AG.R. No.
L-35993 December 19, 1932 After this point had been settled Tolentino stated that he would request Syyap, Legarda, and Vergel de
In re Estate of the deceased Gregorio Tolentino. ADELAIDA TOLENTINO, petitioner-appellee,
vs. NATALIA FRANCISCO, ET AL.,oppositors-appellants.
Laurel, Del Rosario & Lualhati for appellants.
Eduardo Gutierrez Repide for appellee.
STREET, J.:
This petition was filed in the Court of First Instance of Manila by Adelaida Tolentino de Concepcion, for
the purpose of procuring probate of the will of Gregorio Tolentino, deceased, who died at the hand of an
assassin, in his home, No. 2541 Lico Street, in the District of Santa Cruz, Manila, on November 9, 1930. In
the inception of the proceedings Eugene de Mitkiewicz was appointed special coadministrator, and he
joined as coplaintiff in the petition. Opposition was made to the probate of the will by Ciriaco Francisco,
Natalia Francisco, and Gervasia Francisco, all cousins of the deceased and residents of the City of Manila.
Upon hearing the cause the trial court overruled the opposition, declared the will to have been properly
executed, and allowed the probate thereof. From this order the three opponents
appealed.chanroblesvirtualawlibrary chanrobles virtual law library
At the time of his death on November 9, 1930, Gregorio Tolentino was sixty-six years of age. During the
more vigorous years of his life he had been married to Benita Francisco, but she predeceased him years
ago. By their industry and frugality the two had accumulated a very considerable estate which does not
appear to have suffered any material diminution in the years of Tolentino's widowhood. The pair had no
children, and the generous instincts of the survivor prompted him to gather around him in his
comfortable and commodious home a number of his wife's kin; and by him various younger members of
the connection were supported and educated. At one time Tolentino contemplated leaving his property
mainly to these kin of his wife, of the surname Francisco; and for several years prior to his death, he had
kept a will indicating this desire. However, in October, 1930, strained relations, resulting from grave
disagreements, developed between Tolentino and the Francisco relations and he determined to make a
new will in which, apart from certain legacies in favor of a few individuals, the bulk of his estate, worth
probably about P150,000, should be given to Adelaida Tolentino de Concepcion, as his universal
heir.chanroblesvirtualawlibrary chanrobles virtual law library
To this end, on October 17, 1930, Tolentino went to the office of Eduardo Gutierrez Repide, an attorney
at 97 General Luna, Manila, and informed him that he wanted to make a new will and desired Repide to
draft it for him. After the necessary preliminary inquiries had been made, the attorney suggested to
Tolentino to return later, bringing a copy of the will previously made. Accordingly, on the second day
thereafter, Tolentino again appeared in Repide's office with the prior will; and the attorney proceeded to
reduce the new will to proper form. As the instrument was taking shape Tolentino stated that he wanted
the will to be signed in Repide's office, with Repide himself as one of the attesting witnesses. For the
other two witnesses Tolentino requested that two attorneys attached to the office, namely, Leoncio B.
Monzon and Ramon L. Sunico, should serve. For this reason, in the draft of the will, as it at first stood,
the names of the three above mentioned were inserted as the names of the three attesting
witnesses.chanroblesvirtualawlibrarychanrobles virtual law library
When the instrument had been reduced to proper form it was placed in the hands of Tolentino, the
testator, in order that he might take it home to reflect over its provisions and consider whether it
conformed in all respects to his wishes. On the morning of October 21 he again appeared in Repide's
office and returned to him the draft of the will with certain corrections. Among the changes thus made
was the suppression of the names of Monzon, Sunico, and Repide as attesting witnesses, these names
being substituted by the names of Jose Syyap, Agustin Vergel de Dios, and Vicente Legarda. The
explanation given by the testator for desiring this change was that he had met Jose Syyap on the Escolta,
the day before, and had committed the indiscretion of communicating the fact that he (Tolentino) was
having a new will made in which Monzon, Sunico, and Repide would appear as the attesting witnesses.
Now Syyap had been the draftsman of the former will of Tolentino, and in this same will the name of
Syyap appeared as one of the attesting witnesses, the other two being Vicente Legarda and Vergel de
Dios. When, therefore, Syyap learned that a new will was being drawn up without his intervention, he
showed profound disappointment, saying to Tolentino that he considered it a gross offense that he,
Legarda, and Vergel de Dios should be eliminated as witnesses to the new will. Upon this manifestation
of feeling by Syyap, Tolentino decided to avail himself of Syyap, Legarda, and Vergel de Dios as witnesses
to this will also, and he therefore requested Repide to change the names of the attesting witnesses.
Dios to appear at the office of Repide for the purpose of signing the will. To this end Tolentino went
away but returned later saying that he had spoken to Syyap about it and that the latter strenuously
objected, observing that the will should be signed at a chop-suey restaurant ( panciteria). Tolentino
further stated to his attorney in this conversation that he had arranged with Syyap and the other two
intending witnesses to meet at five o'clock in the afternoon of the next day, which was October 22, for
the purpose of executing the will.chanroblesvirtualawlibrary chanrobles virtual law library
Pursuant to these instructions Repide made the desired changes in the will; and just before twelve
o'clock noon of the next day Tolentino returned to Repide's office and received from him the criminal
document with a carbon copy thereof. Repide advised the testator that the copy should be executed
with the same formality as the original in order that the intention of the testator should not be
frustrated by the possible loss or destruction of the original.chanroblesvirtualawlibrary chanrobles virtual
law library
It is a custom in the office of Repide not to number the consecutive pages of a will, on the typewriting
machine, the duty of numbering the pages being left to the testator himself. This precaution appears to
have been born of experience, and has been adopted by Repide to prevent the possible destruction of a
will by the mere erasure of the figures or letters indicating the pagination, - a disaster which, in Repide's
experience, had occurred in at least one case. Accordingly, upon delivering the completed will and
carbon copy to the testator, Repide took particular pains to instruct the testator to write the consecutive
paging of both original and duplicate before signing the
instrument.chanroblesvirtualawlibrary chanrobles virtual law library
At his interview the testator suggested to Repide that the latter should also go to the place where the
will was to be executed, so that he might be present at the formality. The attorney replied that it was
impossible for him to do so as he had another engagement for the hour indicated, which would prevent
his attendance.chanroblesvirtualawlibrary chanrobles virtual law library
At about 4:30 p. m. on the same day, which was October 22, Tolentino started in his car to pick up Syyap
and Vergel de Dios at their respective homes on Antipolo and Benavides streets. He then caused his
chauffeur to drive with the three to La Previsora Filipina, on Rizal Avenue, where Vicente Legarda, the
third intending witness was to be found. Arriving at this place, the three entered the office of Legarda,
who was manager of the establishment, and they were invited to take seats, which they did. Tolentino
then suggested that the three should go as his guests to a panciteria, where they could take
refreshments and the will could be executed. Legarda replied that he must decline the invitation for he
had an engagement to go to the Cosmos Club the same afternoon. Upon this Tolentino asked Legarda to
permit the will to be signed in his office, and to this request Legarda
acceded.chanroblesvirtualawlibrary chanrobles virtual law library
Tolentino thereupon drew two documents from his pocket saving that it was his last will and testament,
done in duplicate, and he proceeded to read the original to the witnesses. After this had been
completed, Legarda himself took the will in hand and read it himself. He then returned it to Tolentino,
who thereupon proceeded, with pen and ink, to number the pages of the will thus, "Pagina Primera",
"Pagina Segunda", etc. He then paged the duplicate copy of the will in the same way. He next proceeded
to sign the original will and each of its pages by writing his name "G. Tolentino" in the proper places.
Following this, each of the three witnesses signed their own respective names at the end of the will, at
the end of the attesting clause, and in the left margin of each page of the instrument. During this
ceremony all of the persons concerned in the act of attestation were present together, and all fully
advertent to the solemnity that engaged their attention.chanroblesvirtualawlibrary chanrobles virtual
law library
After the original of the will had been executed in the manner just stated, the testator expressed his
desire that the duplicate should be executed in the same manner. To this Syyap objected, on the ground
that it was unnecessary; and in this view he was supported by Vergel de Dios, with the result that the
wishes of the testator on this point could not be carried out. As the party was about to break up
Tolentino used these words: "For God's sake, as a favor, I request you not to let any one know the
contents of this will." The meeting then broke up and Tolentino returned Syyap and Vergel de Dios to
their homes in his car. He then proceeded to the law office of Repide, arriving about 6:15 p. m. After
preliminary explanations had been made, Tolentino requested Repide to keep the will overnight in his
safe, as it was already too late to place it in the compartment which Tolentino was then renting in the
Oriental Safe Deposit, in the Kneedler Building. In this connection the testator stated that he did not wish Again, on a certain occasion subsequent to the death of Gregorio Tolentino, Juan Concepcion the
to take the will to his home, as he knew that his relatives were watching him and would take advantage husband of Adelaida Tolentino, accompanied by Genoveva de Mendoza, called upon Vergel de Dios, and
of any carelessness on his part to pry into his papers. Also, in this conversation Tolentino informed in the conversation that resulted Vergel de Dios told them that the will was properly executed, that he
Repide of the refusal of Syyap to execute the duplicate of the will.chanroblesvirtualawlibrary chanrobles was one of the attesting witnesses, and that it had been signed by all of them in the office of La Previsora
virtual law library Filipina.chanroblesvirtualawlibrary chanrobles virtual law library
After a good part of an hour had thus been spent at Repide's office by the testator and after the original These circumstances and other incidents revealed in the proof leave no room for doubt in our mind that
of the will had been deposited in Repide's safe, Tolentino took the attorney to the latter's residence in Syyap and Vergel de Dios have entered into a conspiracy between themselves, and in concert with the
Ermita, and then returned to his own home, where he remained without again going out that night. But opponents, to defeat the will of Gregorio Tolentino although they are well aware that said will was in all
promptly at nine o'clock the next morning Tolentino presented himself at Repide's office for the purpose respects properly executed; and the trial court, in our opinion, committed no error in admitting the will
of securing the will. Repide happened to be out and Tolentino went away, but again returned the next to probate.chanroblesvirtualawlibrary chanrobles virtual law library
day and received the will. With the instrument thus in his possession he proceeded at once to the When a will is contested it is the duty of the proponent to call all of the attesting witnesses, if available
Oriental Safe Deposit and there left the instrument in his private compartment, No. 333, in which place it but the validity of the will in no wise depends upon the united support of the will by all of those
remained until withdrawn some two weeks later by order of the witnesses. A will may be admitted to probate notwithstanding the fact that one or more of the
court.chanroblesvirtualawlibrarychanrobles virtual law library subscribing witnesses do not unite with the other, or others, in proving all the facts upon which the
On the morning of November 9, 1930, Gregorio Tolentino was found dead in his bed, having perished by validity of the will rests. (Fernandez vs. Tantoco, 49 Phil., 380.) It is sufficient if the court is satisfied from
the hands of an assassin.chanroblesvirtualawlibrary chanrobles virtual law library all the proof that the will was executed and attested in the manner required by law. In this case we feel
The peculiarity of this case is that, upon the trial of this proceeding for the probate of the will of the well assured that the contested will was properly executed and the order admitting to it probate was
decedent, two of the attesting witnesses, Jose Syyap and Vergel de Dios, repudiated their participation in entirely proper.chanroblesvirtualawlibrary chanrobles virtual law library
the execution of the will at the time and place stated; and while admitting the genuineness of their The order appealed from will therefore be affirmed, with costs against the appellants. So
signatures to the will, pretended that they had severally signed the instrument, at the request of the ordered.chanroblesvirtualawlibrary chanrobles virtual law library
testator, at different places. Thus Syyap, testifying as a witness, claimed that the testator brought the Malcolm, Villamor, Villa-Real, Abad Santos, Hull and Vickers, JJ., concur
will to Syyap's house on the afternoon of October 21 - a time, be it remembered, when the will had not
yet left the hands of the draftsman - and upon learning that Syyap could not be present at the time and
place then being arranged for the execution of the will, he requested Syyap, as a mere matter of
complaisance, to sign the will then, which Syyap did. Vergel de Dios has another story to tell of isolated
action, claiming that he signed the will in the evening of October 22 at the Hospital of San Juan de Dios in
Intramuros.chanroblesvirtualawlibrary chanrobles virtual law library
We are unable to give any credence to the testimony of these two witnesses on this point, the same
being an evident fabrication designed for the purpose of defeating the will. In the first place, the
affirmative proof showing that the will was properly executed is adequate, consistent, and convincing,
consisting of the testimony of the third attesting witness, Vicente Legarda, corroborated by Miguel
Legarda and Urbana Rivera, two disinterested individuals, employees of La Previsora Filipina, who were
present in Legarda's office when the will was executed and who lent a discerning attention to what was
being done. In the second place, each of the seven signatures affixed to his will by Syyap appear to the
natural eye to have been made by using the same pen and ink that was used by Legarda in signing the
will. The same is also probably true of the seven signatures made by Vergel de Dios. This could hardly
have happened if the signatures of Syyap and Vergel de Dios had been affixed, as they now pretend, at
different times and places. In the third place, Both Syyap and Vergel de Dios are impeached by proof of
contradictory statements made by them on different occasions prior to their appearance as witnesses in
this case. In this connection we note that, after the murder of Gregorio Tolentino, and while the police
authorities were investigating his death, Nemesio Alferez, a detective, sent for Syyap and questioned him
concerning his relations with the deceased. Upon this occasion Syyap stated that Gregorio Tolentino had
lately made a will, that it had been executed at the office of La Previsora Filipina under the circumstances
already stated, and that he himself had served as one of the attesting
witnesses.chanroblesvirtualawlibrary chanrobles virtual law library
With respect to Vergel de Dios we have the following fact: On the day that Gregorio Tolentino was
buried, Ramon Llorente, a member of the city police force, was sent out to the cemetery in order that he
might be present and observe the demeanor on that occasion of such Tolentino's kin as might be
present. Llorente arrived before the funeral cortege, having been taken out to the cemetery by Repide.
While the two were waiting at the cemetery, Llorente noted the presence of Vergel de Dios, he
requested the policeman to introduce him. In the conversation that ensued Vergel de Dios stated with
considerable detail that Gregorio Tolentino had made a will just before his death, that it was executed at
La Previsora Filipina, and that he was one of the witnesses who attested the instrument at that time and
place.chanroblesvirtualawlibrary chanrobles virtual law library
G.R. No. 45629 September 22, 1938
ANTILANO G. MERCADO, petitioner,
vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.
1. WILLS; CONCLUSIVENESS OF THE DUE EXECUTION OF A PROBATED WILL. — Section
625 of the Code of Civil Procedure is explicit as to the conclusiveness of the due execution of a
probated will. It provides: "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."cralaw
virtua1aw library
2. ID.; ID. — The probate of a will by the probate court having jurisdiction thereof is considered as
conclusive as to its due execution and validity, and is also conclusive that the testator was of sound
and disposing mind at the time when he executed the will, and was not acting under duress, menace,
fraud, or undue influence, and that the will is genuine and not a forgery.
3. ID.; ID.; PROCEEDING "IN REM." — The probate of a will in this jurisdiction is a proceeding
in rem. The provision of notice by publication as a prerequisite to the allowance of a will is
constructive notice to the whole world, and when probate is granted, the judgment of the court is
binding upon everybody, even against the State.
4. ID.; ID.; CONCLUSIVE PRESUMPTION. — Conclusive presumptions are inferences which the
law makes so peremptory that it will not allow them to be overturned by any contrary proof
however strong. The will in question having been probated by a competent court, the law will not
admit any proof to overthrow the legal presumption that it is genuine and not a forgery.
5. ID.; ID.; CRIMINAL ACTION AGAINST FORGER OF A DULY PROBATED WILL. — Upon the
facts stated in the opinion of the court, it was held: That in view of the provisions of sections 306,
333 and 625 of the Code of Civil Procedure, criminal action will not lie in this jurisdiction against
the forger of a will which had been duly admitted to probate by a court of competent jurisdiction.
On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition
for the probate of the will of his deceased wife, Ines Basa. Without any opposition, and upon the
testimony of Benigno F. Gabino, one of the attesting witnesses, the probate court, on June 27,1931,
admitted the will to probate. Almost three years later, on April 11, 1934, the five intervenors herein
moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the court to probate the
will and to close the proceedings. Because filed ex parte, the motion was denied. The same motion
was filed a second time, but with notice to the adverse party. The motion was nevertheless denied
by the probate court on May 24, 1934. On appeal to this court, the order of denial was affirmed on
July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines Basa,
intervenor Rosario Basa de Leon filed with the justice of the peace court of San Fernando,
Pampanga, a complaint against the petitioner herein, for falsification or forgery of the will probated
as above indicated. The petitioner was arrested. He put up a bond in the sum of P4,000 and engaged
the services of an attorney to undertake his defense. Preliminary investigation of the case was
continued twice upon petition of the complainant. The complaint was finally dismissed, at the
instance of the complainant herself, in an order dated December 8, 1932. Three months later, or on
March 2, 1933, the same intervenor charged the petitioner for the second time with the same
offense, presenting the complaint this time in the justice of the peace court of Mexico, Pampanga.
The petitioner was again arrested, again put up a bond in the sum of P4,000, and engaged the
services of counsel to defend him. This second complaint, after investigation, was also dismissed,
again at the instance of the complainant herself who alleged that the petitioner was in poor health.
That was on April 27, 1933. Some nine months later, on February 2, 1934, to be exact, the same
intervenor accused the same petitioner for the third time of the same offense. The information was
filed by the provincial fiscal of Pampanga in the justice of the peace court of Mexico. The petitioner
was again arrested, again put up a bond of P4,000, and engaged the services of defense counsel. The
case was dismissed on April 24, 1934, after due investigation, on the ground that the will alleged to
have been falsified had already been probated and there was no evidence that the petitioner had
forged the signature of the testatrix appearing thereon, but that, on the contrary, the evidence
satisfactorily established the authenticity of the signature aforesaid. Dissatisfied with the result, the
provincial fiscal, on May 9, 1934, moved in the Court of First Instance of Pampanga for
reinvestigation of the case. The motion was granted on May 23, 1934, and, for the fourth time, the
petitioner was arrested, filed a bond and engaged the services of counsel to handle his defense. The
reinvestigation dragged on for almost a year until February 18, 1934, when the Court of First
Instance ordered that the case be tried on the merits. The petitioner interposed a demurrer on
November 25, 1935, on the ground that the will alleged to have been forged had already been
probated. This demurrer was overruled on December 24, 1935, whereupon an exception was taken
and a motion for reconsideration and notice of appeal were filed. The motion for reconsideration
and the proposed appeal were denied on January 14, 1936. The case proceeded to trial, and
forthwith petitioner moved to dismiss the case claiming again that the will alleged to have been
forged had already been probated and, further, that the order probating the will is conclusive as to
the authenticity and due execution thereof. The motion was overruled and the petitioner filed with
the Court of Appeals a petition for certiorari with preliminary injunction to enjoin the trial court
from further proceedings in the matter. The injunction was issued and thereafter, on June 19, 1937,
the Court of Appeals denied the petition for certiorari, and dissolved the writ of preliminary
injunction. Three justices dissented in a separate opinion. The case is now before this court for
review on certiorari.
Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal
prosecution for the alleged forgery of the said will; and, (2) that he has been denied the
constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.
SEC. 306. Effect of judgment. — The effect of a judgment or final order in an action or special
proceeding before a court or judge of the Philippine Islands or of the United States, or of any State
or Territory of the United States, having jurisdiction to pronounce the judgment or order, may be as
follows.
1. In case of a judgment or order against a specific thing, or in respect to the probate of a
will, or the administration of the estate of a deceased person, or in respect to the personal, political,
or legal condition or relation of a particular person, the judgment or order is conclusive upon the
title of the thing, the will or administration, or the condition or relation of the person Provided, That
the probate of a will or granting of letters of administration shall only be prima facie evidence of the
death of the testator or intestate.
xxx xxx xxx
(Emphasis ours.)
Section 625 of the same Code is more explicit as to the conclusiveness of the due execution of a
probate will. It says.
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. (Emphasis ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:
. . . The decree of probate is conclusive with respect to the due execution thereof and it cannot be
impugned on any of the grounds authorized by law, except that of fraud, in any separate or
independent action or proceeding. Sec. 625, Code of Civil Procedure; Castañeda vs. Alemany, 3
Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs.
Ganara, 11 Phil., 393; Montañano vs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156;
Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil.,
855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.
The probate of a will by the probate court having jurisdiction thereof is usually considered as
conclusive as to its due execution and validity, and is also conclusive that the testator was of sound
and disposing mind at the time when he executed the will, and was not acting under duress, menace,
fraud, or undue influence, and that the will is genuine and not a forgery. (Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was taken
almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the State relative
to the effect of the probate of a will are of persuasive authority in this jurisdiction. The Vermont
statute as to the conclusiveness of the due execution of a probated will reads as follows.
SEC. 2356. No will shall pass either real or personal estate, unless it is proved and allowed
in the probate court, or by appeal in the county or supreme court; and the probate of a will of real or
personal estate shall be conclusive as to its due execution. (Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497, 504):
"The probate of a will by the probate court having jurisdiction thereof, upon the due notice, is
conclusive as to its due execution against the whole world. (Vt. St., sec. 2336; Fosters Exrs. vs.
Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by
Publication as a prerequisite to the allowance of a will is constructive notice to the whole world, and
when probate is granted, the judgment of the court is binding upon everybody, even against the
State. This court held in the case of Manalo vs. Paredes and Philippine Food Co. (47 Phil., 938):
The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court acquires
jurisdiction over all the persons interested, through the publication of the notice prescribed by
section 630 of the Code of Civil Procedure, and any order that may be entered therein is binding
against all of them.
Through the publication of the petition for the probate of the will, the court acquires jurisdiction
over all such persons as are interested in said will; and any judgment that may be rendered after said
proceeding is binding against the whole world.
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.
In this State the probate of a will is a proceeding in rem being in form and substance upon the will
itself to determine its validity. The judgment determines the status of the instrument, whether it is or
is not the will of the testator. When the proper steps required by law have been taken the judgment
is binding upon everybody, and makes the instrument as to all the world just what the judgment
declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713, 715;
Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings before the probate
court are statutory and are not governed by common law rules as to parties or causes of action.
(Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl.,
695.) No process is issued against anyone in such proceedings, but all persons interested in
determining the state or conditions of the instrument are constructively notified by the publication
of notice as required by G. L. 3219. (Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254;
271; 127 Atl., 362.)
Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible
presumption in favor of judgments declared by it to be conclusive.
SEC. 333. Conclusive Presumptions. — The following presumptions or deductions, which the law
expressly directs to be made from particular facts, are deemed conclusive.
xxx xxx xxx
4. The judgment or order of a court, when declared by this code to be conclusive.
Conclusive presumptions are inferences which the law makes so peremptory that it will not allow
them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal Assn., 80
N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S.,
311.) The will in question having been probated by a competent court, the law will not admit any
proof to overthrow the legal presumption that it is genuine and not a forgery.
The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion
that "the judgment admitting the will to probate is binding upon the whole world as to the due
execution and genuineness of the will insofar as civil rights and liabilities are concerned, but not for
the purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent, 93 English Reports,
Full Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier English
decisions to the effect that upon indictment for forging a will, the probating of the same is
conclusive evidence in the defendants favor of its genuine character. Reference is made, however, to
the cases of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a), decided in 1802,
and Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836, decided in 1818,
which establish a contrary rule. Citing these later cases, we find the following quotation from Black
on Judgments, Vol. II, page 764.
A judgment admitting a will to probate cannot be attacked collaterally although the will was forged;
and a payment to the executor named therein of a debt due the decedent will discharge the same,
notwithstanding the spurious character of the instrument probated. It has also been held that, upon
an indictment for forging a will, the probate of the paper in question is conclusive evidence in the
defendants favor of its genuine character. But this particular point has lately been ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts in
the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority opinion,
to hold that "according to later and sounder decisions, the probate, though conclusive until set aside
of the disposition of the property, does not protect the forger from punishment." This was
reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715),
and Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion of the
Court of Appeals. The dissenting opinion of the Court of Appeals in the instant case under review
makes a cursory study of the statutes obtaining in England, Massachussetts and Florida, and comes
to the conclusion that the decisions cited in the majority opinion do not appear to "have been
promulgated in the face of statutes similar to ours." The dissenting opinion cites Whartons Criminal
Evidence (11th ed., sec. 831), to show that the probate of a will in England is only prima facie proof
of the validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21
L.R.A. (pp. 686689 and note), to show that in Massachussetts there is no statute making the probate
of a will conclusive, and that in Florida the statute(sec. 1810, Revised Statutes) makes the probate
conclusive evidence as to the validity of the will with regard to personal, and prima facie as to real
estate. The cases decided by the Supreme Court of Florida cited by the majority opinion, supra,
refer to wills of both personal and real estate.
The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which Justice
Norton of the Supreme Court of California, makes the following review of the nature of probate
proceedings in England with respect to wills personal and real property.
In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts. No probate
of a will relating to real estate is there necessary. The real estate, upon the death of the party seized,
passes immediately to the devisee under the will if there be one; or if there be no will, to the heir at
law. The person who thus becomes entitled takes possession. If one person claims to be the owner
under a will, and another denies the validity of the will and claims to be the owner as heir at law, an
action of ejectment is brought against the party who may be in possession by the adverse claimant;
and on the trial of such an action, the validity of the will is contested, and evidence may be given by
the respective parties as to the capacity of the testator to make a will, or as to any fraud practiced
upon him, or as to the actual execution of it, or as to any other circumstance affecting its character
as a valid devise of the real estate in dispute. The decision upon the validity of the will in such
action becomes res adjudicata, and is binding and conclusive upon the parties to that action and
upon any person who may subsequently acquire the title from either of those parties; but the
decision has no effect upon other parties, and does not settle what may be called the status or
character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid,
whenever other parties may have a contest depending upon it. A probate of a will of personal
property, on the contrary, is a judicial determination of the character of the will itself. It does not
necessarily or ordinarily arise from any controversy between adverse claimants, but is necessary in
order to authorize a disposition of the personal estate in pursuance of its provisions. In case of any
controversy between adverse claimants of the personal estate, the probate is given in evidence and is
binding upon the parties, who are not at liberty to introduce any other evidence as to the validity of
the will.
The intervenors, on the other hand, attempt to show that the English law on wills is different from
that stated in the case of State vs. McGlynn, supra, citing the following statutes.
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to be
testamentary and executed in accordance with the statutory requirements . . . if it disposes of
property, whether personal or real." The Ecclesiastical Courts which took charge of testamentary
causes (Ewells Blackstone [1910], p. 460), were determined by the Court of Probate Act of 1857,
and the Court of Probate in turn was, together with other courts, incorporated into the Supreme
Court of Judicature, and transformed into the Probate Division thereof, by the Judicature Act of
1873. (Lord Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the fact,
however, that the case of Rex vs. Buttery and Macnamarra, supra, upon which they rely in support
