Anda di halaman 1dari 90

SUCCESSION same family.

(Illegitimate children are not compulsory heirs


Legend: (no legitimes) under the old Civil Code – they can inherit
T – Senator Tolentino’s comments only if made a devisee or legatee in a will).
B – Professor Balane’s comments
3. The abolition of the reservation – the reservas and
I. GENERAL PROVISIONS reversions (except reserve troncal, which was reincorporated
by Congress) has been abolished.
Wills is a form of succession.
Why emphasize wills – a) wills will minimize conflict between 4. The free portion of the estate of the deceased is
heirs; b) it represents the intent of the testator. increased from 1/3 to ½. By giving the property to anyone
The law only provides for the aliquot portion of the estate – who has the capacity to succeed by way of a will. In the
and the heirs may fight for specific properties – but if there is NCC – limiting to the 5th degree of relatives the inheritance –
a will made - which divides and designates properties (even because in default of the heirs – the property will revert back
the smallest jewelry) to particular heirs – it will be better. to the State.
More often than not – those who execute wills are those who
have many properties * Other laws relevant to succession – other than the Civil
Code
A. Definition and Concepts - Rules of Court
- Family Code – changes:
Art. 774. Succession is a mode of acquisition by virtue – shares is equal among illegitimate children (3 kinds -
of which the property, rights and obligations to the acknowledged natural children, natural children by legal
extent of the value of the inheritance, of a person are fiction, acknowledged illegitimate children who are not
transmitted through his death to another or others either natural (spurious)) – change pertained to illegitimate
by his will or by operation of law. (n) children (regardless of kind-they will have the same share)
- use of surname of father of illegitimate children
Succession as a mode of acquisition – is not limited to Other changes in the NCC - Holographic will; Ante mortem
acquiring ownership but includes the rights transmitted by
decedent. B. Subjects of Succession

Art. 712. Ownership is acquired by occupation and by 1. Who are the subjects?
intellectual creation.
Ownership and other real rights over property are The Decedent (testator)
acquired and transmitted by law, by donation, by estate
and intestate succession, and in consequence of certain Art. 775. In this Title, "decedent" is the general term
contracts, by tradition. applied to the person whose property is transmitted
They may also be acquired by means of prescription. through succession, whether or not he left a will. If he
left a will, he is also called the testator.
Art. 1311. Contracts take effect only between the parties,
their assigns and heirs, except in case where the rights Devisee – to those who, real property is given in a will
and obligations arising from the contract are not Legatee – to those who, personal property is given in a will
transmissible by their nature, or by stipulation or by Heir – those who inherit in the general sense.
provision of law. The heir is not liable beyond the value Is a devisee an heir? Is an heir a devisee? – Not necessarily
of the property he received from the decedent. the same,
If a contract should contain some stipulation in favor of An heir has an obligation to pay the credits – as to the value
a third person, he may demand its fulfillment provided of the inheritance.
he communicated his acceptance to the obligor before Difference of heirs (782) – in general sense
its revocation. A mere incidental benefit or interest of a Specific heirs – instituted by a will; Devisee – an heir in the
person is not sufficient. The contracting parties must specific sense
have clearly and deliberately conferred a favor upon a Article 940 par 2 – if the heir, legatee or devisee, who may
third person. have been given the choice, dies before making it, this right
shall pass to the respective heirs
When a person inherits – does he acquire ownership? – not
necessarily. He can only have the right which the decedent CLASSIFICATION OF HEIRS
has (e.g. least, etc) - pede usufruct lang ang ibibigay in so 1. Compulsory Heirs
far as testamentary provision is concerned. a. Primary Compulsory Heir (PCH) – only legitimate children
Other modes of acquisition: and decedents; adopted children (only have similar rights as
- tradition: mode of delivery – must be a consequence of that of legitimate children; they have no right of
certain contracts – like delivery in sales to transfer representation (iron curtain rule) – cannot inherit from
ownership grandparents)
- prescriptions: acquisitive prescription only, not those *to be a compulsory heir – must they be related by blood?
extinctive prescription which pertain to actions. Not necessarily
What concepts in the Family Code is related to Family - because of adoption (adopted children has no right of
relations? – legitimes, devices and legatees. representation – they cannot inherit from grandparents).
- intestate succession (only those within the family of - Spouse (not blood related [blood related can be married –
decedent, degree of closeness) only beyond the 4th degree (2nd degree cousins)]
- concept of legitimes (only members of family) Are all decedents – compulsory heirs? No, only legitimate
children
The date of effectivity of the NCC – August 30, 1950
The date of effectivity of the Family Code – August 3, 1988 b. Secondary Compulsory Heir (SCH) – legitmate parents
What law deals with succession before the NCC was made and ascendants (will only inherit in default of PCH)
effective – Old Civil Code of 1889 Illegitimate parents (parents of illegitimate children) – are
compulsory heirs (secondary compulsory heirs)
Basis of Law of Succession
c. Concurring Compulsory Heir (CCH) – surviving spouse;
Instances supporting concept on law of property illegitimate children
- testamentary (because you’re the owner, you have the
right to dispose the property) 2. Voluntary Heirs
- wills Only natural persons may be voluntary heirs? No, even
- substitution juridical persons may be voluntary heirs (based on CC -
1026 & 782)
Legal Philosophy of the Civil Code on Succession
3. Legal Heirs
Socialization of ownership in succession – more people will
benefit from the estate WHO ARE LEGAL HEIRS? (All compulsory heirs, collateral
relatives, the state)
Fundamental Changes in the NCC in line with the
purpose of Socialization The Heir, devisee, Legatee (All compulsory heirs)
Is there a limitation (like the collateral relatives) in the direct
1. The surviving spouse is given a better status in terms of line to be able to inherit? Say, up to the 10th civil degree? No
succession to the property of the deceased husband, her limitation provided by law – but it is humanly impossible
right to the property was improved from a mere usufruct to  a person may be considered compulsory heir –
full ownership. but it does not necessarily mean that he will inherit
– he may be disinherited, etc. (tagapagmana vs.
2. The illegitimate children are now given successional rights magmamana)
unlike the old civil code which does not. Further, the
illegitimate child’s mother or father not related by blood has Art. 782. An heir is a person called to the succession
a chance of inheriting, thus, furthering the purpose of either by the provision of a will or by operation of law.
socialization preventing the property from staying within the
1
Devisees and legatees are persons to whom gifts of real collateral line. (955a)
and personal property are respectively given by virtue of
a will.  When there are no brothers whether the full
of half blood, the other collateral relatives
Art. 887. The following are compulsory heirs: succeed which whom, however, are limited
(1) Legitimate children and descendants, with respect to within the 5th degree of relationship.
their legitimate parents and ascendants; (PCH) Because beyond this degree, it is safe to say
(2) In default of the foregoing, legitimate parents and that, there is hardly any affection to merit
ascendants, with respect to their legitimate children and succession. Hence, for succession purposes
descendants; (SCH) these persons are no longer considered
(3) The widow or widower; (CCH) relatives.
(4) Acknowledged natural children and natural children  The following rules shall apply: 1. The
by legal fiction; (CCH) nearest relative exclude the farther. 2.
(5) Other illegitimate children referred to in Article 287. Collateral of the same degree inherit equal
(CCH) parts, there being no right of representation,
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not 3. They succeed without distinction or lines or
excluded by those in Nos. 1 and 2; neither do they preference among them on account of the
exclude one another. whole blood relationship
In all cases of illegitimate children, their filiation must be
duly proved. The State
The father or mother of illegitimate children of the three Art. 1011. In default of persons entitled to succeed in
classes mentioned, shall inherit from them in the accordance with the provisions of the preceding
manner and to the extent established by this Code. Sections, the State shall inherit the whole estate. (956a)
(807a) (SCH)
 When a person dies intestate, leaving no
The Collateral Relatives (not necessarily legal heirs – must compulsory heir, nor any other relatives to
be within the 5th civil degree) succeed him by law, the natural result would
2nd cousins – are heirs? No, because they are 6th degree be the complete abandonment of the
removed from the decedent property.
1st cousins – 4 degrees removed  The estate becomes subject to appropriation
Nieces & nephews, aunts & uncles (from cousins), brother of by anyone. This condition would result in
great grand father – 5 degrees removed conflicts detrimental to the public and
economic order.
Art. 1003. If there are no descendants, ascendants,  In view of this, the law awards the property to
illegitimate children, or a surviving spouse, the the State, in representation of the people.
collateral relatives shall succeed to the entire estate of Ratio: a) Dictated by public policy and, b)
the deceased in accordance with the following articles. private property is enjoyed only under the
(946a) protection of the State, and when no longer
used, it should revert back to the State.
Art. 1004. Should the only survivors be brothers and  The reversion of the res nullius property can
sisters of the full blood, they shall inherit in equal only be done through an Escheat
shares. (947) proceedings instituted by the Solicitor
General to the proper court ( the city or
Art. 1005. Should brothers and sisters survive together municipality where the land is situated ). The
with nephews and nieces, who are the children of the State, therefore does not ipso facto become
descendant's brothers and sisters of the full blood, the the owner of the estate left without heir. Its
former shall inherit per capita, and the latter per stirpes. right to claim must be based on a court’s
In relation to Article 975 which states ruling allowing it to have the estate, after
compliance with the procedure laid down by
Art. 975. When children of one or more brothers or the Rules of Court. (Rule 91)
sisters of the deceased survive, they shall inherit from
the latter by representation, if they survive with their Art. 1012. In order that the State may take possession of
uncles or aunts. But if they alone survive, they shall the property mentioned in the preceding article, the
inherit in equal portions. pertinent provisions of the Rules of Court must be
 Division per capita entails a division of the observed. (958a)
estate into as many equal parts as there are
persons to succeed. If there are three Art. 1013. After the payment of debts and charges, the
children, for instance, each will receive, per personal property shall be assigned to the municipality
capita, one third of the estate. Division per or city where the deceased last resided in the
capita is the general rule. Philippines, and the real estate to the municipalities or
 Division per stirpes is made when a sole cities, respectively, in which the same is situated.
descendant or a group of descendants If the deceased never resided in the Philippines, the
represent a person in intestate succession. whole estate shall be assigned to the respective
The sole representative or group of municipalities or cities where the same is located.
representatives are counted as one head. Such estate shall be for the benefit of public schools,
Thus, should a father be survived by a son and public charitable institutions and centers, in such
and four children of another son who municipalities or cities. The court shall distribute the
predeceased him, then, the estate is divided estate as the respective needs of each beneficiary may
per stirpes. The first half is given to the warrant.
surviving son and the other half shall be The court, at the instance of an interested party, or on
divided among the four grandchildren. its own motion, may order the establishment of a
permanent trust, so that only the income from the
Art. 1006. Should brother and sisters of the full blood property shall be used. (956a)
survive together with brothers and sisters of the half
blood, the former shall be entitled to a share double that Art. 1014. If a person legally entitled to the estate of the
of the latter. (949) deceased appears and files a claim thereto with the
court within five years from the date the property was
Art. 1007. In case brothers and sisters of the half blood, delivered to the State, such person shall be entitled to
some on the father's and some on the mother's side, are the possession of the same, or if sold the municipality
the only survivors, all shall inherit in equal shares or city shall be accountable to him for such part of the
without distinction as to the origin of the property. (950) proceeds as may not have been lawfully spent.

Art. 1008. Children of brothers and sisters of the half 2. Relationships (Intestate or Legal Heirs)
blood shall succeed per capita or per stirpes, in
accordance with the rules laid down for the brothers and Art. 963. Proximity of relationship is determined by the
sisters of the full blood. (915) number of generations. Each generation forms a degree.

Art. 1009. Should there be neither brothers nor sisters Art. 964. A series of degrees forms a line, which may be
nor children of brothers or sisters, the other collateral either direct or collateral.
relatives shall succeed to the estate. A direct line is that constituted by the series of degrees
among ascendants and descendants.
The latter shall succeed without distinction of lines or A collateral line is that constituted by the series of
preference among them by reason of relationship by the degrees among persons who are not ascendants and
whole blood. (954a) descendants, but who come from a common ancestor.
(916a)
Art. 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in the

2
Art. 965. The direct line is either descending or On January 31, 1977, Adoracion C. Campos died,
ascending. leaving her father, petitioner Hermogenes Campos
The former unites the head of the family with those who and her sisters, private respondent Nenita C. Paguia,
descend from him.
Remedios C. Lopez and Marieta C. Medina as the
The latter binds a person with those from whom he
descends. (917) surviving heirs. As Hermogenes Campos was the only
compulsory heir, he executed an Affidavit of
Art. 966. In the line, as many degrees are counted as Adjudication under Rule 74, Section I of the Rules of
there are generations or persons, excluding the Court whereby he adjudicated unto himself the
progenitor. ownership of the entire estate of the deceased
In the direct line, ascent is made to the common Adoracion Campos.
ancestor. Thus, the child is one degree removed from Eleven months after, on November 25, 1977, Nenita
the parent, two from the grandfather, and three from the
C. Paguia filed a petition for the reprobate of a will of
great-grandparent.
In the collateral line, ascent is made to the common the deceased, Adoracion Campos, which was
ancestor and then descent is made to the person with allegedly executed in the United States and for her
whom the computation is to be made. Thus, a person is appointment as administratrix of the estate of the
two degrees removed from his brother, three from his deceased testatrix.
uncle, who is the brother of his father, four from his first In her petition, Nenita alleged that the testatrix was an
cousin, and so forth. (918a) American citizen at the time of her death and was a
permanent resident of 4633 Ditman Street,
Art. 967. Full blood relationship is that existing between
Philadelphia, Pennsylvania, U.S.A.; that the testatrix
persons who have the same father and the same
mother. died in Manila on January 31, 1977 while temporarily
Half blood relationship is that existing between persons residing with her sister at 2167 Leveriza, Malate,
who have the same father, but not the same mother, or Manila; that during her lifetime, the testatrix made her
the same mother, but not the same father. (920a) last will and testament on July 10, 1975, according to
the laws of Pennsylvania, U.S.A., nominating Wilfredo
Art. 968. If there are several relatives of the same Barzaga of New Jersey as executor; that after the
degree, and one or some of them are unwilling or testatrix' death, her last will and testament was
incapacitated to succeed, his portion shall accrue to the
presented, probated, allowed, and registered with the
others of the same degree, save the right of
representation when it should take place. (922) Registry of Wills at the County of Philadelphia, U.S.A.,
that Clement L. McLaughlin, the administrator who
 In such cases as above, the shares would was appointed after Dr. Barzaga had declined and
have pertained to those who repudiated or waived his appointment as executor in favor of the
are incapacitated do not pass to relatives of former, is also a resident of Philadelphia, U.S.A., and
the next degree, but are retained by other that therefore, there is an urgent need for the
relatives of the same degree through the right appointment of an administratrix to administer and
of accretion, with the exception of the cases eventually distribute the properties of the estate
where the right of representation obtains. The
right to represent a living person obtains only
located in the Philippines.
in cases of disinheritance and incapacity. Meanwhile, on June 6, 1982, petitioner Hermogenes
Campos died and left a will, which, incidentally has
Art. 969. If the inheritance should be repudiated by the been questioned by the respondent, his children and
nearest relative, should there be one only, or by all the forced heirs as, on its face patently null and void, and
nearest relatives called by law to succeed, should there a fabrication, appointing Polly Cayetano as the
be several, those of the following degree shall inherit in executrix of his last will and testament. Cayetano,
their own right and cannot represent the person or
therefore, filed a motion to substitute herself as
persons repudiating the inheritance.
petitioner in the instant case which was granted by
 The article only pertains to repudiation. What the court on September 13, 1982.
then would be the effect of incapacity of the ISSUE: Whether or not a compulsory heir may be
only nearest relative? The right of validly excluded by a will executed by a foreign
representation may or may not obtain. testator?
Should the incapacitated heir be the child of
the decease, and he in turn has children, the HELD: YES
latter may represent the incapacitated heir. RATIO: Although on its face, the will appeared to
have preterited the petitioner and thus, the
3. Capacity to Succeed
respondent judge should have denied its reprobate
The general rule is any person may succeed by outright, the private respondents have sufficiently
law or by will unless excluded by law. established that Adoracion was, at the time of her
Requisites of capacity to succeed: a) that there be death, an American citizen and a permanent resident
general civil capacity of the person, whether of Philadelphia, Pennsylvania, U.S.A. Therefore,
natural or artificial, according to law; and b) that under Article 16 par. (2) and 1039 of the Civil Code
here be no incapacity to succeed under express which respectively provide:
provision of law.
