowledgment she claimed her share
of the inheritance from him, but on the
theory or assumption that he died
intestate, because the will had not been
probated, for which reason, she
asserted, the betterment therein made
by the testator in favor of his legitimate
son Ernesto M. Guevara should be
disregarded. Both the trial court and the
Court of Appeals sustained that theory.
Two principal questions are before us
for determination: (1) the legality of the
procedure adopted by the plaintiff
(respondent herein) Rosario Guevara;
and (2) the efficacy of the deed of sale
19
exhibit 2 and the effect of the certificate
Page
of title issued to the defendant
(petitioner herein) Ernesto M. Guevara.
I custody of a will after the death of the
We cannot sanction the procedure
adopted by the respondent Rosario
Guevara, it being in our opinion in
violation of procedural law and an
attempt to circumvent and disregard the
last will and testament of the decedent.
The Code of Civil Procedure, which
was in force up to the time this case
was decided by the trial court, contains
the following pertinent provisions:
"Sec. 625. Allowance Necessary, and
Conclusive as to Execution. — No will
shall pass either the real or personal
estate, unless it is proved and allowed
in the Court of First Instance, or by
appeal to the Supreme Court; and the
allowance by the court of a will of real
and personal estate shall be conclusive
as to its due execution.
"Sec. 626. Custodian of Will to Deliver.
— The person who has the custody of a
will shall, within thirty days after he
knows of the death of the testator,
deliver the will into the court which has
jurisdiction, or to the executor named in
the will.
"Sec. 627. Executor to Present Will and
Accept or Refuse Trust. — A person
named as executor in a will, shall within
thirty days after he knows of the death
of the testator, or within thirty days after
he knows that he is named executor, if
he obtained such knowledge after
knowing of the death of the testator,
present such will to the court which has
jurisdiction, unless the will has been
otherwise returned to said court, and
shall, within such period, signify to the
court his acceptance of the trust, or
make known in writing his refusal to
accept it.
"Sec. 628. Penalty. — A person who
neglects any of the duties required in
the two preceding sections, unless he
gives a satisfactory excuse to the court,
shall be subject to a fine not exceeding
one thousand dollars.
"Sec. 629. Person Retaining Will may
be Committed. — If a person having
testator neglects without reasonable
cause to deliver the same to the court
having jurisdiction, after notice by the
court so to do, he may be committed to
the prison of the province by a warrant
issued by the court, and there kept in
close confinement until he delivers the
will."
The foregoing provisions are now
embodied in Rule 76 of the new Rules
of Court, which took effect on July 1,
1940.
The proceeding for the probate of a will
is one in rem, with notice by publication
to the whole world and with personal
notice to each of the known heirs,
legatees, and devisees of the testator
(section 630, C. C. P., and sections 3
and 4, Rule 77). Altho not contested
(section 5, Rule 77), the due execution
of the will and the fact that the testator
at the time of its execution was of
sound and disposing mind and not
acting under duress, menace, and
undue influence or fraud, must be
proved to the satisfaction of the court,
and only then may the will be legalized
and given effect by means of a
certificate of its allowance, signed by
the judge and attested by the seal of
the court; and when the will devises
real property, attested copies thereof
and of the certificate of allowance must
be recorded in the register of deeds of
the province in which the land lies.
(Section 12, Rule 77, and section 624,
C. C. P.)
It will readily be seen from the above
provisions of the law that the
presentation of a will to the court for
probate is mandatory and its allowance
by the court is essential and
indispensable to its efficacy. To assure
and compel the probate of a will, the
law punishes a person who neglects his
duty to present it to the court with a fine
not exceeding P2,000, and if he should
persist in not presenting it, he may be
20
committed to prison and kept there until
Page
he delivers the will.