of their theory that the probate of a forged will does not protect the forger from punishment, was
decided long before the foregoing amendatory statutes to the English law on wills were enacted.
The case of State vs. McGlynn may be considered, therefore, as more or less authoritative on the
law of England at the time of the promulgation of the decision in the case of Rex vs. Buttery and
Macnamarra.
In the case of State vs. McGlynn, the Attorney General of California filed an information to set
aside the probate of the will of one Broderick, after the lapse of one year provided by the law of
California for the review of an order probating a will, in order that the estate may be escheated to
the State of California for the review of an probated will was forged and that Broderick therefore
died intestate, leaving no heirs, representatives or devisees capable of inheriting his estate. Upon
these facts, the Supreme Court of California held.
The fact that a will purporting to be genuine will of Broderick, devising his estate to a devisee
capable of inheriting and holding it, has been admitted to probate and established as a genuine will
by the decree of a Probate Court having jurisdiction of the case, renders it necessary to decide
whether that decree, and the will established by it, or either of them, can be set aside and vacated by
the judgment of any other court. If it shall be found that the decree of the Probate Court, not
reversed by the appellate court, is final and conclusive, and not liable to be vacated or questioned by
any other court, either incidentally or by any direct proceeding, for the purpose of impeaching it,
and that so long as the probate stands the will must be recognized and admitted in all courts to be
valid, then it will be immaterial and useless to inquire whether the will in question was in fact
genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.).
Although in the foregoing case the information filed by the State was to set aside the decree of
probate on the ground that the will was forged, we see no difference in principle between that case
and the case at bar. A subtle distinction could perhaps be drawn between setting aside a decree of
probate, and declaring a probated will to be a forgery. It is clear, however, that a duly probated will
cannot be declared to be a forgery without disturbing in a way the decree allowing said will to
probate. It is at least anomalous that a will should be regarded as genuine for one purpose and
spurious for another.
The American and English cases show a conflict of authorities on the question as to whether or not
the probate of a will bars criminal prosecution of the alleged forger of the probate will. We have
examined some important cases and have come to the conclusion that no fixed standard maybe
adopted or drawn therefrom, in view of the conflict no less than of diversity of statutory provisions
obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort, to choose
that rule most consistent with our statutory law, having in view the needed stability of property
rights and the public interest in general. To be sure, we have seriously reflected upon the dangers of
evasion from punishment of culprits deserving of the severity of the law in cases where, as here,
forgery is discovered after the probate of the will and the prosecution is had before the prescription
of the offense. By and large, however, the balance seems inclined in favor of the view that we have
taken. Not only does the law surround the execution of the will with the necessary formalities and
require probate to be made after an elaborate judicial proceeding, but section 113, not to speak of
section 513, of our Code of Civil Procedure provides for an adequate remedy to any party who
might have been adversely affected by the probate of a forged will, much in the same way as other
parties against whom a judgment is rendered under the same or similar circumstances. (Pecson vs.
Coronel, 43 Phil., 358.)The aggrieved party may file an application for relief with the proper court
within a reasonable time, but in no case exceeding six months after said court has rendered the
judgment of probate, on the ground of mistake, inadvertence, surprise or excusable neglect. An
appeal lies to review the action of a court of first instance when that court refuses to grant relief.
(Banco Español Filipino vs. Palanca, 37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47
Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to be probated has
become final and unappealable, and after the period fixed by section 113 of the Code of Civil
Procedure has expired, the law as an expression of the legislative wisdom goes no further and the
case ends there.
. . . The court of chancery has no capacity, as the authorities have settled, to judge or decide whether
a will is or is not a forgery; and hence there would be an incongruity in its assuming to set aside a
probate decree establishing a will, on the ground that the decree was procured by fraud, when it can
only arrive at the fact of such fraud by first deciding that the will was a forgery. There seems,
therefore, to be a substantial reason, so long as a court of chancery is not allowed to judge of the
validity of a will, except as shown by the probate, for the exception of probate decrees from the
jurisdiction which courts of chancery exercise in setting aside other judgments obtained by fraud.
But whether the exception be founded in good reason or otherwise, it has become too firmly
established to be disregarded. At the present day, it would not be a greater assumption to deny the
general rule that courts of chancery may set aside judgments procured by fraud, than to deny the
exception to that rule in the case of probate decrees. We must acquiesce in the principle established
by the authorities, if we are unable to approve of the reason. Judge Story was a staunch advocate for
the most enlarged jurisdiction of courts of chancery, and was compelled to yield to the weight of
authority. He says "No other excepted case is known to exist; and it is not easy to discover the
grounds upon which this exception stands, in point of reason or principle, although it is clearly
settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec.,
118, 129. See, also, Tracy vs. Muir, 121 American State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of Civil
Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had been
duly admitted to probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of the case. However, the
other legal question with reference to the denial to the accused of his right to a speedy trial having
been squarely raised and submitted, we shall proceed to consider the same in the light of cases
already adjudicated by this court.
2. The Constitution of the Philippines provides that "In all criminal prosecutions the
accused . . . shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also,
G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be found in the Presidents Instructions to the
Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par. 2) and the
Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts appear to
have been taken from similar provisions in the Constitution of the United States (6th Amendment)
and those of the various states of the American Union. A similar injunction is contained in the
Malolos Constitution (art. 8, Title IV), not to speak of other constitutions. More than once this court
had occasion to set aside the proceedings in criminal cases to give effect to the constitutional
injunction of speedy trial. (Conde vs. Judge of First Instance and Fiscal of Tayabas [1923], 45 Phil.,
173; Conde vs. Rivera and Unson[1924], 45 Phil., 650; People vs. Castañeda and Fernandez[1936]),
35 Off. Gaz., 1269; Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa,
Aug. 30,1938, G.R. No. 46039.).
In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we said.
Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the
accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons,
has a right to a speedy trial in order that if innocent she may go free, and she has been deprived of
that right in defiance of law. Dismissed from her humble position, and compelled to dance
attendance on courts while investigations and trials are arbitrarily postponed without her consent, is
palpably and openly unjust to her and a detriment to the public. By the use of reasonable diligence,
the prosecution could have settled upon the appropriate information, could have attended to the
formal preliminary examination, and could have prepared the case for a trial free from vexatious,
capricious, and oppressive delays.
In People vs. Castañeda and Fernandez, supra, this court found that the accused had not been given
a fair and impartial trial. The case was to have been remanded to the court a quo for a new trial
before an impartial judge. This step, however, was found unnecessary. A review of the evidence
convinced this court that a judgment of conviction for theft, as charged, could not be sustained and,
having in view the right to a speedy trial guaranteed by the Constitution to every person accused of
crime, entered a judgment acquitting the accused, with costs de oficio. We said.
. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the
right to a speedy trial. This criminal proceeding has been dragging on for almost five years now.
The accused have twice appealed to this court for redress from the wrong that they have suffered at
the hands of the trial court. At least one of them, namely Pedro Fernandez alias Piro, had been con-
fined in prison from July 20, 1932 to November 27, 1934, for inability to post the required bond of
P3,000 which was finally reduced to P300. The Government should be the last to set an example of
delay and oppression in the administration of justice and it is the moral and legal obligation of this
court to see that the criminal proceedings against the accused come to an end and that they be
immediately dis-charged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to the
doctrines stated in the second Conde case, supra. In granting the writs prayed for, this court, after
referring to the constitutional and statutory provisions guaranteeing to persons accused of crime the
right to a speedy trial, said:
Se infiere de los preceptos legales transcritos que todo acusado en causa criminal tiene derecho a ser
juzgado pronta y publicamente. Juicio rapido significa un juicioque se celebra de acuerdo con la ley
de procedimiento criminal y los reglamentos, libre de dilaciones vejatorias, caprichosas y opersivas
(Burnett vs. State, 76 Ark., 295; 88S. W., 956; 113 AMSR, 94; Stewart vs. State, 13 Ark., 720; Peo.
vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon vs. State, 10 Miss., 497; 41 AMD., 601; State vs.
Cole, 4 Okl. Cr., 25; 109 P., 736; State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17
Wyo., 227, 98 p., 122;22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos admitidos resulta que
al recurrente se le concedio vista parcial del asunto, en el Juzgado de Primera Instancia de Samar,
solo despues de haber transcurrido ya mas de un año y medio desde la presentacion de la primera
querella y desde la recepcion de la causa en dicho Juzgado, y despues de haberse transferido dos
veces la vista delasunto sin su consentimiento. A esto debe añadirse que laprimera transferencia de
vista era claramente injustificadaporque el motivo que se alego consistio unicamente en
laconveniencia personal del ofendido y su abogado, no habiendose probado suficientemente la
alegacion del primero de quese hallaba enfermo. Es cierto que el recurrente habia pedido que, en
vez de señalarse a vista el asunto para el mayo de 1936, lo fuera para el noviembre del mismo año;
pero,aparte de que la razon que alego era bastante fuerte porquesu abogado se oponia a comparecer
por compromisos urgentes contraidos con anterioridad y en tal circunstancia hubiera quedado
indefenso si hubiese sido obligado a entraren juicio, aparece que la vista se pospuso por el Juzgado
amotu proprio, por haber cancelado todo el calendario judicial preparado por el Escribano para el
mes de junio. Declaramos, con visto de estos hechos, que al recurrents se leprivo de su derecho
fundamental de ser juzgado prontamente.
Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent judge of the
Court of First Instance of Rizal to dismiss the complaint filed in a criminal case against the
petitioner, to cancel the bond put up by the said petitioner and to declare the costs de oficio. In
accepting the contention that the petitioner had been denied speedy trial, this court said:
Consta que en menos de un año el recurrente fue procesado criminalmente por el alegado delito de
abusos deshonestos, en el Juzgado de Paz del Municipio de Cainta, Rizal. Como consecuencia de
las denuncias que contra el se presentaron fue arrestado tres veces y para gozar de libertad
provisional, en espera de los juicios, se vio obligado a prestartres fianzas por la suma de P1,000
cada una. Si no se da fin al proceso que ultimamente se ha incoado contra el recurrente la
incertidumbre continuara cerniendose sobre el y las consiguientes molestias y preocupaciones
continuaran igualmente abrumandole. El Titulo III, articulo 1, No. 17,de la Constitucion preceptua
que en todo proceso criminalel acusado tiene derecho de ser juzgado pronta y publicamente. El
Articulo 15, No. 7, de la Orden General No. 58 dispone asimismo que en las causas criminales el
acusado tendra derecho a ser juzgado pronta y publicamente. Si el recurrente era realmente culpable
del delito que se le imputo, tenia de todos modos derechos a que fuera juzgado pronta y
publicamente y sin dilaciones arbitrarias y vejatorias. Hemos declarado reiteradamente que existe un
remedio positivo para los casos en que se viola el derecho constitucional del acusado de ser juzgado
prontamente. El acusado que esprivado de su derecho fundomental de ser enjuiciado rapidamente
tiene derecho a pedir que se le ponga en libertad, si estuviese detenido, o a que la causa que pende
contra el sea sobreseida definitivamente. (Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the
matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512; Kalaw contra Apostol, R.
G. No. 45591, Oct. 15, 1937; Pueblo contra Castañeda y Fernandez, 35 Gac. Of., 1357.)
We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the
present case may be at variance with those of the cases hereinabove referred to. Nevertheless, we
are of the opinion that, under the circumstances, we should consider the substance of the right
instead of indulging in more or less academic or undue factual differentiations. The petitioner herein
has been arrested four times, has put up a bond in the sum of P4,000 and has engaged the services of
counsel to undertake his defense an equal number of times. The first arrest was made upon a
complaint filed by one of the intervenors herein for alleged falsification of a will which, sixteen
months before, had been probated in court. This complaint, after investigation, was dismissed at the
complainant's own request. The second arrest was made upon a complaint charging the same
offense and this complaint, too, was dismissed at the behest of the complainant herself who alleged
the quite startling ground that the petitioner was in poor health. The third arrest was made following
the filing of an information by the provincial fiscal of Pampanga, which information was dismissed,
after due investigation, because of insufficiency of the evidence. The fourth arrest was made when
the provincial fiscal secured a reinvestigation of the case against the petitioner on the pretext that he
had additional evidence to present, although such evidence does not appear to have ever been
presented.
It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he
presented an information charging the petitioner, for the third time, of the offense of falsification.
This, however, does not matter. The prosecution of offenses is a matter of public interest and it is
the duty of the government or those acting in its behalf to prosecute all cases to their termination
without oppressive, capricious and vexatious delay. The Constitution does not say that the right to a
speedy trial may be availed of only where the prosecution for crime is commenced and undertaken
by the fiscal. It does not exclude from its operation cases commenced by private individuals. Where
once a person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of
the offense or the manner in which it is authorized to be commenced. In any event, even the
actuations of the fiscal himself in this case is not entirely free from criticism. From October 27,
1932, when the first complaint was filed in the justice of the peace court of San Fernando, to
February 2, 1934, when the provincial fiscal filed his information with the justice of the peace of
Mexico, one year, three months and six days transpired; and from April 27, 1933, when the second
criminal complaint was dismissed by the justice of the peace of Mexico, to February 2, 1934, nine
months and six days elapsed. The investigation following the fourth arrest, made after the fiscal had
secured a reinvestigation of the case, appears also to have dragged on for about a year. There
obviously has been a delay, and considering the antecedent facts and circumstances within the
knowledge of the fiscal, the delay may not at all be regarded as permissible. In Kalaw vs. Apostol,
supra, we observed that the prosecuting officer all prosecutions for public offenses (secs. 1681 and
2465 of the Rev. Adm. Code), and that it is his duty to see that criminal cases are heard without
vexatious, capricious and oppressive delays so that the courts of justice may dispose of them on the
merits and determine whether the accused is guilty or not. This is as clear an admonition as could be
made. An accused person is entitled to a trial at the earliest opportunity. (Sutherland on the
Constitution, p. 664; United States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he
commencement of trial for an unreasonable length of time. If the proceedings pending trial are
deferred, the trial itself is necessarily delayed. It is not to be supposed, of course, that the
Constitution intends to remove from the prosecution every reasonable opportunity to prepare for
trial. Impossibilities cannot be expected or extraordinary efforts required on the part of the
prosecutor or the court. As stated by the Supreme Court of the United States, "The right of a speedy
trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures
rights to a defendant. It does not preclude the rights of public justice." (Beavers vs. Haubert [1905],
198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).
It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of his brief,
that the delay was due to "the efforts towards reaching an amicable extrajudicial compromise," but
this fact, we think, casts doubt instead upon the motive which led the intervenors to bring criminal
action against the petitioner. The petitioner claims that the intention of the intervenors was to press
upon settlement, with the continuous threat of criminal prosecution, notwithstanding the probate of
the will alleged to have been falsified. Argument of counsel for the petitioner in this regard is not
without justification. Thus after the filing of the second complaint with the justice of the peace court
of Mexico, complainant herself, as we have seen, asked for dismissal of the complaint, on the
ground that "el acusado tenia la salud bastante delicada," and, apparently because of failure to arrive
at any settlement, she decided to renew her complaint.
Counsel for the intervenors contend — and the contention is sustained by the Court of Appeals —
that the petitioner did not complain heretofore of the denial of his constitutional right to a speedy
trial. This is a mistake. When the petitioner, for the fourth time, was ordered arrested by the Court
of First Instance of Pampanga, he moved for reconsideration of the order of arrest, alleging, among
other things, "Que por estas continuas acusaciones e investigaciones, el acusado compareciente no
obstante su mal estado de salud desde el año 1932 en que tuvo que ser operado por padecer de
tuberculosis ha tenido que sostener litigios y ha sufrido la mar de humiliaciones y zozobras y ha
incudo en enormes gastos y molestias y ha desatendido su quebrantada salud." The foregoing
allegation was inserted on page 6 of the amended petition for certiorari presented to the Court of
Appeals. The constitutional issue also appears to have been actually raised and considered in the
Court of Appeals. In the majority opinion of that court, it is stated:
Upon the foregoing facts, counsel for the petitioner submits for the consideration of this court the
following questions of law: First, that the respondent court acted arbitrarily and with abuse of its
authority, with serious damage and prejudice to the rights and interests of the petitioner, in allowing
that the latter be prosecuted and arrested for the fourth time, and that he be subjected, also for the
fourth time, to a preliminary investigation for the same offense, hereby converting the court into an
instrument of oppression and vengeance on the part of the alleged offended parties, Rosario Basa et
al.; . . . .
And in the dissenting opinion, we find the following opening paragraph:
We cannot join in a decision declining to stop a prosecution that has dragged for about five years
and caused the arrest on four different occasions of a law abiding citizen for the alleged offense of
falsifying a will that years be competent jurisdiction.
From the view we take of the instant case, the petitioner is entitled to have the criminal proceedings
against him quashed. The judgment of the Court of Appeals is hereby reversed, without
pronouncement regarding costs. So ordered.
Avanceña, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.
[G.R. No. 138731. December 11, 2000]
TESTATE ESTATE OF MARIA MANUEL Vda. DE BIASCAN, petitioner, vs. ROSALINA C.
BIASCAN, respondent.
DECISION
GONZAGA-REYES, J.:
This is a petition for review of the decision[1] of the Court of Appeals in CA-G.R. SP Case No.
44306 affirming the orders dated October 22, 1996 and February 12, 1997 of the Regional
Trial Court, Branch 4, Manila. These orders dismissed the appeal of petitioner from the
orders dated April 2, 1981 and April 30, 1985 of the same Regional Trial Court.
The facts of the case are as follows:
On June 3, 1975, private respondent Rosalina J. Biascan filed a petition[2] denominated as
Special Proceeding No. 98037 at the then Court of First Instance, Branch 4, Manila praying
for her appointment as administratrix of the intestate estate of Florencio Biascan and Timotea
Zulueta. In an Order dated August 13, 1975, private respondent was appointed as regular
administratrix of the estates.
On October 10, 1975, Maria Manuel Vda. De Biascan, the legal wife of Florencio Biascan
entered her appearance as Oppositor-Movant in SP. Proc. No. 98037.[3] Simultaneous with
her appearance, she filed a pleading containing several motions including a motion for
intervention, a motion for the setting aside of private respondents appointment as special
administratrix and administratrix, and a motion for her appointment as administratrix of the
estate of Florencio Biascan.[4]
After an exchange of pleadings between the parties, Judge Serafin Cuevas, then presiding
judge of CFI Manila, Branch 4, issued an Omnibus Order[5] dated November 13, 1975 which,
among others, granted Marias intervention and set for trial the motion to set aside the Orders
appointing respondent as administratrix.
On April 2, 1981, the trial court issued an Order[6] resolving that: (1) Maria is the lawful
wife of Florencio; (2) respondent and her brother are the acknowledged natural children of
Florencio; (3) all three are the legal heirs of Florencio who are entitled to participate in the
settlement proceedings; (4) the motion to set aside the order appointing private respondent as
administratrix is denied; and (5) the motion to approve inventory and appraisal of private
respondent be deferred. Maria, through her counsel, received a copy of this April 2, 1981
Order on April 9, 1981.[7]
On June 6, 1981, or fifty-eight (58) days after he receipt of the April 2, 1981 Order, Maria
filed her motion for reconsideration[8] which private respondent opposed.[9]
On November 15, 1981, the fourth floor of the City Hall of Manila was completely gutted by
fire. The records of the settlement proceedings were among those lost in the fire. Thus, on
January 2, 1985, private respondent filed a Petition for Reconstitution[10] of the said records.
Due to the delay caused by the fire and the reconstitution of the records, it was only on April
30, 1985 that the Regional Trial Court of Manila, Branch 4 issued an Order[11] denying
Marias June 6, 1981 Motion for Reconsideration.
Sometime thereafter, Maria died and her testate estate also became the subject of settlement
proceedings. Atty. Marcial F. Lopez was appointed as interim special administrator and
engaged the services of the Siguion Reyna Montecillo and Ongsiako Law Offices on Behalf of
the estate.
On August 21, 1996, the law firm was allegedly made aware of and given notice of the April
30, 1985 Order when its associate visited Branch 4 of the Regional Trial Court of Manila to
inquire about the status of the case. The associate checked the records if there was proof of
service of the April 30, 1985 Order to the former counsel of Maria, Atty. Marcial F. Lopez, but
he discovered that there was none.[12] He was able to secure a certification[13] from the
Clerk of Court of the Regional Trial Court of Manila, Branch 4 which stated that there was no
proof of service of the Order dated April 30, 1985 contained in the records of SP. Proc. No.
98037.
A Notice of Appeal[14] dated April 22, 1996 was filed by petitioner from the Orders dated
April 2, 1981 and April 30, 1985 of the trial court. While the said notice of appeal was dated
April 22, 1996, the stamp of the trial court on the first page of the notice clearly indicated that
the same was received by the trial court on September 20, 1996. A Record of Appeal[15]
dated September 20, 1996 was likewise filed by petitioner.
On October 22, 1996, the trial court issued an Order[16] denying petitioners appeal on the
ground that the appeal was filed out of time. The trial court ruled that the April 2, 1981 Order
which was the subject of the appeal already became final as the Motion for Reconsideration
thereof was filed sixty-five (65) days after petitioner received the same. In addition, the court
ruled that the notice of appeal itself was filed manifestly late as the same was filed more than
11 years after the issuance of the June 11, 1985 Order denying petitioners Motion for
Reconsideration. The Motion for Reconsideration dated November 13, 1996 of petitioner was
likewise denied by the trial court in an Order[17] dated February 12, 1997.
Not satisfied with this decision, petitioner filed a Petition for Certiorari with Prayer for
Mandatory Injunction[18] with the Court of Appeals questioning the October 12, 1996 and
February 12, 1997 Orders of the Regional Trial Court.
In a Decision[19] dated February 16, 1999, the First Division of the Court of Appeals denied
the petition for certiorari of petitioner. Petitioners Motion for Reconsideration was likewise
denied by the appellate court in a Resolution[20] dated May 18, 1999.
Hence, this Petition for Review on Certiorari where petitioner sets forth the following ground
for the reversal of the decision of the appellate court:
THE FIRST DIVISION OF THE COURT OF APPEALS (REVIEWING COURT) HAS
SANCTIONED THE DEPARTURE BY THE REGIONAL TRIAL COURT OF MANILA
BRANCH 4 (TRIAL COURT) FROM THE USUAL COURSE OF JUDICIAL PROCEEDING
IN ISSUING THE ASSAILED 16 FEBRUARY 1999 DECISION AND THE 18 MAY 1999
RESOLUTION WHEN IT AFFIRMED THE ERRONEOUS FINDING OF THE TRIAL
COURT THAT THE ORDER DATED APRIL 2, 1981 BECAME FINAL AND EXECUTORY
DESPITE THE FACT THAT NO OPPOSITION ON ITS TIMELINESS WAS FILED AND
MOREOVER NO RULING AS REGARDS ITS TIMELINESS WAS MADE.[21]
There is no merit in the petition.
Section 1, Rule 109 of the Rules of Court enumerates the orders and judgments in special
proceedings which may be the subject of an appeal. Thus:
Section 1. Orders or judgments from which appeals may be taken. An interested person may
appeal in a special proceeding from an order or judgment rendered by a Regional Trial Court
or a Juvenile and domestic Relations Court, where such order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the distributive shares of the
estate to which such person is entitled;
(c) Allows, or disallows, in whole or in part, any claim against the estate of a deceased
person, or any claim presented on behalf of the estate in offset to a claim against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or
the administration of a trustee or guardian, a final determination in the lower court of the
rights of the party appealing, except that no appeal shall be allowed from the appointment of a
special administrator; and
(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the
person appealing, unless it be an order granting or denying a motion for new trial or for
reconsideration.
An appeal is allowed in these aforesaid cases as these orders, decrees or judgments issued by
a court in a special proceeding constitute a final determination of the rights of the parties so
appealing.[22] In contrast, interlocutory orders are not appealable as these are merely
incidental to judicial proceedings. In these cases, the court issuing such orders retains control
over the same and may thus modify, rescind, or revoke the same on sufficient grounds at any
time before the final judgment.[23]
In the instant case, the Order dated April 2, 1981 of the trial court decreed, among others,
that Maria Manuel Vda. De Biascan, the lawful wife of the deceased Florencio Biascan,
private respondent Rosalina Biascan and her brother, German Biascan, are entitled to
participate in the settlement proceedings. Moreover, the said Order likewise denied Marias
motion to set aside the order appointing private respondent as regular administratrix of the
estate. These rulings of the trial court were precisely questioned by Maria in her Motion for
Reconsideration dated June 6, 1981.
The ruling of the trial court that Maria, private respondent Rosalina Biascan and German
Biascan were entitled to participate in the settlement proceedings falls squarely under
paragraph (b), Section 1, Rule 109 of the Rules of Court as a proper subject of appeal. By so
ruling, the trial court has effectively determined that the three persons are the lawful heirs of
the deceased. As such, the same may be the proper subject of an appeal.
Similarly, the ruling of the trial court denying petitioners motion to set aside the order
appointing private respondent as the regular administratrix of the estate of Florencio Bisacan
is likewise a proper subject of an appeal. We have previously held that an order of the trial
court appointing a regular administrator of a deceased persons estate is a final determination
of the rights of the parties thereunder, and is thus, appealable.[24] This is in contrast with an
order appointing a special administrator who is appointed only for a limited time and for a
specific purpose. Because of the temporary character and special character of this
appointment, the Rules deem it not advisable for any party to appeal from said temporary
appointment.[25] Considering however that private respondent has aleready been appointed
as regular administratrix of the estate of Florencio Biascan, her appointment as such may be
questioned before the appellate court by way of appeal.
It is thus clear that the Order dated April 2, 1981 may be the proper subject of an appeal in a
special proceeding. In special proceedings, such as the instant proceeding for settlement of
estate, the period of appeal from any decision or final order rendered therein is thirty (30)
days, a notice of appeal and a record on appeal being required.[26] The appeal period may
only be interrupted by the filing of a motion for new trial or reconsideration. Once the appeal
period expires without an appeal or a motion for reconsideration or new trial being perfected,
the decision or order becomes final.
With respect to the Order dated April 2, 1981 issued by the trial court, petitioner admits that
Maria Manuel Vda. De Biascan, its predecessor-in-interest, received a copy of the same of
April 9, 1981. Applying these rules, Maria or her counsel had thirty (30) days or until May 9
within which to file a notice of appeal with record on appeal. She may also file a motion for
reconsideration, in which case the appeal period is deemed interrupted.
Considering that it was only June 6, 1981, or a full fifty-eight (58) days after receipt of the
order, that a motion for reconsideration was filed, it is clear that the same was filed out of
time. As such, when the said motion for reconsideration was filed, there was no more appeal
period to interrupt as the Order had already become final.
Petitioner insists, however, that the order dated April 2, 1981 of the trial court did not become
final and executory as no opposition on its timeliness was filed and no ruling as regards its
timeliness was made. Petitioner argues that although its motion for reconsideration was
denied in the Order dated April 30, 1985, the denial was made on grounds other than its
failure to ask for a reconsideration within the period prescribed by law. As such, petitioner
concludes, any procedural defect attending the Motion for Reconsideration was deemed cured
when the trial court, in its Order dated April 30, 1985, took cognizance of the same and
rendered its ruling thereon.
There is no merit in this argument.
It is well-settled that judgment or orders become final and executory by operation of law and
not by judicial declaration. Thus, finality of a judgment becomes a fact upon the lapse of the
reglementary period of appeal if no appeal is perfected[27] or motion for reconsideration or
new trial is filed. The trial court need not even pronounce the finality of the order as the same
becomes final by operation of law. In fact, the trial court could not even validly entertain a
motion for reconsideration filed after the lapse of the period for taking an appeal.[28] As
such, it is of no moment that the opposing party failed to object to the timeliness of the motion
for reconsideration or that the court denied the same on grounds other than timeliness
considering that at the time the motion was filed, the Order dated April 2, 1981 had already
become final and executory. Being final and executory, the trial court can no longer alter,
modify, or reverse the questioned order.[29] The subsequent filing of the motion for
reconsideration cannot disturb the finality of the judgment or order.[30]
Even if we assume that the Motion for Reconsideration filed by petitioner had the effect of
suspending the running of the appeal period for the April 2, 1981 Order, it is clear that
petitioners notice of appeal of the orders of the trial court was still filed out of time.