Art. 16 par. (2)."However, intestate and
a. Determination testamentary successions, both with respect
to the order of succession and to the amount
Art. 1034. In order to judge the capacity of the heir, of successional rights and to the intrinsic
devisee or legatee, his qualification at the time of the validity of testamentary provisions, shall be
death of the decedent shall be the criterion. regulated by the national law of the person
In cases falling under Nos. 2, 3, or 5 of Article 1032, it whose succession is under consideration,
shall be necessary to wait until final judgment is whatever may be the nature of the property
rendered, and in the case falling under No. 4, the
and regardless of the country wherein said
expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional, property may be found."
the time of the compliance with the condition shall also Art. 1039."Capacity to succeed is governed by the law
be considered. of the nation of the decedent."
the law which governs Adoracion Campo's will is the
Art. 1039. Capacity to succeed is governed by the law of law of Pennsylvania, U.S.A., which is the national law
the nation of the decedent of the decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and
Art. 16. Real property as well as personal property is
subject to the law of the country where it is stipulated.
that all the estate may be given away by the testatrix
However, intestate and testamentary successions, both to a complete stranger, the petitioner argues that such
with respect to the order of succession and to the law should not apply because it would be contrary to
amount of successional rights and to the intrinsic the sound and established public policy and would run
validity of testamentary provisions, shall be regulated counter to the specific provisions of Philippine Law.
by the national law of the person whose succession is It is a settled rule that as regards the intrinsic validity
under consideration, whatever may be the nature of the of the provisions of the will, as provided for by Article
property and regardless of the country wherein said 16 (2) and 1039 of the Civil Code, the national law of
property may be found. (10a)
the decedent must apply. This was squarely applied
in the case of Bellis v. Bellis (20 SCRA 358) wherein
1. Cayetano vs. Leonides 129 SCRA 522
we ruled:"It is therefore evident that whatever public
3
policy or good customs may be involved in our system The intestate heirs of Father Rigor countered with a
of legitimes, Congress has not intended to extend the petition dated March 25, 1957 praying that the
same to the succession of foreign nationals. For it has bequest be declared inoperative and that they be
specifically chosen to leave, inter alia, the amount of adjudged as the persons entitled to the said ricelands
successional rights, to the decedent's national law. since, as admitted by the parish priest of Victoria, "no
Specific provisions must prevail over general ones. nearest male relative of" the testator "has ever
studied for the priesthood" (pp. 25 and 35, Record
b. Who may succeed? on Appeal). That petition was opposed by the parish
Art. 1024. Persons not incapacitated by law may succeed by priest of Victoria.
will or ab intestato. Judge De Aquino granted the second motion for
The provisions relating to incapacity by will are equally
reconsideration in his order of December 10, 1957 on
applicable to intestate succession. (744, 914)
 The second paragraph above merely
the ground that the testator had a grandnephew
enunciates a general rule because Article 1027 named Edgardo G. Cunanan (the grandson of his first
and 1028 clearly are exceptions which do not cousin) who was a seminarian in the San Jose
apply to intestate succession but only that of Seminary of the Jesuit Fathers in Quezon City. The
testamentary dispositions. administrator was directed to deliver the ricelands to
 Kinds of Incapacity: a) absolute or per se and the parish priest of Victoria as trustee.
b) relative or per accidens The legal heirs appealed to the Court of Appeals. It
Art. 1025. In order to be capacitated to inherit, the heir, reversed that order. It held that Father Rigor had
devisee or legatee must be living at the moment the
created a testamentary trust for his nearest male
succession opens, except in case of representation, when it
is proper. relative who would take the holy orders but that such
A child already conceived at the time of the death of the trust could exist only for twenty years because to
decedent is capable of succeeding provided it be born later enforce it beyond that period would violate "the rule
under the conditions prescribed in article 41. (n) against perpetuities". It ruled that since no legatee
* Those not existing at the time of death is claimed the ricelands within twenty years after the
incapacitated to succeed except on conditional wills where testator's death, the same should pass to his legal
succession only opens upon the happening of the condition. heirs, citing articles 888 and 912(2) of the old Civil
Art. 1026. A testamentary disposition may be made to the
Code and article 870 of the new Civil Code.
State, provinces, municipal corporations, private
corporations, organizations, or associations for religious, The will of the testator is the first and principal
scientific, cultural, educational, or charitable purposes. law in the matter of testaments. When his intention
All other corporations or entities may succeed under a will, is clearly and precisely expressed, any interpretation
unless there is a provision to the contrary in their charter or must be in accord with the plain and literal meaning of
the laws of their creation, and always subject to the same. his words, except when it may certainly appear that
(746a) his intention was different from that literally expressed
Art. 1029. Should the testator dispose of the whole or part of (In re Estate of Calderon, 26 Phil. 333
his property for prayers and pious works for the benefit of his
"The intent of the testator is the cardinal rule in
soul, in general terms and without specifying its application,
the executor, with the court's approval shall deliver one-half the construction of wills." It is "the life and soul of a
thereof or its proceeds to the church or denomination to will". It is "the first greatest rule, the sovereign guide,
which the testator may belong, to be used for such prayers the polestar, in giving effect to a will"
and pious works, and the other half to the State, for the From the foregoing testamentary provisions, it may
purposes mentioned in Article 1013. (747a) be deduced that the testator intended to devise
Art. 1030. Testamentary provisions in favor of the poor in the ricelands to his nearest male relative who
general, without designation of particular persons or of any would become a priest, who was forbidden to sell
community, shall be deemed limited to the poor living in the
the ricelands, who would lose the devise if he
domicile of the testator at the time of his death, unless it
should clearly appear that his intention was otherwise. discontinued his studies for the priesthood, or having
The designation of the persons who are to be considered as been ordained a priest, he was excommunicated, and
poor and the distribution of the property shall be made by who would be obligated to say annually twenty
the person appointed by the testator for the purpose; in masses with prayers for the repose of the souls of the
default of such person, by the executor, and should there be testator and his parents.
no executor, by the justice of the peace, the mayor, and the On the other hand, it is clear that the parish priest of
municipal treasurer, who shall decide by a majority of votes Victoria would administer the ricelands only in two
all questions that may arise. In all these cases, the approval
situations: one, during the interval of time that no
of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator nearest male relative of the testator was studying for
has disposed of his property in favor of the poor of a the priesthood and two, in case the testator's nephew
definite locality. became a priest and he was excommunicated.
What is not clear is the duration of "el intervalo de
2. Parish Priest of Victoria vs. Rigor tiempo que no haya legatario acondicionado", or how
This case is about the efficaciousness or long after the testator's death would it be determined
enforceability of a devise of ricelands located at that he had a nephew who would pursue an
Guimba, Nueva Ecija, with a total area of around ecclesiastical vocation. It is that patent ambiguity that
forty-four hectares. That devise was made in the will has brought about the controversy between the parish
of the late Father Pascual Rigor, a native of Victoria, priest of Victoria and the testator's legal heirs.
Tarlac, in favor of his nearest male relative who would Interwoven with that equivocal provision is the time
study for the priesthood. when the nearest male relative who would study for
The record discloses that Father Rigor, the parish the priesthood should be determined. Did the testator
priest of Pulilan, Bulacan, died on August 9, 1935, contemplate only his nearest male relative at the time
leaving a will executed on October 29, 1933 which of his death? Or did he have in mind any of his
was probated by the Court of First Instance of Tarlac nearest male relatives at anytime after his death?
in its order of December 5, 1935. Named as devisees We hold that the said bequest refers to the testator's
in the will were the testator's nearest relatives, nearest male relative living at the time of his death
namely, his three sisters: Florencia Rigor-Escobar, and not to any indefinite time thereafter. "In order to
Belina Rigor-Manaloto and Nestora Rigor-Quiambao. be capacitated to inherit, the heir, devisee or legatee
The testator gave a devise to his cousin, Fortunato must be living at the moment the succession opens,
Gamalinda. except in case of representation, when it is proper"
About thirteen years after the approval of the project (Art. 1025, Civil Code).
of partition, or on February 19, 1954, the parish priest The said testamentary provisions should be sensibly
of Victoria filed in the pending testate proceeding a or reasonably construed. To construe them as
petition praying for the appointment of a new referring to the testator's nearest male relative at
administrator (succeeding the deceased anytime after his death would render the provisions
administratrix, Florencia Rigor), who should deliver to difficult to apply and create uncertainty as to the
the church the said ricelands, and further praying that disposition of his estate. That could not have been his
the possessors thereof be ordered to render an intention.
accounting of the fruits. The probate court granted the In 1935, when the testator died, his nearest legal
petition. A new administrator was appointed. On heirs were his three sisters or second-degree
January 31, 1957 the parish priest filed another relatives, Mrs. Escobar, Mrs. Manaloto and Mrs.
petition for the delivery of the ricelands to the church Quiambao. Obviously, when the testator specified his
as trustee. nearest male relative, he must have had in mind his
4
nephew or a son of his sister, who would be his third- or legacy shall, so far only as concerns such
degree relative, or possibly a grandnephew. But since person, or spouse, or parent, or child of such
he could not prognosticate the exact date of his person, or any one claiming under such person or
spouse, or parent, or child, be void, unless there
death or state with certitude what category of nearest
are three other competent witnesses to such will.
male relative would be living at the time of his death, However, such person so attesting shall be
he could not specify that his nearest male relative admitted as a witness as if such devise or legacy
would be his nephew or grandnephews (the sons of had not been made or given. (n)
his nephew or niece) and so he had to use the term (5) Any physician, surgeon, nurse, health officer or
"nearest male relative". druggist who took care of the testator during his last
Parenthetically, it should be stated at this juncture that illness;
Edgardo ceased to be a seminarian in 1961. For that (6) Individuals, associations and corporations not
permitted by law to inherit. (745, 752, 753, 754a)
reason, the legal heirs apprised the Court of Appeals
Art. 1028. The prohibitions mentioned in article 739,
that the probate court's order adjudicating the concerning donations inter vivos shall apply to
ricelands to the parish priest of Victoria had no more testamentary provisions.
leg to stand on (p. 84, Appellant's brief). It will be the third person who had a relationship – who
Had the testator intended that the "cualquier pariente will be incapacitated
mio varon mas cercano que estudie la carrera Art. 1031. A testamentary provision in favor of a
eclesiastica" would include indefinitely anyone of his disqualified person, even though made under the guise
nearest male relatives born after his death, he could of an onerous contract, or made through an
intermediary, shall be void. (755)
have so specified in his will. He must have known that
Art. 1032. The following are incapable of succeeding by
such a broad provision would suspend for an reason of unworthiness: Acts of unworthiness includes
unlimited period of time the efficaciousness of his bot testate and intestate succession
bequest. (1) Parents who have abandoned their children or
Following that interpretation of the will, the inquiry induced their daughters to lead a corrupt or immoral
would be whether at the time Father Rigor died in life, or attempted against their virtue;
1935 he had a nephew who was studying for the (2) Any person who has been convicted of an
priesthood or who had manifested his desire to follow attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
the ecclesiastical career. That query is categorically
Attempt against the life – presupposes intent to kill; it is
answered in paragraph 4 of appellant priest's petitions the minimum wrong that can be done by a person to
of February 19, 1954 and January 31, 1957. He another (if attempt is punished, what more of the more
unequivocally alleged therein that "no nearest male serious crimes if committed (e.g. homicide/ murder)
relative of the late (Father) Pascual Rigor has ever (3) Any person who has accused the testator of a
studied for the priesthood" (pp. 25 and 35, Record on crime for which the law prescribes imprisonment for six
Appeal). years or more, if the accusation has been found
Inasmuch as the testator was not survived by any groundless;
(4) Any heir of full age who, having knowledge of the
nephew who became a priest, the unavoidable
violent death of the testator, should fail to report it to an
conclusion is that the bequest in question was officer of the law within a month, unless the authorities
ineffectual or inoperative. Therefore, the have already taken action; this prohibition shall not
administration of the ricelands by the parish priest of apply to cases wherein, according to law, there is no
Victoria, as envisaged in the will, was likewise obligation to make an accusation;
inoperative. (5) Any person convicted of adultery or concubinage
The Court of Appeals correctly ruled that this case is with the spouse of the testator; no conviction needed –
covered by article 888 of the old Civil Code, now only preponderance of evidence (Article 739 last
paragraph)
article 956, which provides that if "the bequest for any
What is prohibited is the adulterous relationship during
reason should be inoperative, it shall be merged into the disposition of the will – if it has ended long before
the estate, except in cases of substitution and those the execution of the will – a person is entitled to inherit
in which the right of accretion exists" ("el legado . . . (because what is prevented is the undue influence of
por qualquier causa, no tenga efecto, se refundir en la the paramour; and it is also against public morals)
masa de la herencia, fuera de los casos de Donations made after the affair are valid – it might be
sustitucion y derecho de acrecer"). the reparation for the damaged caused by the decedent
This case is also covered by article 912(2) of the old (reputation of the paramour).
(6) Any person who by fraud, violence, intimidation, or
Civil Code, now article 960(2), which provides that
undue influence should cause the testator to make a
legal succession takes place when the will "does not will or to change one already made;
dispose of all that belongs to the testator." There (7) Any person who by the same means prevents
being no substitution nor accretion as to the said another from making a will, or from revoking one
ricelands, the same should be distributed among the already made, or who supplants, conceals, or alters the
testator's legal heirs. The effect is as if the testator latter's will;
had made no disposition as to the said ricelands. (8) Any person who falsifies or forges a supposed will
The Civil Code recognizes that a person may die of the decedent. (756, 673, 674a)
Acts of unworthiness can be committed after the death
partly testate and partly intestate, or that there may be
of the decedent.
mixed succession. The old rule as to the indivisibility Forgery & concealment. It doesn’t matter when the
of the testator's will is no longer valid. Thus, if a forgery was made.
conditional legacy does not take effect, there will be Art. 1033. The cause of unworthiness shall be without
intestate succession as to the property covered by the effect if the testator had knowledge thereof at the time
said legacy (Macrohon Ong Ham vs. Saavedra, 51 he made the will, or if, having known of them
Phil. 267). subsequently, he should condone them in writing.
(757a)
c. Who are incapable of succeeding? -----0-----
Art. 1027. The following are incapable of succeeding: In the will of X, A was given inheritance. In the
(1) The priest who heard the confession of the testator proceeding, it was proved that A had an adulterous
during his last illness, or the minister of the gospel who relationship with the wife of X.
extended spiritual aid to him during the same period; May A inherit? – yes, if he is not convicted of adultery
(2) The relatives of such priest or minister of the gospel or concubinage.
within the fourth degree, the church, order, chapter, May A inherit even if he was convicted? – Yes, if X
community, organization, or institution to which such knew of the affair when he made the will – it is implied
priest or minister may belong; that he condoned the acts of his spouse & A.
(3) A guardian with respect to testamentary dispositions Is it possible for A to still inherit even if preoponderance
given by a ward in his favor before the final accounts of is proved? – yes, if the adulterous relationship had long
the guardianship have been approved, even if the ended before the execution of the will.
testator should die after the approval thereof; -----o-----
nevertheless, any provision made by the ward in favor A & B are half-brothers. B caused the death of A’s
of the guardian when the latter is his ascendant, child. B was given a house and lot as inheritance by X,
descendant, brother, sister, or spouse, shall be valid; his father. Can B inherit? – Article 1034, not without
(4) Any attesting witness to the execution of a will, the conviction.
spouse, parents, or children, or any one claiming under If B is convicted, he cannot inherit? – not necessarily.
such witness, spouse, parents, or children; in relation to 1) if the will was made after conviction (implied
Art. 823. If a person attests the execution of a will, condonation); 2) if in the causing o fthe death – there
to whom or to whose spouse, or parent, or child, a was no intent to kill (by reckless imprudence resulting
devise or legacy is given by such will, such devise to death); 3) if A is not a descendant of X – as when A

5
and B are half brothers by the other parent; 4) or if the C. Object of Succession
child is adopted – there is no blood relation. Art. 776. The inheritance includes all the property, rights
If X was an alien, then the national law of X will and obligations of a person which are not extinguished
determine the right of succession. (if X was a co- by his death.
principal of B – Art 739) T- It is evident from this article that the inheritance does not
-----0----- include everything that belongs to the deceased at the time
of his death. It is limited to the property, rights, and
d. Effect of alienations by the excluded heir obligations not extinguish by his death. Including those
Art. 1036. Alienations of hereditary property, and acts transmissible rights and property accruing thereto from that
of administration performed by the excluded heir, time pertain to the heir.
before the judicial order of exclusion, are valid as to the The following are the rights and obligations extinguished by
third persons who acted in good faith; but the co-heirs death:
shall have a right to recover damages from the 1. those arising from marriage
disqualified heir. 2. action for legal separation belonging to the
innocent spouse
e. Rights of the excluded Heir 3. action to annul marriage
Art. 1035. If the person excluded from the inheritance 4. obligation to give legal support except those
by reason of incapacity should be a child or descendant expressly provided for by law
of the decedent and should have children or 5. right to receive support
descendants, the latter shall acquire his right to the 6. right of patria potestas
legitime. 7. right of the guardian
The person so excluded shall not enjoy the usufruct 8. right of usufruct
and administration of the property thus inherited by his 9. right of donor to revoke donation due to
children ingratitude of donee
-----0---- 10. rights arising from agency not the effects
X died – left a net estate of 300,000 intestate. He left 3 already executed
children A, B and C. C was incapacitated, but he has 2 11. criminal responsibility
children D and E. how much will each get? 12. rights from public law such as suffrage and
= 150,000 is the legitime and 150,000 is the free public employment
portion. A and B will each get 50,000 and D and E will The following rules are laid down
get 25,000 each. 1. rights which are purely personal are by their
If C is not incapacitated but he renounced his nature and purpose intransmissible, ex. Those
inheritance – his children will not inherit. relating to civil personality, family rights, and
-----0----- discharge of public office
X was survived by legitimate children and spouse. 2. rights which are patrimonial or relating to
Spouse wants X buried in the city, the children wants X property are, as ageneral rule, not extinguished by
buried in the hometown. Who has a beter right? death except those expressly provided by law or
(actual case – father left mother with the children left to by will of the testator such as usufruct and
her care. The children did not see the father for 30 personal servitudes.
years. When mother died, father came – who has a 3. rights of obligation are by nature
better right to decide where to bury the decedent? – SC transmissible and may be part of inheritance, both
gave the ruling that the husband will have the right. the right of the creditor and obligation of the debtor
Is it not the compulsory heirs who will have the right to except the following:
determine where to bury the decedent? – no, the body a. those which are personal, such as
of the deceased is not a property. The spouse – evenif personal qualifications of the debtor
he left for so long – still has the right. have been taken into account
-----0----- b. those that are intransmissible by
Art. 1037. The unworthy heir who is excluded from the express agreement or will of testator
succession has a right to demand indemnity or any c. those that are intransmissible by
expenses incurred in the preservation of the hereditary express provision of law like life
property, and to enforce such credits as he may have pensions given under contract
against the estate. The heirs of the deceased are no longer liable for the debts
Art. 1014. If a person legally entitled to the estate of the he may leave at the time of his death. Such debts are
deceased appears and files a claim thereto with the chargeable against the property or assets left by the
court within five years from the date the property was deceased. In other words, the heirs are no longer liable
delivered to the State, such person shall be entitled to personally for the debts of the deceased ; such debts must
the possession of the same, or if sold the municipality be collected only from the property left upon his death, and if
or city shall be accountable to him for such part of the this should not be sufficient to cover all of them, the heirs
proceeds as may not have been lawfully spent. cannot be made to pay the uncollectible balance.