The Court of Appeals took express
notice of these requirements of the law
and held that a will, unless probated, is
ineffective. Nevertheless it sanctioned
the procedure adopted by the
respondent for the following reasons:
"The majority of the Court is of the
opinion that if this case is dismissed
ordering the filing of testate
proceedings, it would cause injustice,
inconvenience, delay, and much
expense to the parties, and that
therefore, it is preferable to leave them
in the very status which they
themselves have chosen, and to decide
their controversy once and for all, since,
in a similar case, the Supreme Court
applied that same criterion (Leaño v.
Leaño, supra), which is now sanctioned
by section 1 of Rule 74 of the Rules of
Court. Besides, section 6 of Rule 124
provides that, if the procedure which
the court ought to follow in the exercise
of its jurisdiction is not specifically
pointed out by the Rules of Court, any
suitable process or mode of procedure
may be adopted which appears most
consistent to the spirit of the said Rules.
Hence, we declare the action instituted
by the plaintiff to be in accordance with
law."
Let us look into the validity of these
considerations. Section 1 of Rule 74
provides as follows:
"Section 1. Extrajudicial settlement by
agreement between heirs. — If the
decedent left no debts and the heirs
and legatees are all of age, or the
minors are represented by their judicial
guardians, the parties may, without
securing letters of administration, divide
the estate among themselves as they
see fit by means of a public instrument
filed in the office of the register of
deeds, and should they disagree, they
may do so in an ordinary action of
partition. If there is only one heir or one
legatee, he may adjudicate to himself
the entire estate by means of an
affidavit filed in the office of the register
of deeds. It shall be presumed that the
decedent left no debts if no creditor files
a petition for letters of administration
within two years after the death of the
decedent."
That is a modification of section 596 of
the Code of Civil Procedure, which
reads as follows:
"Sec. 596. Settlement of Certain
Intestates Without Legal Proceedings.
— Whenever all the heirs of a person
who died intestate are of lawful age and
legal capacity and there are no debts
due from the estate, or all the debts
have been paid the heirs may, by
agreement duly executed in writing by
all of them, and not otherwise,
apportion and divide the estate among
themselves, as they may see fit, without
proceedings in court."
The implication is that by the omission
of the word "intestate" and the use of
the word "legatees" in section 1 of Rule
74, a summary extrajudicial settlement
of a deceased person’s estate, whether
he died testate or intestate, may be
made under the conditions specified.
Even if we give retroactive effect to
section 1 of Rule 74 and apply it here,
as the Court of Appeals did, we do not
believe it sanctions the nonpresentation
of a will for probate and much less the
nullification of such will thru the failure
of its custodian to present it to the court
for probate; for such a result is
precisely what Rule 76 sedulously
provides against. Section 1 of Rule 74
merely authorizes the extrajudicial or
judicial partition of the estate of a
decedent "without securing letters of
administration." It does not say that in
case the decedent left a will the heirs
and legatees may divide the estate
among themselves without the
necessity of presenting the will to the
court for probate. The petition to
probate a will and the petition to issue
letters of administration are two
different things, altho both may be
made in the same case. The allowance
of a will precedes the issuance of
letters testamentary or of administration
(section 4, Rule 78). One can have a
will probated without necessarily
securing letters testamentary or of
21
administration. We hold that under
section 1 of Rule 74, in relation to Rule
Page
76, if the decedent left a will and no
debts and the heirs and legatees desire
to make an extrajudicial partition of the
estate, they must first present that will
to the court for probate and divide the
estate in accordance with the will. They
may not disregard the provisions of the
will unless those provisions are contrary
to law. Neither may they do away with
the presentation of the will to the court
for probate, because such suppression
of the will is contrary to law and public
policy. The law enjoins the probate of
the will and public policy requires it,
because unless the will is probated and
notice thereof given to the whole world,
the right of a person to dispose of his
property by will may be rendered
nugatory, as is attempted to be done in
the instant case. Absent legatees and
devisees, or such of them as may have
no knowledge of the will, could be
cheated of their inheritance thru the
collusion of some of the heirs who
might agree to the partition of the estate
among themselves to the exclusion of
others.
In the instant case there is no showing
that the various legatees other than the
present litigants had received their
respective legacies or that they had
knowledge of the existence and of the
provisions of the will. Their right under
the will cannot be disregarded, nor may
those rights be obliterated on account
of the failure or refusal of the custodian
of the will to present it to the court for
probate.
Even if the decedent left no debts and
nobody raises any question as to the
authenticity and due execution of the
will, none of the heirs may sue for the
partition of the estate in accordance
with that will without first securing its
allowance or probate by the court, first,
because the law expressly provides
that "no will shall pass either real or
personal estate unless it is proved and
allowed in the proper court" ; and,
second, because the probate of a will,
which is a proceeding in rem, cannot be
dispensed with and substituted by any
other proceeding, judicial or
extrajudicial, without offending against
public policy designed to effectuate the
testator’s right to dispose of his
property by will in accordance with law
and to protect the rights of the heirs and
legatees under the will thru the means
provided by law, among which are the
publication and the personal notices to
each and all of said heirs and legatees.
Nor may the court approve and allow
the will presented in evidence in such
an action for partition, which is one in
personam, any more than it could
decree the registration under the
Torrens system of the land involved in
an ordinary action for reivindicacion or
partition.
We therefore believe and so hold that
section 1 of Rule 74, relied upon by the
Court of Appeals, does not sanction the
procedure adopted by the Respondent.
The case of Leaño v. Leaño (25 Phil.,
180), cited by the Court of Appeals, like
section 1 of Rule 74, sanctions the
extrajudicial partition by the heirs of the
properties left by a decedent, but not
the nonpresentation of a will for
probate. In that case one Paulina Ver
executed a will on October 11, 1902,
and died on November 1, 1902. Her will
was presented for probate on
November 10, 1902, and was approved
and allowed by the Court on August 16,
1904. In the meantime, and on
November 10, 1902, the heirs went
ahead and divided the properties
among themselves and some of them
subsequently sold and disposed of their
shares to third persons. It does not
affirmatively appear in the decision in
that case that the partition made by the
heirs was not in accordance with the
will or that they in any way disregarded
the will. In closing the case by its order
dated September 1, 1911, the trial court
validated the partition, and one of the
heirs, Cunegunda Leaño, appealed. In
deciding the appeal this Court said:
"The principal assignment of error is
that the lower court committed an error
in deciding that the heirs and legatees
of the estate of Dña. Paulina Ver had
voluntarily divided the estate among
themselves."
22
Page
In resolving that question this Court
said:
"In view of the positive finding of the
judge of the lower court that there had
been a voluntary partition of the estate
among the heirs and legatees, and in
the absence of positive proof to the
contrary, we must conclude that the
lower court had some evidence to
support its conclusion."
Thus it will be seen that as a matter of
fact no question of law was raised and
decided in that case. That decision
cannot be relied upon as an authority
for the unprecedented and unheard of
procedure adopted by the respondent
whereby she seeks to prove her status
as an acknowledged natural child of the
decedent by his will and attempts to
nullify and circumvent the testamentary
dispositions made by him by not
presenting the will to the court for
probate and by claiming her legitime as
an acknowledged natural child on the
basis of intestacy; and that in the face
of express mandatory provisions of the
law requiring her to present the will to
the court for probate.
In the subsequent case of Riosa v.
Rocha (1926), 48 Phil. 737, this Court
departed from the procedure
sanctioned by the trial court and
impliedly approved by this Court in the
Leaño case, by holding that an
extrajudicial partition is not proper in
testate succession. In the Riosa case
the Court, speaking thru Chief Justice
Avanceña, held:
"1. EXTRAJUDICIAL PARTITION; NOT
PROPER IN TESTATE SUCCESSION.
— Section 596 of the Code of Civil
Procedure, authorizing the heirs of a
person who died intestate to make
extrajudicial partition of the property of
the deceased, without going into any
court of justice, makes express
reference to intestate succession, and
therefore excludes testate succession.
"2. ID.; EFFECTS OF; TESTATE
SUCCESSION. — In the instant case,
which is a testate succession, the heirs
made an extrajudicial partition of the
estate and at the same time instituted
proceeding for the probate of the will
and the administration of the estate.
When the time came for making the
partition, they submitted to the court the
extrajudicial partition previously made
by them, which the court approved.
Held: That for the purposes of the
reservation and the rights and
obligations created thereby, in
connection with the relatives benefited,
the property must not be deemed
transmitted to the heirs from the time
the extrajudicial partition was made, but
from the time said partition was
approved by the court." (Syllabus.)
The Court of Appeals also cites section
6 of Rule 124, which provides that if the