Under Section 3, Rule 41 of the Rules of Court then applicable, the time during which a
motion to set aside the judgment or order or for a new trial shall be deducted from the period
from which to make an appeal. The rule further states that where the motion was filed during
office hours of the last day of the appeal period, the appeal must be perfected within the day
following that in which the party appealing received notice of the denial of said motion.

The Order of the trial court denying petitioners Motion for Reconsideration of the April 2,
1981 Order was issued on April 30, 1985. Allegedly, petitioner was only made aware of this
April 30, 1985 Order on August 21, 1996 when it inquired from the trial court about the status
of the case. Giving petitioner the benefit of the doubt that it had indeed received notice of the
order denying its motion for reconsideration on August 21, 1996, it follows that petitioner only
had until the following day or on August 22, 1996 within which to perfect the appeal.

At this point, we note with disapproval petitioners attempt to pass off its Notice of Appeal as
having been filed on August 22, 1996. In all its pleadings before this Court and the Court of
Appeals, petitioner insists that its Notice of Appeal was filed the day after it secured the
August 21, 1996 Certification from the trial court. While the Notice of Appeal was ostensibly
dated August 22, 1996, it is clear from the stamp[31] of the trial court that the same was
received only on September 20, 1996. Moreover, in the Order dated October 22, 1996 of the
trial court denying petitioners appeal, the court clearly stated that the Notice of Appeal with
accompanying Record on Appeal was filed on September 20, 1996.

Considering that it is clear from the records that petitioners notice of appeal was filed on
September 20, 1996, the same was clearly filed out of time as it only had until August 22, 1996
within which to file the said pleading. And while the rules on special proceedings recognize
that a motion for extension of time to file the notice of appeal and record of appeal may be
granted,[32]

WHEREFORE, premises considered, we hereby DISMISS the petition for lack of merit. The
decision dated February 16, 1999 and the Resolution dated May 18, 1999 of the Court of
Appeals are hereby AFFIRMED.

SO ORDERED.

Melo, (Chairman), Vitug, and Panganiban, JJ., concur.