Inheritance consists of the mass of property, rights, and
f. Liabilities of the excluded heir obligations adjudicated to the heirs or transmitted to them
Art. 1038. Any person incapable of succession, who, after deducting therefrom all the debts left by the deceased.
disregarding the prohibition stated in the preceding This should not be understood to mean, however, that
articles, entered into the possession of the hereditary obligations are no longer a part of inheritance. Only the
property, shall be obliged to return it together it its money debts are chargeable against the estate left by the
accessions. deceased; these are obligations which do not pass to the
He shall be liable for all the fruits and rents he may heirs, but constitute a charge against the hereditary
have received, or could have received through the property.
exercise of due diligence. Art. 781. The inheritance of a person (the decedent)
-----0----- includes not only the property and the transmissible
Are monetary obligations part of the inheritance? Yes – rights and obligations existing at the time of his death,
Article 773 and 774 but also those which have accrued thereto since the
An heir may only be compelled to pay (e.g. lease) as to opening of the succession.
the extent of the value of the inheritance received. Since ownership is vested in the heir from the moment of the
Inherit first before deduction. From the inheritance will death of the predecessor, necessarily all accessions
be deducted amount for the payment of obligations. subsequent to that moment must belong to such heir.
-----0----- The criticism on this article is that the accession to such
g. Prescription of Action property is not transmitted by death; it is acquired already by
Art. 1040. The action for a declaration of incapacity and virtue of the right of ownership which is vested from the
for the recovery of the inheritance, devise or legacy moment of the predecessor’s death in the successor. It is
shall be brought within five years from the time the judicially erroneous to say that inheritance includes such
disqualified person took possession thereof. It may be accession. Even without this article, an heir would be entitled
brought by any one who may have an interest in the to the accession and fruits which accrued since the death of
succession. the decedent by virtue of the right of accession (ownweship).
-----0----- Art. 1311. Contracts take effect only between the parties,
X died in 1999. A and B filed to declare C incapacitated their assigns and heirs, except in case where the rights
in 2006 and recover a rice field. May the case prosper? and obligations arising from the contract are not
– it may prosper (Article 1040) – the law provides that transmissible by their nature, or by stipulation or by
action musth be within 5 years from the time the person provision of law. The heir is not liable beyond the value
took possession of the property. of the property he received from the decedent.
-----0----- If a contract should contain some stipulation in favor of
A found a deed of sale of a parcel of land with the a third person, he may demand its fulfillment provided
decedents signature. May the heirs be entitled to claim he communicated his acceptance to the obligor before
the land 0 despite the deed of sale? Yes – if the sale its revocation. A mere incidental benefit or interest of a
was void (reyes v. CA). but it is subject to the person is not sufficient. The contracting parties must
prescriptive period to have the contract annulled. have clearly and deliberately conferred a favor upon a
-----0----- third person.

6
As a general rule, rights and obligations under a contract are
transmitted to the heirs of the parties. The heirs cannot be Art. 777. The rights to the succession are transmitted
considered third parties, because there is privity of interest from the moment of the death of the decedent. (657a)
between them and their predecessor. A lease contract is This article is criticized by some commentators. It is
transmissible to the heirs of the lessee. The heirs of a party contended that the right to succeed to the properties of a
in whose favor a trust exists, may enforce the trust against person is not transmitted to anyone from the moment of the
the trustee. The heirs of the parties to a contract may make death of such person. What happens is that the death of a
a valid novation of said contract. person consolidates and renders immutable, in a certain
Art. 1429. When a testate or intestate heir voluntarily sense, rights which up to that moment were nothing but
pays a debt of the decedent exceeding the value of the mere expectancy. These rights arise from the express will
property which he received by will or by the law of of the testator or from the provisions of the law, but they
intestacy from the estate of the deceased, the payment do not acquire solidity and effectiveness except from
is valid and cannot be rescinded by the payer. the moment of death; before this event, the law may
Art. 1178. Subject to the laws, all rights acquired in change, the will of the testator may vary, and even
virtue of an obligation are transmissible, if there has circumstances may be modified to such an extent that he
been no stipulation to the contrary. who is expected to receive property may be deprived of it;
As a general rule. Civil rights are transmissible except: 1) but once death supervenes, the will of the testator
expressly provided by law that they are not. 2) Stipulation of becomes immutable, the law as to the succession can no
the parties. 3) Personal rights of the debtor. An instrument longer be changed, disinheritance cannot be effected, and
evidencing a credit may be transferred or assigned by the the rights to the succession acquire a character of
creditor to another, and the transferee would be considered marked permanence. What the article really means is that
in lawful possession of the same as well as the credit, unless succession is opened by the death of the person from whom
contrary is shown. the inheritance comes.
Transmissibility is the capability of the rights to be The provision must therefore, be understood as meaning
transferred from one person to another. that the rights to the succession of a person are transmitted
Art. 1347. All things which are not outside the commerce from the moment of his death, and by virtue of prior
of men, including future things, may be the object of a manifestations of his will or of causes predetermined by law.
contract. All rights which are not intransmissible may Two must be considered, therefore, the origin of the right,
also be the object of contracts. and that which makes the right effective.
No contract may be entered into upon future inheritance It is clear that the moment of death is the determining point
except in cases expressly authorized by law. when the heirs acquire a definite right to inheritance whether
All services which are not contrary to law, morals, good pure or conditional. It is immaterial whether a short or long
customs, public order or public policy may likewise be period of time elapse between the death of the predecessor
the object of a contract. and the entry in the possession of the properties of the
It is essential that the object must be in existence at the time inheritance, because the rights are always deemed to
of perfection of the contract, or that it has the possibility or retroact to the moment of death. The possession of
potentiality of coming into existence at some future time. By hereditary property is deemed transmitted to the heir without
way of exception, the law generally does not allow contracts interruption and from the moment of death of the decedent in
on future inheritance. In order to be future inheritance, the case the inheritance is accepted. The law avoids any gap to
succession must not have been opened at the time of the ownership of property or a period wherein a property has no
contract. A contract to fall within the prohibition of this article, clear owner or a period of res nullius.
the following requisites are necessary: 1. that the succession
is yet to be opened. 2. the object forms part of the Note: That death under this article is not limited to natural or
inheritance. 3. the promissor has an expectant right over the physical death, presumed death by virtue of prolonged legal
object which is purely hereditary in nature. absence is included.
An agreement to partition an estate of a living person by
those who inherit from him is void. A contract renouncing the Art. 2263. Rights to the inheritance of a person who
right to inherit from one who is still alive is void. died, with or without a will, before the effectivity of this
After the death of the person, however, the properties and Code, shall be governed by the Civil Code of 1889, by
rights left by him by way of inheritance can be the subject other previous laws, and by the Rules of Court. The
matter of a contract among or by his heirs, even before a inheritance of those who, with or without a will, die after
partition thereof has been made, because the rights of the the beginning of the effectivity of this Code, shall be
heirs are transmitted to them from the death of the adjudicated and distributed in accordance with this new
predecessor. body of laws and by the Rules of Court; but the
When the object of the contract is not a part of the testamentary provisions shall be carried out insofar as
inheritance, the prohibition does not apply, even if delivery of they may be permitted by this Code. Therefore,
such object is dependent upon the death of one of the legitimes, betterments, legacies and bequests shall be
contracting parties. Thus, life insurance contracts, and respected; however, their amount shall be reduced if in
stipulations providing for reversion of property donated in no other manner can every compulsory heir be given his
marriage settlements in the event of the death of the donee, full share according to this Code. (Rule 12a)
are valid. Likewise, if the right of the party over the thing is The decisive fact which gives origin to the right of heirs,
not by virtue of succession, but as creditor, the contract does devisees and legatees is the death of the decedent. This is
not fall within the prohibition of this article. It has been held the basis of the present article. Thus, the provisions of the
that in a contract of purchase by co-owners, it is valid to new code relaxing the rigidity of the rules of the old code
stipulate that in the event of death of any of them, those who regarding proof or recognition of natural children, were held
survive will acquire the share of the predeceased. inapplicable to one claiming recognition and a share in the
(RPC) Art. 108. Obligation to make restoration, estate of the alleged natural father who died before the new
reparation for damages, or indemnification for code went into effect.
consequential damages and actions to demand the Art. 2253. The Civil Code of 1889 and other previous
same; Upon whom it devolves. — The obligation to laws shall govern rights originating, under said laws,
make restoration or reparation for damages and from acts done or events which took place under their
indemnification for consequential damages devolves regime, even though this Code may regulate them in a
upon the heirs of the person liable. different manner, or may not recognize them. But if a
The action to demand restoration, reparation, and right should be declared for the first time in this Code, it
indemnification likewise descends to the heirs of the shall be effective at once, even though the act or event
person injured. which gives rise thereto may have been done or may
The heirs of the person liable has no obligation if restoration have occurred under prior legislation, provided said new
is not possible and the deceased left no property. right does not prejudice or impair any vested or
-----0----- acquired right, of the same origin. (Rule 1)
1 million is deposited at the bank – at the time the will is The second sentence of this article gives a retroactive effect
made. Upon death of X increased to 2 – within 10 years to newly created rights, provided they do not prejudice or
the amount increased to 3 million. impair any vested or acquired right. Thus, compensation for
Inheritance upon death not after death. Will only be damages under article 21 of the new civil code, being a right
valid if made after the death of the decedent – future declared for the first time, shall be effective at once,
inheritance not subject of ……. eventhough the acts giving rise thereto were done before the
(de borja vs de borja & bonilla vs. barcena) effectivity of the new code. But the new successional rights
Rights and obligations arising from contracts are granted by the new Civil code in favor of illegitimate children
transmissible to the heir – as a general rule. cannot be given retroactive effect and be made to apply to
Instances when not transmissible – 1) based on nature; the estate of a deceased who died before the effectivity of
2) stipulated in the contract; 3) by law the new Civil Code, for the same would have the effect of
-----0----- impairing the vested rights of another who is deemed to
have become the owner of the deceased’s property upon the
3. Reyes v. CA SC L-5620 July 31, 1954 latter’s death during the regime of the old Civil Code.
4. Guinto v. Medina 50 OG # 1, p199, Oct 7, 1953 Art. 533. The possession of hereditary property is
deemed transmitted to the heir without interruption and
from the moment of the death of the decedent, in case
D. Opening of Succesion the inheritance is accepted.

7
One who validly renounces an inheritance is deemed than one-fifth of their present property. Any excess shall
never to have possessed the same. (440) be considered void.
The article relates to tacking of possession due to privity to Donations of future property shall be governed by the
relations. By way of Example, A had been in possession of a provisions on testamentary succession and the
piece of land, which he thought was his, for eight years, formalities of wills. (130a)
when he died. He left a son, B, who continued to occupy and These donations, unlike donations of present property which
cultivate the land as administrator, while the settlement of take effect upon the celebration of the marriage, take effect
the properties left by A was pending. The proceedings in upon the death of the donor spouse. It cannot be made in
court for the settlement of the estate lasted three years; in the marriage settlement but in a will or testament. Its limits
these proceedings, B renounces his inheritance from A. The are governed by the rules of testamentary succession
next nearest relative of A, was C, a brother, who accepted provided by the Civil Code. Since a will can be revoked by
the inheritance. Legally, B has never been in possession the testator at any time before his death the donation propter
although he was materially or physically holding the nuptias of future property may be so revoked. Persons other
property, while C, who had never set foot upon the land, is than the affianced parties cannot give donations propter
deemed to have been in possession from the very moment nuptial of future property.
that A died. So that, if later, a third person appears to claim Art. 86. A donation by reason of marriage may be
the property, C can assert ownership by prescription, revoked by the donor in the following cases:
because, legally, the possession has not been interrupted (1) If the marriage is not celebrated or judicially
for eleven years, and ten years possession in good faith is declared void ab initio except donations made
sufficient for prescription of ownership of real property. in the marriage settlements, which shall be
Art. 1347. All things which are not outside the commerce governed by Article 81;
of men, including future things, may be the object of a (2) When the marriage takes place without the
contract. All rights which are not intransmissible may consent of the parents or guardian, as required
also be the object of contracts. by law;
No contract may be entered into upon future inheritance (3) When the marriage is annulled, and the
except in cases expressly authorized by law. donee acted in bad faith;
All services which are not contrary to law, morals, good (4) Upon legal separation, the donee being the
customs, public order or public policy may likewise be guilty spouse;
the object of a contract. (5) If it is with a resolutory condition and the
Sale of future inheritance is void except in cases of Donation condition is complied with;
Propter Nuptias (art. 84, NCC) and Partition Inter Vivos (art. (6) When the donee has committed an act of
1080). ingratitude as specified by the provisions of
Ratio: the Civil Code on donations in general. (132a)
1. What an heir have is merely an inchoate right which does Art. 765. The donation may also be revoked at the
not come to existence after death of predecessor. instance of the donor, by reason of ingratitude in the
2. The amount or extent of inheritance cannot be exactly following cases:
determined until death and after settlement thereof. (1) If the donee should commit some offense
Art. 1461. Things having a potential existence may be against the person, the honor or the property
the object of the contract of sale. of the donor, or of his wife or children under
The efficacy of the sale of a mere hope or expectancy is his parental authority;
deemed subject to the condition that the thing will come (2) If the donee imputes to the donor any
into existence. criminal offense, or any act involving moral
The sale of a vain hope or expectancy is void. turpitude, even though he should prove it,
Art. 130. The future spouses may give each other in their unless the crime or the act has been
marriage settlements as much as one-fifth of their committed against the donee himself, his wife
present property, and with respect to their future or children under his authority;
property, only in the event of death, to the extent laid (3) If he unduly refuses him support when the
down by the provisions of this Code referring to donee is legally or morally bound to give
testamentary succession. (1331a) support to the donor. (648a)
Art. 131. The donor by reason of marriage shall release
the property donated from mortgages and all other REQUISITES FOR THE TRANSMISSION OF
encumbrances upon the same, with the exception of SUCCESSIONAL RIGHTS
easements, unless in the marriage settlements or in the 1. Express will of the testator or
contracts the contrary has been stipulated. (1332a) provision of law
Art. 132. A donation by reason of marriage is not 2. Death of the person whose property
revocable, save in the following cases: is subject of succession
(1) If it is conditional and the condition is not 3. acceptance of the inheritance Art.
complied with; 1041-1057
(2) If the marriage is not celebrated; Express or tacit acceptance by the heir, devisee or legatee
(3) When the marriage takes place without the is necessary to the perfection of the juridical relation in
consent of the parents or guardian, as required succession, and indispensable to the transmission of
by law; successional rights. To make a person succeed by the mere
(4) When the marriage is annulled, and the fact of death of the predecessor is to deny him the right to
donee acted in bad faith; thus, the implication of accept or repudiate the inheritance. However, a previous
this ground is that the donor in bad faith cannot declaration of heirship is not necessary in order that an heir
revoke. may assert his right to the property of the deceased. The
(5) Upon legal separation, the donee being the acceptance of the inheritance may, therefore, be said to be
guilty spouse; thus, the implication of this article the confirmation of the institution of the heir, the perfection of
is that the guilty donor spouse cannot revoke his the right to succeed.
donation. Art. 1041. The acceptance or repudiation of the
(6) When the donee has committed an act of inheritance is an act which is purely voluntary and free.
ingratitude as specified by the provisions of (988)
this Code on donations in general. (1333a) T: Acceptance is the act by which the person is called to
Art. 390. After an absence of seven years, it being succeed by universal title either by the testator or by law
unknown whether or not the absentee still lives, he shall manifests his will of making his own the universality of the
be presumed dead for all purposes, except for those of rights and obligations which are transmitted to him.
succession.
The absentee shall not be presumed dead for the Repudiation is the manifestation by such heir of his desire
purpose of opening his succession till after an absence not to succeed to the said universality.
of ten years. If he disappeared after the age of seventy-
five years, an absence of five years shall be sufficient in T: Is partial acceptance allowed? Under the old civil code a
order that his succession may be opened. (n) partial acceptance or repudiation is prohibited, this
Art. 391. The following shall be presumed dead for all prohibition was omitted in the NCC. Hence, it is submitted
purposes, including the division of the estate among the that in the light of the present law, inheritance can be
heirs: accepted or repudiated partially. The argument that the
(1) A person on board a vessel lost during a personality of the decedent cannot be continued in fraction
sea voyage, or an aeroplane which is missing, can no longer obtain in this jurisdiction. The heir in our law is
who has not been heard of for four years since not the continuation of the personality of the deceased. He
the loss of the vessel or aeroplane; stands on the same footing as a mere legatee in the Civil
(2) A person in the armed forces who has Code. If the latter may accept or repudiate partially, there is
taken part in war, and has been missing for no legal reason why the heir should not be allowed to do so.
four years; The greater right always includes the less; if total
(3) A person who has been in danger of death acceptance or repudiation can be made, why not partial
under other circumstances and his existence acceptance or repudiation? The argument that creditors of
has not been known for four years. (n) the estate would be prejudiced by partial acceptance has no
Art. 84. If the future spouses agree upon a regime other force; because, under our present laws, the creditors of the
than the absolute community of property, they cannot estate must first be paid before it can be known whether ther
donate to each other in their marriage settlements more is any inheritance left to be accepted or repudiated.