procedure which the court ought to
follow in the exercise of its jurisdiction is
not specifically pointed out by the Rules
of Court, any suitable process or mode
of proceeding may be adopted which
appears most conformable to the spirit
of the said Rules. That provision is not
applicable here for the simple reason
that the procedure which the court
ought to follow in the exercise of its
jurisdiction is specifically pointed out
and prescribed in detail by Rules 74,
76, and 77 of the Rules of Court.
The Court of Appeals also said "that if
this case is dismissed, ordering the
filing of testate proceedings, it would
cause injustice, inconvenience, delay,
and much expense to the parties." We
see no injustice in requiring the plaintiff
not to violate but to comply with the law.
On the contrary, an injustice might be
committed against the other heirs and
legatees mentioned in the will if the
attempt of the plaintiff to nullify said will
by not presenting it to the court for
probate should be sanctioned. As to the
inconvenience, delay, and expense, the
plaintiff herself is to blame because she
was the custodian of the will and she
violated the duty imposed upon her by
sections 2, 4, and 5 of Rule 76, which
command her to deliver said will to the
court on pain of a fine not exceeding
P2,000 and of imprisonment for
contempt of court. As for the defendant,
23
he is not complaining of inconvenience,
Page
delay, and expense, but on the contrary
he is insisting that the procedure
prescribed by law be followed by the
plaintiff.
Our conclusion is that the Court of
Appeals erred in declaring the action
instituted by the plaintiff to be in
accordance with law. It also erred in
awarding relief to the plaintiff in this
action on the basis of intestacy of the
decedent notwithstanding the proven
existence of a will left by him and solely
because said will has not been
probated due to the failure of the
plaintiff as custodian thereof to comply
with the duty imposed upon her by the
law.
It is apparent that the defendant
Ernesto M. Guevara, who was named
executor in said will, did not take any
step to have it presented to the court for
probate and did not signify his
acceptance of the trust or refusal to
accept it as required by section 3 of
Rule 76 (formerly section 627 of the
Code of Civil Procedure), because his
contention is that said will, insofar as
the large parcel of land in litigation is
concerned, has been superseded by
the deed of sale exhibit 2 and by the
subsequent issuance of the Torrens
certificate of title in his favor.
II
This brings us to the consideration of
the second question, referring to the
efficacy of the deed of sale exhibit 2
and the effect of the certificate of title
issued to the defendant Ernesto M.
Guevara. So that the parties may not
have litigated here in vain insofar as
that question is concerned, we deem it
proper to decide it now and obviate the
necessity of a new action.
The deed of sale exhibit 2 executed by
and between Victorino L. Guevara and
Ernesto M. Guevara before a notary
public on July 12, 1933, may be divided
into two parts: (a) insofar as it disposes
of and conveys to Ernesto M. Guevara
the southern half of Victorino L.
Guevara’s hacienda of 259-odd
hectares in consideration of P1 and
other valuable considerations therein
mentioned; and (b) insofar as it
declares that Ernesto M. Guevara
became the owner of the northern half
of the same hacienda by repurchasing
it with his own money from Rafael T.
Puzon.
A. As to the conveyance of the
southern half of the hacienda to
Ernesto M. Guevara in consideration of
the latter’s assumption of the obligation
to pay all the debts of the deceased,
the Court of Appeals found it to be valid
and efficacious because:" (a) it has not
been proven that the charges imposed
as a condition is [are] less than the
value of the property; and (b) neither
has it been proven that the defendant
did not comply with the conditions
imposed upon him in the deed of
transfer." As a matter of fact the Court
of Appeals found: "It appears that the
defendant has been paying the debts
left by his father. To accomplish this, he
had to alienate considerable portions of
the above-mentioned land. And we
cannot brand such alienation as
anomalous unless it is proven that they
have exceeded the value of what he
has acquired by virtue of the deed of
July 12, 1933, and that of his
corresponding share in the inheritance."
The finding of the Court of Appeals on
this aspect of the case is final and
conclusive upon the respondent, who
did not appeal therefrom.
B. With regard to the northern half of
the hacienda, the findings of fact and of
law made by the Court of Appeals are
as follows:
"The defendant has tried to prove that
with his own money, he bought from
Rafael Puzon one-half of the land in
question, but the Court a quo, after
considering the evidence, found it not
proven; we hold that such conclusion is
well founded. The acknowledgment by
the deceased, Victorino L. Guevara, of
the said transactions, which was
inserted incidentally in the document of
July 12, 1933, is clearly belied by the
fact that the money paid to Rafael
Puzon came from Silvestre P. Coquia,
to whom Victorino L. Guevara had sold
24
a parcel of land with the right of
Page
repurchase. The defendant, acting for
his father, received the money and
delivered it to Rafael Puzon to redeem
the land in question, and instead of
executing a deed of redemption in favor
of Victorino L. Guevara, the latter
executed a deed of sale in favor of the
defendant.
"The plaintiff avers that she withdrew
her opposition to the registration of the
land in the name of the defendant,
because of the latter’s promise that
after paying all the debts of their father,
he would deliver to her and to the
widow their corresponding shares. As
their father then was still alive, there
was no reason to require the delivery of
her share and that was why she did not
insist on her opposition, trusting on the
reliability and sincerity of her brother’s
promise. The evidence shows that such
promise was really made. The
registration of land under the Torrens
system does not have the effect of
altering the laws of succession, or the
rights of partition between coparceners,
joint tenants, and other cotenants nor
does it change or affect in any other
way any other rights and liabilities
created by law and applicable to
unregistered land (sec. 70, Land
Registration Law). The plaintiff is not,
then, in estoppel, nor can the doctrine
of res judicata be invoked against her
claim. Under these circumstances, she
has the right to compel the defendant to
deliver her corresponding share in the
estate left by the deceased, Victorino L.
Guevara."
In his tenth to fourteenth assignments
of error the petitioner assails the
foregoing findings of the Court of
Appeals. But the findings of fact made
by said court are final and not
reviewable by us on certiorari. The
Court of Appeals found that the money
with which the petitioner repurchased
the northern half of the land in question
from Rafael Puzon was not his own but
his father’s, it being the proceeds of the
sale of a parcel of land made by the
latter to Silvestre P. Coquia. Said court
also found that the respondent
withdrew her opposition to the
registration of the land in the name of
the petitioner upon the latter’s promise
that after paying all the debts of their
father he would deliver to her and to the
widow their corresponding shares.
From these facts, it results that the
interested parties consented to the
registration of the land in question in
the name of Ernesto M. Guevara alone
subject to the implied trust on account
of which he is under obligation to
deliver and convey to them their
corresponding shares after all the debts
of the original owner of said land had
been paid. Such finding does not
constitute a reversal of the decision and
decree of registration, which merely
confirmed the petitioner’s title; and in
the absence of any intervening innocent
third party, the petitioner may be
compelled to fulfill the promise by virtue
of which he acquired his title. That is
authorized by section 70 of the Land
Registration Act, cited by the Court of
Appeals, and by the decision of this
Court in Severino v. Severino, 44 Phil.,
343, and the cases therein cited.
Upon this phase of the litigation, we
affirm the finding of the Court of
Appeals that the northern half of the
land described in the will exhibit A and
in original certificate of title No. 51691
still belongs to the estate of the
deceased Victorino L. Guevara. In the
event the petitioner Ernesto M.
Guevara has alienated any portion
thereof, he is under obligation to
compensate the estate with an
equivalent portion from the southern
half of said land that has not yet been
sold. In other words, to the estate of
Victorino L. Guevara still belongs one
half of the total area of the land
described in said original certificate of
title, to be taken from such portions as
have not yet been sold by the
petitioner, the other half having been
lawfully acquired by the latter in
consideration of his assuming the
obligation to pay all the debts of the
deceased.
Wherefore, that part of the decision of
the Court of Appeals which declares in
effect that notwithstanding exhibit 2 and
the issuance of original certificate of
25
title No. 51691 in the name of Ernesto
Page
M. Guevara, one half of the land
described in said certificate of title
belongs to the estate of Victorino L.
Guevara and the other half to Ernesto
M. Guevara in consideration of the
latter’s assumption of the obligation to
pay all the debts of the deceased, is
hereby affirmed; but the judgment of
said court insofar as it awards any relief
to the respondent Rosario Guevara in
this action is hereby reversed and set
aside, and the parties herein are hereby
ordered to present the document exhibit
A to the proper court for probate in
accordance with law, without prejudice
to such action as the provincial fiscal of
Pangasinan may take against the
responsible party or parties under
section 4 of Rule 76. After the said
document is approved and allowed by
the court as the last will and testament
of the deceased Victorino L. Guevara,
the heirs and legatees therein named
may take such action, judicial or
extrajudicial, as may be necessary to
partition the estate of the testator,
taking into consideration the
pronouncements made in part II of this
opinion. No finding as to costs in any of
the three instances.