G.R. No. L-23445 June 23, 1966
REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID,oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants,
legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga
Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and
Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic
will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before her demise.
Petitioner prayed that said will be admitted to probate and that letters of administration with the will
annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of
the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter
alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors
— who are compulsory heirs of the deceased in the direct ascending line — were illegally preterited and
that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in question is a complete nullity and will
perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition
without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a
will. The court's area of inquiry is limited — to an examination of, and resolution on, the extrinsic validity
of the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the
requisites or solemnities by law prescribed, are the questions solely to be presented, and to be acted
upon, by the court. Said court at this stage of the proceedings — is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the
will should be allowed probate. For them, the meat of the case is the intrinsic validity of the will.
Normally, this comes only after the court has declared that the will has been duly authenticated.2 But
petitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit: Is
the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On
the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of
probate or if the court rejects the will, probability exists that the case will come up once again before us
on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will in question.3After all, there exists a
justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is
a complete nullity. This exacts from us a study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount
of property, do hereby give, devise, and bequeath all of the property which I may have when I die to my
beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have
signed my name this seventh day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil
Code of Spain of 1889, which is similarly herein copied, thus —
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at
the time of the execution of the will or born after the death of the testator, shall void the
institution of heir; but the legacies and betterments4 shall be valid, in so far as they are not
inofficious. ...
A comprehensive understanding of the termpreterition employed in the law becomes a necessity. On
this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o
aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo
tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el
testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia
forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea
completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us,
to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa.
484.6
The word "annul" as used in statute requiring court to annul alimony provisions of divorce
decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out;
to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35).
Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to
abolish; to do away with. Ex parteMitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or
illegitimate. But she left forced heirs in the direct ascending line her parents, now oppositors Felix
Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They thus received
nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly
disinherited. This is a clear case of preterition. Such preterition in the words of Manresa "anulara
siempre la institucion de heredero, dando caracter absoluto a este ordenamiento referring to the
mandate of Article 814, now 854 of the Civil Code.9 The one-sentence will here institutes petitioner as
the sole, universal heir — nothing more. No specific legacies or bequests are therein provided for. It is in
this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says
Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en
parte? No se añade limitacion alguna, como en el articulo 851, en el que se expresa que se
anulara la institucion de heredero en cuanto prejudique a la legitima del deseheredado Debe,
pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el
caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de
uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o
parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos
los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya
institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al
determinar, como efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that
the universal institution of petitioner to the entire inheritance results in totally abrogating the will.
Because, the nullification of such institution of universal heir — without any other testamentary
disposition in the will — amounts to a declaration that nothing at all was written. Carefully worded and
in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning
will tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria
annual del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses the rule of
interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido
antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa,
porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se
ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los
herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene declarado
la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de quien testa si
esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea
valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho
positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de
que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto
razon para modificar la ley, pero no autoriza a una interpretacion contraria a sus terminos y a
los principios que informan la testamentifaccion, pues no porque parezca mejor una cosa en
el terreno del Derecho constituyente, hay razon para convereste juicio en regla de
interpretacion, desvirtuando y anulando por este procedimiento lo que el legislador quiere
establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the
devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises merit
consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will — void because of preterition — would give the heir so
instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such
institution, a testamentary disposition granting him bequests or legacies apart and separate from the
nullified institution of heir. Sanchez Roman, speaking of the two component parts of Article 814, now
854, states that preterition annuls the institution of the heir "totalmente por la pretericion"; but added
(in reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de
legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of petitioner as
universal heir. That institution, by itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of
preterition". 15 From this, petitioner draws the conclusion that Article 854 "does not apply to the case at
bar". This argument fails to appreciate the distinction between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor
are expressly disinherited." 16 Disinheritance, in turn, "is a testamentarydisposition depriving any
compulsory heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own words:
"La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that disinheritance "es
siempre voluntaria"; preterition, upon the other hand, is presumed to be "involuntaria". 19 Express as
disinheritance should be, the same must be supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their
names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the
said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of
heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the
form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such
disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the person
disinherited", which last phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limitedto that portion of the estate of which the disinherited heirs have been
illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heirs in
the case of preterition on the one hand and legal disinheritance on the other, runs thus:
"Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el
caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their
legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so
instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Nericase heretofore
cited, viz:
But the theory is advanced that the bequest made by universal title in favor of the children by
the second marriage should be treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted, will result in a complete
abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may
be made to fall into the concept of legacies and betterments reducing the bequest
accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the
institution, would. be absolutely meaningless and will never have any application at all. And
the remaining provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they would be absorbed by Article
817. Thus, instead of construing, we would be destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision.
With reference to article 814, which is the only provision material to the disposition of this
case, it must be observed that the institution of heirs is therein dealt with as a thing separate
and distinct from legacies or betterments. And they are separate and distinct not only
because they are distinctly and separately treated in said article but because they are in
themselves different. Institution of heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property bequeathed by a particular or special title. ...
But again an institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil
Code in turn merely nullifies "the institution of heir". Considering, however, that the will before us solely
provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The
entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No
costs allowed. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.
 [G.R. No. 110427. February 24, 1997]
The Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO
EVANGELISTA, petitioner, vs.COURT OF APPEALS (SPECIAL FIRST
DIVISION), PEDRO ESTRADA and his wife, LEONORA
ESTRADA, respondents.
DECISION
NARVASA, C.J.:
On November 20, 1989, being then ninety-four (94) years of age, Carmen
Caiza, a spinster, a retired pharmacist, and former professor of the College of
Chemistry and Pharmacy of the University of the Philippines, was declared
incompetent by judgment[1] of the Regional Trial Court of Quezon City, Branch
107,[2] in a guardianship proceeding instituted by her niece, Amparo A.
Evangelista.[3] She was so adjudged because of her advanced age and physical
infirmities which included cataracts in both eyes and senile dementia. Amparo A.
Evangelista was appointed legal guardian of her person and estate.
Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On
September 17, 1990, her guardian Amparo Evangelista commenced a suit in the
Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses
Pedro and Leonora Estrada from said premises. [4] The complaint was later amended
to identify the incompetent Caiza as plaintiff, suing through her legal guardian,
Amparo Evangelista.
The amended Complaint[5] pertinently alleged that plaintiff Caiza was the
absolute owner of the property in question, covered by TCT No. 27147; that out of
kindness, she had allowed the Estrada Spouses, their children, grandchildren and
sons-in-law to temporarily reside in her house, rent-free; that Caiza already had
urgent need of the house on account of her advanced age and failing health, "so
funds could be raised to meet her expenses for support, maintenance and medical
treatment;" that through her guardian, Caiza had asked the Estradas verbally and in
writing to vacate the house but they had refused to do so; and that "by the
defendants' act of unlawfully depriving plaintiff of the possession of the house in
question, they ** (were) enriching themselves at the expense of the incompetent,
because, while they ** (were) saving money by not paying any rent for the house, the
incompetent ** (was) losing much money as her house could not be rented by
others." Also alleged was that the complaint was "filed within one (1) year from the
date of first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been
living in Caiza's house since the 1960's; that in consideration of their faithful service
they had been considered by Caiza as her own family, and the latter had in fact
executed a holographic will on September 4, 1988 by which she "bequeathed" to the
Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor, [6] the
Estradas being ordered to vacate the premises and pay Caiza P5,000.00 by way of
attorney's fees.
But on appeal,[7] the decision was reversed by the Quezon City Regional Trial
Court, Branch 96.[8] By judgment rendered on October 21, 1992,[9] the RTC held that
the "action by which the issue of defendants' possession should be resolved is accion
publiciana, the obtaining factual and legal situation ** demanding adjudication by such
plenary action for recovery of possession cognizable in the first instance by the
Regional Trial Court."
Caiza sought to have the Court of Appeals reverse the decision of October 21,
1992, but failed in that attempt. In a decision[10]promulgated on June 2, 1993, the
Appellate Court[11] affirmed the RTC's judgment in toto. It ruled that (a) the proper
remedy for Caiza was indeed an accion publiciana in the RTC, not an accion
interdictal in the MetroTC, since the "defendants have not been in the subject
premises as mere tenants or occupants by tolerance, they have been there as a sort
of adopted family of Carmen Caiza," as evidenced by what purports to be the
holographic will of the plaintiff; and (b) while "said will, unless and until it has passed
probate by the proper court, could not be the basis of defendants' claim to the
property, ** it is indicative of intent and desire on the part of Carmen Caiza that
defendants are to remain and are to continue in their occupancy and possession, so
much so that Caiza's supervening incompetency can not be said to have vested in
her guardian the right or authority to drive the defendants out." [12]
Through her guardian, Caiza came to this Court praying for reversal of the
Appellate Court's judgment. She contends in the main that the latter erred in (a)
holding that she should have pursued an accion publiciana, and not an accion
interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic
will, which is irrelevant to this case."[13]
In the responsive pleading filed by them on this Court's requirement,[14] the
Estradas insist that the case against them was really not one of unlawful detainer;
they argue that since possession of the house had not been obtained by them by any
"contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of
Court, their occupancy of the premises could not be deemed one "terminable upon
mere demand (and hence never became unlawful) within the context of the law."
Neither could the suit against them be deemed one of forcible entry, they add,
because they had been occupying the property with the prior consent of the "real
owner," Carmen Caiza, which "occupancy can even ripen into full ownership once the
holographic will of petitioner Carmen Caiza is admitted to probate." They conclude, on
those postulates, that it is beyond the power of Caiza's legal guardian to oust them
from the disputed premises.
Carmen Caiza died on March 19, 1994,[15]and her heirs -- the aforementioned
guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew,
respectively -- were by this Court's leave, substituted for her.[16]
Three issues have to be resolved: (a) whether or not an ejectment action is the
appropriate judicial remedy for recovery of possession of the property in dispute; (b)
assuming desahucio to be proper, whether or not Evangelista, as Caiza's legal
guardian had authority to bring said action; and (c) assuming an affirmative answer to
both questions, whether or not Evangelista may continue to represent Caiza after the
latter's death.
I
It is axiomatic that what determines the nature of an action as well as which
court has jurisdiction over it, are the allegations of the complaint and the character of
the relief sought.[17] An inquiry into the averments of the amended complaint in the
Court of origin is thus in order.[18]
The amended Complaint alleges:[19]
"6. That the plaintiff, Carmen Caiza, is the sole and absolute owner of a house and lot at No.
61 Scout Tobias, Quezon City, which property is now the subject of this complaint;
** ** **
9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live
temporarily in the house of plaintiff, Carmen Caiza, for free, out of her kindness;
10. That the plaintiff, through her legal guardian, has duly notified the defendants, for them to
vacate the said house, but the two (2) letters of demand were ignored and the defendants
refused to vacate the same.**
11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another
demand on the defendants for them to vacate the premises, before Barangay Captain Angelina
A. Diaz of Barangay Laging Handa, Quezon City, but after two (2) conferences, the result was
negative and no settlement was reached. A photocopy of the Certification to File Action dated
July 4, 1990; issued by said Barangay Captain is attached, marked Annex "D" and made an
integral part hereof;
12. That the plaintiff has given the defendants more than thirty (30) days to vacate the house,
but they still refused to vacate the premises, and they are up to this time residing in the said
place;
13. That this complaint is filed within one (1) year from the date of first letter of demand dated
February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian --
Amparo Evangelista;
14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the house
in question, they are enriching themselves at the expense of the incompetent plaintiff, because,
while they are saving money by not paying any rent for the house, the plaintiff is losing much
money as her house could not be rented by others;
15. That the plaintiff's health is failing and she needs the house urgently, so that funds could
be raised to meet her expenses for her support, maintenance and medical treatment;
16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon
City, the plaintiff, through her legal guardian, was compelled to go to court for justice, and she
has to spend P10,000.00 as attorney's fees."
Its prayer[20] is quoted below:
"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Caiza,
represented by her legal guardian. Amparo Evangelista, respectfully prays to this Honorable
Court, to render judgment in favor of plaintiff and against the defendants as follows:
1. To order the defendants, their children, grandchildren, sons-in-law and other persons
claiming under them, to vacate the house and premises at No. 61 Scout Tobias, Quezon City,
so that its possession can be restored to the plaintiff, Carmen Caiza: and
2. To pay attorney's fees in the amount of P10,000.00;
3. To pay the costs of the suit."
In essence, the amended complaint states:
1) that the Estradas were occupying Caiza's house by tolerance -- having been "allowed to live
temporarily ** (therein) for free, out of ** (Caiza's) kindness;"
2) that Caiza needed the house "urgently" because her "health ** (was) failing and she **
(needed) funds ** to meet her expenses for her support, maintenance and medical treatment;"
3) that through her general guardian, Caiza requested the Estradas several times, orally and in
writing, to give back possession of the house;
4) that the Estradas refused and continue to refuse to give back the house to Caiza, to her
continuing prejudice; and
5) that the action was filed within one (1) year from the last demand to vacate.
Undoubtedly, a cause of action for desahuciohas been adequately set out. It is
settled that in an action for unlawful detainer, it suffices to allege that the defendant is
unlawfully withholding possession from the plaintiff is deemed sufficient, [21] and a
complaint for unlawful detainer is sufficient if it alleges that the withholding of
possession or the refusal to vacate is unlawful without necessarily employing the
terminology of the law.[22]
The Estradas' first proffered defense derives from a literal construction of
Section 1, Rule 70 of the Rules of Court which inter aliaauthorizes the institution of an
unlawful detainer suit when "the possession of any land or building is unlawfully
withheld after the expiration or termination of the right to hold possession, by virtue of
any contract, express or implied." They contend that since they did not acquire
possession of the property in question "by virtue of any contract, express or implied" -
- they having been, to repeat, "allowed to live temporarily ** (therein) for free, out of **
(Caiza's) kindness" -- in no sense could there be an "expiration or termination of **
(their) right to hold possession, by virtue of any contract, express or implied." Nor
would an action for forcible entry lie against them, since there is no claim that they
had "deprived (Caiza) of the possession of ** (her property) by force, intimidation,
threat, strategy, or stealth."
The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy
her house, rent-free, did not create a permanent and indefeasible right of possession
in the latter's favor. Common sense, and the most rudimentary sense of fairness
clearly require that act of liberality be implicitly, but no less certainly, accompanied by
the necessary burden on the Estradas of returning the house to Caiza upon her
demand. More than once has this Court adjudged that a person who occupies the
land of another at the latter's tolerance or permission without any contract between
them is necessarily bound by an implied promise that he will vacate upon demand,
failing which a summary action for ejectment is the proper remedy against him. [23]The
situation is not much different from that of a tenant whose lease expires but who
continues in occupancy by tolerance of the owner, in which case there is deemed to
be an unlawful deprivation or withholding of possession as of the date of the demand
to vacate.[24] In other words, one whose stay is merely tolerated becomes a deforciant
illegally occupying the land or property the moment he is required to leave. [25] Thus, in
Asset Privatization Trust vs. Court of Appeals,[26] where a company, having lawfully
obtained possession of a plant upon its undertaking to buy the same, refused to
return it after failing to fulfill its promise of payment despite demands, this Court held
that "(a)fter demand and its repudiation, ** (its) continuing possession ** became
illegal and the complaint for unlawful detainer filed by the ** (plant's owner) was its
proper remedy."
It may not be amiss to point out in this connection that where there had been
more than one demand to vacate, the one-year period for filing the complaint for
unlawful detainer must be reckoned from the date of the last demand,[27] the reason
being that the lessor has the option to waive his right of action based on previous
demands and let the lessee remain meanwhile in the premises.[28]Now, the complaint
filed by Caiza's guardian alleges that the same was "filed within one (1) year from the
date of the first letter of demand dated February 3, 1990." Although this averment is
not in accord with law because there is in fact a second letter of demand to vacate,
dated February 27, 1990, the mistake is inconsequential, since the complaint was
actually filed on September 17, 1990, well within one year from the second (last)
written demand to vacate.
The Estradas' possession of the house stemmed from the owner's express
permission. That permission was subsequently withdrawn by the owner, as was her
right; and it is immaterial that the withdrawal was made through her judicial guardian,
the latter being indisputably clothed with authority to do so. Nor is it of any
consequence that Carmen Caiza had executed a will bequeathing the disputed
property to the Estradas; that circumstance did not give them the right to stay in the
premises after demand to vacate on the theory that they might in future become
owners thereof, that right of ownership being at best inchoate, no transfer of
ownership being possible unless and until the will is duly probated.
Thus, at the time of the institution of the action of desahucio, the Estradas had
no legal right to the property, whether as possessors by tolerance or sufferance, or as
owners. They could not claim the right of possession by sufferance, that had been
legally ended. They could not assert any right of possession flowing from their
ownership of the house; their status as owners is dependent on the probate of the
holographic will by which the property had allegedly been bequeathed to them -- an
event which still has to take place; in other words; prior to the probate of the will, any
assertion of possession by them would be premature and inefficacious.
 In any case, the only issue that could legitimately be raised under the
circumstances was that involving the Estradas' possession by tolerance, i.e.,
possession de facto, not de jure. It is therefore incorrect to postulate that the proper
remedy for Caiza is not ejectment but accion publiciana, a plenary action in the RTC
or an action that is one for recovery of the right to possession de jure.
II
The Estradas insist that the devise of the house to them by Caiza clearly
denotes her intention that they remain in possession thereof, and legally
incapacitated her judicial guardian, Amparo Evangelista, from evicting them
therefrom, since their ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may
be changed or revoked;[29] and until admitted to probate, it has no effect whatever and
no right can be claimed thereunder, the law being quite explicit: "No will shall pass
either real or personal property unless it is proved and allowed in accordance with the
Rules of Court" (ART. 838, id.).[30] An owner's intention to confer title in the future to
persons possessing property by his tolerance, is not inconsistent with the former's
taking back possession in the meantime for any reason deemed sufficient. And that in
this case there was sufficient cause for the owner's resumption of possession is
apparent: she needed to generate income from the house on account of the physical
infirmities afflicting her, arising from her extreme age.
Amparo Evangelista was appointed by a competent court the general guardian
of both the person and the estate of her aunt, Carmen Caiza. Her Letters of
Guardianship[31] dated December 19, 1989 clearly installed her as the "guardian over
the person and properties of the incompetent CARMEN CAIZA with full authority to
take possession of the property of said incompetent in any province or provinces in
which it may be situated and to perform all other acts necessary for the management
of her properties ** "[32] By that appointment, it became Evangelista's duty to care for
her aunt's person, to attend to her physical and spiritual needs, to assure her well-
being, with right to custody of her person in preference to relatives and friends.[33] It
also became her right and duty to get possession of, and exercise control over,
Caiza's property, both real and personal, it being recognized principle that the ward
has no right to possession or control of his property during her incompetency. [34] That
right to manage the ward's estate carries with it the right to take possession thereof
and recover it from anyone who retains it,[35] and bring and defend such actions as
may be needful for this purpose. [36]
Actually, in bringing the action of desahucio, Evangelista was merely
discharging the duty to attend to "the comfortable and suitable maintenance of the
ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:
"SEC. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. A
guardian must manage the estate of his ward frugally and without waste, and apply the income
and profits thereof, so far as maybe necessary, to the comfortable and suitable maintenance of
the ward and his family, if there be any; and if such income and profits be insufficient for that
purpose, the guardian may sell or encumber the real estate, upon being authorized by order to
do so, and apply to such of the proceeds as may be necessary to such maintenance."
Finally, it may be pointed out in relation to the Estradas's defenses in the
ejectment action, that as the law now stands, even when, in forcible entry and
unlawful detainer cases, the defendant raises the question of ownership in his
pleadings and the question of possession cannot be resolved without deciding the
issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts nevertheless have the undoubted competence to
resolve. "the issue of ownership ** only to determine the issue of possession." [37]
III
As already stated, Carmen Caiza passed away during the pendency of this
appeal. The Estradas thereupon moved to dismiss the petition, arguing that Caiza's
death automatically terminated the guardianship, Amaparo Evangelista lost all
authority as her judicial guardian, and ceased to have legal personality to represent
her in the present appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and ward
is necessarily terminated by the death of either the guardian or the ward, [38] the rule
affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen
Caiza, is one of the latter's only two (2) surviving heirs, the other being Caiza's
nephew, Ramon C. Nevado. On their motion and by Resolution of this Court [39] of
June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of
the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.:[40]
"SEC. 18. Death of a party. After a party dies and the claim is not thereby extinguished, the