8
Art. 1042. The effects of the acceptance or repudiation Art. 1050. An inheritance is deemed accepted:
shall always retroact to the moment of the death of the (1) If the heirs sells, donates, or assigns his
decedent. (989) right to a stranger, or to his co-heirs, or to any
The law seeks to insure continuity in the ownership of the of them;
property, without hiatus or gap, even for a moment, from the (2) If the heir renounces the same, even though
time of the death of the decedent. gratuitously, for the benefit of one or more of
The old civil code prohibited acceptance or repudiation with his co-heirs;
a term. Is it now allowed under the NCC? No conditional (3) If he renounces it for a price in favor of all
acceptance and repudiation is still prohibited. To permit this his co-heirs indiscriminately; but if this
kind of acceptance is and repudiation will be placing in renunciation should be gratuitous, and the co-
uncertainty the transmission of rights by succession. The heirs in whose favor it is made are those upon
power to impose conditions on the transmission is inherent whom the portion renounced should devolve
only in the testator himself, as a logical consequence of his by virtue of accretion, the inheritance shall not
freedom to dispose of his property. The person favored be deemed as accepted. (1000)
cannot subject the transmission to conditions because he Other acts of tacit acceptance:
has no right over the property until he accepts the 1. heir demands partition
inheritance. 2. alienates some of the inheritance
The very Nature of transmission of property by mortis causa 3. performs such acts which show the
argues against the validity of acceptance or repudiation with clear intent ot accept.
a term or condition. The law seeks to insure continuity in the 4. Art. 1057, failure to signify to court one’s
ownership of the property, without any hiatus or gap from the acceptance or repudiation within 30 days from
time of the death of the decedent. Thus, to allow this would distribution
be contrary to the principle of succession that inheritance is Art. 1051. The repudiation of an inheritance shall be
transmitted upon death. made in a public or authentic instrument, or by petition
Art. 1043. No person may accept or repudiate an presented to the court having jurisdiction over the
inheritance unless he is certain of the death of the testamentary or intestate proceedings. (1008)
person from whom he is to inherit, and of his right to the
inheritance. (991) T: The law considers the act of repudiation more solemn
Requisites of acceptance: 1. certain of the death of the than the act of acceptance; hence, the requirement of a
decedent, 2. must survive the decedent, 3. must have public or authentic writing or one presented to the judge.The
capacity to succeed, and 4. certain of his right to the acceptance of an inheritance confirms the transmission of
inheritance. the right, while repudiation makes this transmission
Ratio: the will of man is changeable. Even just before the ineffective, producing thereby more violent and disturbing
moment of his death he may change his mind. A person who consequences which the law cannot permit by mere
accepts from a living person an inheritance accepts or implications or presumptions.
repudiates nothing at all. If a person is uncertain of his right
to inherit then his acceptance or repudiation is ineffective. Public instrument refers to one notarized and duly
acknowledged by a notary. Authentic here refers to one
Art. 1044. Any person having the free disposal of his whose genuinenessn is admitted or clearly proved.
property may accept or repudiate an inheritance. Art. 1052. If the heir repudiates the inheritance to the
Any inheritance left to minors or incapacitated persons prejudice of his own creditors, the latter may petition the
may be accepted by their parents or guardians. Parents court to authorize them to accept it in the name of the
or guardians may repudiate the inheritance left to their heir.
wards only by judicial authorization. The acceptance shall benefit the creditors only to an
The right to accept an inheritance left to the poor shall extent sufficient to cover the amount of their credits.
belong to the persons designated by the testator to The excess, should there be any, shall in no case
determine the beneficiaries and distribute the property, pertain to the renouncer, but shall be adjudicated to the
or in their default, to those mentioned in Article 1030. persons to whom, in accordance with the rules
(992a) established in this Code, it may belong. (1001)
Acceptance presupposes not only rights but sometimes also The law seeks to protect the creditor. By the debtor-heir’s
obligations. Repudiation, on the otherhand, means repudiation two are affected thereat. The co-heir who
alienation. Hence, persons having the capacity to succeed receives more and the creditor who is prejudiced thereby.
but not having the capacity to dispose of their property may The law favors the latter. The acceptance by the creditor
not, therefore, accept or repudiate. Their legal does not revoke the repudiation but only rescinds the same
representatives may do so for them. to the extent sufficient to protect the interest of the creditors.
Exception to paragraph 2; where the act would be purely Requisites to entitle creditor to accept repudiated
beneficial to the minor or incapacitated person, the inheritance:
intervention of the court is unnecessary. But where the 1. There must be a valid repudiation in
institution, devise or legacy is subject to a charge or accord with law as to from
condition to be performed by the minor or incapacitated 2. There must be existing credits
beneficiary, we believe that the approval of the court should 3. Judicial authorization must be obtained
be obtained. The minor should not be saddled with by creditors to accept
obligations without the approval of the guardianship court. 4. The repudiation prejudices the ceditors.
Repudiation amounts to alienation of property; hence, there Exceptions:
must always be judicial authorization. 1. Creditors who became such after
Art. 1045. The lawful representatives of corporations, repudiation
associations, institutions and entities qualified to 2. inheritance is useless to the heir
acquire property may accept any inheritance left to the because the debt of the estate exceeds the
latter, but in order to repudiate it, the approval of the inheritance left
court shall be necessary. (993a) 3. the heir-debtor is solvent and has
Art. 1046. Public official establishments can neither sufficient properties to cover his debt.
accept nor repudiate an inheritance without the approval Art. 1053. If the heir should die without having accepted
of the government. (994) or repudiated the inheritance his right shall be
Refers to organizations which have their own social and transmitted to his heirs. (1006)
public purpose, such as for culture separate from the mere This is on the assumption that the heir of the heir who died
manifestation of governmental functions of the State. accepts his inheritance from the latter. Then he may accept
Approval required by this article must be given by the head the inheritance from the original decedent.
of the department to which the public establishment belong Art. 1054. Should there be several heirs called to the
or is subordinated. inheritance, some of them may accept and the others
Art. 1047. A married woman of age may repudiate an may repudiate it. (1007a)
inheritance without the consent of her husband. (995a) Art. 1055. If a person, who is called to the same
Art. 1048. Deaf-mutes who can read and write may inheritance as an heir by will and ab intestato,
accept or repudiate the inheritance personally or repudiates the inheritance in his capacity as a
through an agent. Should they not be able to read and testamentary heir, he is understood to have repudiated
write, the inheritance shall be accepted by their it in both capacities.
guardians. These guardians may repudiate the same Should he repudiate it as an intestate heir, without
with judicial approval. (996a) knowledge of his being a testamentary heir, he may still
Art. 1049. Acceptance may be express or tacit. accept it in the latter capacity. (1009)
An express acceptance must be made in a public or T: The repudiation of the express will of the testator includes
private document. that of the presumed will, but the repudiation of the latter still
A tacit acceptance is one resulting from acts by which leaves the express will open to respect.
the intention to accept is necessarily implied, or which Ratio: An heir by will who repudiates the same, manifests his
one would have no right to do except in the capacity of dislike to become an heir in any concept. By his act reveals
an heir. the fact that he does not deserve to become his successor
Acts of mere preservation or provisional administration even by intestacy.
do not imply an acceptance of the inheritance if, through OTOH, when an heir repudiates as legal heir may later
such acts, the title or capacity of an heir has not been accept by will on the reason that a person may not desire to
assumed. (999a) succeed by intestacy but is willing to succeed by
9
testamentary capacity in order to follow the wishes of the prejudice or impair any vested or acquired right, of the same
dead. origin." As already stated in the early part of this decision,
Art. 1056. The acceptance or repudiation of an the right of ownership of Maria Uson over the lands in
inheritance, once made, is irrevocable, and cannot be question became vested in 1945 upon the death of her late
impugned, except when it was made through any of the husband and this is so because of the imperative provision
causes that vitiate consent, or when an unknown will of the law which commands that the rights to succession are
appears. (997) transmitted from the moment of death (Article 657, old Civil
Other causes or revocation: Code). The new right recognized by the new Civil Code in
1. one who accepts or repudiates who is favor of the illegitimate children of the deceased cannot,
not entitled to the inheritance has no legal effect. therefore, be asserted to the impairment of the vested right
2. when institution depends upon the of Maria Uson over the lands in dispute.
fulfillment of a suspensive condition which is not As regards the claim that Maria Uson, while her deceased
realized husband was lying in state, in a gesture of pity or
3. birth of a posthumous child not born or compassion, agreed to assign the lands in question to the
is born dead minor children for the reason that they were acquired while
Art. 1057. Within thirty days after the court has issued the deceased was living with their mother and Maria Uson
an order for the distribution of the estate in accordance wanted to assuage somewhat the wrong she has done to
with the Rules of Court, the heirs, devisees and legatees them, this much can be said; apart from the fact that this
shall signify to the court having jurisdiction whether claim is disputed, we are of the opinion that said
they accept or repudiate the inheritance. assignment, if any, partakes of the nature of a donation of
If they do not do so within that time, they are deemed to real property, inasmuch as it involves no material
have accepted the inheritance. (n) consideration, and in order that it may be valid it shall be
made in a public document and must be accepted either in
CASES: the same document or in a separate one (Article 633, old
5. Uson vs. Del Rosario Civil Code). Inasmuch as this essential formality has not
Maria Uson was the lawful wife of Faustino Nebreda who been followed, it results that the alleged assignment or
upon his death in 1945 left the lands involved in this donation has no valid effect. Wherefore, the decision
litigation. Faustino Nebreda left no other heir except his appealed from is affirmed, without costs.
widow Maria Uson. However, plaintiff claims that when 6. De Borja vs. De Borja
Faustino Nebreda died in 1945, his common- law wife Maria It is uncontested that Francisco de Borja, upon the death of
del Rosario took possession illegally of said lands thus his wife Josefa Tangco on 6 October 1940, filed a petition for
depriving her of their possession and enjoyment. the probate of her will which was docketed as Special
Defendants in their answer set up as special defense that on Proceeding No. R-7866 of the Court of First Instance of
February 21, 1931, Maria Uson and her husband, the late Rizal, Branch I. The will was probated on 2 April 1941. In
Faustino Nebreda, executed a public document whereby 1946, Francisco de Borja was appointed executor and
they agreed to separate as husband and wife and, in administrator: in 1952, their son, Jose de Borja, was
consideration of their separation, Maria Uson was given a appointed co-administrator. When Francisco died, on 14
parcel of land by way of alimony and in return she April 1954, Jose became the sole administrator of the testate
renounced her right to inherit any other property that may be estate of his mother, Jose Tangco While a widower
left by her husband upon his death (Exhibit 1). After trial, at Francisco de Borja allegedly took unto himself a second
which both parties presented their respective evidence, the wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana
court rendered decision ordering the defendants to restore to instituted testate proceedings in the Court of First Instance
the plaintiff the ownership and possession of the lands in of Nueva Ecija, where, in 1955, she was appointed special
dispute without special pronouncement as to costs. administratrix. The validity of Tasiana's marriage to
Defendants interposed the present appeal. Francisco was questioned in said proceeding.
There is no dispute that Maria Uson, plaintiff-appellee, is the The relationship between the children of the first marriage
lawful wife of Faustino Nebreda, former owner of the five and Tasiana Ongsingco has been plagued with several court
parcels of lands litigated in the present case. There is suits and counter-suits; including the three cases at bar,
likewise no dispute that Maria del Rosario, one of the some eighteen (18) cases remain pending determination in
defendants-appellants, was merely a common-law wife of the courts. The testate estate of Josefa Tangco alone has
the late Faustino Nebreda with whom she had four been unsettled for more than a quarter of a century. In order
illegitimate children, her now co-defendants. It likewise to put an end to all these litigations, a compromise
appears that Faustino Nebreda died in 1945 much prior to agreement was entered into on 12 October 1963, 2 by and
the effectivity of the new Civil Code. With this background, it between "[T]he heir and son of Francisco de Borja by his
is evident that when Faustino Nebreda died in 1945 the five first marriage, namely, Jose de Borja personally and as
parcels of land he was seized of at the time passed from the administrator of the Testate Estate of Josefa Tangco," and
moment of his death to his only heir, his widow Maria Uson "[T]he heir and surviving spouse of Francisco de Borja by his
(Article 657, old Civil Code). As this Court aptly said, "The second marriage, Tasiana Ongsingco Vda. de Borja,
property belongs to the heirs at the moment of the death assisted by her lawyer, Atty. Luis Panaguiton, Jr."
of the ancestor as completely as if the ancestor had On 16 May 1966, Jose de Borja submitted for Court
executed and delivered to them a deed for the same approval the agreement of 12 October 1963 to the Court of
before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., First Instance of Rizal, in Special Proceeding No. R-7866;
321). From that moment, therefore, the rights of inheritance and again, on 8 August 1966, to the Court of First Instance
of Maria Uson over the lands in question became vested. of Nueva Ecija, in Special Proceeding No. 832. Tasiana
The claim of the defendants that Maria Uson had Ongsingco Vda. de de Borja opposed in both instances. The
relinquished her right over the lands in question because Rizal court approved the compromise agreement, but the
she expressly renounced to inherit any future property that Nueva Ecija court declared it void and unenforceable.
her husband may acquire and leave upon his death in the Special administratrix Tasiana Ongsingco Vda. de de Borja
deed of separation they had entered into on February 21, appealed the Rizal Court's order of approval (now Supreme
1931, cannot be entertained for the simple reason that future Court G.R. case No. L-28040), while administrator Jose de
inheritance cannot be the subject of a contract nor can it be Borja appealed the order of disapproval (G.R. case No. L-
renounced (1 Manresa, 123, sixth edition; Tolentino on Civil 28568) by the Court of First Instance of Nueva Ecija.
Code, p. 12; Osorio vs. Osorio and Ynchausti Steamship The genuineness and due execution of the compromise
Co., 41 Phil., 531). agreement of 12 October 1963 is not disputed, but its validity
But defendants contend that, while it is true that the four is, nevertheless, attacked by Tasiana Ongsingco on the
minor defendants are illegitimate children of the late ground that: (1) the heirs cannot enter into such kind of
Faustino Nebreda and under the old Civil Code are not agreement without first probating the will of Francisco de
entitled to any successional rights, however, under the new Borja; (2) that the same involves a compromise on the
Civil Code which became in force in June, 1950, they are validity of the marriage between Francisco de Borja and
given the status and rights of natural children and are Tasiana Ongsingco; and (3) that even if it were valid, it has
entitled to the successional rights which the law accords to ceased to have force and effect.
the latter (Article 2264 and article 287, new Civil Code), and In assailing the validity of the agreement of 12 October
because these successional rights were declared for the first 1963, Tasiana Ongsingco and the Probate Court of Nueva
time in the new code, they shall be given retroactive effect Ecija rely on this Court's decision in Guevara vs. Guevara.
even though the event which gave rise to them may have 74 Phil. 479, wherein the Court's majority held the view that
occurred under the prior legislation (Article 2253, new Civil the presentation of a will for probate is mandatory and that
Code). the settlement and distribution of an estate on the basis of
There is no merit in this claim. Article 2253 above referred to intestacy when the decedent left a will, is against the law
provides indeed that rights which are declared for the first and public policy. It is likewise pointed out by appellant
time shall have retroactive effect even though the event Tasiana Ongsingco that Section 1 of Rule 74 of the Revised
which gave rise to them may have occurred under the Rules explicitly conditions the validity of an extrajudicial
former legislation, but this is so only when the new rights settlement of a decedent's estate by agreement between
do not prejudice any vested or acquired right of the heirs, upon the facts that "(if) the decedent left no will and no
same origin. Thus, said article provides that "if a right debts, and the heirs are all of age, or the minors are
should be declared for the first time in this Code, it shall be represented by their judicial and legal representatives . . ."
effective at once, even though the act or event which gives The will of Francisco de Borja having been submitted to the
rise thereto may have been done or may have occurred Nueva Ecija Court and still pending probate when the 1963
under the prior legislation, provided said new right does not
10
agreement was made, those circumstances, it is argued, bar allegedly intended resolutory period of 60 days and because
the validity of the agreement. the contract was not preceded by the probate of Francisco
Upon the other hand, in claiming the validity of the de Borja's will, as required by this Court's Guevarra vs.
compromise agreement, Jose de Borja stresses that at the Guevara ruling; that Annex "A" involved a compromise
time it was entered into, on 12 October 1963, the governing affecting Ongsingco's status as wife and widow of Francisco
provision was Section 1, Rule 74 of the original Rules of de Borja, etc., all of which objections have been already
Court of 1940, which allowed the extrajudicial settlement of discussed.
the estate of a deceased person regardless of whether he It was natural that in view of the widow's attitude, Jose de
left a will or not. He also relies on the dissenting opinion of Borja should attempt to reach a new settlement or novatory
Justice Moran, in Guevara vs. Guevara, 74 Phil. 479, agreement before seeking judicial sanction and enforcement
wherein was expressed the view that if the parties have of Annex "A", since the latter step might ultimately entail a
already divided the estate in accordance with a decedent's longer delay in attaining final remedy. That the attempt to
will, the probate of the will is a useless ceremony; and if they reach another settlement failed is apparent from the letter of
have divided the estate in a different manner, the probate of Ongsingco's counsel to Jose de Borja quoted in pages 35-36
the will is worse than useless. of the brief for appellant Ongsingco in G.R. No. L-28040;
This provision evidences beyond doubt that the ruling in the and it is more than probable that the order of 21 September
Guevara case is not applicable to the cases at bar. There 1964 and the motion of 17 June 1964 referred to the failure
was here no attempt to settle or distribute the estate of of the parties' quest for a more satisfactory compromise. But
Francisco de Borja among the heirs thereto before the the inability to reach a novatory accord can not invalidate the
probate of his will. The clear object of the contract was original compromise (Annex "A") and justifies the act of Jose
merely the conveyance by Tasiana Ongsingco of any and all de Borja in finally seeking a court order for its approval and
her individual share and interest, actual or eventual, in the enforcement from the Court of First Instance of Rizal, which,
estate of Francisco de Borja and Josefa Tangco. There is no as heretofore described, decreed that the agreement be
stipulation as to any other claimant, creditor or legatee And ultimately performed within 120 days from the finality of the
as a hereditary share in a decedent's estate is transmitted or order, now under appeal. We conclude that in so doing, the
vested immediately from the moment of the death of such Rizal court acted in accordance with law, and, therefore, its
causante or predecessor in interest (Civil Code of the order should be upheld, while the contrary resolution of the
Philippines, Art. 777) 3 there is no legal bar to a successor Court of First Instance of Nueva Ecija should be, and is,
(with requisite contracting capacity) disposing of her or his reversed.
hereditary share immediately after such death, even if the 7. Bonilla vs. Barcena
actual extent of such share is not determined until the On March 31, 1975 Fortunata Barcena, mother of minors
subsequent liquidation of the estate. 4 Of course, the effect Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano
of such alienation is to be deemed limited to what is Bonilla, instituted a civil action in the Court of First Instance
ultimately adjudicated to the vendor heir. However, the of Abra, to quiet title over certain parcels of land located in
aleatory character of the contract does not affect the validity Abra. On August 4, 1975, the defendants filed another
of the transaction; neither does the coetaneous agreement motion to dismiss the complaint on the ground that Fortunata
that the numerous litigations between the parties (the Barcena is dead and, therefore, has no legal capacity to sue.
approving order of the Rizal Court enumerates fourteen of Said motion to dismiss was heard on August 14, 1975. In
them, Rec. App. pp. 79-82) are to be considered settled and said hearing, counsel for the plaintiff confirmed the death of
should be dismissed, although such stipulation, as noted by Fortunata Barcena and asked for substitution by her minor
the Rizal Court, gives the contract the character of a children and her husband, the petitioners herein; but the
compromise that the law favors, for obvious reasons, if only court after the hearing immediately dismissed the case on
because it serves to avoid a multiplicity of suits. the ground that a dead person cannot be a real party in
It is likewise worthy of note in this connection that as the interest and has no legal personality to sue.
surviving spouse of Francisco de Borja, Tasiana Ongsingco On August 28, 1975, the court denied the motion for
was his compulsory heir under article 995 et seq. of the reconsideration filed by counsel for the plaintiff for lack of
present Civil Code. Wherefore, barring unworthiness or valid merit. On September 1, 1975, counsel for deceased plaintiff
disinheritance, her successional interest existed filed a written manifestation praying that the minors Rosalio
independent of Francisco de Borja's last will and testament, Bonilla and Salvacion Bonilla be allowed to substitute their
and would exist even if such will were not probated at all. deceased mother, but the court denied the counsel's prayer
Thus, the prerequisite of a previous probate of the will, as for lack of merit. From the order, counsel for the deceased
established in the Guevara and analogous cases, can not plaintiff filed a second motion for reconsideration of the order
apply to the case of Tasiana Ongsingco Vda. de de Borja. dismissing the complaint claiming that the same is in
This brings us to the plea that the Court of First In stance of violation of Sections 16 and 17 of Rule 3 of the Rules of
Rizal had no jurisdiction to approve the compromise with Court but the same was denied.