26
Page
 ARTICLE 817
G.R. No. L-22595 November 1,
1927
Testate Estate of Joseph G. Brimo,
JUAN MICIANO,
administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for
appellant.
Camus and Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the
deceased Joseph G. Brimo is in
question in this case.
The judicial administrator of this estate
filed a scheme of partition. Andre
Brimo, one of the brothers of the
deceased, opposed it. The court,
however, approved it.
The errors which the oppositor-
appellant assigns are:
(1) The approval of said scheme of
partition; (2) denial of his participation in
the inheritance; (3) the denial of the
motion for reconsideration of the order
approving the partition; (4) the approval
of the purchase made by the Pietro
Lana of the deceased's business and
the deed of transfer of said business;
and (5) the declaration that the Turkish
laws are impertinent to this cause, and
the failure not to postpone the approval
of the scheme of partition and the
delivery of the deceased's business to
Pietro Lanza until the receipt of the
depositions requested in reference to
the Turkish laws.
The appellant's opposition is based on
the fact that the partition in question
puts into effect the provisions of Joseph
G. Brimo's will which are not in
accordance with the laws of his Turkish
nationality, for which reason they are
void as being in violation or article 10 of
the Civil Code which, among other
things, provides the following:
Nevertheless, legal and
testamentary successions, in
respect to the order of
succession as well as to the
amount of the successional rights
and the intrinsic validity of their
provisions, shall be regulated by
the national law of the person
whose succession is in question,
whatever may be the nature of
the property or the country in
which it may be situated.
But the fact is that the oppositor did not
prove that said testimentary
dispositions are not in accordance with
the Turkish laws, inasmuch as he did
not present any evidence showing what
the Turkish laws are on the matter, and
in the absence of evidence on such
laws, they are presumed to be the
same as those of the Philippines. (Lim
and Lim vs. Collector of Customs, 36
Phil., 472.)
It has not been proved in these
proceedings what the Turkish laws are.
He, himself, acknowledges it when he
desires to be given an opportunity to
present evidence on this point; so much
so that he assigns as an error of the
court in not having deferred the
approval of the scheme of partition until
the receipt of certain testimony
requested regarding the Turkish laws
on the matter.
The refusal to give the oppositor
another opportunity to prove such laws
does not constitute an error. It is
discretionary with the trial court, and,
taking into consideration that the
oppositor was granted ample
opportunity to introduce competent
evidence, we find no abuse of
discretion on the part of the court in this
particular. There is, therefore, no
evidence in the record that the national
law of the testator Joseph G. Brimo was
violated in the testamentary
dispositions in question which, not
27
being contrary to our laws in force,
Page
must be complied with and
executed. lawphil.net
Therefore, the approval of the scheme
of partition in this respect was not
erroneous.
In regard to the first assignment of error
which deals with the exclusion of the
herein appellant as a legatee, inasmuch
as he is one of the persons designated
as such in will, it must be taken into
consideration that such exclusion is
based on the last part of the second
clause of the will, which says:
Second. I like desire to state that
although by law, I am a Turkish
citizen, this citizenship having
been conferred upon me by
conquest and not by free choice,
nor by nationality and, on the
other hand, having resided for a
considerable length of time in the
Philippine Islands where I
succeeded in acquiring all of the
property that I now possess, it is
my wish that the distribution of
my property and everything in
connection with this, my will, be
made and disposed of in
accordance with the laws in force
in the Philippine islands,
requesting all of my relatives to
respect this wish, otherwise, I
annul and cancel beforehand
whatever disposition found in this
will favorable to the person or
persons who fail to comply with
this request.
The institution of legatees in this will is
conditional, and the condition is that the
instituted legatees must respect the
testator's will to distribute his property,
not in accordance with the laws of his
nationality, but in accordance with the
laws of the Philippines.
If this condition as it is expressed were
legal and valid, any legatee who fails to
comply with it, as the herein oppositor
who, by his attitude in these
proceedings has not respected the will
of the testator, as expressed, is
prevented from receiving his legacy.
The fact is, however, that the said
condition is void, being contrary to law,
for article 792 of the civil Code provides
the following:
Impossible conditions and those
contrary to law or good morals
shall be considered as not
imposed and shall not prejudice
the heir or legatee in any manner
whatsoever, even should the
testator otherwise provide.
And said condition is contrary to law
because it expressly ignores the
testator's national law when, according
to article 10 of the civil Code above
quoted, such national law of the testator
is the one to govern his testamentary
dispositions.
Said condition then, in the light of the
legal provisions above cited, is
considered unwritten, and the institution
of legatees in said will is unconditional
and consequently valid and effective
even as to the herein oppositor.
It results from all this that the second
clause of the will regarding the law
which shall govern it, and to the
condition imposed upon the legatees, is
null and void, being contrary to law.
All of the remaining clauses of said will
with all their dispositions and requests
are perfectly valid and effective it not
appearing that said clauses are
contrary to the testator's national law.
Therefore, the orders appealed from
are modified and it is directed that the
distribution of this estate be made in
such a manner as to include the herein
appellant Andre Brimo as one of the
legatees, and the scheme of partition
submitted by the judicial administrator
is approved in all other respects,
without any pronouncement as to costs.
So ordered.
28
Page
G.R. Nos. L-3087 and L-3088
July 31, 1954
In re: Testate Estate of the deceased
JOSE B. SUNTAY. SILVINO
SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the
deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-
appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the
Court of First Instance of Bulacan
disallowing the alleged will and
testament executed in Manila on
November 1929, and the alleged last
will and testament executed in
Kulangsu, Amoy, China, on 4 January
1931, by Jose B. Suntay. The value of
the estate left by the deceased is more
than P50,000.
On 14 May 1934 Jose B. Suntay, a
Filipino citizen and resident of the
Philippines, died in the city of Amoy,
Fookien province, Republic of China,
leaving real and personal properties in
the Philippines and a house in Amoy,
Fookien province, China, and children
by the first marriage had with the late
Manuela T. Cruz namely, Apolonio,
Concepcion, Angel, Manuel, Federico,
Ana, Aurora, Emiliano, and Jose, Jr.
and a child named Silvino by the
second marriage had with Maria
Natividad Lim Billian who survived him.
Intestate proceedings were instituted in
the Court of First Instance of Bulacan
(special proceedings No. 4892) and
after hearing letters of administration
were issued to Apolonio Suntay. After
the latter's death Federico C. Suntay
was appointed administrator of the
estate. On 15 October 1934 the
surviving widow filed a petition in the
Court of First Instance of Bulacan for
the probate of a last will and testament
claimed to have been executed and
signed in the Philippines on November
1929 by the late Jose B. Suntay. This
petition was denied because of the loss
of said will after the filing of the petition
and before the hearing thereof and of
the insufficiency of the evidence to
establish the loss of the said will. An
appeal was taken from said order
denying the probate of the will and this
Court held the evidence before the
probate court sufficient to prove the
loss of the will and remanded the case
to the Court of First Instance of Bulacan
for the further proceedings (63 Phil.,
793). In spite of the fact that a
commission from the probate court was
issued on 24 April 1937 for the taking of
the deposition of Go Toh, an attesting
witness to the will, on 7 February 1938
the probate court denied a motion for
continuance of the hearing sent by
cablegram from China by the surviving
widow and dismissed the petition. In the
meantime the Pacific War supervened.
After liberation, claiming that he had
found among the files, records and
documents of his late father a will and
testament in Chinese characters
executed and signed by the deceased
on 4 January 1931 and that the same
was filed, recorded and probated in the
Amoy district court, Province of
Fookien, China, Silvino Suntay filed a
petition in the intestate proceedings
praying for the probate of the will
executed in the Philippines on
November 1929 (Exhibit B) or of the will
executed in Amoy, Fookien, China, on
4 January 1931 (Exhibit N).
There is no merit in the contention that
the petitioner Silvino Suntay and his
mother Maria Natividad Lim Billian are
estopped from asking for the probate of
the lost will or of the foreign will
because of the transfer or assignment
of their share right, title and interest in
the estate of the late Jose B. Suntay to
Jose G. Gutierrez and the spouses
Ricardo Gutierrez and Victoria Goño
and the subsequent assignment thereof
by the assignees to Francisco Pascual
and by the latter to Federico C. Suntay,
for the validity and legality of such
assignments cannot be threshed out in
this proceedings which is concerned
only with the probate of the will and
testament executed in the Philippines
29
on November 1929 or of the foreign will
Page
allegedly executed in Amoy on 4
January 1931 and claimed to have
been probated in the municipal district
court of Amoy, Fookien province,
Republic of China.
As to prescription, the dismissal of the
petition for probate of the will on 7
February 1938 was no bar to the filing
of this petition on 18 June 1947, or
before the expiration of ten years.
As to the lost will, section 6, Rule 77,
provides:
No will shall be proved as a lost
or destroyed will unless the
execution and validity of the
same be established, and the will
is proved to have been in
existence at the time of the death
of the testator, or is shown to
have been fraudulently or
accidentally destroyed in the
lifetime of the testator without his
knowledge, nor unless its
provisions are clearly and
distinctly proved by at least two
credible witnesses. When a lost
will is proved, the provisions
thereof must be distinctly stated
and certified by the judge, under
the seal of the court, and the
certificate must be filed and
recorded as other wills are filed
and recorded.
The witnesses who testified to the
provisions of the lost will are Go Toh,
an attesting witness, Anastacio
Teodoro and Ana Suntay. Manuel
Lopez, who was an attesting witness to
the lost will, was dead at the time of the
hearing of this alternative petition. In his
deposition Go Toh testifies that he was
one of the witnesses to the lost will
consisting of twenty-three sheets
signed by Jose B. Suntay at the bottom
of the will and each and every page
thereof in the presence of Alberto
Barretto, Manuel Lopez and himself
and underneath the testator's signature
the attesting witnesses signed and
each of them signed the attestation
clause and each and every page of the
will in the presence of the testator and
of the other witnesses (answers to the
31st, 41st, 42nd, 49th, 50th, 55th and
63rd interrogatories, Exhibit D-1), but
did not take part in the drafting thereof
(answer to the 11th interrogatory, Id.);
that he knew the contents of the will
written in Spanish although he knew
very little of that language (answers to
the 22nd and 23rd interrogatories and
to X-2 cross-interrogatory, Id.) and all
he knows about the contends of the lost
will was revealed to him by Jose B.
Suntay at the time it was executed
(answers to the 25th interrogatory and
to X-4 and X-8 cross-
interrogatories, Id.); that Jose B. Suntay
told him that the contents thereof are
the same as those of the draft (Exhibit
B) (answers to the 33rd interrogatory
and to X-8 cross-interrogatory, Id.)
which he saw in the office of Alberto
Barretto in November 1929 when the
will was signed (answers to the 69th,
72nd, and 74th interrogatories, Id); that
Alberto Barretto handed the draft and
said to Jose B. Suntay: "You had better
see if you want any correction"
(answers to the 81st, 82nd and 83rd
interrogatories, Id.); that "after checking
Jose B. Suntay put the "Exhibit B" in his
pocket and had the original signed and