court shall order, upon proper notice, the legal representative of the deceased to appear and be
substituted for the deceased within a period of thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear within said time, the court may order the
opposing party to procure the appointment of a legal representative of the deceased within a
time to be specified by the court, and the representative shall immediately appear for and on
behalf of the interest of the deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the
deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may appoint guardian ad litem for
the minor heirs.
To be sure, an ejectment case survives the death of a party. Caiza's demise did
not extinguish the desahucio suit instituted by her through her guardian. [41] That
action, not being a purely personal one, survived her death; her heirs have taken her
place and now represent her interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
promulgated on June 2, 1993 -- affirming the Regional Trial Court's judgment and
dismissing petitioner's petition for certiorari -- is REVERSED and SET ASIDE, and the
Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch
35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private
respondents.
SO ORDERED.
Davide, Jr., Melo, Francisco, and Panganiban, JJ., concur
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20374 October 11, 1923
In re of Dolores Coronel, deceased.
LORENZO PECSON, applicant-appellee,
vs.
AGUSTIN CORONEL, ET AL., opponents-appellants.
Fisher, DeWitt, Perkins and Brady for appellants.
Ross and Lawrence and Guillermo Lualhati for appellee.
ROMUALDEZ, J.:
On November 28, 1922, the Court of First Instance of Pampanga probated as the last will and
testament of Dolores Coronel, the document Exhibit A, which translated is as follows:
In the name of God, Amen:
I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the full exercise of
my mental faculties, do hereby make my last will and testament, and revoke all former wills by me
executed.
I direct and order that my body be buried in conformity with my social standing.
That having no forced heirs, I will all my properties, both movable and immovable, to my nephew,
Lorenzo Pecson, who is married to my niece Angela Coronel, in consideration of the good services
with he has rendered, and is rendering to me with good will and disinterestedness and to my full
satisfaction.
I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and
ordained in this my will, without bond. Should he not be able to discharge his duties as such
executor for any reason whatsoever, I name and appoint as substitute executor my grandson Victor
Pecson, a native and resident of the town of Betis, without requiring him to give bond. 1awph!l.net
All my real and paraphernal property as well as my credits for I declare that I have no debts, are
specified in an inventory.
In testimony whereof and as I do not know how to write my name, I have requested Vicente J.
Francisco to write my name at the foot hereof and on the left margin of each of its sheet before me
and all the undersigned witnesses this July 1, 1918.
VICENTE J. FRANCISCO
"For the testatrix Dolores Coronel
The foregoing document was executed and declared by Dolores Coronel to be her last will and
testament in our presence, and as the testatrix does not know how to write her name, she requested
Vicente J. Francisco to sign her name under her express direction in our presence, at the foot, and
on the left margin of each and every sheet, hereof. In testimony whereof, each of us signed these
presents in the presence of others and of the testatrix at the foot hereof and on the margin of each
and everyone of the two sheets of which this document is composed, which are numbered "one" and
"two" on the upper part of the face thereof.
(Sgd.) "MAXIMO VERGARA SOTERO DUMAUAL MARCOS DE LOS
SANTOS
MARIANO L. CRISOSTOMO PABLO BARTOLOME MARCOS DE
LA CRUZ DAMIAN CRISOSTOMO
On the left margin of the two sheets of the will the following signatures also appear:
Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel, M. Vergara, Pablo
Bartolome, Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos de los Santos.
The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel, who is a
niece of the deceased Dolores Coronel.
The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow of the
deceased Macario Gozum, in her own behalf and that of her three minor children, Hilarion Coronel,
Geronimo Coronel, Maria Coronel and her husband Eladio Gongco, Juana Bituin, widow of the
deceased Hipolito Coronel, in her own behalf and that of her three children, Generosa, Maria, and
Jose, all minors, Rosario Coronel, Agustin Coronel, Filomeno Coronel, Casimiro Coronel, Alejo
Coronel, Maria Coronel, Severina Coronel, Serapia Coronel, Maria Juana de Ocampo, widow of the
deceased Manuel Coronel, Dionisia Coronel, and her husband Pantaleon Gunlao.
The probate of this will is impugned on the following grounds: (a) That the proof does not that the
document Exhibit A above copied contains the last will of Dolores Coronel, and (b) that the
attestation clause is not in accordance with the provisions of section 618 of the Code of Civil
Procedure, as amended by Act No. 2645.
These are the two principal questions which are debated in this case and which we will now
examine separately.
As to the first, which is the one raised in the first assignment of error, the appellants argue: First,
that it was improbable and exceptional that Dolores Coronel should dispose of her estate, as set
forth in the document Exhibit A, her true being that the same be distributed among her blood
relatives; and second, that if such will not expressed in fact, it was due to extraneous illegal
influence.
Let us examine the first point.
The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not
natural nor usual that she should completely exclude her blood relatives from her vast estate, in
order to will the same to one who is only a relative by affinity, there appearing no sufficient motive
for such exclusion, inasmuch as until the death of Dolores Coronel, she maintained very cordial
relations with the aforesaid relatives who had helped her in the management and direction of her
lands. It appears, however, from the testimony of Attorney Francisco (page 71, transcript of the
stenographic notes) that Dolores Coronel revealed to him her suspicion against some of her
nephews as having been accomplices in a robbery of which she had been a victim.
As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the opponents admit
that he rendered them at least from the year 1914, although there is proof showing that he rendered
such services long before that time.
The appellants emphasize the fact that family ties in this country are very strongly knit and that the
exclusion of relative one's estate an exceptional case. It is true that ties of relationship in the
Philippines are very strong, but we understand that cases of preterition of relatives from the
inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced heirs
is rendered sacred by the civil Code in force in the Philippines since 1889. It is so provided in the
first paragraph of article in the following terms:
Any person who was no forced heirs may dispose by will of all his property or any part of it in favor
of any person qualified to acquire it.
Even ignoring the precedents of this legal precept, the Code embodying it has been in force in the
Philippines for more than a quarter of a century, and for this reason it is not tenable to say that the
excercise of the liberty thereby granted is necessarily exceptional, where it is not shown that the
inhabitants of this country whose customs must have been take into consideration by the legislator
in adopting this legal precept, are averse to such a liberty.
As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of the
moment. The proof adduced by this appelle, although contradicted, shows by a preponderance of
evidence that besides the services which the opponents admit had been rendered by him to Dolores
Coronel since the year 1914, he had also rendered services prior to that time and was the
administrator and manager of the affairs of said Dolores in the last years of her life. And that this
was not a whim of the moment is shown by the fact that six years before the execution of the will in
question, said Lorenzo Pecson was named and appointed by Dolores Coronel as her sole heir in the
document Exhibit B, which, translated, is as follows:
1. That my present property was acquired by me by inheritance from my parents, but a great part
thereof was acquired by me by my own efforts and exertions;
2. That I have made no inventory of my properties, but they can be seen in the title deeds in my
possession and in the declarations of ownership;
3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known resident of the town,
my heir to succeed to all my properties;
4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default, Victor Pecson, a
resident of the same town;
5. That as to my burial and other things connected with the eternal rest of my soul, I leave them to
the sound direction of the aforesaid Lorenzo Pecson;
6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town, to write
this will in accordance with my wishes and precise instructions.
In testimony whereof I had the said Martin Pangilinan write my name and surname, and affixed my
mark between my name and surname, and don Francisco Dumaual, Don Mariano Sunglao, Don
Sotero Dumaual, Don Marcos de la Cruz and Don Martin Pangilinan signed as witnesses, they
having been present at the beginning of, during, and after, the execution of this my last will.
(Sgd.) "DOLORES CORONEL
Witnesses:
(Sgd.) "MARIANO SUNGLAO
MARCOS DE LA CRUZ
FRANCISCO DUMAUAL
SOTERO DUMAUAL
MARTIN PANGILINAN"
The appellants find in the testament Exhibit B something to support their contention that the
intention of Dolores Coronel was to institute the said Pecson not as sole beneficiary, but simply as
executor and distributor of all her estate among her heirs, for while Lorenzo Pecson's contention that
he was appointed sold beneficiary is based on the fact that he enjoyed the confidence of Dolores
Coronel in 1918 and administered all her property, he did not exclusively have this confidence and
administration in the year 1912. Although such administration and confidence were enjoyed by
Pecson always jointly with others and never exclusively, this fact does not show that the will of the
testatrix was to appoint Pecson only as executor and distributor of her estate among the heirs, nor
does it prevent her, the testatrix, from instituting him in 1912 or 1918 as sole beneficiary; nor does it
constitute, lastly, a test for determining whether or not such institution in favor of Pecson was the
true will of the testatrix.
We find, therefore, nothing strange in the preterition made by Dolores Coronel of her blood
relatives, nor in the designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although
the institution of the beneficiary here would not seem the most usual and customary, still this would
not be null per se.
In the absence of any statutory restriction every person possesses absolute dominion over his
property, and may bestow it upon whomsoever he pleases without regard to natural or legal claim
upon his bounty. If the testator possesses the requisite capacity to make a will, and the disposition of
his property is not affected by fraud of undue influence, the will is not rendered invalid by the fact
that it is unnatural, unreasonable, or unjust. Nothing can prevent the testator from making a will as
eccentric, as injudicious, or as unjust as caprice, frivolity, or revenge can dictate. However, as has
already been shown, the unreasonable or unjustice of a will may be considered on the question of
testamentary capacity. (40 Cyc., 1079.)
The testamentary capacity of Dolores Coronel is not disputed in this case.
Passing to the second question, to wit, whether or not the true last will of Dolores Coronel was
expressed in the testament Exhibit A, we will begin with expounding how the idea of making the
aforesaid will here controverted was borne and carried out.
About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney Francisco who
was then her legal adviser and who, considering that in order to make the expression of her last will
more legally valid, though it necessary that the statement be prepared in conformity with the laws in
force at time of the death of the testatrix, and observing that the will Exhibit B lacked the extrinsic
formalities required by Act No. 2645 enacted after its execution, advised Dolores Coronel that the
will be remade. She followed the advice, and Attorney Francisco, after receiving her instructions,
drew the will Exhibit A in accordance therewith, and brought it to the house of Dolores Coronel for
its execution.
Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the witnesses and
asked her whether the will was in accordance with her wishes. Dolores Coronel answer that it was,
and requested her attorney, Mr. Francisco, to sign the will for her, which the attorney accordingly
did in the presence of the witnesses, who in turn signed it before the testatrix and in the presence of
each other.
Upon the filing of the motion for a rehearing on the first order allowing the probate of the will, the
opponents presented an affidavit of Pablo Bartolome to the effect that, following instructions of
Lorenzo Pecson, he had informed the testatrix that the contents of the will were that she entrusted
Pecson with the distribution of all her property among the relatives of the said Dolores. But during
the new trial Pablo Bartolome, in spite of being present in the court room on the day of the trial, was
not introduced as a witness, without such an omission having been satisfactorily accounted for.
While it is true that the petitioner was bound to present Pablo Bartolome, being one of the witnesses
who signed the will, at the second hearing when the probate was controverted, yet we cannot
consider this point against the appellee for this was not raised in any of the assignments of error
made by the appellants. (Art. 20, Rules of the Supreme Court.)
On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to prove before
the court the statement by him in his affidavit, since it was their duty to prove what they alleged,
which was that Dolores Coronel had not understood the true contents of the will Exhibit A. Having
suppressed, without explanation, the testimony of Pablo Bartolome, the presumption is against the
opponents and that is, that such a testimony would have been adverse had it been produced at the
hearing of the case before the court. (Sec 334, subsec. 5, Code of Civil Procedure.)
The opponents call our attention to the fourth clause of the document which says: "I name and
appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my
will, without bond. Should he not be able to discharge his duties as such executor for any reason
whatsoever, I name and appoint as a substitute executor my grandson Victor Pecson, resident of the
town of Betis, without requiring him to give bond," and contend that this clause is repugnant to the
institution of Lorenzo Pecson as sole beneficiary of all her estate, for if such was the intention of the
testatrix, there would have been no necessity of appointing an executor, nor any reason for
designating a substitute in case that the first one should not be able to discharge his duties, and they
perceived in this clause the idea which, according to them, was not expressed in the document, and
which was that Pecson was simply to be a mere executor entrusted with the distribution to the estate
among the relatives of the testatrix, and that should he not be able to do so, this duty would
devolved upon his substitutes.
But it is not the sole duty of an executor to distribute the estate, which in estate succession, such as
the instant case, has to be distributed with the intervention of the court. All executor has, besides,
other duties and general and special powers intended for the preservation, defense, and liquidation
of the estate so long as the same has not reached, by order of the court, the hands of those entitled
thereto.
The fact that Dolores Coronel foresaw the necessity of an executor does not imply a negation of her
desire to will all her estate to Lorenzo Pecson. It is to be noted, furthermore, that in the will, it was
ordered that her body be given a burial in accordance with her social standing and she had a perfect
right to designate a person who should see to it that this order was complied with. One of the
functions of an executor is the fulfillment of what is ordained in the will.
It is argued that the will of the testatrix was to will her estate to her blood relatives, for such was the
promise made to Maria Coronel, whom Rosario Coronel tends to corroborate. We do not find such a
promise to have been sufficiently proven, and much less to have been seriously made and coupled
with a positive intention on the part of Dolores Coronel to fulfill the same. In the absence of
sufficient proof of fraud, or undue influence, we cannot take such a promise into account, for even if
such a promise was in fact made, Dolores Coronel could retract or forget it afterwards and dispose
of her estate as she pleased. Wills themselves, which contain more than mere promises, are
essentially revocable.
It is said that the true will of Dolores Coronel not expressed in the will can be inferred from the
phrase used by Jose M. Reyes in his deposition when speaking of the purpose for which Lorenzo
Pecson was to receive the estate, to wit:
in order that the latter might dispose of the estate in the most appropriate manner
Weight is given to this phrase from the circumstance that its author was requested by Attorney
Francisco to explain the contents of Exhibit B and had acted as interpreter between Dolores Coronel
and Attorney Francisco at their interviews previous to the preparation of Exhibit A, and had
translated into the Pampango dialect this last document, and, lastly, was present at the execution of
the will in question.
The disputed phrase "in order that the latter might dispose of the estate in the most appropriate
manner" was used by the witness Reyes while sick in a hospital and testifying in the course of the
taking of his deposition.
The appellants interpret the expression "dispose in the most appropriate manner" as meaning to say
"distribute it among the heirs." Limiting ourselves to its meaning, the expression is a broad one, for
the disposition may be effected in several and various ways, which may not necessarily be a
"distribution among the heirs," and still be a "disposition in the most appropriate manner." "To
dispose" is not the same as "to distribute."
To judge correctly the import of this phrase, the circumstances under which it was used must be
taken into account in this particular instance. The witness Reyes, the author of the phrase, was not
expressing his own original ideas when he used it, but was translating into Spanish what Dolores
Coronel had told him. According to the facts, the said witness is not a Spaniard, that is to say, the
Spanish language is not his native tongue, but, perhaps, the Pampango dialect. It is an admitted fact
based on reason and experience that when a person translates from one language to another, it is
easier for him to express with precision and accuracy when the version is from a foreign language to
a native one than vice-versa. The witness Reyes translated from the Pampango dialect, which must
be more familiar to him, to the Spanish language which is not his own tongue. And judging from the
language used by him during his testimony in this case, it cannot be said that this witness masters
the Spanish language. Thus is explained the fact that when asked to give the reason for the
appointment of an executor in the will, he should say at the morning session that "Dolores Coronel
did appoint Don Lorenzo Pecson and in his default, Victor Pecson, to act during her lifetime, but not
after he death," which was explained at the afternoon session by saying "that Dolores Coronel did
appoint Don Lorenzo Pecson executor of all her estate during his lifetime and that in his default,
either through death or incapacity, Mr. Victor Pecson was appointed executor." Taking into account
all the circumstances of this witness, there is ground to attribute his inaccuracy as to the discharge
of the duties of an executor, not to ignorance of the elementary rule of law on the matter, for the
practice of which he was qualified, but to a non-mastery of the Spanish language. We find in this
detail of translation made by the witness Reyes no sufficient reason to believe that the will
expressed by Dolores Coronel at the said interview with Attorney Francisco was to appoint Lorenzo
Pecson executor and mere distributor of her estate among her heirs.
As to whether or not the burden of proof was on the petitioner to establish that he was the sole
legatee to the exclusion of the relatives of Dolores Coronel, we understand that it was not his duty
to show the reasons which the testatrix may have had for excluding her relatives from her estate,
giving preference to him. His duty was to prove that the will was voluntary and authentic and he,
who alleges that the estate was willed to another, has the burden of proving his allegation.
Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson
appear in the will as sole beneficiary. However, after an examination of all the proceedings had, we
cannot find anything in the behavior of this lawyer, relative to the preparation and execution of the
will, that would justify an unfavorable conclusion as to his personal and professional conduct, nor
that he should harbor any wrongful or fraudulent purpose.
We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other
than the last one, Exhibit B (in the drawing of which he does not appear to her intervened), so that
the instrument might be executed with all the new formalities required by the laws then in force; nor
in the preparation of the new will substantially in accordance with the old one; nor in the selection
of attesting witnesses who were persons other than the relatives of Dolores Coronel. Knowing, as he
did, that Dolores was excluding her blood relatives from the inheritance, in spite of her having been
asked by him whether their exclusion was due to a mere inadvertence, there is a satisfactory
explanation, compatible with honorable conduct, why said attorney should prescind from such
relatives in the attesting of the will, to the end that no obstacle be placed in the way to the probating
thereof.
The fact that this attorney should presume that Dolores was to ask him to sign the will for her and
that he should prepare it containing this detail is not in itself fraudulent. There was in this case
reason so to presume, and it appears that he asked her, through Pablo Bartolome, whom she wanted
to sign the document in her stead.
No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in the will,
because the latter was already his client at the execution of said will. Attorney Francisco denied this
fact, which we cannot consider proven after examining the evidence.
The conduct observed by this attorney after the death of Dolores Coronel in connection with the
attempted arrangement between Lorenzo Pecson and the opponents, does not, in our opinion,
constitute any data leading to the conclusion that an heir different from the true one intended by the
testatrix should have been fraudulently made to appear instituted in the will exhibit A. His attitude
towards the opponents, as can be gathered from the proceedings and especially from his letter
Exhibit D, does not show any perverse or fraudulent intent, but rather a conciliatory purpose. It is
said that such a step was well calculated to prevent every possible opposition to the probate of the
will. Even admitting that one of his objects in entering into such negotiations was to avoid every
possible to the probate of the will, such object is not incompatible with good faith, nor does it
necessarily justify the inference that the heir instituted in the instrument was not the one whom the
testatrix wanted appointed.
The appellants find rather suspicious the interest shown by the said attorney in trying to persuade
Lorenzo Pecson to give them some share of the estate. These negotiations were not carried out by
the attorney out of his own initiative, but at the instance of the same opponent, Agustin Coronel,
made by the latter in his own behalf and that of his coopponents.
As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he should have
tried, through fraud or any undue influence, to frustrate the alleged intention of the testatrix to leave
her estate to her blood relatives. The opponents insinuate that Lorenzo Pecson employed Attorney
Francisco to carry out his reproachable designs, but such depraved instrumentality was not proven,
nor was it shown that said lawyer, or Lorenzo Pecson, should have contrived or put into execution
any condemnable plan, nor that both should have conspired for illegal purposes at the time of the
preparation and execution of the will Exhibit A.
Although Norberto Paras testified having heard, when the will was being read to Dolores Coronel,
the provision whereby the estate was ordered distributed among the heirs, the preponderance of the
evidence is to the effect that said Norberto Paras was not present at such reading of the will.
Appellant do not insist on the probative force of the testimony of this witness, and do not oppose its
being stricken out.
The data furnished by the case do not show, to our mind, that Dolores Coronel should have had the
intention of giving her estate to her blood relatives instead of to Lorenzo Pecson at the time of the
execution of the will Exhibit A, nor that fraud or whatever other illegal cause or undue influence
should have intervened in the execution of said testament. Neither fraud nor evil is presumed and
the record does not show either.
Turning to the second assignment of error, which is made to consist in the will having been
probated in spite of the fact that the attestation clause was not in conformity with the provision of
section 618 of the Code of Civil Procedure, as amended by Act No. 2645, let us examine the tenor
of such clause which literally is as follows:
The foregoing document was executed and declared by Dolores Coronel to be her last will
testament in our presence, and as testatrix does not know how to write her name, she requested
Vicente J. Francisco to sign her name under her express direction in our presence at the foot and on
the left margin of each and every sheet hereof. In testimony whereof, each of us signed these
presents in the presence of others of the testatrix at the foot hereof and on the margin of each and
everyone of the two pages of which this document is composed. These sheets are numbered
correlatively with the words "one and "two on the upper part of the face thereof.
(Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los Santos, Mariano L.
Crisostomo, Pablo Bartolome, Marcos de la Cruz, Damian Crisostomo."
Appellants remark that it is not stated in this clause that the will was signed by the witnesses in the
presence of the testatrix and of each other, as required by section 618 of the Code of Civil
Procedure, as amended, which on this particular point provides the following:
The attestation shall state the number of sheets or pages used, upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other person to write
his name, under his express direction, in the presence of three witnesses, and the latter witnessed
and signed the will and all pages thereof in the presence of the testator and of each other.
Stress is laid on the phrase used in the attestation clause above copied, to wit:
each of us signed in the presence of others.
Two interpretations can absolutely be given here to the expression "of others." One, that insinuated
by the appellants, namely, that it is equivalent to "of other persons," and the other, that contended by
the appellee, to wit, that the phrase should be held to mean "of the others," the article "the" having
inadvertently been omitted.
Should the first interpretation prevail and "other persons" be taken to mean persons different from
the attesting witnesses, then one of the solemnities required by law would be lacking. Should the
second be adopted and "of others" construed as meaning the other witnesses to the will, then the law
would have been complied with in this respect.
Including the concomitant words, the controverted phrase results thus: "each of us signed these
presents in the presence of others and of the testatrix."
If we should omit the words "of others and," the expression would be reduced to "each of us signed
these presents in the presence of the testatrix," and the statement that the witnesses signed each in
the presence of the others would be lacking. But as a matter of fact, these words "of others and" are
present. Then, what for are they there? Is it to say that the witnesses signed in the presence of other
persons foreign to the execution of the will, which is completely useless and to no purpose in the
case, or was it for some useful, rational, necessary object, such as that of making it appear that the
witnesses signed the will each in the presence of the others? The first theory presupposes that the
one who drew the will, who is Attorney Francisco, was an unreasonable man, which is an
inadmissible hypothesis, being repugnant to the facts shown by the record. The second theory is the
most obvious, logical and reasonable under the circumstances. It is true that the expression proved
to be deficient. The deficiency may have been caused by the drawer of the will or by the typist. If by
the typist, then it must be presumed to have been merely accidental. If by the drawer, it is
explainable taking into account that Spanish is not only not the native language of the Filipinos,
who, in general, still speak until nowadays their own dialects, but also that such language is not
even the only official language since several years ago.