Jose de Borja (Annex A) because Tasiana Ongsingco was The Court reverses the respondent Court and sets aside its
not an heir in the estate of Josefa Tangco pending order dismissing the complaint in Civil Case No. 856 and its
settlement in the Rizal Court, but she was an heir of orders denying the motion for reconsideration of said order
Francisco de Borja, whose estate was the object of Special of dismissal. While it is true that a person who is dead
Proceeding No. 832 of the Court of First Instance of Nueva cannot sue in court, yet he can be substituted by his heirs in
Ecija. This circumstance is irrelevant, since what was sold by pursuing the case up to its completion. The records of this
Tasiana Ongsingco was only her eventual share in the case show that the death of Fortunata Barcena took place
estate of her late husband, not the estate itself; and as on July 9, 1975 while the complaint was filed on March 31,
already shown, that eventual share she owned from the time 1975. This means that when the complaint was filed on
of Francisco's death and the Court of Nueva Ecija could not March 31, 1975, Fortunata Barcena was still alive, and
bar her selling it. As owner of her undivided hereditary therefore, the court had acquired jurisdiction over her
share, Tasiana could dispose of it in favor of whomsoever person. If thereafter she died, the Rules of Court prescribes
she chose Such alienation is expressly recognized and the procedure whereby a party who died during the
provided for by article 1088 of the present Civil Code: pendency of the proceeding can be substituted. Under
Art. 1088. Should any of the heirs sell his hereditary rights to Section 16, Rule 3 of the Rules of Court "whenever a party
a stranger before the partition, any or all of the co-heirs may to a pending case dies . . . it shall be the duty of his attorney
be subrogated to the rights of the purchaser by reimbursing to inform the court promptly of such death . . . and to give
him for the price of the sale, provided they do so within the the name and residence of his executor, administrator,
period of one month from the time they were notified in writing guardian or other legal representatives." This duty was
of the sale of the vendor." complied with by the counsel for the deceased plaintiff when
Tasiana Ongsingco further argues that her contract with he manifested before the respondent Court that Fortunata
Jose de Borja (Annex "A") is void because it amounts to a Barcena died on July 9, 1975 and asked for the proper
compromise as to her status and marriage with the late substitution of parties in the case.
Francisco de Borja. The point is without merit, for the very The respondent Court, however, instead of allowing the
opening paragraph of the agreement with Jose de Borja substitution, dismissed the complaint on the ground that a
(Annex "A") describes her as "the heir and surviving spouse dead person has no legal personality to sue. This is a grave
of Francisco de Borja by his second marriage, Tasiana error. Article 777 of the Civil Code provides "that the rights to
Ongsingco Vda. de de Borja", which is in itself definite the succession are transmitted from the moment of the
admission of her civil status. There is nothing in the text of death of the decedent." From the moment of the death of the
the agreement that would show that this recognition of decedent, the heirs become the absolute owners of his
Ongsingco's status as the surviving spouse of Francisco de property, subject to the rights and obligations of the
Borja was only made in consideration of the cession of her decedent, and they cannot be deprived of their rights thereto
hereditary rights. except by the methods provided for by law. 3 The moment
It is difficult to believe, however, that the amicable settlement of death is the determining factor when the heirs acquire a
referred to in the order and motion above-mentioned was the definite right to the inheritance whether such right be pure or
compromise agreement of 13 October 1963, which already contingent. 4 The right of the heirs to the property of the
had been formally signed and executed by the parties and deceased vests in them even before judicial declaration of
duly notarized. What the record discloses is that some time their being heirs in the testate or intestate proceedings. 5
after its formalization, Ongsingco had unilaterally attempted When Fortunata Barcena, therefore, died her claim or right
to back out from the compromise agreement, pleading to the parcels of land in litigation in Civil Case No. 856, was
various reasons restated in the opposition to the Court's not extinguished by her death but was transmitted to her
approval of Annex "A" (Record on Appeal, L-20840, page heirs upon her death. Her heirs have thus acquired interest
23): that the same was invalid because of the lapse of the in the properties in litigation and became parties in interest in
11
the case. There is, therefore, no reason for the respondent their acceptance or repudiation within thirty days after the
Court to allow their substitution as parties in interest for the court has issued an order for the distribution of the estate.
deceased plaintiff. Respondent Fortunato Borromeo on the other hand,
8. Bough vs. Modesto contends that under Article 1043 of the Civil Code there is
no need for a person to be first declared as heir before he
can accept or repudiate an inheritance. What is required is
that he must first be certain of the death of the person from
whom he is to inherit and that he must be certain of his right
to the inheritance. He points out that at the time of the
signing of the waiver document on July 31, 1967, the
signatories to the waiver document were certain that Vito
9. Borromeo-Herrera vs. Borromeo Borromeo was already dead as well as of their rights to the
Vito Borromeo, a widower and permanent resident of Cebu inheritance as shown in the waiver document itself.
City, died on March 13, 1952, in Parañaque, Rizal at the age The prevailing jurisprudence on waiver of hereditary rights is
of 88 years, without forced heirs but leaving extensive that "the properties included in an existing inheritance
properties in the province of Cebu. cannot be considered as belonging to third persons with
On April 19, 1952, Jose Junquera filed with the Court of First respect to the heirs, who by fiction of law continue the
Instance of Cebu a petition for the probate of a one page personality of the former. Nor do such properties have the
document as the last will and testament left by the said character of future property, because the heirs acquire a
deceased, devising all his properties to Tomas, Fortunato right to succession from the moment of the death of the
and Amelia, all surnamed Borromeo, in equal and undivided deceased, by principle established in article 657 and applied
shares, and designating Junquera as executor thereof. The by article 661 of the Civil Code. according to which the heirs
case was docketed as Special Proceedings No. 916-R. The succeed the deceased by the mere fact of death. More or
document, drafted in Spanish, was allegedly signed and less, time may elapse from the moment of the death of the
thumbmarked by the deceased in the presence of Cornelio deceased until the heirs enter into possession of the
Gandionco, Eusebio Cabiluna, and Felixberto Leonardo who hereditary property, but the acceptance in any event
acted as witnesses. retroacts to the moment of the death, in accordance with
Oppositions to the probate of the will were filed. On May 28, article 989 of the Civil Code. The right is vested, although
1960, after due trial, the probate court held that the conditioned upon the adjudication of the corresponding
document presented as the will of the deceased was a hereditary portion." (Osorio v. Osorio and Ynchausti
forgery. Steamship Co., 41 Phil., 531). The heirs, therefore, could
On appeal to this Court, the decision of the probate court waive their hereditary rights in 1967 even if the order to
disallowing the probate of the will was affirmed in Testate partition the estate was issued only in 1969.
Estate of Vito Borromeo, Jose H. Junquera, et al. v. Crispin In this case, however, the purported "Waiver of Hereditary
Borromeo, et al. (19 SCRA 656). Rights" cannot be considered to be effective. For a waiver to
The testate proceedings was converted into an intestate exist, three elements are essential: (1) the existence of a
proceedings. Several parties came before the court filing right; (2) the knowledge of the existence thereof; and (3) an
claims or petitions alleging themselves as heirs of the intention to relinquish such right. (People v. Salvador, (CA)
intestate estate of Vito Borromeo. On April 10, 1969, the trial 53 O.G. No. 22, p. 8116, 8120). The intention to waive a
court, invoking Art. 972 of the Civil Code, issued an order right or advantage must be shown clearly and convincingly,
declaring the following, to the exclusion of all others, as the and when the only proof of intention rests in what a party
intestate heirs of the deceased Vito Borromeo: does, his act should be so manifestly consistent with, and
1.Jose Cuenco Borromeo 2.Judge Crispin Borromeo indicative of an intent to, voluntarily relinquish the particular
3.Vitaliana Borromeo 4.Patrocinio Borromeo Herrera 5.Salud right or advantage that no other reasonable explanation of
Borromeo 6.Asuncion Borromeo 7. Marcial Borromeo his conduct is possible (67 C.J., 311). (Fernandez v. Sebido,
8.Amelinda Borromeo de Talam, and 9.The heirs of Canuto et al., 70 Phil., 151, 159).
Borromeo The circumstances of this case show that the signatories to
The court also ordered that the assets of the intestate estate the waiver document did not have the clear and convincing
of Vito Borromeo shall be divided into 4/9 and 5/9 groups intention to relinquish their rights. Thus: (1) On October 27,
and distributed in equal and equitable shares among the 9 1967, Fortunato, Tomas, and Amelia Borromeo filed a
abovenamed declared intestate heirs. pleading entitled "Compliance" wherein they submitted a
Fortunato Borromeo filed a motion for reconsideration. In the proposal for the amicable settlement of the case. In that
memorandum he submitted to support his motion for Compliance, they proposed to concede to all the eight (8)
reconsideration, Fortunato changed the basis for his claim to intestate heirs of Vito Borromeo all properties, personal and
a portion of the estate. He asserted and incorporated a real, including all cash and sums of money in the hands of
Waiver of Hereditary Rights dated July 31, 1967, supposedly the Special Administrator, as of October 31, 1967, not
signed by Pilar N. Borromeo, Maria B. Putong. Jose contested or claimed by them in any action then pending in
Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo, the Court of First Instance of Cebu. In turn, the heirs would
Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion waive and concede to them all the 14 contested lots. In this
Borromeo, Federico V. Borromeo, Consuelo B. Morales, document, the respondent recognizes and concedes that the
Remedios Alfonso and Amelinda B. Talam. In the waiver, petitioner, like the other signatories to the waiver document,
five of the nine heirs relinquished to Fortunato their shares in is an heir of the deceased Vito Borromeo, entitled to share in
the disputed estate. The motion was opposed on the ground the estate.
that the trial court, acting as a probate court, had no This shows that the "Waiver of Hereditary Rights" was never
jurisdiction to take cognizance of the claim; that respondent meant to be what the respondent now purports it to be. Had
Fortunato Borromeo is estopped from asserting the waiver the intent been otherwise, there would not be any reason for
agreement; that the waiver agreement is void as it was Fortunato, Tomas, and Amelia Borromeo to mention the
executed before the declaration of heirs; that the same is heirs in the offer to settle the case amicably, and offer to
void having been executed before the distribution of the concede to them parts of the estate of the deceased; (2) On
estate and before the acceptance of the inheritance; and April 21 and 30, 1969, the majority of the declared heirs
that it is void ab initio and inexistent for lack of subject executed an Agreement on how the estate they inherited
matter. shall be distributed. This Agreement of Partition was
On December 24, 1974, after due hearing, the trial court approved by the trial court on August 15, 1969; (3) On June
concluding that the five declared heirs who signed the 29, 1968, the petitioner, among others, signed a document
waiver agreement assigning their hereditary rights to entitled Deed of Assignment" purporting to transfer and
Fortunato Borromeo had lost the same rights, declared the assign in favor of the respondent and Tomas and Amelia
latter as entitled to 5/9 of the estate of Vito Borromeo. Borromeo all her (Patrocinio B. Herrera's) rights, interests,
In the present petition, the petitioner seeks to annul and set and participation as an intestate heir in the estate of the
aside the trial court's order dated December 24, 1974, deceased Vito Borromeo.
declaring respondent Fortunato Borromeo entitled to 5/9 of The stated consideration for said assignment was
the estate of Vito Borromeo and the July 7, 1975 order, P100,000.00; (4) On the same date, June 29, 1968, the
denying the motion for reconsideration. respondent Tomas, and Amelia Borromeo (assignees in the
It is further argued by the petitioner that the document aforementioned deed of assignment) in turn executed a
entitled "Waiver of Hereditary Rights" executed on July 31, "Deed of Reconveyance" in favor of the heirs-assignors
1967, aside from having been cancelled and revoked on named in the same deed of assignment. The stated
June 29, 1968, by Tomas L. Borromeo, Fortunato Borromeo consideration was P50,000.00; (5) A Cancellation of Deed of
and Amelia Borromeo, is without force and effect because Assignment and Deed of Reconveyance was signed by
there can be no effective waiver of hereditary rights before Tomas Borromeo and Amelia Borromeo on October 15,
there has been a valid acceptance of the inheritance the 1968, while Fortunato Borromeo signed this document on
heirs intend to transfer. Pursuant to Article 1043 of the Civil March 24, 1969. In view of the foregoing, the questioned
Code, to make acceptance or repudiation of inheritance order of the trial court dated December 24, 1974, is hereby
valid, the person must be certain of the death of the one SET ASIDE.
from whom he is to inherit and of his right to the inheritance.
Since the petitioner and her co-heirs were not certain of their E. Kinds of Succesion
right to the inheritance until they were declared heirs, their
rights were, therefore, uncertain. This view, according to the Art. 778. Succession may be:
petitioner, is also supported by Article 1057 of the same (1) Testamentary;
Code which directs heirs, devisees, and legatees to signify (2) Legal or intestate; or
12
(3) Mixed. (n) not void, but only susceptible of reduction. It is voidable with
Art. 779. Testamentary succession is that which results respect to the amount necessary for the support of the donor
from the designation of an heir, made in a will executed or his dependent relatives.
in the form prescribed by law. (n)
Art. 84. If the future spouses agree upon a regime other
B: Legal or Intestate succession is inexplicably not defined. than the absolute community of property, they cannot
Curiously, the draft code contained a definition of this kind of donate to each other in their marriage settlements more
succession but for some unknown reasons it was not than one-fifth of their present property. Any excess shall
included. It stated that an “Intestate succession takes place be considered void.
by operation of law in the absence of a valid will.” Donations of future property shall be governed by the
provisions on testamentary succession and the
Art. 960. Legal or intestate succession takes place: formalities of wills. (130a)
(1) If a person dies without a will, or with a void These donations, unlike donations of present property which
will, or one which has subsequently lost its take effect upon the celebration of the marriage, take effect
validity; upon the death of the donor spouse. It cannot be made in
(2) When the will does not institute an heir to, the marriage settlement but in a will or testament. Its limits
or dispose of all the property belonging to the are governed by the rules of testamentary succession. Since
testator. In such case, legal succession shall a will can be revoked by the testator at any time before his
take place only with respect to the property of death the donation propter nuptias of future property may be
which the testator has not disposed; so revoked. Persons other than the affianced parties cannot
(3) If the suspensive condition attached to the give donations propter nuptias of future property.
institution of heir does not happen or is not There is no more contractual succession by virtue of the the
fulfilled, or if the heir dies before the testator, repeal of Article 130 of the Old Civil Code which was
or repudiates the inheritance, there being no amended under Article 84 of the Family Code. In mandating
substitution, and no right of accretion takes the applicability of the rules on Succession to donation of
place; future property between spouses, the law, therefore,
(4) When the heir instituted is incapable of eliminated this kind of succession. Hence, by implication
succeeding, except in cases provided in this such type of succession under Article 84 is considered an
Code. (912a) ordinary testamentary succession.
T: A void will has no legal existence.
A void will and a will that later lost its validity are essentially TESTAMENTARY SUCCESSION
the same. The only difference between the two lies in the
fact that the first refers to a will that has never been valid, II. WILLS
but is null and void ab origine, ipso facto, while the second
refers to a valid will which later lost its validity. A. Definition
Under Art. 841 a will is valid though there is no institution of
heir. In such cases the testamentary dispositions made in Art. 783. A will is an act whereby a person is permitted,
accordance with law shall be carried out, and the remainder with the formalities prescribed by law, to control to a
of the property shall pass to legal heirs. Absence of certain degree the disposition of this estate, to take
institution includes those institution which are void. effect after his death. (667a)
Other causes of intestacy:
1. happening of a resolutory condition Better definition:
which sets aside the institution of the heir A will is a personal, solemn, revocable, and free act by
2. expiration of the resolutory term or which a capacitated person disposes of his property and
period of institution of an heir, legatee or devisee rights and declares or complies with the duties to take effect
instituted up to a day certain after his death.
3. noncompliance or the impossibility of
complying with the will of the testator. T: A will is a specie of conveyance whereby a person is
4. Preterition which results to annulment of permitted, with the formalities prescribed by law to control to
the institution of an heir a certain degree disposition of his property to take effect
B: There are three instances contained in this paragraph, after his death. However, when there is no disposition of
although, legally, the result is the same in each instance, property, it is submitted that, although the instrument may be
i.e., there is no will. considered as a will, it does not have to be probated. All
In par. 2 “validity” should read as “efficacy” other relevant legal matters stated in the will may take effect
Intestacy may be total or partial depending on the extent of even without probating such as the acknowledgement of a
the disposition that turns out to be inoperative natural child.
Art. 780. Mixed succession is that effected partly by will
and partly by operation of law. (n) A will is not necessarily an act of liberality or generosity. The
Art. 130. The future spouses may give each other in their inheritance may be so burdened with legacies that all benefit
marriage settlements as much as one-fifth of their to the heir is nullified.
present property, and with respect to their future
property, only in the event of death, to the extent laid B. Characteristics
down by the provisions of this Code referring to
testamentary succession. 1. purely personal act;
2. free act w/o fraud, violence, etc.