executed" (answers to the 91st
interrogatory, and to X-18 cross-
interrogatory, Id.); that Mrs. Suntay had
the draft of the will (Exhibit B) translated
into Chinese and he read the
translation (answers to the 67th
interrogatory, Id.); that he did not read
the will and did not compare it (check it
up) with the draft (Exhibit B) (answers
to X-6 and X-20 cross-
interrogatories, Id.).
Ana Suntay testifies that sometime in
September 1934 in the house of her
brother Apolonio Suntay she learned
that her father left a will "because of the
arrival of my brother Manuel Suntay,
who was bringing along with him certain
document and he told us or he was
telling us that it was the will of our
father Jose B. Suntay which was taken
from Go Toh. ..." (p. 524, t. s. n.,
hearing of 24 February 1948); that she
saw her brother Apolonio Suntay read
the document in her presence and of
Manuel and learned of the adjudication
30
made in the will by her father of his
Page
estate, to wit: one-third to his children,
one-third to Silvino and his mother and
the other third to Silvino, Apolonio,
Concepcion and Jose, Jr. (pp. 526-8,
530-1, 542, t. s. n. Id.); that "after
Apolonio read that portion, then he
turned over the document to Manuel,
and he went away," (p. 528, t. s. n., Id.).
On cross-examination, she testifies that
she read the part of the will on
adjudication to know what was the
share of each heir (pp. 530, 544, t. s.
n., Id.) and on redirect she testifies that
she saw the signature of her father, Go
Toh, Manuel Lopez and Alberto
Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one
day in November 1934 (p. 273, t. s. n.,
hearing of 19 January 1948), before the
last postponement of the hearing
granted by the Court, Go Toh arrived at
his law office in the De los Reyes
Building and left an envelope wrapped
in red handkerchief [Exhibit C] (p. 32, t.
s. n., hearing of 13 October 1947); that
he checked up the signatures on the
envelope Exhibit A with those on the
will placed in the envelope (p. 33, t. s.
n., Id.); that the will was exactly the
same as the draft Exhibit B (pp. 32, 47,
50, t. s. n., Id.).
If the will was snatched after the
delivery thereof by Go Toh to Anastacio
Teodoro And returned by the latter to
the former because they could not
agree on the amount of fees, the former
coming to the latter's office straight from
the boat (p. 315, t. s. n., hearing of 19
January 1948) that brought him to the
Philippines from Amoy, and that
delivery took place in November 1934
(p. 273, t. s. n., Id.), then the testimony
of Ana Suntay that she saw and heard
her brother Apolonio Suntay read the
will sometime in September 1934 (p.
524, t. s. n., hearing of 24 February
1948), must not be true.
Although Ana Suntay would be a good
witness because she was testifying
against her own interest, still the fact
remains that she did not read the whole
will but only the adjudication (pp. 526-8,
530-1, 542, t. s. n., Id.) and saw only
the signature, of her father and of the
witnesses Go Toh, Manuel Lopez and
Alberto Barretto (p. 546, t. s. n., Id.).
But her testimony on cross-examination
that she read the part of the will on
adjudication is inconsistent with her
testimony in chief that after Apolonio
had read that part of the will he turned
over or handed the document to
Manuel who went away (p. 528, t. s.
n., Id.).
If it is true that Go Toh saw the draft
Exhibit B in the office of Alberto
Barretto in November 1929 when the
will was signed, then the part of his
testimony that Alberto Barretto handed
the draft to Jose B. Suntay to whom he
said: "You had better see if you want
any correction" and that "after checking
Jose B. Suntay put the "Exhibit B" in his
pocket and had the original signed and
executed" cannot be true, for it was not
the time for correcting the draft of the
will, because it must have been
corrected before and all corrections and
additions written in lead pencil must
have been inserted and copied in the
final draft of the will which was signed
on that occasion. The bringing in for the
draft (Exhibit B) on that occasion is just
to fit it within the framework of the
appellant's theory. At any rate, all of Go
Toh's testimony by deposition on the
provisions of the alleged lost will is
hearsay, because he came to know or
he learned to them from information
given him by Jose B. Suntay and from
reading the translation of the draft
(Exhibit B) into Chinese.
Much stress is laid upon the testimony
of Federico C. Suntay who testifies that
he read the supposed will or the alleged
will of his father and that the share of
the surviving widow, according to the
will, is two-thirds of the estate (p. 229, t.
s. n., hearing of 24 October 1947). But
this witness testified to oppose the
appointment of a co-administrator of the
estate, for the reason that he had
acquired the interest of the surviving
widow not only in the estate of her
deceased husband but also in the
conjugal property (pp. 148, 205, 228,
229, 231, t. s. n., Id.) Whether he read
the original will or just the copy thereof
31
(Exhibit B) is not clear. For him the
Page
important point was that he had
acquired all the share, participation and
interest of the surviving widow and of
the only child by the second marriage in
the estate of his deceased father. Be
that as it may, his testimony that under
the will the surviving widow would take
two-thirds of the estate of the late Jose
B. Suntay is at variance with Exhibit B
and the testimony of Anastacio
Teodoro. According to the latter, the
third for strict legitime is for the ten
children; the third for betterment is for
Silvino, Apolonio, Concepcion and Jose
Jr.; and the third for free disposal is for
the surviving widow and her child
Silvino.
Hence, granting that there was a will
duly executed by Jose B. Suntay
placed in the envelope (Exhibit A) and
that it was in existence at the time of,
and not revoked before, his death, still
the testimony of Anastacio Teodoro
alone falls short of the legal
requirement that the provisions of the
lost will must be "clearly and distinctly
proved by at least two credible
witnesses." Credible witnesses mean
competent witnesses and those who
testify to facts from or upon hearsay are
neither competent nor credible
witnesses.
On the other hand, Alberto Barretto
testifies that in the early part of 1929 he
prepared or drew up two mills for Jose
B. Suntay at the latter's request, the
rough draft of the first will was in his
own handwriting, given to Manuel
Lopez for the final draft or typing and
returned to him; that after checking up
the final with the rough draft he tore it
and returned the final draft to Manuel
Lopez; that this draft was in favor of all
the children and the widow (pp. 392-4,
449, t. s. n., hearing of 21 February
1948); that two months later Jose B.
Suntay and Manuel Lopez called on
him and the former asked him to draw
up another will favoring more his wife
and child Silvino; that he had the rough
draft of the second will typed (pp. 395,
449 t. s. n., Id.) and gave it to Manuel
Lopez (p. 396, t. s. n., Id.); that he did
not sign as witness the second will of
Jose B. Suntay copied from the
typewritten draft [Exhibit B] (p. 420, t. s.
n., Id.); that the handwritten insertions
or additions in lead pencil to Exhibit B
are not his (pp. 415-7 435-6, 457, t. s.
n., Id.); that the final draft of the first will
made up of four or five pages (p. 400, t.
s. n., Id.) was signed and executed, two
or three months after Suntay and Lopez
had called on him (pp. 397-8, 403, 449,
t. s. n., Id.) in his office at the Cebu
Portland Cement in the China Banking
Building on Dasmariñas street by Jose
B. Suntay, Manuel Lopez and a
Chinaman who had all come from
Hagonoy (p. 398, t. s. n., Id.); that on
that occasion they brought an envelope
(Exhibit A) where the following words
were written: "Testamento de Jose B.
Suntay" (pp. 399, 404, t. s. n., Id.); that
after the signing of the will it was placed
inside the envelope (Exhibit A) together
with an inventory of the properties of
Jose B. Suntay and the envelope was
sealed by the signatures of the testator
and the attesting witnesses (pp. 398,
401, 441, 443, 461, t. s. n., Id.); that he
again saw the envelope (Exhibit A) in
his house one Saturday in the later part
of August 1934, brought by Go Toh and
it was then in perfect condition (pp.
405-6, 411, 440-2, t. s. n., Id.); that on
the following Monday Go Toh went to
his law office bringing along with him
the envelope (Exhibit A) in the same
condition; that he told Go Toh that he
would charge P25,000 as fee for
probating the will (pp. 406, 440-2, Id.);
that Go Toh did not leave the envelope
(Exhibit A) either in his house or in his
law office (p. 407, t. s. n., Id.); that Go
Toh said he wanted to keep it and on
no occasion did Go Toh leave it to him
(pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and
heard by Assistant Fiscal F. B. Albert in
connection with the complaint for estafa
filed against Manuel Suntay for the
alleged snatching of the envelope
(Exhibit A), corroborates the testimony
of Alberto Barretto to the effect that only
one will was signed by Jose B. Suntay
at his office in which he (Alberto
Barretto), Manuel Lopez and Go Toh
took part as attesting witnesses (p. 15,
t. s. n., Exhibit 6). Go Toh testified
32
before the same assistant fiscal that he
Page
did not leave the will in the hands of
Anastacio Teodoro (p. 26, t. s. n.,
Exhibit 6). He said, quoting his own
words, "Because I can not give him this
envelope even though the contract (on
fees) was signed. I have to bring that
document to court or to anywhere else
myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been
executed on 4 January 1931 in Amoy,
China, the law on the point in Rule 78.
Section 1 of the rule provides:
Wills proved and allowed in a
foreign country, according to the
laws of such country, may be
allowed, filed, and recorded by
the proper Court of First Instance
in the Philippines.
Section 2 provides:
When a copy of such will and the
allowance thereof, duly
authenticated, is filed with a
petition for allowance in the
Philippines, by the executor or
other person interested, in the
court having jurisdiction, such
court shall fix a time and place for
the hearing, and cause notice
thereof to be given as in case of
an original will presented for
allowance.
Section 3 provides:
If it appears at the hearing that
the will should be allowed in the
Philippines, the court shall so
allow it, and a certificate of its
allowance, signed by the Judge,
and attested by the seal of the
courts, to which shall be attached
a copy of the will, shall be filed
and recorded by the clerk, and
the will shall have the same effect
as if originally proved and
allowed in such court.
The fact that the municipal district court
of Amoy, China, is a probate court must
be proved. The law of China on
procedure in the probate or allowance
of wills must also be proved. The legal
requirements for the execution of a
valid will in China in 1931 should also
be established by competent evidence.
There is no proof on these points. The
unverified answers to the questions
propounded by counsel for the
appellant to the Consul General of the
Republic of China set forth in Exhibits
R-1 and R-2, objected to by counsel for
the appellee, are inadmissible, because
apart from the fact that the office of
Consul General does not qualify and
make the person who holds it an expert
on the Chinese law on procedure in
probate matters, if the same be
admitted, the adverse party would be
deprived of his right to confront and
cross-examine the witness. Consuls are
appointed to attend to trade matters.
Moreover, it appears that all the
proceedings had in the municipal
district court of Amoy were for the
purpose of taking the testimony of two
attesting witnesses to the will and that
the order of the municipal district court
of Amoy does not purport to probate the
will. In the absence of proof that the
municipal district court of Amoy is a
probate court and on the Chinese law
of procedure in probate matters, it may
be presumed that the proceedings in
the matter of probating or allowing a will
in the Chinese courts are the a
deposition or to a perpetuation of
testimony, and even if it were so it does
not measure same as those provided
for in our laws on the subject. It is a
proceedings in rem and for the validity
of such proceedings personal notice or
by publication or both to all interested
parties must be made. The interested
parties in the case were known to
reside in the Philippines. The evidence
shows that no such notice was received
by the interested parties residing in the
Philippines (pp. 474, 476, 481, 503-4, t.
s. n., hearing of 24 February 1948). The
proceedings had in the municipal
district court of Amoy, China, may be
likened toe or come up to the standard
of such proceedings in the Philippines
for lack of notice to all interested parties
and the proceedings were held at the
back of such interested parties.
The order of the municipal district court
of Amoy, China, which reads as follows:
33
Page
ORDER:
 SEE BELOW