In Re will of Abangan (40 Phil., 476), this court said:
The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and
authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisite entirely unnecesary, useless and frustrative of the testator's last
will, must be disregarded.
effort; namely, that of seeing to it that the testatrix and the attesting witnesses were all present when
their respective signatures were affixed to the will." And the record does not furnish us sufficient
ground for deviating from the line reasoning and findings of the trial judge.
In conclusion we hold that the assignments of error made by the appellants are not supported by the
evidence of record.
The judgment appealed from if affirmed with costs against the appellants. So ordered.
Araullo, C.J., Johnson, Street, Malcolm, Avanceña, Villamor and Johns, JJ., concur

We believe it to be more reasonable to construe the disputed phrase "of others" as meaning "of the
other witnesses," and that a grammatical or clerical error was committed consisting in the omission
of the article "the".

Grammatical or clerical errors are not usually considered of vital importance when the intention is
manifest in the will.

The court may correct clerical mistakes in writing, and disregard technical rules of grammar as to
the construction of the language of the will when it becomes necessary for it to do so in order to
effectuate the testators manifest intention as ascertained from the context of the will. But unless a
different construction is so required the ordinary rules of grammar should be adhered to in
construing the will. (40 Cyc., 1404).

And we understand that in the present case the interpretation we adopt is imperative, being the most
adequate and reasonable.

The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided by this court
and invoked by the appellants, refers so far as pertinent to the point herein at issue, to an attestation
clause wherein the statement that the witnesses signed the will in the presence of each other is
totally absent. In the case at bar, there is the expression "in the presence of others" whose reasonable
interpretation is, as we have said, "in the presence of the other witnesses." We do not find any party
between the present case and that of Re Estate of Geronima Uy Coque above cited.

Finally, we will take up the question submitted by the opponents as to the alleged insufficiency of
the evidence to show that the attesting witnesses Damian Crisostomo and Sotero Dumaual were
present at the execution of the will in controversy. Although this point is raised in the first
assignment of error made by the appellants, and not in the second, it is discussed in this place
because it refers to the very fact of attestation. However, we do not believe it necessary to analyze
in detail the evidence of both parties on this particular point. The evidence leads us to the
conclusion that the two witnesses aforementioned were present at the execution and signing of the
will. Such is also the conclusion of the trial judge who, in this respect, states the following, in his
decision:

As to the question of whether or not the testatrix and witnesses signed the document Exhibit A in
accordance with the provisions of law on the matter, that is, whether or not the testatrix signed the
will, or caused it to be signed, in the presence of the witnesses, and the latter in turn signed in her
presence and that of each other, the court, after observing the demeanor of the witnesses for both
parties, is of the opinion that those for the petitioner spoke the truth. It is neither probable nor likely
that a man versed in the law, such as Attorney Francisco, who was present at the execution of the
will in question, and to whose conscientiousness in the matter of compliance with all the extrinsic
formalities of the execution of a will, and to nothing else, was due the fact that the testatrix had
cancelled her former will (Exhibit B) and had new one (Exhibit A) prepared and executed, should
have consented the omission of formality compliance with which would have required little or no
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.
PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-
G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the
petition in Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985
(Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh
Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special
Proceedings No. 591 ACEB No special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court
of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City
Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to
the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo,
p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers
Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as
heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya
(Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection
raised by private respondents. The will contained provisions on burial rites, payment of debts, and
the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the
disposition of the testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and money which I
earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO
ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu
City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses
there in Bantayan and here in Cebu City which constitute my share shall be given to me to his
children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all
surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to
be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the
latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for
the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir
and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was
denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court, respondents filed
with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which
was subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated
March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial
court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No.
591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for the
review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment
was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for
petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary
injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the
will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is admitted
to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition
mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the
direct line," and does not apply to private respondents who are not compulsory heirs in the direct
line; their omission shall not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution
of a universal heir in the will would give the heir so instituted a share in the inheritance but there is
a definite distinct intention of the testator in the case at bar, explicitly expressed in his will. This is
what matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc.
No. 591 ACEB for probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and
ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devisees and legacies shall be valid insofar as they are not;
inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall he effectual,
without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs
nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code
may not apply as she does not ascend or descend from the testator, although she is a compulsory
heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even
if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code)
however, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal
adoption by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp.
8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption
gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter
and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally
omitted and preterited in the will of the testator and that both adopted child and the widow were
deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited.
Hence, this is a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession the
entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora
o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114
SCRA [1982]). The only provisions which do not result in intestacy are the legacies and devises
made in the will for they should stand valid and respected, except insofar as the legitimes are
concerned.
The universal institution of petitioner together with his brothers and sisters to the entire inheritance
of the testator results in totally abrogating the will because the nullification of such institution of
universal heirs-without any other testamentary disposition in the will-amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers
no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having
been provided in the will the whole property of the deceased has been left by universal title to
petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs will be,
necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper
legacies and devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a probate
proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by
it either as executor or as a claimant of the estate and an interested party is one who would be
benefited by the estate such as an heir or one who has a claim against the estate like a creditor
(Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a
devisee or a legatee there being no mention in the testamentary disposition of any gift of an
individual item of personal or real property he is called upon to receive (Article 782, Civil Code).
At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the
Civil Code as a person called to the succession either by the provision of a will or by operation of
law. However, intestacy having resulted from the preterition of respondent adopted child and the
universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal
standing to petition for the probate of the will left by the deceased and Special Proceedings No. 591
A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an
oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de
Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308
[1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of
certiorari and prohibition are not available where the petitioner has the remedy of appeal or some
other plain, speedy and adequate remedy in the course of law (DD Comendador Construction
Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid
grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the
general rule is that the probate court's authority is limited only to the extrinsic validity of the will,
the due execution thereof, the testator's testamentary capacity and the compliance with the requisites
or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the
Court has declared that the will has been duly authenticated. Said court at this stage of the
proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the
will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v.
Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate
court is not powerless to do what the situation constrains it to do and pass upon certain provisions of
the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the
probate moved to dismiss on the ground of absolute preteriton The probate court acting on the
motion held that the will in question was a complete nullity and dismissed the petition without
costs. On appeal the Supreme Court upheld the decision of the probate court, induced by practical
considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained.
On the contrary, this litigation will be protracted. And for aught that appears in the record, in the
event of probate or if the court rejects the will, probability exists that the case will come up once
again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of
time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the validity of the provisions of the will in
question. After all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving
spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was
fully substantiated by the evidence during the hearing held in connection with said motion. The
Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals
with the validity of the provisions of the will. Respondent Judge allowed the probate of the will.
The Court held that as on its face the will appeared to have preterited the petitioner the respondent
judge should have denied its probate outright. Where circumstances demand that intrinsic validity of
testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the
probate court should meet the issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid,
supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No.
591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal
capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the
adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order
dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters
properly to be resolved after a hearing on the issues in the course of the trial on the merits of the
case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on
February 15, 1985 (Rollo, p. 109).
I concur in the result on the basic proposition that preterition in this case was by mistake or
inadvertence.
To my mind, an important distinction has to be made as to whether the omission of a forced heir in
the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or
inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability
to determine how the testator would have distributed his estate if none of the heirs had been omitted
or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.

For private respondents to have tolerated the probate of the will and allowed the case to progress
when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters
were instituted as universal heirs coupled with the obvious fact that one of the private respondents
had been preterited would have been an exercise in futility. It would have meant a waste of time,
effort, expense, plus added futility. The trial court could have denied its probate outright or could
have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of
the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the
right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a
grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not
dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence
of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a
petition for certiorari may be entertained, particularly where appeal would not afford speedy and
adequate relief. (Maninang Court of Appeals, supra).
3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil
Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would be a defective disinheritance
covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but
only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is
partial unlike in true preterition where the nullity is total.
Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of
the existence of the compulsory heir at the time of the execution of the will, he would have
instituted such heir. On the other hand, if the testator attempts to disinherit a compulsory heir, the
presumption of the law is that he wants such heir to receive as little as possible from his estate. (III
Tolentino, Civil Code, 1973 Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted
daughter, hence, my concurrence in the result that total intestacy ensued.

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned
decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated
October 23, 1985 are hereby AFFIRMED.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-47799 June 13, 1941
Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners,
vs.
IGNACIA AKUTIN AND HER CHILDREN, respondents.
Ozamiz & Capistrano for petitioners.
Gullas, Leuterio, Tanner & Laput for respondents.
MORAN, J.:
Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children named
Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage with Ignacia
Akutin, five children named Gracia, Godofredo, Violeta, Estela Maria, and Emma. Getulia, daughter in
the first marriage, died on October 2, 1923, that is, a little less than eight years before the death of said
Agripino Neri y Chavez, and was survived by seven children named Remedios, Encarnacion, Carmen,
Trinidad, Luz, Alberto and Minda. In Agripino Neri's testament, which was admitted to probate on March
21, 1932, he willed that his children by the first marriage shall have no longer any participation in his
estate, as they had already received their corresponding shares during his lifetime. At the hearing for the
declaration of heirs, the trial court found, contrary to what the testator had declared in his will, that all his
children by the first and second marriages intestate heirs of the deceased without prejudice to one-half of
the improvements introduced in the properties during the existence of the last conjugal partnership, which
should belong to Ignacia Akutin. The Court of Appeals affirmed the trial court's decision with the
modification that the will was "valid with respect to the two-thirds part which the testator could freely
dispose of. "This judgment of the Court of Appeals is now sought to be reviewed in this petition for
certiorari.
The decisive question here raised is whether, upon the foregoing facts, the omission of the children of the
first marriage annuls the institution of the children of the first marriage as sole heirs of the testator, or
whether the will may be held valid, at least with respect to one-third of the estate which the testator may
dispose of as legacy and to the other one-third which he may bequeath as betterment, to said children of
the second marriage.
The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read in part as
follows:
Disinheritance made without a statement of the cause, or for a cause the truth of which, if contradicted, is
not proven, ... shall annul the institution of the heir in so far as it prejudices the person disinherited; but the
legacies, betterments, and other testamentary dispositions, in so far as they do no encroach upon the
legitime, shall be valid.
The appellate court thus seemed to have rested its judgment upon the impression that the testator had
intended to disinherit, though ineffectively, the children of the first marriage. There is nothing in the will
that supports this conclusion. True, the testator expressly denied them any share in his estate; but the
denial was predicated, not upon the desire to disinherit, but upon the belief, mistaken though it was, that
the children by the first marriage had already received more than their corresponding shares in his lifetime
in the form of advancement. Such belief conclusively negatives all inference as to any intention to
disinherit, unless his statement to that effect is prove to be deliberately fictitious, a fact not found by the
Court of Appeals. The situation contemplated in the above provision is one in which the purpose to
disinherit is clear, but upon a cause not stated or not proved, a situation which does not obtain in the
instant case.
The Court of Appeals quotes Manresa thus:
En el terreno de los principios, la solucion mas justa del problema que hemos hecho notar al comentar el
articulo, seria distinguir el caso en que el heredero omitido viviese al otorgarse el testamento, siendo
conocida su existencia por el testador, de aquel en que, o naciese despues, o se ignorase su existencia,
aplicando en el primer caso la doctrina del articulo 851, y en el segundo la del 814. (6 Manresa, 354-355.)
But it must be observed that this opinion is founded on mere principles (en el terreno de los principios)
and not on the express provisions of the law. Manresa himself admits that according to law, "no existe hoy
cuestion alguna en esta materia: la pretericion produce siempre los mismos efectos, ya se refiera a
personas vivas al hacer el testamento o nacidas despues. Este ultimo grupo solo puede hacer relacion a los
descendientes legitimos, siempre que ademas tengan derecho a legitima." (6 Manresa, 381.)
Appellants, on the other hand, maintain that the case is one of voluntary preterition of four of the children
by the first marriage, and of involuntary preterition of the children by the deceased Getulia, also of the
first marriage, and is thus governed by the provisions of article 814 of the Civil Code, which read in part
as follows:
The preterition of one or all of the forced heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall void the institution of heir; but the
legacies and betterments shall be valid, in so far as they are not inofficious.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are
expressly disinherited.(Cf. 6 Manresa, 346.) In the instant case, while the children of the first marriage
were mentioned in the will, they were not accorded any share in the heriditary property, without expressly
being disinherited. It is, therefore, a clear case of preterition as contended by appellants. The omission of
the forced heirs or anyone of them, whether voluntary or involuntary, is a preterition if the purpose to
disinherit is not expressly made or is not at least manifest.
Except as to "legacies and betterments" which "shall be valid in so far as they are not inofficious" (art. 814
of the Civil Code), preterition avoids the institution of heirs and gives rise to intestate succession. (Art.
814, Civil Code; Decisions of the Supreme Court of Spain of June 17, 1908 and February 27, 1909.) In the
instant case, no such legacies or betterments have been made by the testator. "Mejoras" or betterments
must be expressly provided, according to articles 825 and 828 of the Civil Code, and where no express
provision therefor is made in the will, the law would presume that the testator had no intention to that
effect. (Cf. 6 Manresa, 479.) In the will here in question, no express betterment is made in favor of the
children by the second marriage; neither is there any legacy expressly made in their behalf consisting of
the third available for free disposal. The whole inheritance is accorded the heirs by the second marriage
upon the mistaken belief that the heirs by the first marriage have already received their shares. Were it not
for this mistake, the testator's intention, as may be clearly inferred from his will, would have been to
divide his property equally among all his children.
Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without prejudice to the
widow's legal usufruct, with costs against respondents.
Avanceña, C.J., Diaz, Laurel and Horrilleno, JJ., concur.

G.R. No. 137287. February 15, 2000]
REBECCA VIADO NON, JOSE A. NON and DELIA VIADO, petitioners, vs. THE HONORABLE COURT
OF APPEALS, ALICIA N. VIADO, CHERRI VIADO and FE FIDES VIADO, respondents. LEX
DECISION
VITUG, J.:
Petitioners, in their petition for review oncertiorari under Rule 45 of the Rules of Court, seek a
reversal of the 29th May 1996 decision of the Court of Appeals, basically affirming that rendered
on 30 April 1991 by the Regional Trial Court ("RTC") of Quezon City, Branch 23, adjudicating the
property subject matter of the litigation to respondents. The case and the factual setting found by
the Court of Appeals do not appear to deviate significantly from that made by the trial court.
During their lifetime, the spouses Julian C. Viado and Virginia P. Viado owned several pieces of
property, among them a house and lot located at 147 Isarog Street, La Loma, Quezon City, covered
by Transfer Certificate of Title No. 42682. Virginia P. Viado died on 20 October 1982. Julian C.
Viado died three years later on 15 November 1985. Surviving them were their children -- Nilo
Viado, Leah Viado Jacobs, and herein petitioners Rebecca Viado, married to Jose Non, and Delia
Viado. Nilo Viado and Leah Viado Jacobs both died on 22 April 1987. Nilo Viado left behind as his
own sole heirs herein respondents --- his wife Alicia Viado and their two children Cherri Viado and
Fe Fides Viado.
Petitioners and respondents shared, since 1977, a common residence at the Isarog property. Soon,
however, tension would appear to have escalated between petitioner Rebecca Viado and
respondent Alicia Viado after the former had asked that the property be equally divided between
the two families to make room for the growing children. Respondents, forthwith, claimed absolute
ownership over the entire property and demanded that petitioners vacate the portion occupied by
the latter. On 01 February 1988, petitioners, asserting co-ownership over the property in question,
filed a case for partition before the Quezon City RTC (Branch 93). Jj sc
Respondents predicated their claim of absolute ownership over the subject property on two
documents --- a deed of donation executed by the late Julian Viado covering his one-half conjugal
share of the Isarog property in favor of Nilo Viado and a deed of extrajudicial settlement in which
Julian Viado, Leah Viado Jacobs (through a power of attorney in favor of Nilo Viado) and petitioner
Rebecca Viado waived in favor of Nilo Viado their rights and interests over their share of the
property inherited from Virginia Viado. Both instruments were executed on 26 August 1983 and
registered on 07 January 1988 by virtue of which Transfer Certificate of Title No. 42682 was
cancelled and new Transfer Certificate of Title No. 373646 was issued to the heirs of Nilo Viado.
Petitioners, in their action for partition, attacked the validity of the foregoing instruments,
contending that the late Nilo Viado employed forgery and undue influence to coerce Julian Viado
to execute the deed of donation. Petitioner Rebecca Viado, in her particular case, averred that her
brother Nilo Viado employed fraud to procure her signature to the deed of extrajudicial
settlement. She added that the exclusion of her retardate sister, Delia Viado, in the extrajudicial
settlement, resulted in the latter's preterition that should warrant its annulment. Finally,
petitioners asseverated at the assailed instruments, although executed on 23 August 1983, were
registered only five years later, on 07 January 1988, when the three parties thereto, namely, Julian
Viado, Nilo Viado and Leah Viado Jacobs had already died. Sc jj
Assessing the evidence before it, the trial court found for respondents and adjudged Alicia Viado
and her children as being the true owners of the disputed property.
On appeal, the Court of Appeals affirmed the decision of the trial court with modification by
ordering the remand of the records of the case to the court a quo for further proceedings to
determine the value of the property and the amount respondents should pay to petitioner Delia
Viado for having been preterited in the deed of extrajudicial settlement.
Petitioners are now before the Supreme Court to seek the reversal of the decision of the Court of
Appeals.
The appellate court ruled correctly.
When Virginia P. Viado died intestate in 1982, her part of the conjugal property, the Isarog
property in question included, was transmitted to her heirs --- her husband Julian and their
children Nilo Viado, Rebecca Viado, Leah Viado and Delia Viado. The inheritance, which vested
from the moment of death of the decedent,[1] remained under a co-ownership regime[2] among
the heirs until partition.[3]Every act intended to put an end to indivision among co-heirs and
legatees or devisees would be a partition although it would purport to be a sale, an exchange, a
compromise, a donation or an extrajudicial settlement.[4]
In debunking the continued existence of a co-ownership among the parties hereto, respondents
rely on the deed of donation and deed of extrajudicial settlement which consolidated the title
solely to Nilo Viado. Petitioners assail the due execution of the documents on the grounds
heretofore expressed. Sj cj
Unfortunately for petitioners, the issues they have raised boil down to the appreciation of the
evidence, a matter that has been resolved by both the trial court and the appellate court. The
Court of Appeals, in sustaining the court a quo, has found the evidence submitted by petitioners to
be utterly wanting, consisting of, by and large, self-serving testimonies. While asserting that Nilo
Viado employed fraud, forgery and undue influence in procuring the signatures of the parties to
the deeds of donation and of extrajudicial settlement, petitioners are vague, however, on how and
in what manner those supposed vices occurred. Neither have petitioners shown proof why Julian
Viado should be held incapable of exercising sufficient judgment in ceding his rights and interest
over the property to Nilo Viado. The asseveration of petitioner Rebecca Viado that she has signed
the deed of extrajudicial settlement on the mistaken belief that the instrument merely pertained
to the administration of the property is too tenuous to accept. It is also quite difficult to believe
that Rebecca Viado, a teacher by profession, could have misunderstood the tenor of the assailed
document.
The fact alone that the two deeds were registered five years after the date of their execution did
not adversely affect their validity nor would such circumstance alone be indicative of fraud. The
registration of the documents was a ministerial act[5] and merely created a constructive notice of
its contents against all third persons.[6] Among the parties, the instruments remained completely
valid and binding. Supreme
The exclusion of petitioner Delia Viado, alleged to be a retardate, from the deed of extrajudicial
settlement verily has had the effect of preterition. This kind of preterition, however, in the
absence of proof of fraud and bad faith, does not justify a collateral attack on Transfer Certificate
of Title No. 373646. The relief, as so correctly pointed out by the Court of Appeals, instead rests on
Article 1104 of the Civil Code to the effect that where the preterition is not attended by bad faith
and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the
share pertaining to her. Again, the appellate court has thus acted properly in ordering the remand
of the case for further proceedings to make the proper valuation of the Isarog property and
ascertainment of the amount due petitioner Delia Viado.
WHEREFORE, the instant petition is DENIED, and the decision, dated May 29, 1996, in CA-G.R. No.
37272 of the Court of Appeals is AFFIRMED. No special pronouncement on costs. Court
SO ORDERED.
Melo, (Chairman), Panganiban, Purisima, andGonzaga-Reyes, JJ., concur.