Art. 1347. All things which are not outside the commerce 3. disposition of property
of men, including future things, may be the object of a 4. essentially revocable
contract. All rights which are not intransmissible may 5. formally executed
also be the object of contracts. 6. testator must have testamentary capacity
No contract may be entered into upon future inheritance 7. Unilateral act and;
except in cases expressly authorized by law. 8. Mortis causa
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be Balane:
the object of a contract.
Art. 752. The provisions of Article 750 notwithstanding, 9. individual (Art. 818)
no person may give or receive, by way of donation, 10. executed with animus testandi (Art. 783)
more than he may give or receive by will. The donation 11. Statutory (Art. 783)
shall be inofficious in all that it may exceed this
limitation. (636) Art. 783. A will is an act whereby a person is permitted,
The limitation imposed by this article applies to persons who with the formalities prescribed by law, to control to a
have compulsory heirs. The amount that can be donated certain degree the disposition of this estate, to take
depends upon the character of the compulsory heirs and the effect after his death. (667a)
amount of property at the time of the death of the donor. The
donation itself is not a nullity, but only subject to reduction in B: The word “Act” is too broad and should have been limited
so far as it exceeds what the donor could have given by will to a more specific term such as instrument or document in
to the donee. This amount is determinable only at the time of view of Art. 804 that every will must be in writing.
the death of donor. The requirement of form prescribed respectively for attested
Art. 750. The donations may comprehend all the present and holographic wills.
property of the donor, or part thereof, provided he The testator’s power of disposition is limited by the rules on
reserves, in full ownership or in usufruct, sufficient legitimes.
means for the support of himself, and of all relatives Will making is purely statutory being defined as “permitted”.
who, at the time of the acceptance of the donation, are
by law entitled to be supported by the donor. Without Art. 839. The will shall be disallowed in any of the
such reservation, the donation shall be reduced in following cases:
petition of any person affected. (634a) (1) If the formalities required by law have not
been complied with;
A donation of all the present property of the donor, without
the reservation of a sufficient amount for his subsistence, is
13
(2) If the testator was insane, or otherwise subsequently probated again upon the death of the other
mentally incapable of making a will, at the time testator. Usually made to dispose joint properties.
of its execution; Mutual will, OTOH, may be defined as the separate wills of
(3) If it was executed through force or under two persons, which are reciprocal in their provisions. A will
duress, or the influence of fear, or threats; that is both joint and mutual is one executed jointly by teo or
(4) If it was procured by undue and improper more persons and which shows on its face that the devises
pressure and influence, on the part of the are made one in consideration of the other.
beneficiary or of some other person;
(5) If the signature of the testator was procured Ratio for prohibition:
by fraud; 1. purely personal and unilateral characteristic
(6) If the testator acted by mistake or did not of wills are defeated
intend that the instrument he signed should be 2. contrary to the revocable character of wills, if
his will at the time of affixing his signature one revokes the will no document is left for the
thereto. (n) other to revoke specially in cases were the
B: This is an exclusive enumeration for the causes of revocation is done by destroying or tearing the
disallowance of a will. These are matters involved in the will.
formal validity. A probate decree once final , forecloses any 3. may expose a testator to undue influence
subsequent challenge on any of the matter enumerated in 4. may tempt one to kill the other testator
this article. 5. against public policy
If any of these grounds is proved the will is void. A will is 6. Dimunition of Testamentary secrecy
either valid or void. If none of the defects are present the will What is actually prohibited, therefore, is the execution of a
is valid; if any defect is present the will is void. The issue on will in a SINGLE DOCUMENT and by ONE ACT.
formal validity is what the probate proceedings will B: if there are separate documents, each serving one
determine. There is no such thing as a voidable will. independent will, even if they are written on the same sheet
Art. 828. A will may be revoked by the testator at any or even back to back, they are not joint wills.
time before his death. Any waiver or restriction of this Art. 784. The making of a will is a strictly personal act; it
right is void. (737a) cannot be left in whole or in part of the discretion of a
third person, or accomplished through the
T: During the life of the testator the will is said to be instrumentality of an agent or attorney. (670a)
ambulatory and may be altered, revoked, or superseded at T: The testator cannot substitute the mind or will of another
any time. Its is of no possible effect as a will while the maker for his own. But the mere mechanical act of drafting the will
lives. may be done by a third person, inasmuch as such act does
not constitute a delegation of the will or disposition.
A will may be revoked at pleasure. Revocation is an act of Art. 785. The duration or efficacy of the designation of
the mind, terminating the potential capacity of the will to heirs, devisees or legatees, or the determination of the
operate at the death of the testator, manifested by some portions which they are to take, when referred to by
outward and visible act or sign, symbolic thereof. name, cannot be left to the discretion of a third person.
(670a)
Revocation vs. Nullity T: The matters mentioned in this article are testamentary in
1. act of testator 1. proceeds from law nature; they constitute expressions of the will or disposition
2. presupposes a valid act 2. inherent from the will of the testator. Hence, pursuant to Art. 784, it cannot be
3. inter vivos 3. invoked After death delegated.
4. testator cannot renounce 4. can be disregarded by B: The ff. constitute the essence of will making or the
heirs exercise of the disposing power, and thus, non-delegable:
1. the designation of heirs, devisees, legatees;
B: This characteristic is consistent with the principle laid 2. the duration or efficacy of such designation
down in Art. 777, successional rights vest only upon death. including such things as conditions, terms,
substitutions
Art. 796. All persons who are not expressly prohibited 3. the determination of the portions they are to
by law may make a will. (662) recieve
Art. 786. The testator may entrust to a third person the
T: The law presumes capacity to make a will, thus, one must distribution of specific property or sums of money that
be expressly be prohibited by law to be disqualified. he may leave in general to specified classes or causes,
and also the designation of the persons, institutions or
Only natural persons may make a will. Juridical persons are establishments to which such property or sums are to
not granted T.C. be given or applied. (671a)
Even spendthrifths or prodigal under guardianship, can T: the third person here does not make any disposition, but
make a will. A peson under civil interdiction can make a will, simply carries out details in the execution of the
he is only disqualified fro dispositions of property inter vivos, testamentary disposition made by the testator himself in the
but not by act mortis causa. will.
Art. 797. Persons of either sex under eighteen years of B: for this article to take effect the testator must determine
age cannot make a will. (n) the ff:
The manner of computation of age, sustains the view that 1. the property or amount of money given and;
the required age is reached at the commencement of the 2. the class or cause to be benefited
day preceeding the anniversary of the birthday; that is, it is and the ff. may be delegated:
sufficient that the last day of the eighteenth year shall have 1. designation of persons, institutions, or
commenced. The law does not recognize fractions of a day establishments within the class or cause;
and this construction is more in accord with the liberal policy 2. the manner of distribution.
of the law to presume capacity to make will. Art. 787. The testator may not make a testamentary
Art. 798. In order to make a will it is essential that the disposition in such manner that another person has to
testator be of sound mind at the time of its execution. determine whether or not it is to be operative. (n)
(n)
T: Sound Mind is meant that the testator is able to execute C. Interpretation of Wills
his will with an understanding of the nature of the act, such
as the recollection of the property he means to dispose of, of Art. 788. If a testamentary disposition admits of different
the persons who are or who moght reasonably be the interpretations, in case of doubt, that interpretation by
objects of his bounty and the manner in which it is to be which the disposition is to be operative shall be
distributed among them. It is sufficient if he understands preferred. (n)
what he is about, even if he has less mental capacity than T: The presumption is that the testator intended a lawful
would be required to make a contract. rather than an unlawful thing, and courts will not seek an
B: the legal importance and implication of mental capacity is interpretation that will nullify his will or any part thereof.That
that the law is interested in the legal consequences of the construction must be followed which will sustatn and uphold
testator’s mental capacity or incapacity not in the medical the will in all its parts, if it can be done consistently with the
aspects of mental disease. Concievably, the testator could established rules of law. If the will is susceptible of two
be mentally aberrant medically but testamentarily capable interpretations , the doubt must be resolved in favor of the
or, vice versa, mentally competent medically but construction which will give effect to the will, rather than the
testamentariy incompetent. one which will defeat it.
Art. 777. The rights to the succession are transmitted Art. 789. When there is an imperfect description, or
from the moment of the death of the decedent. (657a) when no person or property exactly answers the
B: the vesting of the successional right occurs immediately description, mistakes and omissions must be corrected,
upon the decedent’s death, without a moments interruption. if the error appears from the context of the will or from
Art. 818. Two or more persons cannot make a will extrinsic evidence, excluding the oral declarations of the
jointly, or in the same instrument, either for their testator as to his intention; and when an uncertainty
reciprocal benefit or for the benefit of a third person. arises upon the face of the will, as to the application of
(669) any of its provisions, the testator's intention is to be
T: A joint will is one where the same instrument is made the ascertained from the words of the will, taking into
will of two or more persons and is jointly signed by them. consideration the circumstances under which it was
Such will may be probate upon the death of one and made, excluding such oral declarations. (n)
14
T: The first part of this article pertains to patent or extrinsic interest. In such cases, the intention of the testator will be
ambiguity which appears upon the face of the instrument followed.
such as when the testator gives a devise or legacy to
“SOME of the six children of his cousin Juan” Art. 930. The legacy or devise of a thing belonging to
The second part pertains to latent or intrinsic ambiguity another person is void, if the testator erroneously
which cannot be seen from a mere perusal or reading of the believed that the thing pertained to him. But if the thing
will but appears only upon consideration of extrinsic bequeathed, though not belonging to the testator when
circumstances, such as giving legacy to “my cousin Pedro”, he made the will, afterwards becomes his, by whatever
when I fact he has two cousins named Pedro. Thus. It title, the disposition shall take effect. (862a)
occurs when: The presumption under this article is that had the testator
1. two or more persons or things answer the known the fact that another owns the property, he would not
name or description; have made the legacy. The ignorance of the testator is
2. misdescription of the beneficiary or the gift presumed by law.
Extrinsic evidence is admissible to show the situation of the Its must be noted that if the subsequent change of
testator and all the relevant facts and circumstances ownership transferred the thing to the very person to whom it
surrounding him at the time of making the will, for the was being given as a devise or legacy, and by lucrative title,
purpose of explaining or resolving patent ambiguity. or to another third person, the legacy is void.
B: method of resolving ambiguity, whether latent or patent is Solla vs. Ascuenta
any evidence admissible and relevant excluding the oral
declarations of testator as to his intention. Dña. Maria Solla died in June, 1883, in the municipality of
Ratio for the exclusion: B: can a dead man refute a tale? Cabugao, Ilocos Sur, leaving a will executed and recorded in
T: the testator whose lips have been sealed by death can no accordance with the laws then in force, but which had not
longer deny or affirm the truth of what witnesses may say he been probated in accordance with the Code of Civil
declared, would create confusion and give rise to false Procedure.
claims. There were named in said will, as legatees Sergio Solla,
Art. 790. The words of a will are to be taken in their Cayetano Solla, Josefa Solla, Jacinto Serna, Rosenda
ordinary and grammatical sense, unless a clear Lagmay,
intention to use them in another sense can be gathered, Silvestra Sajor and Matias Sevedea, and Leandro Serrano,
and that other can be ascertained. as universal heir, with their shares given them by the will
Technical words in a will are to be taken in their above-mentioned.
technical sense, unless the context clearly indicates a
contrary intention, or unless it satisfactorily appears Said legatees or their descendants or heirs did not judicially
that he was unacquainted with such technical sense. claim their legacies during the life-time of Leandro Serrano,
(675a) of which he had taken possession, neither was any
Intent of the testator is the supreme law in succession. All testamentary proceeding instituted for the settlement of the
rules of construction are designed to ascertain and give estate left by Maria Solla and that Leandro Serrano did not
effect to the intention unless the latter is contrary to law, deliver the legacies in question, which he possessed in his
morals, and public policy. name until his death, having declared the property for
The words and provisions in the will must be plainly taxation as his own and collected the income therefrom for
construed in order to avoid violations of his intentions and himself.
real purpose.
Wills drated by skilled persons or lawyers are to be As may also be seen Leandro Serrano named his son
construed with strictness giving account to the word’s Simeon Serrano, as executor of his will and that he directed
technical meaning, while words stated by persons not him to put all of his property in order and to separate that
learned in the law are interpreted liberally and in their which came from his deceased grandmother Maria Solla,
ordinary acceptation. Holographic wills usually made by which he gives to his said son Simeon Serrano and orders
pesons not learned in the law should be construed liberally that same be disposed of exclusively in conformity with the
in their ordinary acceptation foregoing the technical meaning wishes of his said grandmother, not forgetting the souls of all
in pursuance of the policy of the law of preference on testacy of his grandmother's relatives and of his own for whose
than intestacy. repose nine masses were to be said annually during nine
Art. 791. The words of a will are to receive an days, with a solemn mass on the first and last days.
interpretation which will give to every expression some In order to determine the testator's intention, the court
effect, rather than one which will render any of the should place itself as near as possible in his position, and
expressions inoperative; and of two modes of hence, where the language of the will is ambiguous or
interpreting a will, that is to be preferred which will doubtful, should take into consideration the situation of the
prevent intestacy. (n) testator and the facts and circumstances surrounding him at
Its to be presumed that every word or clause was intended the time the will was executed. (40 Cyc., 1392.) Where the
by the testator to have some meaning; and no word or testator's intention is manifest from the context of the will
clause should be rejected if it is at all possible to give it and surrounding circumstances, but is obscured by inapt
reasonable effect. Where two constructions are possible, the and inaccurate modes of expression, the language will be
one disregarding a word or clause of the will, and the other subordinated to the intention, and in order to give effect to
giving effect to the will as a whole, th latter interpretation such intention, as far as possible, the court may depart from
must be followed. the strict wording and read a word or phrase in a sense
Art. 792. The invalidity of one of several dispositions different from that which is ordinarily attributed to it, and for
contained in a will does not result in the invalidity of the such purpose may mould or change the language of the will,
other dispositions, unless it is to be presumed that the such as restricting its application or supplying omitted words
testator would not have made such other dispositions if or phrases. (40 Cyc., 1399.)
the first invalid disposition had not been made. (n)
B: The article makes applicable to wills the severability or In the present case, it clearly appearing that it was Maria
separability principle in statutory construction frequently Solla's intention, in ordering her universal heir Leandro
provided in a separability clause. Serrano in her will at the hour of his death, to insist upon the
Art. 793. Property acquired after the making of a will compliance of her orders by his heirs, that the latter should
shall only pass thereby, as if the testator had possessed comply with her pious orders and that she did not mean her
it at the time of making the will, should it expressly orders concerning her legacies, the compliance of which she
appear by the will that such was his intention. (n) had entrusted to Leandro Serrano, we are authorized to
T: This article is inconsistent with the principle of inheritance restrict the application of the words "all that I have here
laid down under the code. The inheritance includes all the ordered" used by the said Maria Solla and the words "all her
property, rights, and obligations not extinguished by death. orders" used by Leandro Serrano in their respective wills
To follow this article would mean that only the property at the limiting them to the pious orders and substituting the phrase
time of making the will shall be transmitted to the heir unless "in regard to the annual masses" after the words used by
there is an express declaration under the will to include both testators, respectively.
properties acquired before death of testator but after making The trial court, therefore, committed an error in interpreting
the will. This contravenes Art. 777 of the code. the order of Leandro Serrano mentioned in his will as
Hence, it must be construed as referring only to devises and applicable to the provisions of Maria Solla's will relative to
legacies and not to inheritance. After all this article is under the legacies and not to the pious bequests exclusively.
the chapter of testamentary dispositions. The problem now
arises with its irreconcilable conflict with Art. 930. D. Law Governing Form
Art. 794. Every devise or legacy shall cover all the
interest which the testator could device or bequeath in Art. 795. The validity of a will as to its form depends
the property disposed of, unless it clearly appears from upon the observance of the law in force at the time it is
the will that he intended to convey a less interest. (n) made. (n)

T: When the Testator does not state the extent of the The general rule is that given in the present article, that the
interest that he gives to the legatee or devisee in the validity of the execution of a will is controlled by the statute
property transmitted, it is understood that his whole interest in force at the time of execution; and a statute enacted
passes, no more no less. But the testator, under the present subsequent to the execution and prior to the death of the
article, may manifest his intention to convey a less interest; testator, changing the rules respecting the form of the
and under article 929, he may expressly convey a larger
15
instrument, the capacity of the testator, and the like, has no b. contrary to the revocable character of wills, if
retrospective effect. one revokes the will no document is left for the
other to revoke specially in cases were the
However, the intrinsic validity of the will, although executed revocation is done by destroying or tearing the
in the Philippines, is governed by the laws of the state or will.
country of which the testator was a citizen or subject at the c. may expose a testator to undue influence
time of his death. The place of execution has no effect d. may tempt one to kill the other testator
whatever upon the validity of the provisions of the will. e. against public policy
What is actually prohibited, therefore, is the execution of a
The law may be changed after the will has been made. The will in a SINGLE DOCUMENT and by ONE ACT.
provisions may be valid at the time it was made but may be Art. 819. Wills, prohibited by the preceding article,
contrary to the law at the time of the death of the testator. In executed by Filipinos in a foreign country shall not be
such case, the law at the time of the death of the testator will valid in the Philippines, even though authorized by the
apply. It is the law at the time when the succession opens laws of the country where they may have been executed.
which must determine the intrinsic validity of the provisions (733a)
of the will, because it is at this time that the rights are
transmitted to the heirs, devisees, or legatees. Fleumer vs. Hix

Art. 17. The forms and solemnities of contracts, wills, It is the theory of the petitioner that the alleged will was
and other public instruments shall be governed by the executed in Elkins, West Virginia, on November 3, 1925, by
laws of the country in which they are executed. Hix who had his residence in that jurisdiction, and that the
When the acts referred to are executed before the laws of West Virginia govern. To this end, there was
diplomatic or consular officials of the Republic of the submitted a copy of section 3868 of Acts 1882, c. 84 as
Philippines in a foreign country, the solemnities found in West Virginia Code, Annotated, by Hogg, Charles
established by Philippine laws shall be observed in their E., vol. 2, 1914, p. 1690, and as certified to by the Director of
execution. the National Library. But this was far from a compliance with
Prohibitive laws concerning persons, their acts or the law. The laws of a foreign jurisdiction do not prove
property, and those which have, for their object, public themselves in our courts. The courts of the Philippine
order, public policy and good customs shall not be Islands are not authorized to take judicial notice of the laws
rendered ineffective by laws or judgments promulgated, of the various States of the American Union. Such laws
or by determinations or conventions agreed upon in a must be proved as facts. (In re Estate of Johnson [1918],
foreign country. (11a) 39 Phil., 156.) Here the requirements of the law were not
Art. 18. In matters which are governed by the Code of met. There was no showing that the book from which an
Commerce and special laws, their deficiency shall be extract was taken was printed or published under the
supplied by the provisions of this Code. (16a) authority of the State of West Virginia, as provided in section
300 of the Code of Civil Procedure. Nor was the extract from
Matters connected with the performance of contracts are the law attested by the certificate of the officer having charge
regulated by the law prevailing at the place of performance. of the original, under the seal of the State of West Virginia,
Remedies, such as the bringing of suit, admissibility of as provided in section 301 of the Code of Civil Procedure.
evidence, and the statute of limitations, depend upon the law No evidence was introduced to show that the extract from
of the place where the action is brought. the laws of West Virginia was in force at the time the alleged
In terms of the validity and effect of obligations, the following will was executed.
rules shall be followed. First, the law designated by the
parties shall be applied; if there is no stipulation on the While the appeal was pending submission in this court, the
matter, and the parties of the same nationality, their national attorney for the appellant presented an unverified petition
law shall be applied; if this is not the case, the law of the asking the court to accept as part of the evidence the
place of perfection of the obligation shall govern its documents attached to the petition. One of these documents
fulfillment; but if these places are not specified and they discloses that a paper writing purporting to be the last will
cannot be deduced from the nature and circumstances of and testament of Edward Randolph Hix, deceased, was
the obligation, then the law of the domicile of the passive presented for probate on June 8, 1929, to the clerk of
subjects shall apply. Randolph County, State of West Virginia, in vacation, and
Art. 810. A person may execute a holographic will which was duly proven by the oaths of Dana Wamsley and Joseph
must be entirely written, dated, and signed by the hand L. Madden, the subscribing witnesses thereto, and ordered
of the testator himself. It is subject to no other form, and to be recorded and filed. It was shown by another document
may be made in or out of the Philippines, and need not that, in vacation, on June 8, 1929, the clerk of court of
be witnessed. (678, 688a) Randolph County, West Virginia, appointed Claude W.