The above minutes were

satisfactorily confirmed by the
interrogated parties, who declare
that there are no errors, after said
minutes were loudly read and
announced actually in the court.

Done and subscribed on the

Nineteenth day of the English
month of the 35th year of the
Republic of China in the Civil
Section of the Municipal District
Court of Amoy, China.

HUANG KUANG CHENG

Clerk of Court
CHIANG TENG HWA
Judge

(Exhibit N-13, p. 89 Folder of

Exhibits.).

does not purport to probate or allow the

will which was the subject of the
proceedings. In view thereof, the will
and the alleged probate thereof cannot
be said to have been done in
accordance with the accepted basic
and fundamental concepts and
principles followed in the probate and
allowance of wills. Consequently, the
authenticated transcript of proceedings
held in the municipal district court of
Amoy, China, cannot be deemed and
accepted as proceedings leading to the
probate or allowance of a will and,
therefore, the will referred to therein
cannot be allowed, filed and recorded
by a competent court of this country.

The decree appealed from is affirmed,

without pronouncement as to costs.
34
Page
IN RE: IN THE MATTER OF THE G.R. her estate.[1] On October 15, 2003,
No. 169144
PETITION TO APPROVE THE WILL however, petitioners Manuel Miguel
OF RUPERTA PALAGANAS WITH Palaganas (Manuel) and Benjamin
PRAYER FOR THE APPOINTMENT Gregorio Palaganas (Benjamin),
OF SPECIAL ADMINISTRATOR, nephews of Ruperta, opposed the
MANUEL MIGUEL PALAGANAS and petition on the ground that Rupertas will
BENJAMIN GREGORIO should not be probated in
PALAGANAS, the Philippines but in the U.S.where
Petitioners,
she executed it. Manuel and Benjamin
- versus -
ERNESTO PALAGANAS, added that, assuming Rupertas will
Respondent. could be probated in the Philippines, it
is invalid nonetheless for having been
Promulgated:
executed under duress and without the
January 26, 2011 testators full understanding of the
x -------------------------------------------------- consequences of such act. Ernesto,
------------------------------------- x they claimed, is also not qualified to act
DECISION as administrator of the estate.