G.R. No. L-31703 February 13, 1930
CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee,
vs.
MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of
Manila, defendants-appellants.
L. D. Lockwood and Jose M. Casal for appellants.
Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee.
ROMUALDEZ, J.:
The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La
Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased,
whose heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son,
the defendant Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara,
husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in
said judgment, levied an attachment on said amount deposited with La Urbana.
The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana
Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on
the sum so attached. The defendants contend that the plaintiff is the decedent's universal heiress,
and pray for the dissolution of the injunction.
The court below held that said La Urbanadeposit belongs to the plaintiff's children as
fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction.
The defendants insist in their contentions, and, in their appeal from the decision of the trial court,
assign the following errors:
1. The lower court erred in holding that a trust was created by the will of Doña Ana Maria
Alcantara.
2. The lower court erred in concluding and declaring that the amount of P21,428.58 deposited
with La Urbana is the property of the children of the plaintiff as "herederos fidei-comisarios."
3. The lower court erred in making the injunction permanent and condemning defendant to pay
the costs.
The question here raised is confined to the scope and meaning of the institution of heirs made in
the will of the late Ana Maria Alcantara already admitted to probate, and whose legal force and
effect is not in dispute.
The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth,
and eleventh, quoted below:
Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen
Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living in this same
house with me, I institute her as my sole and universal heiress to the remainder of my estate after
the payment of my debts and legacies, so that upon my death and after probate of this will, and
after the report of the committee on claims and appraisal has been rendered and approved, she
will receive from my executrix and properties composing my hereditary estate, that she may enjoy
them with God's blessing and my own.
Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass
unimpaired to her surviving children; and should any of these die, his share shall serve to increase
the portions of his surviving brothers (and sisters) by accretion, in such wise that my estate shall
never pass out of the hands of my heiress or her children in so far as it is legally possible.
Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are
still in their minority, I order that my estate be administered by my executrix, Mrs. Josefa Laplana,
and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the
direction herein given must not be considered as an indication of lack of confidence in my nephew
Joaquin Perez Alcantara, whom I relieve from the duties of administering my estate, because I
recognize that his character is not adapted to management and administration.
The appellants contend that in these clauses the testatrix has ordered a simple substitution, while
the appellee contends that it is a fideicommissary substitution.
This will certainly provides for a substitution of heirs, and of the three cases that might give rise to
a simple substitution (art. 774, Civil Code), only the death of the instituted heiress before the
testatrix would in the instant case give place to such substitution, inasmuch as nothing is said of
the waiver of inheritance, or incapacity to accept it. As a matter of fact, however, clause XI
provides for the administration of the estate in case the heiress instituted should die after the
testatrix and while the substitute heirs are still under age. And it is evident that, considering the
nature of simple substitution by the heir's death before the testator, and the fact that by clause XI
in connection with clause X, the substitution is ordered where the heiress instituted dies after the
testatrix, this cannot be a case of simple substitution.
The existence of a substitution in the will is not and cannot be denied, and since it cannot be a
simple substitution in the light of the considerations above stated, let us now see whether the
instants case is a fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides
that upon her death (the testatrix's) and after probate of the will and approval of the report of the
committee on claims and appraisal, said heiress shall receive and enjoy the whole hereditary
estate. Although this clause provides nothing explicit about substitution, it does not contain
anything in conflict with the idea of fideicommissary substitution. The fact that the plaintiff was
instituted the sole and universal heiress does not prevent her children from receiving, upon her
death and in conformity with the express desire of the testatrix, the latter's hereditary estate, as
provided in the following (above quoted) clauses which cannot be disregarded if we are to give a
correct interpretation of the will. The word sole does not necessarily exclude the idea
of substitute heirs; and taking these three clauses together, such word means that the plaintiff is
the sole heiress instituted in the first instance.
The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not
incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of
simple substitution, where the heiress instituted does not receive the inheritance). In fact the
enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by
virtue of which the heir instituted receives the inheritance and enjoys it, although at the same
time he preserves it in order to pass it on the second heir. On this point the illustrious Manresa, in
his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:
Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolution of
June 25, 1895, February 10, 1899, and July 19, 1909, requires three things:
1. A first heir called primarily to the enjoyment of the estate.
2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or
a part of the estate.
3. A second heir.
To these requisites, the decision of November 18, 1918 adds another, namely that the
fideicommissarius be entitled to the estate from the time the testator dies, since he is to inherit
from the latter and not from the fiduciary. (Emphasis ours.)
It appears from this quotation that the heir instituted or the fiduciary, as referred to in articles 783
of the Civil Code, is entitled to enjoy the inheritance. And it might here be observed, as a timely
remark, that the fideicommissum arising from a fideicommissary substitution, which is of Roman
origin, is not exactly equivalent to, nor may it be confused with, the English "trust."
It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the
right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it. This
is an indication of the usufruct inherent in fideicommissary substitution.
Clause X expressly provides for the substitution. It is true that it does not say whether the death of
the heiress herein referred to is before or after that of the testatrix; but from the whole context it
appears that in making the provisions contained in this clause X, the testatrix had in mind a
fideicommissary substitution, since she limits the transmission of her estate to the children of the
heiress by this provision, "in such wise that my estate shall never pass out of the hands of my
heiress or her children in so far as it is legally possible." Here it clearly appears that the testatrix
tried to avoid the possibility that the substitution might later be legally declared null for
transcending the limits fixed by article 781 of the Civil Code which prescribed that fideicommissary
substitutions shall be valid "provided they do not go beyond the second degree."
Another clear and outstanding indication of fideicommissary substitution in clause X is the
provision that the whole estate shall pass unimpaired to the heiress's children, that is to say the
heiress is required to preserve the whole estate, without diminution, in order to pass it on in due
time to the fideicommissary heirs. This provision complies with another of the requisites of
fideicommissary substitution according to our quotation from Manresa inserted above.
Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a provision
is therein made in the event the heiress should die after the testatrix. That is, said clause
anticipates the case where the instituted heiress should die after the testatrix and after receiving
and enjoying the inheritance.
The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution,
according to the quotation from Manresa above inserted, are present in the case of substitution
now under consideration, to wit:
1. At first heir primarily called to the enjoyment of the estate. In this case the plaintiff was
instituted an heiress, called to the enjoyment of the estate, according to clause IX of the will.
2. An obligation clearly imposed upon the heir to preserve and transmit to a third person the
whole or a part of the estate. Such an obligation is imposed in clause X which provides that the
"whole estate shall pass unimpaired to her (heiress's) surviving children;" thus, instead of leaving
the heiress at liberty to dispose of the estate by will, or of leaving the law to take its course in case
she dies intestate, said clause not only disposes of the estate in favor of the heiress instituted, but
also provides for the disposition thereof in case she should die after the testatrix.
3. A second heir. Such are the children of the heiress instituted, who are referred to as such
second heirs both in clause X and in clause XI.
Finally, the requisite added by the decision of November 18, 1918, to wit, that the
fideicommissarius or second heir should be entitled to the estate from the time of the testator's
death, which in the instant case, is, rather than a requisite, a necessary consequence derived from
the nature of the fideicommissary substitution, in which the second heir does not inherit from the
heir first instituted, but from the testator.
By virtue of this consequence, the inheritance in question does not belong to the heiress
instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of
the death of the testatrix, Ana Maria Alcantara.
Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit
with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her
nor can it be subject to the execution of the judgment against Joaquin Perez, who is not one of the
fideicommissary heirs.
The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena.
So ordered.
Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
Street, J., reserves his vote.