Art. 815. When a Filipino is in a foreign country, he is Maxwell as administrator, cum testamento annexo, of the
authorized to make a will in any of the forms established estate of Edward Randolph Hix, deceased. In this
by the law of the country in which he may be. Such will connection, it is to be noted that the application for the
may be probated in the Philippines. (n) probate of the will in the Philippines was filed on February
The article follows the general rule that the law governing 20, 1929, while the proceedings in West Virginia appear to
the formal vailidity of wills is the law of the place where it is have been initiated on June 8, 1929. These facts are
executed. Yet a Filipino may make will in a foreigh country in strongly indicative of an intention to make the Philippines the
conformity with our laws and not of the place of execution. principal administration and West Virginia the ancillary
Article 816 and 817 shall govern. administration. However this may be, no attempt has been
Art. 816. The will of an alien who is abroad produces made to comply with the provisions of sections 637, 638,
effect in the Philippines if made with the formalities and 639 of the Code of Civil Procedure, for no hearing on
prescribed by the law of the place in which he resides, the question of the allowance of a will said to have been
or according to the formalities observed in his country, proved and allowed in West Virginia has been requested.
or in conformity with those which this Code prescribes. There is no showing that the deceased left any property at
(n) any place other than the Philippine Islands and no
Art. 817. A will made in the Philippines by a citizen or contention that he left any in West Virginia.
subject of another country, which is executed in
accordance with the law of the country of which he is a Reference has been made by the parties to a divorce
citizen or subject, and which might be proved and purported to have been awarded Edward Randolph Hix from
allowed by the law of his own country, shall have the Annie Cousins Hix on October 8, 1925, in the State of West
same effect as if executed according to the laws of the Virginia. The present proceedings do not call for any specific
Philippines. (n) pronouncements on the validity or invalidity of this alleged
If an alien executes a will in the Philippines, not in conformity divorce.For all of the foregoing, the judgment appealed from
with our law, but in conformity with the law of his own state will be affirmed, with the costs of this instance against the
or country, the will can be probated in the Philippines. appellant.Villamor, Ostrand, Johns, Romualdez and Villa-
Art. 818. Two or more persons cannot make a will Real, JJ., concur.
jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person. Dela Cerna vs. Potot
(669) "It appears that on May 9, 1939, the spouses, Bernabe de la
A joint will is one where the same instrument is made the will Cerna and Gervasia Rebaca, executed a joint last will and
of two or more persons and is jointly signed by them. Such testament in the local dialect whereby they willed that 'our
will may be probate upon the death of one and subsequently two parcels of land acquired during our marriage together
probated again upon the death of the other testator. Usually with all improvements thereon shall be given to Manuela
made to dispose joint properties. Rebaca, our niece, whom we have nurtured since childhood,
Mutual will, OTOH, may be defined as the separate wills of because God did not give us any child in our union, Manuela
two persons, which are reciprocal in their provisions. A will Rebaca being married to Nicolas Potot', and that 'while each
that is both joint and mutual is one executed jointly by teo or of the testator is yet living, he or she will continue to enjoy
more persons and which shows on its face that the devises the fruits of the two lands aforementioned', the said two
are made one in consideration of the other. parcels of land being covered by Tax No. 4676 and Tax No.
Ratio for prohibition: 6677, both situated in sitio Bucao, barrio Lugo, municipality
a. purely personal and unilateral characteristic of Borbon, province of Cebu. Bernabe de la Cerna died on
of wills are defeated August 30, 1939, and the aforesaid will was submitted to
16
probate by said Gervasia and Manuela before the Court of property and regardless of the country wherein said
First Instance of Cebu which, after due publication as property may be found. (10a)
required by law and there being no opposition, heard the The distribution of the estate is governed by the law of the
evidence, nation of the deceased; the present article applies in such
The appealed decision correctly held that the final decree of case. It may involve various questions such as:
probate, entered in 1939 by the Court of First Instance of 1. order of succession in intestacy
Cebu (when the testator, Bernabe de la Cerna, died), has 2. intrinsic validity of a will
conclusive effect as to his last will and testament, despite 3. extent of property an heir is entitled
the fact that even then the Civil Code already decreed the 4. capacity to succeed of heirs
invalidity of joint wills, whether in favor of the joint testators, 5. questions of preterition, disinheritance, and
reciprocally, or in favor of a third party (Art. 669, old Civil collation.
Code). The error thus committed by the probate court was In above cases, the national law of the decedent applies and
an error of law, that should have been corrected by appeal, the ratio of which is stated by Dean Capistrano in this wise:
but which did not affect the jurisdiction of the probate court, With regard to succession there is only one will, express in
nor the conclusive effect of its final decision, however testatmentary and presumed in intestate succession. The
erroneous. A final judgment rendered on a petition for the oneness and universality of the inheritance cannot be
probate of a will is binding upon the whole world (Manalo vs. divided or broken up merely because of the different
Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156); countries where the properties of the estate are situated.
and public policy and sound practice demand that at the risk The intrinsic validity of the provisions of the will of a foreigner
of occasional errors, judgment of courts should become final who dies in the Philippines is to be determined by the laws
at some definite date fixed by law. Interest rei publicae ut of his own state or country, and not by those of the
finis sit litium (Dy Cay vs. Crossfield, 38 Phil. 521, and other Philippines. The second paragraph of this article can only
cases cited in 2 Moran, Comments on the Rules of Court invoked when the deceased eas vested with a descendible
1963 Ed., p. 322). interest in property within the jurisdiction of the Philippines.
When a foreign law is invoked it must be proved. (fluemer
Petitioners, as heirs and successors of the late Bernabe de vs. Hix)
la Cerna, are concluded by the 1939 decree admitting his In re the estate of Amos G. Bellis
will to probate. The contention that being void the will cannot Amos G. Bellis, born in Texas, was "a citizen of the State of
be validated, overlooks that the ultimate decision on whether Texas and of the United States." By his first wife, Mary E.
an act is valid or void rests with the courts, and here they Mallen, whom he divorced, he had five legitimate children:
have spoken with finality when the will was probated in Edward A. Bellis, George Bellis (who pre-deceased him in
1939. On this count, the dismissal of their action for partition infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
was correct. Allsman; by his second wife, Violet Kennedy, who survived
But the Court of Appeals should have taken into account him, he had three legitimate children: Edwin G. Bellis, Walter
also, to avoid future misunderstanding, that the probate S. Bellis and Dorothy Bellis; and finally, he had three
decree in 1939 could only affect the share of the deceased illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis
husband, Bernabe de la Cerna. It could not include the and Miriam Palma Bellis.
disposition of the share of the wife, Gervasia Rebaca, who On August 5, 1952, Amos G. Bellis executed a will in the
was then still alive, and over whose interest in the conjugal Philippines, in which he directed that after all taxes,
properties the probate court acquired no jurisdiction, obligations, and expenses of administration are paid for, his
precisely because her estate could not then be in issue. Be it distributable estate should be divided, in trust, in the
remembered that prior to the Civil Code, a will could not be following order and manner: (a) $240,000.00 to his first wife,
probated during the testator's lifetime. Mary E. Mallen; (b) P120,000.00 to his three illegitimate
It follows that the validity of the joint will, in so far as the children, Amos Bellis, Jr., Maria Cristina Bellis, and Miriam
estate of the wife was concerned, must be, on her death, Palma Bellis, or P40,000.00 each and (c) after the foregoing
reexamined and adjudicated de novo (from the beginning), two items have been satisfied, the remainder shall go to his
since a joint will is considered a separate will of each seven surviving children by his first and second wives,
testator. Thus regarded, the holding of the Court of First namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis,
Instance of Cebu that the joint will is one prohibited by law and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis,
was correct as to the participation of the deceased Gervasia and Dorothy E. Bellis, in equal shares.
Rebaca in the properties in question, for the reasons Subsequently, or on July 8, 1958, Amos G. Bellis died, a
extensively discussed in our decision in Bilbao vs. Bilbao, 87 resident of San Antonio, Texas, U.S.A. His will was admitted
Phil. 144, that explained the previous holding in Macrohon to probate in the Court of First Instance of Manila on
vs. Saavedra, 51 Phil., 267. Therefore, the undivided interest September 15, 1958.
of Gervasia Rebaca should pass upon her death to her heirs The People's Bank and Trust Company, as executor of the
intestate, and not exclusively to the testamentary heir, will, paid all the bequests therein including the amount of
unless some other valid will in her favor is shown to exist, or $240,000.00 in the form of shares of stock to Mary E. Mallen
unless she be the only heir intestate of said Gervasia. It is and to the three (3) illegitimate children, Amos Bellis, Jr.,
unnecessary to emphasize that the fact that joint wills should Maria Cristina Bellis and Miriam Palma Bellis, various
be in common usage could not make them valid when our amounts totalling P40,000.00 each in satisfaction of their
Civil Codes consistently invalidated them, because laws are respective legacies, or a total of P120,000.00, which it
only repealed by other subsequent laws, and no usage to released from time to time according as the lower court
the contrary may prevail against their observance. approved and allowed the various motions or petitions filed
by the latter three requesting partial advances on account of
E. Law Governing Content their respective legacies.
1. As to time On January 17, 1964, Maria Cristina Bellis and Miriam
Art. 2263. Rights to the inheritance of a person who Palma Bellis filed their respective oppositions to the project
died, with or without a will, before the effectivity of this of partition on the ground that they were deprived of their
Code, shall be governed by the Civil Code of 1889, by legitimes as illegitimate children and, therefore, compulsory
other previous laws, and by the Rules of Court. The heirs of the deceased.
inheritance of those who, with or without a will, die after Article 16, par. 2, and Art. 1039 of the Civil Code, render
the beginning of the effectivity of this Code, shall be applicable the national law of the decedent, in intestate or
adjudicated and distributed in accordance with this new testamentary successions, with regard to four items: (a) the
body of laws and by the Rules of Court; but the order of succession; (b) the amount of successional rights;
testamentary provisions shall be carried out insofar as (c) the intrinsic validity of the provisions of the will; and (d)
they may be permitted by this Code. Therefore, the capacity to succeed. They provide that —
legitimes, betterments, legacies and bequests shall be "Art 16. Real property as well as personal
respected; however, their amount shall be reduced if in property is subject to the law of the country where
no other manner can every compulsory heir be given his it is situated.
full share according to this Code. (Rule 12a) "However", intestate and testamentary
The decisive fact which gives origin to the right of heirs, successions, both with respect to the order of
devisees and legatees is the death of the decedent. This is succession and to the amount of successional
the basis of the present article. Thus, the provisions of the rights and to the intrinsic validity of
new code relaxing the rigidity of the rules of the old code testamentary provisions, shall be regulated by
regarding proof or recognition of natural children, were held the national law of the person whose
inapplicable to one claiming recognition and a share in the succession is under consideration, whatever
estate of the alleged natural father who died before the new may be the nature of the property and
code went into effect. regardless of the country wherein said property
2. As to successional rights may be found."
Art. 16. Real property as well as personal property is "Art. 1039. Capacity to succeed is
subject to the law of the country where it is stipulated. governed by the law of the nation of the
However, intestate and testamentary successions, both decedent."
with respect to the order of succession and to the Appellants would however counter that Article 17, paragraph
amount of successional rights and to the intrinsic three, of the Civil Code, stating that —
validity of testamentary provisions, shall be regulated "Prohibitive laws concerning persons, their acts or
by the national law of the person whose succession is property, and those which have for their object
under consideration, whatever may be the nature of the public order, public policy and good customs shall
not be rendered ineffective by laws, or judgments
17
promulgated, or by determinations or conventions Art. 16 par. (2)."However, intestate and
agreed upon in a foreign country." testamentary successions, both with respect to the
prevails as the exception to Art. 16, par. 2 of the Civil Code order of succession and to the amount of
aforequoted. This is not correct. Precisely, Congress deleted successional rights and to the intrinsic validity of
the phrase, "notwithstanding the provisions of this and the testamentary provisions, shall be regulated by the
next preceding article" when they incorporated Art. 11 of the national law of the person whose succession is
old Civil Code as Art. 17 of the new Civil Code, while under consideration, whatever may be the nature
reproducing without substantial change the second of the property and regardless of the country
paragraph of Art. 10 of the old Civil Code as Art. 16 in the wherein said property may be found."
new. It must have been their purpose to make the second Art. 1039."Capacity to succeed is governed by the law of the
paragraph of Art. 16 a specific provision in itself which must nation of the decedent."
be applied in testate and intestate successions. As further the law which governs Adoracion Campo's will is the law of
indication of this legislative intent, Congress added a new Pennsylvania, U.S.A., which is the national law of the
provision, under Art. 1039, which decrees that capacity to decedent. Although the parties admit that the Pennsylvania
succeed is to be governed by the national law of the law does not provide for legitimes and that all the estate may
decedent. be given away by the testatrix to a complete stranger, the
It is therefore evident that whatever public policy or good petitioner argues that such law should not apply because it
customs may be involved in our system of legitimes, would be contrary to the sound and established public policy
Congress has not intended to extend the same to the and would run counter to the specific provisions of Philippine
succession of foreign nationals. For it has specifically Law.
chosen to leave, inter alia, the amount of successional It is a settled rule that as regards the intrinsic validity of the
rights, to the decedent's national Law. Specific provisions provisions of the will, as provided for by Article 16 (2) and
must prevail over general ones. 1039 of the Civil Code, the national law of the decedent
Appellants would also point out that the decedent executed must apply. This was squarely applied in the case of Bellis v.
two wills — one to govern his Texas estate and the other his Bellis (20 SCRA 358) wherein we ruled:"It is therefore
Philippine estate — arguing from this that he intended evident that whatever public policy or good customs may be
Philippine law to govern his Philippine estate. Assuming that involved in our system of legitimes, Congress has not
such was the decedent's intention in executing a separate intended to extend the same to the succession of foreign
Philippine will, it would not alter the law, for as this Court nationals. For it has specifically chosen to leave, inter alia,
ruled in Miciano vs. Brimo, 50 Phil. 867, 870, a provision in a the amount of successional rights, to the decedent's national
foreigner's will to the effect that his properties shall be law. Specific provisions must prevail over general ones.
distributed in accordance with Philippine law and not with his III. TESTAMENTARY CAPACITY
national law, is illegal and void, for his national law cannot A. Who may make a will?
be ignored in regard to those matters that Article 10 — now Art. 796. All persons who are not expressly prohibited
Article 16 — of the Civil Code states said national law should by law may make a will. (662)
govern. Art. 797. Persons of either sex under eighteen years of
The parties admit that the decedent, Amos G. Bellis, was a age cannot make a will. (n)
citizen of the State of Texas, U.S.A., and that under the laws Art. 798. In order to make a will it is essential that the
of Texas, there are no forced heirs or legitimes. Accordingly, testator be of sound mind at the time of its execution.
since the intrinsic validity of the provision of the will and the (n)
amount of successional rights are to be determined under Art. 799. To be of sound mind, it is not necessary that
Texas law, the Philippine law on legitimes cannot be applied the testator be in full possession of all his reasoning
to the testacy of Amos G. Bellis. faculties, or that his mind be wholly unbroken,
Cayetano vs. Leonides 129 SCRA 522 unimpaired, or unshattered by disease, injury or other
On January 31, 1977, Adoracion C. Campos died, leaving cause.
her father, petitioner Hermogenes Campos and her sisters, It shall be sufficient if the testator was able at the time of
private respondent Nenita C. Paguia, Remedios C. Lopez making the will to know the nature of the estate to be
and Marieta C. Medina as the surviving heirs. As disposed of, the proper objects of his bounty, and the
Hermogenes Campos was the only compulsory heir, he character of the testamentary act. (n)
executed an Affidavit of Adjudication under Rule 74, Section B: requisite of sanity to execute a will is based on the
I of the Rules of Court whereby he adjudicated unto himself testator’s ability to know three things:
the ownership of the entire estate of the deceased 1. Nature of the estate to be disposed-
Adoracion Campos. the testator should have a fairly accurate
Eleven months after, on November 25, 1977, Nenita C. knowledge of what he owns. Accurate should be
Paguia filed a petition for the reprobate of a will of the understood in the relative sense. The more one
deceased, Adoracion Campos, which was allegedly owns the less accurate is one’s knowledge of his
executed in the United States and for her appointment as estate expected to be. Henry Sy might have a far
administratrix of the estate of the deceased testatrix. less accurate picture of his economic empire than
In her petition, Nenita alleged that the testatrix was an a poverty stricken laborer.