ABAD, J.: Meantime, since Rupertas foreign-

based siblings, Gloria Villaluz and
This case is about the probate before Sergio, were on separate occasions in
Philippine court of a will executed the Philippines for a short visit,
abroad by a foreigner although it has respondent Ernesto filed a motion with
not been probated in its place of the RTC for leave to take their
execution. deposition, which it granted. On April,
13, 2004 the RTC directed the parties
The Facts and the Case
to submit their memorandum on the
On November 8, 2001 Ruperta C. issue of whether or not
Palaganas (Ruperta), a Filipino who Rupertas U.S. will may be probated in
became a naturalized United States and allowed by a court in
(U.S.) citizen, died single and the Philippines.
childless. In the last will and testament
she executed in California, she On June 17, 2004 the RTC issued an
designated her brother, Sergio C. order:[2] (a) admitting to probate
Palaganas (Sergio), as the executor of Rupertas last will; (b) appointing
her will for she had left properties in respondent Ernesto as special
the Philippines and in the U.S. administrator at the request of Sergio,
the U.S.-based executor designated in
On May 19, 2003 respondent Ernesto the will; and (c) issuing the Letters of
C. Palaganas (Ernesto), Special Administration to Ernesto.
another brother of Ruperta, filed with
the Regional Trial Court (RTC) of Aggrieved by the RTCs order, petitioner
Malolos, Bulacan, a petition for the nephews Manuel and Benjamin
35

probate of Rupertas will and for his appealed to the Court of Appeals
Page

appointment as special administrator of

(CA),[3] arguing that an unprobated will
executed by an American citizen in
the U.S. cannot be probated for the first
time in the Philippines.
On July 29, 2005 the CA rendered a
decision,[4] affirming the assailed order
of the RTC,[5] holding that the RTC
properly allowed the probate of the will,
subject to respondent Ernestos
submission of the authenticated copies
of the documents specified in the order
and his posting of required bond. The
CA pointed out that Section 2, Rule 76
of the Rules of Court does not require
prior probate and allowance of the will
in the country of its execution, before it
can be probated in the Philippines. The
present case, said the CA, is different
from reprobate, which refers to a will
already probated and allowed
abroad. Reprobate is governed by
different rules or
procedures. Unsatisfied with the
decision, Manuel and Benjamin came
to this Court.
The Issue Presented
The key issue presented in this case is
whether or not a will executed by a
foreigner abroad may be probated in
the Philippines although it has not been
previously probated and allowed in the
country where it was executed.
The Courts Ruling
Petitioners Manuel and Benjamin
maintain that wills executed by
foreigners abroad must first be
probated and allowed in the country of
its execution before it can be probated
here. This, they claim, ensures prior
compliance with the legal formalities of
the country of its execution. They insist
that local courts can only allow probate
of such wills if the proponent proves
that: (a) the testator has been admitted
for probate in such foreign country, (b)
the will has been admitted to probate
there under its laws, (c) the probate
court has jurisdiction over the
proceedings, (d) the law on probate
procedure in that foreign country and
proof of compliance with the same, and
(e) the legal requirements for the valid
execution of a will.
But our laws do not prohibit the probate
of wills executed by foreigners abroad
although the same have not as yet
been probated and allowed in the
countries of their execution. A foreign
will can be given legal effects in our
jurisdiction. Article 816 of the Civil Code
states that the will of an alien who is
abroad produces effect in
the Philippines if made in accordance
with the formalities prescribed by the
law of the place where he resides, or
according to the formalities observed in
his country.[6]
In this connection, Section 1, Rule 73 of
the 1997 Rules of Civil Procedure
provides that if the decedent is an
inhabitant of a foreign country, the RTC
of the province where he has an estate
may take cognizance of the settlement
of such estate. Sections 1 and 2 of Rule
76 further state that the executor,
devisee, or legatee named in the will, or
any other person interested in the
estate, may, at any time after the death
of the testator, petition the court having
jurisdiction to have the will allowed,
whether the same be in his possession
or not, or is lost or destroyed.
36
Page
Our rules require merely that the
petition for the allowance of a will must
show, so far as known to the petitioner:
(a) the jurisdictional facts; (b) the
names, ages, and residences of the
heirs, legatees, and devisees of the
testator or decedent; (c) the probable
value and character of the property of
the estate; (d) the name of the person
for whom letters are prayed; and (e) if
the will has not been delivered to the
court, the name of the person having
custody of it. Jurisdictional facts refer to
the fact of death of the decedent, his
residence at the time of his death in the
province where the probate court is
sitting, or if he is an inhabitant of a
foreign country, the estate he left in
such province.[7] The rules do not
require proof that the foreign will has
already been allowed and probated in
the country of its execution.
In insisting that Rupertas will should
have been first probated and allowed
by the court of California, petitioners
Manuel and Benjamin obviously have in
mind the procedure for
the reprobate of will before admitting it
here. But, reprobate or re-
authentication of a will already probated
and allowed in a foreign country is
different from that probate where the
will is presented for the first time before
a competent court. Reprobate is
specifically governed by Rule 77 of the
Rules of Court. Contrary to petitioners
stance, since this latter rule applies only
to reprobate of a will, it cannot be made
to apply to the present case. In
reprobate, the local court acknowledges
as binding the findings of the foreign
probate court provided its jurisdiction
over the matter can be established.
Besides, petitioners stand is fraught
with impractically. If the instituted heirs
do not have the means to go abroad for
the probate of the will, it is as good as
depriving them outright of their
inheritance, since our law requires that
no will shall pass either real or personal
property unless the will has been
proved and allowed by the proper
court.[8]
Notably, the assailed RTC order of
June 17, 2004 is nothing more than an
initial ruling that the court can take
cognizance of the petition for probate of
Rupertas will and that, in the meantime,
it was designating Ernesto as special
administrator of the estate. The parties
have yet to present evidence of the due
execution of the will, i.e. the testators
state of mind at the time of the
execution and compliance with the
formalities required of wills by the laws
of California. This explains the trial
courts directive for Ernesto to submit
the duly authenticated copy of Rupertas
will and the certified copies of the Laws
of Succession and Probate of Will of
California.
WHEREFORE, the Court DENIES the
petition and AFFIRMS the Court of
Appeals decision in CA-G.R. CV 83564
dated July 29, 2005.
SO ORDERED.
37
Page
 ARTICLE 818
G.R. No. L-20234 December 23,
1964
PAULA DE LA CERNA, ET
AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL.,
and THE HONORABLE COURT OF
APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez
for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and
others from a decision of the Court of
Appeals, Sixth Division (C.A.-G.R. No.
23763-R) reversing that of the Court of
First Instance of Cebu (Civ. Case No.
R-3819) and ordering the dismissal of
an action for partition.
The factual background appears in the
following portion of the decision of the
Court of Appeals (Petition, Annex A, pp.
2-4):
It appears that on May 9, 1939,
the spouses, Bernabe de la
Serna and Gervasia Rebaca,
executed a joint last will and
testament in the local dialect
whereby they willed that "our two
parcels of land acquired during
our marriage together with all
improvements thereon shall be
given to Manuela Rebaca, our
niece, whom we have nurtured
since childhood, because God
did not give us any child in our
union, Manuela Rebaca being
married to Nicolas Potot", and
that "while each of the testators is
yet living, he or she will continue
to enjoy the fruits of the two lands
aforementioned", the said two
parcels of land being covered by
Tax No. 4676 and Tax No. 6677,
both situated in sitio Bucao,
barrio Lugo, municipality of
Borbon, province of Cebu.
Bernabe dela Serna died on
August 30, 1939, and the
aforesaid will was submitted to
probate by said Gervasia and
Manuela before the Court of First
Instance of Cebu which, after due
publication as required by law
and there being no opposition,
heard the evidence, and, by
Order of October 31, 1939; in
Special Proceedings No. 499,
"declara legalizado el documento
Exhibit A como el testamento y
ultima voluntad del finado
Bernabe de la Serna con derecho
por parte du su viuda superstite
Gervasia Rebaca y otra testadora
al propio tiempo segun el Exhibit
A de gozar de los frutos de los
terranos descritos en dicho
documents; y habido
consideracion de la cuantia de
dichos bienes, se decreta la
distribucion sumaria de los
mismos en favor de la logataria
universal Manuela Rebaca de
Potot previa prestacion por parte
de la misma de una fianza en la
sum de P500.00 para responder
de cualesquiera reclamaciones
que se presentare contra los
bienes del finado Bernabe de la
Serna de los años desde esta
fecha" (Act Esp. 499,
Testamentaria Finado Bernabe
de la Serna) Upon the death of
Gervasia Rebaca on October 14,
1952, another petition for the
probate of the same will insofar
as Gervasia was concerned was
filed on November 6, 1952, being
Special Proceedings No. 1016-R
of the same Court of First
Instance of Cebu, but for failure
of the petitioner, Manuela R.
Potot and her attorney, Manuel
Potot to appear, for the hearing of
said petition, the case was
dismissed on March 30, 1954
Spec. Proc. No. 1016-R, In the
matter of the Probate of the Will
of Gervasia Rebaca).
The Court of First Instance ordered the
petition heard and declared the
testament null and void, for being
executed contrary to the prohibition of
38
joint wills in the Civil Code (Art. 669,
Page
Civil Code of 1889 and Art. 818, Civil
Code of the Philippines); but on appeal
by the testamentary heir, the Court of
Appeals reversed, on the ground that
the decree of probate in 1939 was
issued by a court of probate jurisdiction
and conclusive on the due execution of
the testament. Further, the Court of
Appeals declared that:
... . It is true the law (Art. 669, old
Civil Code; Art. 818, new Civil
Code). prohibits the making of a
will jointly by two or more persons
either for their reciprocal benefit
or for the benefit of a third
person. However, this form of will
has long been sanctioned by use,
and the same has continued to
be used; and when, as in the
present case, one such joint last
will and testament has been
admitted to probate by final order
of a Court of competent
jurisdiction, there seems to be no
alternative except to give effect to
the provisions thereof that are not
contrary to law, as was done in
the case of Macrohon vs.
Saavedra, 51 Phil. 267, wherein
our Supreme Court gave effect to
the provisions of the joint will
therein mentioned, saying,
"assuming that the joint will in
question is valid."
Whence this appeal by the heirs
intestate of the deceased husband,
Bernabe de la Cerna.
The appealed decision correctly held
that the final decree of probate, entered
in 1939 by the Court of First Instance of
Cebu (when the testator, Bernabe de la
Cerna, died), has conclusive effect as
to his last will and testament despite the
fact that even then the Civil Code
already decreed the invalidity of joint
wills, whether in favor of the joint
testators, reciprocally, or in favor of a
third party (Art. 669, old Civil Code).
The error thus committed by the
probate court was an error of law, that
should have been corrected by appeal,
but which did not affect the jurisdiction
of the probate court, nor the conclusive
effect of its final decision, however
erroneous. A final judgment rendered
on a petition for the probate of a will is
binding upon the whole world (Manalo
vs. Paredes, 47 Phil. 938; In re Estates
of Johnson, 39 Phil. 156); and public
policy and sound practice demand that
at the risk of occasional errors
judgment of courts should become final
at some definite date fixed by
law. Interest rei publicae ut finis set
litium (Dy Cay vs. Crossfield, 38 Phil,
521, and other cases cited in 2 Moran,
Comments on the Rules of Court (1963
Ed., p. 322).
Petitioners, as heirs and successors of
the late Bernabe de la Cerna, are
concluded by the 1939 decree
admitting his will to probate. The
contention that being void the will
cannot be validated, overlooks that the
ultimate decision on Whether an act is
valid or void rests with the courts, and
here they have spoken with finality
when the will was probated in 1939. On
this court, the dismissal of their action
for partition was correct.
But the Court of Appeals should have
taken into account also, to avoid future
misunderstanding, that the probate
decree in 1989 could only affect the
share of the deceased husband,
Bernabe de la Cerna. It could not
include the disposition of the share of
the wife, Gervasia Rebaca, who was
then still alive, and over whose interest
in the conjugal properties the probate
court acquired no jurisdiction, precisely
because her estate could not then be in
issue. Be it remembered that prior to
the new Civil Code, a will could not be
probated during the testator's lifetime.
It follows that the validity of the joint will,
in so far as the estate of the wife was
concerned, must be, on her death,
reexamined and adjudicated de novo,
since a joint will is considered a
separate will of each testator. Thus
regarded, the holding of the court of
First Instance of Cebu that the joint will
is one prohibited by law was correct as
to the participation of the deceased
Gervasia Rebaca in the properties in
question, for the reasons extensively
39
discussed in our decision in Bilbao vs.
Page
Bilbao, 87 Phil. 144, that explained the
previous holding in Macrohon vs.
Saavedra, 51 Phil. 267.