THIRD DIVISION
[G.R. No. 113725. June 29, 2000]
 JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF APPEALS AND MARIA
MARLENA[2] COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court of Appeals, [3] dated December
23, 1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the
Regional Trial Court in Bacolod City, and ordered the defendants-appellees (including
herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392,
together with its fruits and interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge
Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was
instituted as a devisee of 511, 855 square meters of that parcel of land surveyed as Lot
No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and
admitted in Special Proceedings No. 4046 before the then Court of First Instance of
Negros Occidental, contained the following provisions:
"FIRST
I give, leave and bequeath the following property owned by me to Dr. Jorge
Rabadilla resident of 141 P. Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of
Title No. RT-4002 (10942), which is registered in my name according to the
records of the Register of Deeds of Negros Occidental.
(b) That should Jorge Rabadilla die ahead of me, the aforementioned property
and the rights which I shall set forth hereinbelow, shall be inherited and
acknowledged by the children and spouse of Jorge Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition (Codicil), that should I die
and Jorge Rabadilla shall have already received the ownership of the said Lot
No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No.
RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon
of the said lot shall expire, Jorge Rabadilla shall have the obligation until he
dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75)
(sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar,
until the said Maria Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of
the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002
(10492), shall have the obligation to still give yearly, the sugar as specified in
the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza
on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event
that the one to whom I have left and bequeathed, and his heir shall later sell,
lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the
obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar
to Maria Marlina Coscolluela y Belleza, on each month of December,
SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of
Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the
mortgagee of this lot, not have respected my command in this my addition
(Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this
Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my
near desendants, (sic) and the latter shall then have the obligation to give the
ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further
command in this my addition (Codicil) that my heir and his heirs of this Lot
No. 1392, that they will obey and follow that should they decide to sell, lease,
mortgage, they cannot negotiate with others than my near descendants and my
sister."[4]
Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge
Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children
Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a
complaint, docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial
Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to
enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs
violated the conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine National Bank and the
Republic Planters Bank in disregard of the testatrix's specific instruction to
sell, lease, or mortgage only to the near descendants and sister of the testatrix.
2. Defendant-heirs failed to comply with their obligation to deliver one
hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs domestic
sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years
1985 up to the filing of the complaint as mandated by the Codicil, despite
repeated demands for compliance.
3. The banks failed to comply with the 6th paragraph of the Codicil which
provided that in case of the sale, lease, or mortgage of the property, the buyer,
lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of
sugar per crop year to herein private respondent.
The plaintiff then prayed that judgment be rendered ordering defendant-heirs to
reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the
cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the
issuance of a new certificate of title in the names of the surviving heirs of the late Aleja
Belleza.
On February 26, 1990, the defendant-heirs were declared in default but on March 28,
1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who
filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-
in-law of the herein petitioner who was lessee of the property and acting as attorney-in-
fact of defendant-heirs, arrived at an amicable settlement and entered into a
Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to
the following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of
TCT No. 44489 will be delivered not later than January of 1989, more
specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then
existing in any of our names, Mary Rose Rabadilla y
Azurin or Alan Azurin, during December of each sugar
crop year, in Azucar Sugar Central; and, this is
considered compliance of the annuity as mentioned, and
in the same manner will compliance of the annuity be in
the next succeeding crop years.
That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88,
will be complied in cash equivalent of the number of piculs as mentioned
therein and which is as herein agreed upon, taking into consideration the
composite price of sugar during each sugar crop year, which is in the total
amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).
That the above-mentioned amount will be paid or delivered on a staggered cash
installment, payable on or before the end of December of every sugar crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00)
Pesos, payable on or before December of crop year 1991-92."[5]
However, there was no compliance with the aforesaid Memorandum of Agreement
except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year
1988 -1989.
On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the
complaint and disposing as follows:
"WHEREFORE, in the light of the aforegoing findings, the Court finds that the
action is prematurely filed as no cause of action against the defendants has as
yet arose in favor of plaintiff. While there maybe the non-performance of the
command as mandated exaction from them simply because they are the
children of Jorge Rabadilla, the title holder/owner of the lot in question, does
not warrant the filing of the present complaint. The remedy at bar must fall.
Incidentally, being in the category as creditor of the left estate, it is opined that
plaintiff may initiate the intestate proceedings, if only to establish the heirs of
Jorge Rabadilla and in order to give full meaning and semblance to her claim
under the Codicil.
In the light of the aforegoing findings, the Complaint being prematurely filed
is DISMISSED without prejudice.
SO ORDERED."[6]
On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of
the trial court; ratiocinating and ordering thus:
"Therefore, the evidence on record having established plaintiff-appellant's
right to receive 100 piculs of sugar annually out of the produce of Lot No.
1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of
the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-
appellant; defendants-appellee's admitted non-compliance with said obligation
since 1985; and, the punitive consequences enjoined by both the codicil and
the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of
Aleja Belleza in case of such non-compliance, this Court deems it proper to
order the reconveyance of title over Lot No. 1392 from the estates of Jorge
Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must
institute separate proceedings to re-open Aleja Belleza's estate, secure the
appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's
legal heirs in order to enforce her right, reserved to her by the codicil, to
receive her legacy of 100 piculs of sugar per year out of the produce of Lot No.
1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one
entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey
title over Lot No. 1392, together with its fruits and interests, to the estate of
Aleja Belleza.
SO ORDERED."[7]
Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his
way to this Court via the present petition, contending that the Court of Appeals erred in
ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis
of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge
Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance
with Article 882 of the New Civil Code on modal institutions and in deviating from the
sole issue raised which is the absence or prematurity of the cause of action. Petitioner
maintains that Article 882 does not find application as there was no modal institution and
the testatrix intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge
Rabadilla, was to be substituted by the testatrix's "near descendants" should the
obligation to deliver the fruits to herein private respondent be not complied with. And
since the testatrix died single and without issue, there can be no valid substitution and
such testamentary provision cannot be given any effect.
The petitioner theorizes further that there can be no valid substitution for the reason that
the substituted heirs are not definite, as the substituted heirs are merely referred to as
"near descendants" without a definite identity or reference as to who are the "near
descendants" and therefore, under Articles 843[8] and 845[9] of the New Civil Code, the
substitution should be deemed as not written.
The contentions of petitioner are untenable. Contrary to his supposition that the Court of
Appeals deviated from the issue posed before it, which was the propriety of the dismissal
of the complaint on the ground of prematurity of cause of action, there was no such
deviation. The Court of Appeals found that the private respondent had a cause of action
against the petitioner. The disquisition made on modal institution was, precisely, to stress
that the private respondent had a legally demandable right against the petitioner pursuant
to subject Codicil; on which issue the Court of Appeals ruled in accordance with law.
It is a general rule under the law on succession that successional rights are transmitted
from the moment of death of the decedent[10] and compulsory heirs are called to succeed
by operation of law. The legitimate children and descendants, in relation to their
legitimate parents, and the widow or widower, are compulsory heirs. [11]Thus, the
petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge
Rabadilla, succeeded the latter by operation of law, without need of further proceedings,
and the successional rights were transmitted to them from the moment of death of the
decedent, Dr. Jorge Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all the property, rights and
obligations of a person, not extinguished by his death. Conformably, whatever rights Dr.
Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at
the time of his death. And since obligations not extinguished by death also form part of
the estate of the decedent; corollarily, the obligations imposed by the Codicil on the
deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his
death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla,
subject to the condition that the usufruct thereof would be delivered to the herein private
respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs
succeeded to his rights and title over the said property, and they also assumed his
(decedent's) obligation to deliver the fruits of the lot involved to herein private
respondent. Such obligation of the instituted heir reciprocally corresponds to the right of
private respondent over the usufruct, the fulfillment or performance of which is now
being demanded by the latter through the institution of the case at bar. Therefore, private
respondent has a cause of action against petitioner and the trial court erred in dismissing
the complaint below.
Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is
not applicable because what the testatrix intended was a substitution - Dr. Jorge Rabadilla
was to be substituted by the testatrix's near descendants should there be noncompliance
with the obligation to deliver the piculs of sugar to private respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person or persons to take the place of
the heir or heirs first instituted. Under substitutions in general, the testator may either (1)
provide for the designation of another heir to whom the property shall pass in case the
original heir should die before him/her, renounce the inheritance or be incapacitated to
inherit, as in a simple substitution,[12] or (2) leave his/her property to one person with the
express charge that it be transmitted subsequently to another or others, as in a
fideicommissary substitution.[13] The Codicil sued upon contemplates neither of the two.
In simple substitutions, the second heir takes the inheritance in default of the first heir by
reason of incapacity, predecease or renunciation.[14] In the case under consideration, the
provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due
to predecease, incapacity or renunciation, the testatrix's near descendants would
substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs
not fulfill the conditions imposed in the Codicil, the property referred to shall be seized
and turned over to the testatrix's near descendants.
Neither is there a fideicommissary substitution here and on this point, petitioner is
correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve
the property and to transmit the same later to the second heir.[15] In the case under
consideration, the instituted heir is in fact allowed under the Codicil to alienate the
property provided the negotiation is with the near descendants or the sister of the
testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the
obligation clearly imposing upon the first heir the preservation of the property and its
transmission to the second heir. "Without this obligation to preserve clearly imposed by
the testator in his will, there is no fideicommissary substitution." [16] Also, the near
descendants' right to inherit from the testatrix is not definite. The property will only pass
to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of
the usufruct to private respondent.
Another important element of a fideicommissary substitution is also missing here. Under
Article 863, the second heir or the fideicommissary to whom the property is transmitted
must not be beyond one degree from the first heir or the fiduciary. A fideicommissary
substitution is therefore, void if the first heir is not related by first degree to the second
heir.[17] In the case under scrutiny, the near descendants are not at all related to the
instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under
subject Codicil is in the nature of a modal institution and therefore, Article 882 of the
New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil
Code provide:
Art. 882. The statement of the object of the institution or the application of the
property left by the testator, or the charge imposed on him, shall not be
considered as a condition unless it appears that such was his intention.
That which has been left in this manner may be claimed at once provided that
the instituted heir or his heirs give security for compliance with the wishes of
the testator and for the return of anything he or they may receive, together with
its fruits and interests, if he or they should disregard this obligation.
Art. 883. When without the fault of the heir, an institution referred to in the
preceding article cannot take effect in the exact manner stated by the testator, it
shall be complied with in a manner most analogous to and in conformity with
his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is known in the
law of succession as an institucion sub modo or a modal institution. In a modal
institution, the testator states (1) the object of the institution, (2) the purpose or
application of the property left by the testator, or (3) the charge imposed by the testator
upon the heir.[18] A "mode" imposes an obligation upon the heir or legatee but it does not
affect the efficacy of his rights to the succession.[19] On the other hand, in a conditional
testamentary disposition, the condition must happen or be fulfilled in order for the heir to
be entitled to succeed the testator. The condition suspends but does not obligate; and the
mode obligates but does not suspend.[20] To some extent, it is similar to a resolutory
condition.[21]
From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the
testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise
clearly worded that the testatrix imposed an obligation on the said instituted heir and his
successors-in-interest to deliver one hundred piculs of sugar to the herein private
respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the
testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his
institution as a devisee, dependent on the performance of the said obligation. It is clear,
though, that should the obligation be not complied with, the property shall be turned over
to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under
subject Codicil is evidently modal in nature because it imposes a charge upon the
instituted heir without, however, affecting the efficacy of such institution.
Then too, since testamentary dispositions are generally acts of liberality, an obligation
imposed upon the heir should not be considered a condition unless it clearly appears from
the Will itself that such was the intention of the testator. In case of doubt, the institution
should be considered as modal and not conditional.[22]
Neither is there tenability in the other contention of petitioner that the private respondent
has only a right of usufruct but not the right to seize the property itself from the instituted
heir because the right to seize was expressly limited to violations by the buyer, lessee or
mortgagee.
In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the
application of any of its provisions, the testator's intention is to be ascertained from the
words of the Will, taking into consideration the circumstances under which it was
made.[23] Such construction as will sustain and uphold the Will in all its parts must be
adopted.[24]
Subject Codicil provides that the instituted heir is under obligation to deliver One
Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is
imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or
mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved.
The Codicil further provides that in the event that the obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella shall seize the property and turn it over to the
testatrix's near descendants. The non-performance of the said obligation is thus with the
sanction of seizure of the property and reversion thereof to the testatrix's near
descendants. Since the said obligation is clearly imposed by the testatrix, not only on the
instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix
in case of non-fulfillment of said obligation should equally apply to the instituted heir and
his successors-in-interest.
Similarly unsustainable is petitioner's submission that by virtue of the amicable
settlement, the said obligation imposed by the Codicil has been assumed by the lessee,
and whatever obligation petitioner had become the obligation of the lessee; that petitioner
is deemed to have made a substantial and constructive compliance of his obligation
through the consummated settlement between the lessee and the private respondent, and
having consummated a settlement with the petitioner, the recourse of the private
respondent is the fulfillment of the obligation under the amicable settlement and not the
seizure of subject property.
Suffice it to state that a Will is a personal, solemn, revocable and free act by which a
person disposes of his property, to take effect after his death. [25] Since the Will expresses
the manner in which a person intends how his properties be disposed, the wishes and
desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a
compromise agreement which would thereby defeat the very purpose of making a Will.
WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of
Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No
pronouncement as to costs
SO ORDERED.
Melo, J., (Chairman), concur in the separate opinion of Justice Vitug.
Vitug, J., see separate opinion.
Panganiban, J., join the separate opinion of Justice Vitug.
Gonzaga-Reyes, J., no part.
 under article 797 of the Civil Code, which perhaps is not strictly applicable to this case, but we
lG.R. No. L-3891 December 19, 1907 think that it may be argued from what is said in article 797 that, in order to make a testamentary
ELENA MORENTE, petitioner-appellant, provision conditional, such condition must fairly appear from the language used in the will.
vs. Whether the children mentioned in the second clause of the will are natural children or legitimate
GUMERSINDO DE LA SANTA, respondent-appellee. children we do not decide, for no such question is before us, the contingency mentioned in that part
Agoncillo and Ilustre, for appellant. of the clause not having arisen, and we limit ourselves to saying merely that by the subsequent
Agustin Alvares, for appellee. marriage of the husband he did not forfeit the legacy given to him by the first part of the will. That
was the only question before the court below. the judgment of that court, denying the petition, is
accordingly affirmed, with the costs of this instance against the appellant. So ordered.
WILLARD, J.: Arellano, C.J., Torres, Mapa, Johnson, Carson and Tracey, JJ., concur.
The will of Consuelo Morente contains the following clauses:lawphil.net
1. I hereby order that all real estate which may belong to me shall pass to my husband,
Gumersindo de la Santa.
2. That my said husband shall not leave my brothers after my death, and that he shall not
marry anyone; should my said husband have children by anyone, he shall not convey any
portion of the property left by me, except the one-third part thereof and the two remaining
thirds shall be and remain for my brother Vicente or his children should he have any.
3. After my death I direct my husband to dwell in the camarin in which the bakery is
located, which is one of the properties belonging to me.
Her husband, Gumersindo de la Santa, married again within four months of the death of the
testatrix. Elena Morente, a sister of the deceased, filed a petition in the proceeding relating to the
probate of the will of Consuelo Morente pending in the Court of First Instance of the Province of
Tayabas in which she alleged the second marriage of Gumersindo de la Santa and asked that the
legacy to him above-mentioned be annulled. Objection was made in the court below by the husband
to the procedure followed by the petitioner. The court below, however, held that the proceeding was
proper and from that holding the husband did not appeal. From the judgment of the court below, the
petitioner, Elena Morente, appealed.
In its judgment the court denied the petition. It was said, however, in the decision, as we understand
it, that the husband having married, he had the right to the use of all the property during his life and
that at his death two-thirds thereof would pass to Vicente, a brother of the testatrix, and one-third
thereof could be disposed of by the husband. The construction given to the will by the court below
is not accepted by the appellant. She claims that by the mere act of marriage the husband at once
lost all rights acquired by the will. It is neither alleged nor proven that any children have been born
to the husband since the death of the testatrix. lawphil.net
Article 790 of the Civil Code provides that testamentary provisions may be made conditional and
article 793 provides that a prohibition against another marriage may in certain cases be validly
imposed upon the widow or widower. But the question in this case is, Did the testatrix intend to
impose a condition upon the absolute gift which is contained in the first clauses of the will? It is to
be observed that by the second clause she directs that her husband shall not leave her sisters. It is
provided in the third clause that he must continue to live in a certain building. It is provided in the
second clause that he shall not marry again. To no one of these orders is attached the condition that
if he fails to comply with them he shall lose the legacy given to him by the first clause of the will. It
is nowhere expressly said that if he does leave the testatrix's sisters, or does not continue to dwell in
the building mentioned in the will he shall forfeit the property given him in the first clause; nor is it
anywhere expressly said that if he marries again he shall incur such a loss. But it is expressly
provided that if one event does happen the disposition of the property contained in the first clause of
the will shall be changed. It is said that if he has children by anyone, two-thirds of that property
shall pass to Vicente, the brother of the testatrix.
We are bound to construe the will with reference to all the clauses contained therein, and with
reference to such surrounding circumstances as duly appear in the case, and after such consideration
we can not say that it was the intention of the testatrix that if her husband married again he should
forfeit the legacy above mentioned. In other words, there being no express condition attached to that
legacy in reference to the second marriage, we can not say that any condition can be implied from
the context of the will. In the case of Chiong Joc-Soy vs. Jaime Vano (8 Phil. Rep., 119), we held
that the legacy contained in the will therein mentioned was not conditional. It is true that case arose
INTESTATE ESTATE OF PETRA V. ROSALES, IRENEA C. ROSALES, petitioner,
vs.
FORTUNATO ROSALES, MAGNA ROSALES ACEBES, MACIKEQUEROX ROSALES and
ANTONIO ROSALES, respondents.
Jose B. Echaves for petitioner.
Jose A. Binghay and Paul G. Gorres for respondents.
GANCAYCO, J.:
In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu the question raised is
whether the widow whose husband predeceased his mother can inherit from the latter, her mother-in-law.
It appears from the record of the case that on February 26, 1971, Mrs. Petra V. Rosales, a resident of Cebu
City, died intestate. She was survived by her husband Fortunate T. Rosales and their two (2) children
Magna Rosales Acebes and Antonio Rosales. Another child, Carterio Rosales, predeceased her, leaving
behind a child, Macikequerox Rosales, and his widow Irenea C. Rosales, the herein petitioner. The estate
of the dismissed has an estimated gross value of about Thirty Thousand Pesos (P30,000.00).
On July 10, 1971, Magna Rosales Acebes instituted the proceedings for the settlement of the estate of the
deceased in the Court of First Instance of Cebu. The case was docketed as Special Proceedings No. 3204-
R. Thereafter, the trial court appointed Magna Rosales Acebes administratrix of the said estate.
In the course of the intestate proceedings, the trial court issued an Order dated June 16, 1972 declaring the
following in individuals the legal heirs of the deceased and prescribing their respective share of the estate
— Leoncio, the decedent's son-in-law, who, although married to his daughter or
Fortunata T. Rosales (husband), 1/4; Magna R. Acebes (daughter), 1/4;
Macikequerox Rosales, 1/4; and Antonio Rosales son, 1/4.
This declaration was reiterated by the trial court in its Order I dated February 4, 1975.
These Orders notwithstanding, Irenea Rosales insisted in getting a share of the estate in her capacity as the
surviving spouse of the late Carterio Rosales, son of the deceased, claiming that she is a compulsory heir
of her mother-in-law together with her son, Macikequerox Rosales.
Thus, Irenea Rosales sought the reconsideration of the aforementioned Orders. The trial court denied her
plea. Hence this petition.
In sum, the petitioner poses two (2) questions for Our resolution petition. First — is a widow (surviving
spouse) an intestate heir of her mother-in-law? Second — are the Orders of the trial court which excluded
the widow from getting a share of the estate in question final as against the said widow?
Our answer to the first question is in the negative.
Intestate or legal heirs are classified into two (2) groups, namely, those who inherit by their own right, and
those who inherit by the right of representation. 1 Restated, an intestate heir can only inherit either by his
own right, as in the order of intestate succession provided for in the Civil Code, 2 or by the right of
representation provided for in Article 981 of the same law. The relevant provisions of the Civil Code are:
Art. 980. The children of the deceased shall always inherit from him in their own
right, dividing the inheritance in equal shares.
Art. 981. Should children of the deceased and descendants of other children who are
dead, survive, the former shall inherit in their own right, and the latter by right of
representation.
Art. 982. The grandchildren and other descendants shag inherit by right of
representation, and if any one of them should have died, leaving several heirs, the
portion pertaining to him shall be divided among the latter in equal portions.
Art. 999. When the widow or widower survives with legitimate children or their
descendants and illegitimate children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the same share as that of a
legitimate child.
There is no provision in the Civil Code which states that a widow (surviving spouse) is an intestate heir of
her mother-in-law. The entire Code is devoid of any provision which entitles her to inherit from her
mother-in- law either by her own right or by the right of representation. The provisions of the Code which
relate to the order of intestate succession (Articles 978 to 1014) enumerate with meticulous exactitude the
intestate heirs of a decedent, with the State as the final intestate heir. The conspicuous absence of a
provision which makes a daughter-in-law an intestate heir of the deceased all the more confirms Our
observation. If the legislature intended to make the surviving spouse an intestate heir of the parent-in-law,
it would have so provided in the Code.
Petitioner argues that she is a compulsory heir in accordance with the provisions of Article 887 of the
Civil Code which provides that:
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287;
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1
and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall
inherit from them in the manner and to the extent established by this Code.
The aforesaid provision of law 3 refers to the estate of the deceased spouse in which case the surviving
spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent-in-law.
Indeed, the surviving spouse is considered a third person as regards the estate of the parent-in-law. We had
occasion to make this observation in Lachenal v. Salas, 4 to Wit:
We hold that the title to the fishing boat should be determined in Civil Case No.
3597 (not in the intestate proceeding) because it affects the lessee thereof, Lope L.
compulsory heir, is nevertheless a third person with respect to his estate. ...
(Emphasis supplied).
By the same token, the provision of Article 999 of the Civil Code aforecited does not support petitioner's
claim. A careful examination of the said Article confirms that the estate contemplated therein is the estate
of the deceased spouse. The estate which is the subject matter of the intestate estate proceedings in this
case is that of the deceased Petra V. Rosales, the mother-in-law of the petitioner. It is from the estate of
Petra V. Rosales that Macikequerox Rosales draws a share of the inheritance by the right of representation
as provided by Article 981 of the Code.
The essence and nature of the right of representation is explained by Articles 970 and 971 of the Civil
Code, viz —
Art. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented, and
acquires the rights which the latter would have if he were living or if he could have
inherited.
Art. 971. The representative is called to the succession by the law and not by the
person represented. The representative does not succeed the person representedbut
the one whom the person represented would have succeeded. (Emphasis supplied.)
Article 971 explicitly declares that Macikequerox Rosales is called to succession by law because of his
blood relationship. He does not succeed his father, Carterio Rosales (the person represented) who
predeceased his grandmother, Petra Rosales, but the latter whom his father would have succeeded.
Petitioner cannot assert the same right of representation as she has no filiation by blood with her mother-
in-law.
Petitioner however contends that at the time of the death of her husband Carterio Rosales he had an
inchoate or contingent right to the properties of Petra Rosales as compulsory heir. Be that as it may, said
right of her husband was extinguished by his death that is why it is their son Macikequerox Rosales who
succeeded from Petra Rosales by right of representation. He did not succeed from his deceased father,
Carterio Rosales.
On the basis of the foregoing observations and conclusions, We find it unnecessary to pass upon the
second question posed by the petitioner.
Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse is not an intestate heir
of his or her parent-in-law.
WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack of merit, with costs
against the petitioner. Let this case be remanded to the trial-court for further proceedings.
SO ORDERED.
Yap (Chairman), Narvasa, Melencio-Herrera, Cruz, Feliciano and Sarmiento, JJ., concur.

138774 : March 8, 2001 : J. Pardo : First Division
[G.R. No. 138774. March 8, 2001]
REGINA FRANCISCO AND ZENAIDA PASCUAL, petitioners, vs. AIDA FRANCISCO-
ALFONSO, respondent.
DECISION
PARDO, J.:
May a legitimate daughter be deprived of her share in the estate of her deceased father by a
simulated contract transferring the property of her father to his illegitimate children?
The case before the Court is an appeal via certiorarifrom the decision of the Court of
Appeals[1]declaring void the deed of sale of two parcels of land conveyed to petitioners who are
illegitimate children of the deceased to the exclusion of respondent, his sole legitimate daughter.
The facts[2] are:
Respondent Aida Francisco-Alfonso (hereafter Aida) is the only daughter of spouses Gregorio
Francisco and Cirila de la Cruz, who are now both deceased.
Petitioners, on the other hand, are daughters of the late Gregorio Francisco with his common law
wife Julia Mendoza, with whom he begot seven (7) children.
Gregorio Francisco (hereafter Gregorio) owned two parcels of residential land, situated in Barangay
Lolomboy, Bocaue, Bulacan, covered by TCT Nos. T-32740 and T-117160. When Gregorio was
confined in a hospital in 1990, he confided to his daughter Aida that the certificates of title of his
property were in the possession of Regina Francisco and Zenaida Pascual.
After Gregorio died on July 20, 1990,[3] Aida inquired about the certificates of title from her half
sisters.They informed her that Gregorio had sold the land to them on August 15, 1983. After
verification, Aida learned that there was indeed a deed of absolute sale in favor of Regina Francisco
and Zenaida Pascual. Thus, on August 15, 1983, Gregorioexecuted a Kasulatan sa Ganap na
Bilihan, whereby for P25,000.00, he sold the two parcels of land to Regina Francisco and Zenaida
Pascual. By virtue of the sale, the Register of Deeds of Bulacan issued TCT No. T-59.585 to Regina
Francisco and TCT T-59.586 to Zenaida Pascual.[4]
On April 1, 1991, Aida filed with the Regional Trial Court, Bulacan a complaint against petitioners
for annulment of sale with damages.[5] She alleged that the signature of her late father, Gregorio
Francisco, on the Kasulatan sa Ganap na Bilihan dated August 15, 1983, was a forgery.
In their joint answer to the complaint, petitioners denied the alleged forgery or simulation of the
deed of sale. After due proceedings, on July 21, 1994, the trial court rendered a decision dismissing
the complaint. The dispositive portion reads:
WHEREFORE, on the basis of the evidence adduced and the law applicable thereon, the Court
hereby renders judgment:
a) sustaining the validity of the Kasulatan Sa Ganap Na Bilihan (Exh.G) executed on 15 August
1993 by the late Gregorio Francisco in favor of the defendants;
b) affirming the validity of the Transfer Certificates of Title No. T-59.585 (Exh. I) issued to
defendant Regina Francisco and No. T-59.386 (Exh. H) issued to defendant Zenaida Pascual; and
c) dismissing the complaint as well as the defendants counterclaim for damages and attorneys fees
for lack of merit. [6]
In time[7], respondent Alfonso appealed to the Court of Appeals.[8]
After due proceedings, on April 30, 1999, the Court of Appeals promulgated its decision reversing
that of the trial court, the dispositive portion of which reads:
WHEREFORE, the Decision dated July 21, 1994 of the court a quo is REVERSED and SET
ASIDE and another rendered as follows:
1. The Kasulatan Sa Ganap na Bilihan dated August 15, 1983 (Exhibit G) is declared null and void
from the beginning and TCT Nos. T-59.585 (M) and T-59-586 (M), both of the Registry of Deeds
of Bulacan (Meycauayan Branch) in the names of Regina Francisco and Zenaida Pascual,
respectively, are annulled and cancelled;
2. The Register of Deeds of Bulacan (Meycauayan Branch) is ordered to cancel the aforementioned
TCT Nos. T-59.585 (M) and T-59.586 (M) and to reinstate Transfer Certificates of Title Nos. T-
132740 and T-117160 both in the name of Gregorio Francisco.
3. Defendants-appellees Regina Francisco and Zenaida Pascual jointly and solidarily are ordered to
pay plaintiff-appellant Alfonso the amount of P5,000.00 as moral damages, P5,000.00 as exemplary
damages and P5,000.00 as attorneys fees.
4. The counterclaim of defendants-appellees is dismissed for lack of merit.
Costs of suit against said defendants-appellees. [9]
Hence, this petition.[10]
The main issue raised is whether the Supreme Court may review the factual findings of the appellate
court. The jurisdiction of this Court in cases brought before it from the Court of Appeals under Rule
45 of the Revised Rules of Court is limited to review of pure errors of law. It is not the function of
this Court to analyze or weigh evidence all over again, unless there is a showing that the findings of
the lower court are totally devoid of support or are glaringly erroneous as to constitute grave abuse
of discretion.[11]
The findings of fact of the Court of Appeals supported by substantial evidence are conclusive and
binding on the parties and are not reviewable by this Court,[12] unless the case falls under any of
the recognized exceptions to the rule.[13]
Petitioner has failed to prove that the case falls within the exceptions.[14] Gregorio Francisco did not own any other property. If indeed the parcels of land involved were the
only property left by their father, the sale in fact would deprive respondent of her share in her
We affirm the decision of the Court of Appeals because: fathers estate. By law, she is entitled to half of the estate of her father as his only legitimate
child.[21]

First: The kasulatan was simulated. There was no consideration for the contract of sale. Felicitas de
The legal heirs of the late Gregorio Francisco must be determined in proper testate or intestate
la Cruz, a family friend of the Franciscos, testified that Zenaida Pascual and Regina Francisco did
not have any source of income in 1983, when they bought the property, until the time when Felicitas proceedings for settlement of the estate. His compulsory heir can not be deprived of her share in the
estate save by disinheritance as prescribed by law.[22]
testified in 1991.[15]

WHEREFORE, the petition is hereby DENIED. The decision of the Court of Appeals in CA-G. R.
As proof of income, however, Zenaida Pascual testified that she was engaged in operating a
canteen, working as cashier in Mayon Night Club as well as buying and selling RTW (Ready to CV No. 48545 is AFFIRMED, in toto.
Wear) items in August of 1983 and prior thereto.
No costs.
Zenaida alleged that she paid her father the amount of P10,000.00. She did not withdraw money
from her bank account at the Rural Bank of Meycauayan, Bulacan, to pay for the property. She had SO ORDERED.
personal savings other than those deposited in the bank. Her gross earnings from the RTW for three
years was P9,000.00, and she earned P50.00 a night at the club.[16] Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur

Regina Francisco, on the other hand, was a market vendor, selling nilugaw, earning a net income of
P300.00 a day in 1983. She bought the property from the deceased for P15,000.00.[17] She had no
other source of income.

We find it incredible that engaging in buy and sell could raise the amount of P10,000.00, or that
earnings in selling goto could save enough to pay P15,000.00, in cash for the land.

The testimonies of petitioners were incredible considering their inconsistent statements as to

whether there was consideration for the sale and also as to whether the property was bought below
or above its supposed market value. They could not even present a single witness to
the kasulatan that would prove receipt of the purchase price.

Since there was no cause or consideration for the sale, the same was a simulation and hence, null
and void.[18]

Second: Even if the kasulatan was not simulated, it still violated the Civil Code[19] provisions
insofar as the transaction affected respondents legitime. The sale was executed in 1983, when the
applicable law was the Civil Code, not the Family Code.

Obviously, the sale was Gregorios way to transfer the property to his illegitimate daughters[20] at
the expense of his legitimate daughter. The sale was executed to prevent respondent Alfonso from
claiming her legitime and rightful share in said property. Before his death, Gregorio had a change of
heart and informed his daughter about the titles to the property.

According to Article 888, Civil Code:

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

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