Therefore, the undivided interest of

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

It is unnecessary to emphasize that the

fact that joint wills should be in common
usage could not make them valid when
our Civil Codes consistently invalidated
them, because laws are only repealed
by other subsequent laws, and no
usage to the contrary may prevail
against their observance (Art. 5, Civ.
Code of 1889; Art. 7, Civil Code of the
Philippines of 1950).

WITH THE FOREGOING

MODIFICATION, the judgment of the
Court of Appeals in CA-G.R. No.
23763-R is affirmed. No Costs.

40
Page
 ARTICLE 821.
G.R. No. L-32213 November 26, 1973
AGAPITA N. CRUZ, petitioner,
vs.
HON. JUDGE GUILLERMO P.
VILLASOR, Presiding Judge of
Branch I, Court of First Instance of
Cebu, and MANUEL B.
LUGAY, respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B.
Lugay.
ESGUERRA, J.:
Petition to review on certiorari the
judgment of the Court First Instance of
Cebu allowing the probate of the last
will a testament of the late Valente Z.
Cruz. Petitioner-appellant Agapita N.
Cruz, the surviving spouse of the said
decease opposed the allowance of the
will (Exhibit "E"), alleging the will was
executed through fraud, deceit,
misrepresentation and undue influence;
that the said instrument was execute
without the testator having been fully
informed of the content thereof,
particularly as to what properties he
was disposing and that the supposed
last will and testament was not
executed in accordance with law.
Notwithstanding her objection, the
Court allowed the probate of the said
last will and testament Hence this
appeal by certiorari which was given
due course.
The only question presented for
determination, on which the decision of
the case hinges, is whether the
supposed last will and testament of
Valente Z. Cruz (Exhibit "E") was
executed in accordance with law,
particularly Articles 805 and 806 of the
new Civil Code, the first requiring at
least three credible witnesses to attest
and subscribe to the will, and the
second requiring the testator and the
witnesses to acknowledge the will
before a notary public.
Of the three instrumental witnesses
thereto, namely Deogracias T.
Jamaloas Jr., Dr. Francisco Pañares
and Atty. Angel H. Teves, Jr., one of
them, the last named, is at the same
time the Notary Public before whom the
will was supposed to have been
acknowledged. Reduced to simpler
terms, the question was attested and
subscribed by at least three credible
witnesses in the presence of the
testator and of each other, considering
that the three attesting witnesses must
appear before the notary public to
acknowledge the same. As the third
witness is the notary public himself,
petitioner argues that the result is that
only two witnesses appeared before the
notary public to acknowledge the will.
On the other hand, private respondent-
appellee, Manuel B. Lugay, who is the
supposed executor of the will, following
the reasoning of the trial court,
maintains that there is substantial
compliance with the legal requirement
of having at least three attesting
witnesses even if the notary public
acted as one of them, bolstering up his
stand with 57 American Jurisprudence,
p. 227 which, insofar as pertinent,
reads as follows:
It is said that there are,
practical reasons for
upholding a will as against
the purely technical reason
that one of the witnesses
required by law signed as
certifying to an
acknowledgment of the
testator's signature under
oath rather than as
attesting the execution of
the instrument.
After weighing the merits of the
conflicting claims of the parties, We are
inclined to sustain that of the appellant
that the last will and testament in
question was not executed in
accordance with law. The notary public
before whom the will was
acknowledged cannot be considered as
the third instrumental witness since he
cannot acknowledge before himself his
41
having signed the will. To acknowledge
Page
before means to avow (Javellana v.
Ledesma, 97 Phil. 258, 262; Castro v.
Castro, 100 Phil. 239, 247); to own as
genuine, to assent, to admit; and
"before" means in front or preceding in
space or ahead of. (The New Webster
Encyclopedic Dictionary of the English
Language, p. 72; Funk & Wagnalls New
Standard Dictionary of the English
Language, p. 252; Webster's New
International Dictionary 2d. p. 245.)
Consequently, if the third witness were
the notary public himself, he would
have to avow assent, or admit his
having signed the will in front of himself.
This cannot be done because he
cannot split his personality into two so
that one will appear before the other to
acknowledge his participation in the
making of the will. To permit such a
situation to obtain would be sanctioning
a sheer absurdity.
Furthermore, the function of a notary
public is, among others, to guard
against any illegal or immoral
arrangement Balinon v. De Leon, 50 0.
G. 583.) That function would defeated if
the notary public were one of the
attesting instrumental witnesses. For
them he would be interested sustaining
the validity of the will as it directly
involves him and the validity of his own
act. It would place him in inconsistent
position and the very purpose of
acknowledgment, which is to minimize
fraud (Report of Code Commission p.
106-107), would be thwarted.
Admittedly, there are American
precedents holding that notary public
may, in addition, act as a witness to the
executive of the document he has
notarized. (Mahilum v. Court Appeals,
64 0. G. 4017; 17 SCRA 482; Sawyer v.
Cox, 43 Ill. 130). There are others
holding that his signing merely as
notary in a will nonetheless makes him
a witness thereon (Ferguson v.
Ferguson, 47 S. E. 2d. 346; In Re
Douglas Will, N. Y. S. 2d. 641; Ragsdal
v. Hill, 269 S. W. 2d. 911, Tyson
Utterback, 122 So. 496; In Re Baybee's
Estate 160 N. 900; W. Merill v. Boal,
132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of
the law in this jurisdiction or are not
decisive of the issue herein because
the notaries public and witnesses
referred to aforecited cases merely
acted as instrumental, subscribing
attesting witnesses, and not
as acknowledging witnesses. He the
notary public acted not only as attesting
witness but also acknowledging
witness, a situation not envisaged by
Article 805 of the Civil Code which
reads:
ART. 806. Every will must
be acknowledged before a
notary public by the
testator and the witnesses.
The notary public shall not
be required to retain a copy
of the will or file another
with the office of the Clerk
of Court. [Emphasis
supplied]
To allow the notary public to act as third
witness, or one the attesting and
acknowledging witnesses, would have
the effect of having only two attesting
witnesses to the will which would be in
contravention of the provisions of
Article 80 be requiring at least three
credible witnesses to act as such and of
Article 806 which requires that the
testator and the required number of
witnesses must appear before the
notary public to acknowledge the will.
The result would be, as has been said,
that only two witnesses appeared
before the notary public for or that
purpose. In the circumstances, the law
would not be duly in observed.
FOR ALL THE FOREGOING, the
judgment appealed from is hereby
reversed and the probate of the last will
and testament of Valente Z. Cruz
(Exhibit "E") is declared not valid and
hereby set aside.
Cost against the appellee.
42
Page
 ARTICLE 824.
[G.R. No. 7647. March 27, 1914. ]
DOMINGO CALUYA, Petitioner-
Appellant, v. LUCIA
DOMINGO, Respondent-Appellee.
Lucas Paredes for Appellant.
Julio Adiarte for Appellee.
SYLLABUS
1. WILLS; EXECUTION; SIGNATURE
IN BEHALF OF TESTATOR. — Where
a testator is unable to write and his
name is signed by another at his
request, in his presence and in that of
the subscribing witnesses thereto, it is
unimportant, so far as the validity of the
will is concerned, whether the person
who writes the name of the testator
signs his own or not. The important
thing is that it clearly appear that the
name of the testator was signed at his
direction in the presence of the
subscribing witnesses and that they
attest and subscribe it in his presence
and in the presence of each other.
2. ID.; ID.; VALIDITY OF WILL. —
Under section 618 of the Code of Civil
Procedure if the attestation clause is
defective or even absent, the will is
valid provided it is satisfactorily proved
that it was in fact signed, executed, and
attested as required by law.
3. ID.; ID.; COMPETENCY OF
ATTESTING WITNESS. — The fact
that the testator in his will mentioned a
sale of real estate, fully consummated
before his death, which he had made to
one of the witnesses to his will, does
not make such person an incompetent
witness; nor does the fact that he
signed the will as one of the attesting
witnesses render the will invalid under
section 622 of the Code of Civil
Procedure.
DECISION
MORELAND, J. :
This is an appeal from a judgment of
the Court of First Instance of the
Province of Ilocos Norte denying the
probate of a will.
The learned court below based its
judgment upon three grounds. The first
one was that, although the testator had
signed by mark, it nowhere appeared in
the will who had written the signature or
that it had been written at his request.
The second, that the witness Antonino
Pandaraoan could not really have
signed the attestation clause because,
at the time it was executed, he was
attending a session of the municipal
council of Piddig as a member thereof.
Third: That as to the other witness,
Segundino Asis, the will mentioned and
confirmed a sale of land to him by the
testator, and he being thereby an
interested party his testimony could not
be believed.
We do not believe that any of the
objections are well founded and the
judgment refusing its probate must,
therefore, be reversed.
Section 618 of the Code of Civil
Procedure provides in part:
"No will, except as provided in the
preceding section, shall be valid to pass
any estate, real or personal, nor charge
or affect the same, unless it be in
writing and signed by the testator, 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 each other. . . ."
It is nowhere required that, where the
testator is unable to write, the fact that
his signature was written by some other
person, at his request and express
direction, should appear in the body of
the will itself. In the case of Barut v.
Cabacungan (21 Phil. Rep., 461, 463)
we held the following:
43
"From these provisions it is entirely
Page
clear that, with respect to the validity of
the will, it is unimportant whether the
person who writes the name of the
testatrix signs his own or not. The
important thing is that it clearly appears
that the name of the testatrix was
signed at her express direction in the
presence of three witnesses and that
they attested and subscribed it in her
presence and in the presence of each
other. That is all the statute requires. It
may be wise as a practical matter that
the one who signs the testator’s name
signs also his own; but that is not
essential to the validity of the will.
Whether one person or another signed
the name of the testatrix in this case is
absolutely unimportant so far as the
validity of her will is concerned. The
plain wording of the statute shows that
the requirement laid down by the trial
court, if it did lay it down, is absolutely
unnecessary under the law; and the
reasons underlying the provisions of the
statute relating to the execution of wills
do not in any sense require such a
provision. From the standpoint of
language it is an impossibility to draw
from the words of the law the inference
that the person who signs the name of
the testator must sign his own name
also. The law requires only three
witnesses to a will, not four.
"Nor is such requirement found in any
other branch of the law. The name of a
person who is unable to write may be
signed by another, by express direction,
to any instrument known to the law.
There is no necessity whatever, so far
as the validity of the instrument is
concerned, for the person who writes
the name of the principal in the
document to sign his own name also.
As a matter of policy it may be wise that
he do so inasmuch as it would give
such intimation as would enable a
person proving the document to
demonstrate more readily the execution
by the principal. But as a matter of
essential validity of the document, it is
unnecessary. The main thing to be
established in the execution of the will
is the signature of the testator. If that
signature is proved, whether it be
written by himself or by another at his
request, it is none the less valid, and
the fact of such signature can be
proved as perfectly and as completely
when the person signing for the
principal omits to sign his own name as
it can when he actually signs. To hold a
will invalid for the lack of the signature
of the person signing the name of the
principal is, in the particular case, a
complete abrogation of the law of wills,
as it rejects and destroys a will which
the statute expressly declares is valid."
The section above quoted also provides
that "the attestation clause shall state
the fact that the testator signed the will,
or caused it to be signed by some other
person, at his express direction, in the
presence of three witnesses, and that
they attested and subscribed it in his
presence and in the presence of each
other. But the absence of such form of
attestation shall not render the will
invalid if its is proven that the will was in
fact signed and attested as in this
section provided."
Not only does attestation clause comply
with the requirements of this section,
but it appears clearly proved in
evidence that the name of the testator
was signed by another person at his
request and under his direction and in
his presence and in the presence of the
witnesses to the will. Moreover, as
appears from the last clause of the
section, if the attestation clause is
defective, or even absent, the will is
nevertheless valid provided it is
satisfactorily proved that it was in fact
signed and executed as provided by
law.
As to the second objection, namely,
that Antonino Pandaraoan could not
have signed the will as a witness
thereto, as stated in the attestation
clause, because he was attending a
meeting of the municipal council of
Pidding at the time the will is alleged to
have been executed, we believe this
also to be without merit. It does appear
in the evidence of the opposition that
the witness Pandaraoan was attending
a meeting of the municipal council of
Pidding from something like 10 o’clock
till 12:30 o’clock of the day on which the
44
will was executed and that the will was
Page
executed sometime between 10 and 12
o’clock. Too much weight, however,
can not be given to the testimony
relative to the precise time of the
execution of the will. The barrio of
Pidding is only a short distance from
the house in which the will was
executed and it would have taken but a
short time to cover the distance. The
witness Pandaraoan himself testified
directly and positively that, after having
left the meeting of the municipal
council, he went to the house of the
testator by appointment and there
signed the will as stated in the
attestation clause. He asserts that he
covered the distance on horseback.
The other witnesses to be the will
support this declaration. Not only this,
but the notary public who drew up the
will and who translated it to the testator
and who was present at the time of its
execution, declared and testified that
witnesses whose names appear upon
the will were present at the time it was
executed by the testator and that they
signed the same at his request and in
his presence and in the presence of
each other. All of the witnesses to the
will unite in declaring that they were
there present at the time the will was
executed and that they signed as
witnesses in the presence of the
testator and of each other. The mere
fact that there was a session of the
municipal council of Pidding about the
same time that the will was executed is
not necessarily conclusive against the
fact that Antonino Pandaraoan was
present and signed as a subscribing
witness as he declares. Mistakes in
time are easily made among witnesses
who measure time not so much by
clocks or watches as by the sun.
Antonino Pandaraoan testified that the
municipal council began its session
about 10 o’clock; that in order to attend
the execution of the will, as he had
agreed with the notary public he would
do, he was obliged to leave the session
before it terminated; that he so left the
session, mounted a horse and arrived
at the house of the testator at about 12
o’clock, in time to take part in the
execution of the will as stated in the
attestation clause.
We do not believe that the clear and
positive testimony of the witnesses to
the will and of the notary public is
overcome by the evidence offered in
opposition to the probate.
As to the third ground upon which the
court based its decision; namely, that
the will having mentioned and
confirmed a sale of land to Segundino
Asis, one of the witnesses to the will,
while not rendering the will entirely
invalid, throws great doubt upon the
legality of its execution and especially
the testimony of said witness relating
thereto.
Section 622 provides:
"If a person attests the execution of a
will, to whom or to whose wife or
husband, or parent, or child, a
beneficial devise, legacy, or interest, of
or affecting real or personal estate, is
given by such will, such devise, legacy,
or interest shall, so far only as concerns
such person, or the wife or husband, or
parent or child of such person, or
anyone claiming under such person or
such wife or husband, or parent or
child, be void, unless there are three
other competent witnesses to such will,
and such person so attesting shall be
admitted as a witness as if such devise,
legacy, or interest had not been made
or given. But a mere charge on the real
or personal estate of the testator, for
the payment of debts, shall not prevent
his creditors from being competent
witnesses to his will."
As will readily be seen on reading this
section, nothing in the will before us
relative to the sale of land to Segundino
Asis creates such an interest therein as
falls within the provisions thereof.
Indeed, no interest of any kind was
created by the will in favor of
Segundino Asis, nor did it convey or
transfer any interest to him. It simply
mentioned a fact already
consummated, a sale already made.
Even if, however, the will had conveyed
an interest Segundino Asis, it would not
have been for that reason void. Only
that clause of the will conveying and
45
interest to him would have been void;
Page
the remainder could have stood and
would have stood as a valid testament.

We are confident from a thorough

examination of the record that a fair
preponderance of the evidence is in
favor of the proponents, and there
being no legal impediment to the
probate the court erred in refusing it.

The judgment appealed from is hereby

reversed and the cause remanded to
the court whence it came with
instructions to legalize and probate the
will in accordance with the petition.

Arellano, C.J., Carson and Trent, JJ.,

concur.

46
Page