American citizen at the time of her death and was a 2. Proper objects of his bounty- under
permanent resident of 4633 Ditman Street, Philadelphia, ordinary circumstances, the testator should know
Pennsylvania, U.S.A.; that the testatrix died in Manila on his relatives in the proximate degrees. As the
January 31, 1977 while temporarily residing with her sister at degree of relationship goes further, it is less likely
2167 Leveriza, Malate, Manila; that during her lifetime, the that he knows them.
testatrix made her last will and testament on July 10, 1975, 3. Character of the testamentary act- it
according to the laws of Pennsylvania, U.S.A., nominating is not required, in order for this requisite to be
Wilfredo Barzaga of New Jersey as executor; that after the present, that the testator know the legal nature of
testatrix' death, her last will and testament was presented, a will with the erudition of a civilest. All that he
probated, allowed, and registered with the Registry of Wills need know is that the document he is executing is
at the County of Philadelphia, U.S.A., that Clement L. one that disposes of his property upon death.
McLaughlin, the administrator who was appointed after Dr. T: Neither sickness, old age, deafness, senile debility,
Barzaga had declined and waived his appointment as blindness, nor poor memory is by itself sufficient to establish
executor in favor of the former, is also a resident of a presumption of lack of testamentary capacity, actual
Philadelphia, U.S.A., and that therefore, there is an urgent insanity need not exist in order that a person may be said to
need for the appointment of an administratrix to administer lack testamentary capacity. It is enough that the mental
and eventually distribute the properties of the estate located condition be such that there is want of understanding of the
in the Philippines. nature and consequences of the disposition by will.
Meanwhile, on June 6, 1982, petitioner Hermogenes Art. 800. The law presumes that every person is of
Campos died and left a will, which, incidentally has been sound mind, in the absence of proof to the contrary.
questioned by the respondent, his children and forced heirs The burden of proof that the testator was not of sound
as, on its face patently null and void, and a fabrication, mind at the time of making his dispositions is on the
appointing Polly Cayetano as the executrix of his last will person who opposes the probate of the will; but if the
and testament. Cayetano, therefore, filed a motion to testator, one month, or less, before making his will was
substitute herself as petitioner in the instant case which was publicly known to be insane, the person who maintains
granted by the court on September 13, 1982. the validity of the will must prove that the testator made
ISSUE: Whether or not a compulsory heir may be validly it during a lucid interval. (n)
excluded by a will executed by a foreign testator? Art. 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by
HELD: YES the supervening of capacity. (n)
RATIO: Although on its face, the will appeared to have The capacity of the person who leaves a will is to be
preterited the petitioner and thus, the respondent judge determined as of the time of execution of such will. Any prior
should have denied its reprobate outright, the private or subsequent incapacity will not affect the validity of the will.
respondents have sufficiently established that Adoracion It will, however, in cases of prior incapacity within 30 days
was, at the time of her death, an American citizen and a from the making of the will merely shift the burden of proof of
permanent resident of Philadelphia, Pennsylvania, U.S.A. capacity on the person maintaining the validity of the will.
Therefore, under Article 16 par. (2) and 1039 of the Civil (Art. 800)
Code which respectively provide:

18
Art. 802. A married woman may make a will without the language is known by the testator it is a fact which may be
consent of her husband, and without the authority of the proved by evidence aliunde.
court. (n) The attestation clause of an ordinary will does not have to be
Art. 803. A married woman may dispose by will of all her written in a language or dialect known to the testator. It is not
separate property as well as her share of the conjugal part of the testamentary disposition. The language used in
partnership or absolute community property. (n) the attestation clause does not even have to be known to the
witness; it should, however, be translated to them.
B. Supervening Incapacity
Art. 801. Supervening incapacity does not invalidate an Suroza vs. Hon. Honrado
effective will, nor is the will of an incapable validated by Mauro Suroza, a corporal in the 45th Infantry of the U.S.
the supervening of capacity. (n) Army (Philippine Scouts), Fort McKinley, married Marcelina
The capacity of the person who leaves a will is to be Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were
determined as of the time of execution of such will. Any prior childless. They reared a boy named Agapito who used the
or subsequent incapacity will not affect the validity of the will. surname Suroza and who considered them as his parents as
It will, however, in cases of prior incapacity within 30 days shown in his 1945 marriage contract with Nenita de Vera (p.
from the making of the will merely shift the burden of proof of 15, Rollo of CA-G.R. No. 08654, p. 148, Rollo of Testate
capacity on the person maintaining the validity of the will. Case showing that Agapito was 5 years old when Mauro
(Art. 800) married Marcelina in 1923).
IV. SOLEMNITIES OF WILLS
A. Kinds of Wills Mauro died in 1942. Marcelina, as a veteran's widow,
Art. 804. Every will must be in writing and executed in a became a pensioner of the Federal Government. That
language or dialect known to the testator. (n) explains why on her death she had accumulated some cash
in two banks.
Art. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand Agapito and Nenita begot a child named Lilia who became a
of the testator himself. It is subject to no other form, and medical technologist and went abroad. Agapito also became
may be made in or out of the Philippines, and need not a soldier. He was disabled and his wife Nenita was
be witnessed. (678, 688a) appointed as his guardian in 1953 when he was declared an
T: the following are the advantages of a holographic will: incompetent in Special Proceedings No. 1807 of the Court of
1. simple and easy to make for those a) who have no means First Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-
to employ a lawyer, b)who are timid and wants to reread G.R. No. 08654-R)
their wills before signing, c) those who have only very little
property to dispose In that connection, it should be noted that a woman named
2. It induces foreigners in this jurisdiction to set down their Arsenia de la Cruz wanted also to be his guardian in another
last wishes; proceeding. Arsenia tried to prove that Nenita was living
3. guaranties the absolute secrecy of the testamentary separately from Agapito and that she (Nenita) admitted to
disposition because it is not witnessed. Marcelina that she was unfaithful to Agapito (pp. 61-63,
The disadvantages are: Record of testate case)
1. does not gauranty testamentary capacity of testator; Judge Bienvenido A. Tan dismissed the second
2. no protection against vices of consent which may not be guardianship proceeding and confirmed Nenita's
known in case of death; appointment as guardian of Agapito (p. 16, Rollo of CA
3. due to faulty expression, it may not express the true will of case). Agapito has been staying in a veteran's hospital in
the testator; San Francisco or Palo Alto, California (p. 87, Record)
4. for the same reason, it can be easily concealed.
May a blind testator make a valid holographic will? There is On a date not indicated in the record, the spouses Antonio
no question as to notarial wills it being allowed under the law Sy and Hermogena Talan begot a child named Marilyn Sy,
provided the will was read twice to the testator. As to who, when a few days old, was entrusted to Arsenia de la
holographic wills, it is submitted that it may be allowed. The Cruz (apparently a girl friend of Agapito) and who was later
testator, having written the holographic will by his own hand, delivered to Marcelina Salvador Suroza who brought her up
knows what it contains. He may have learned to write before as a supposed daughter of Agapito and as her
he became blind, or inspite of his blindness. This view has granddaughter (pp. 23-26, Rollo of CA-G.R. No. SP-08654-
been sustained in Louisiana, where it has been held that R). Marilyn used the surname Suroza. She stayed with
blindness does not of itself prevent the making of a valid Marcelina but was not legally adopted by Agapito. She
holographic. married Oscar Medrano and is residing at 7666 J.B. Roxas
A HW may be in any form, but the intent to dispose mortis Street, Makati, apparently a neighbor of Marina Paje, a
causa must clearly appear in the context. resident of 7668 J.B. Roxas Street.
What would be the effect of words written by another and
inserted among the words written by the testator? Marcelina supposedly executed a notarial will in Manila
1. if insertion was made after execution bu w/o consent, on July 23, 1973, when she was 73 years old. That will,
such is deemed not written; which is in English, was thumb marked by her. She was
2. if the insertion was after execution with the consent of illiterate. Her letters in English to the Veterans
testator, the will remains valid but the insertion void; Administration were also thumb marked by her (pp. 38-
3. if insertion was after execution and validated by testator 39, CA Rollo). In that will, Marcelina bequeathed all her
by his signature, the entire will is void because it is not estate to her supposed granddaughter Marilyn.
wholly written by the testator himself;
4. if insertion is contemporaneous to the execution the On April 24, Nenita filed in the testate case an omnibus
effect same as no. 3. petition "to set aside proceedings, admit opposition with
As to date, the day, month, and year on which the will was counter-petition of administration and preliminary injunction."
made should be indicated therein. The day and the month, Nenita in that motion reiterated her allegation that Marilyn
however, may be indicated by implication, so long as the was a stranger to Marcelina, that the will was not duly
designation leaves no room for doubt as to exact date. executed and attested, that it was procured by means of
The validity of the holographic will is defeated by the fact undue influence employed by Marina and Marilyn and that
that part of the date is printed. Such as that written on a daily the thumb marks of the testatrix were procured by fraud or
planner though the contents are entirely written by the hand trick.
but the testator relied on the date indicated on the planner,
the same is still extrinsically void. About ten months later, in a verified complaint dated October
Signatures of witnesses to a HW will not invalidate the will, 12,1978, filed in this Court, Nenita charged Judge Honrado
but will be disregarded as a mere surplusage. with having probated the fraudulent will of Marcelina. The
B. Notarial Wiils complainant reiterated her contention that the testatrix was
1. General Requirements illiterate as shown by the fact that she affixed her thumb
Art. 804. Every will must be in writing and executed in a mark to the will and that she did not know English, the
language or dialect known to the testator. (n) language in which the will was written. (In the decree of
probate Judge Honrado did not make any finding that the will
Our law does not recognize nuncupative wills, which is one was written in a language known to the testatrix).
that is not written, but orally declared by the testator in his
last illness, in contemplation of death, and before a sufficient Nenita further alleged that Judge Honrado, in spite of his
number of competent witnesses. knowledge that the testatrix had a son named Agapito (the
The above requirement applies to both holographic and testatrix's supposed sole compulsory and legal heir), who
notarial. In notarial wills it is immaterial who performs the was preterited in the will, did not take into account the
mechanical act writing the will, so long as the testator signs consequences of such a preterition.
it or has somebody sign his name in his presence upon his We hold that disciplinary action should be taken against
direction. respondent judge for his improper disposition of the testate
As to the language or dialect, when a will is executed in a case which might have resulted in a miscarriage of justice
certain province or locality, in the dialect currently used in because the decedent's legal heirs and not the instituted
such province or locality, there arises a presumption that the heiress in the void will should have inherited the decedent's
testator knew the dialect so used, in the absence of contrary estate.
evidence. It is not required that the will express that the

19
A judge may be criminally liable for knowingly rendering an the witnesses need not even know the contents of the will
unjust judgment or interlocutory order or rendering a because what they attest to is the due execution and the
manifestly unjust judgment or interlocutory order by reason signing of the testator.
of inexcusable negligence or ignorance (Arts. 204 to 206, It is presumed that a witness has the qualifications
Revised Penal Code) prescribed by law, unless the contrary is established. His
In this case, respondent judge, on perusing the will and credibility depends upon the appreciation of his testimony
noting that it was written in English and was thumb marked and arises from the belief and appreciation of the court that
by an obviously illiterate testatrix, could have readily he is telling the truth. His competency arise or is required to
perceived that the will is void. exist at the time of execution of the will.
As to order of signing, there are two views:
In the opening paragraph of the will, it was stated that Strict approach; The general rule has been, that everything
English was a language "understood and known" to the required to be done by the testator in the execution of a will
testatrix. But in its concluding paragraph, it was stated that shall precede in point of time the subscription by the
the will was read to the testatrix "and translated into Filipino attesting witness, and if the signatures of the latter precede
language." (p. 16, Record of testate case) That could only the signing by the testator there is no proper attestation, and
mean that the will was written in a language not known to the will is void, for until the testator has signed, there is no
the illiterate testatrix and, therefore, it is void because of the will and nothing to attest.
mandatory provision of Article 804 of the Civil Code that Liberal approach; where the witnesses and the testator all
every will must be executed in a language or dialect known sign in the presence of one another, it is not essential that
to the testator. Thus, a will written in English, which was not the testator sign first, if the signing and the attestation be
known to the Igorot testator, is void and was disallowed parts of the same transaction; in such case, where the acts
(Acop vs. Piraso, 52 Phil. 660) are substantially contemporaneous, it cannot be said that
there is any substantial priority.
The hasty preparation of the will is shown in the attestation The latter view is upheld by most courts. In the absence of
clause and notarial acknowledgment where Marcelina proof to the contrary, it will be presumed that the testator
Salvador Suroza is repeatedly referred to as the "testator" signed first.
instead of "testatrix." Purpose of requiring presence of each other:
1. to prevent another paper being substituted
Had respondent judge been careful and observant, he could for the will fraudulently;
have noted not only the anomaly as to the language of the 2. so that each may be a witness of the other
will but also that there was something wrong in instituting the and;
supposed granddaughter as sole heiress and giving nothing 3. to render fabrication of testimony more
at all to her supposed father who was still alive. difficult.
Furthermore, after the hearing conducted by respondent When testator is blind; when witness subscribe his will in the
deputy clerk of court, respondent judge could have noticed same room or within reasonable close proximity and within
that the notary was not presented as a witness. his hearing, they subscribe in his presence. Evidently, the
rule is that they should be within the cognizance of his
In spite of the absence of an opposition, respondent judge remaining senses, such that he knows what is being done.
should have personally conducted the hearing on the The testator and witnesses must sign on the left margin of
probate of the will so that he could have ascertained whether every page, the failure of all of them to sign the left margin is
the will was validly executed. Under the circumstances, we a fatal defect
find his negligence and dereliction of duty to be inexcusable. The purpose of numbering of pages is to afford a means for
determinig whether any sheet or page of the will has been
2. Specific Requirements removed. Except only when will was written on a single
Art. 805. Every will, other than a holographic will, must page.
be subscribed at the end thereof by the testator himself An attestation clause is a memorandum of facts attending
or by the testator's name written by some other person the execution of the will and is that part of the instrument
in his presence, and by his express direction, and wherein the witnesses certify that the instrument has been
attested and subscribed by three or more credible executed before them, and the manner of execution.
witnesses in the presence of the testator and of one The attestation clause duly signed is the best evidence as to
another. date of signing
The testator or the person requested by him to write his The law does not require the attestation to be contained in a
name and the instrumental witnesses of the will, shall single clause. Thus, where a will did not contain a separate
also sign, as aforesaid, each and every page thereof, independent attestation clause, but the concluding
except the last, on the left margin, and all the pages paragraph of the body of the will was written in the tenor of
shall be numbered correlatively in letters placed on the an attestation, stating the facts required by law to be set
upper part of each page. forth in an attestation clause, and the penultimate paragraph
The attestation shall state the number of pages used of the will stated the number of pages used, it was held to be
upon which the will is written, and the fact that the sufficient though in the first person and signed by the
testator signed the will and every page thereof, or testator provided it was signed by the witnesses.
caused some other person to write his name, under his Any failure to state a material fact in the attestation clause
express direction, in the presence of the instrumental will render the will null and void. Oral evidence will not cure
witnesses, and that the latter witnessed and signed the any alleged defect because the statute of frauds does not
will and all the pages thereof in the presence of the apply to wills. The statute relates to contracts and
testator and of one another. agreement only this may be cured by the oral ratification of
If the attestation clause is in a language not known to the parties.
the witnesses, it shall be interpreted to them. (n) Date- in an ordinary will date is not an essential part. Only
T: The object of the solemnities surrounding the execution of HW requires a date. Neither a statement of the place of
wills is to close the door against bad faith and fraud, to avoid execution is required and the absence of both facts does not
sunstitution of wills and testaments and to gauranty their invalidate the will.
truth and authenticity. Therefore the laws on this subject Art. 806. Every will must be acknowledged before a
should be interpreted in such a way as to attain these notary public by the testator and the witnesses. The
primordial ends. Both one must not lose sight of the fact that notary public shall not be required to retain a copy of
it is not the object of the law to restrain and curtail the the will, or file another with the Office of the Clerk of
exercise of the right to make a will. Court. (n)
Signed by Testator T: This article applies only to ordinary or attested wills. It has
Signing is making a sign, token, or emblem; and what that no application to a holographic will which does not have to
shall be depends upon the individual. The material thing is be witnessed. Since acknowledgement before a notary
that the testator made the mark to authenticate the writing as public must be made by the testator and the witness, it is
his will and whatever he puts on it for that purpose will obvious that the law contemplates only ordinary wills.
suffice. The signing of the will by the testator and the witnesses, and
Attested and subscribed by witnesses the acknowledgement of said will before a notary public
Attestation is the act of the senses, subscription is the act of need not be done in a single act unlike the in the old code
the hand; one is mental, the other is mechanical. To attest a because his presence is required due to the fact that he
will is to know that it is published a such, and to certify the prepares the will. Under the present code, it is enough that
facts required to constitute an actual legal publication; but to the testator and witnesses acknowledge to him its execution
subscribe a paper as a will is only to write on the paper the for such acknowledgement is indispensable for the validity of
names of the witnesses, for the sole purpose of the will. An interval of time may elapse between the actual
identification. To attest as witness to a will is therefore to signing of the will and the acknowledgement before the
observe, perceive, discern, and take notice of what is done notary public. It is important also that testamentary capacity
in executing a will. The witness subscribe with his hand, and must exist also at the time of acknowledgement, because
attest with his eyes and ears. this is an essential part of the execution of the will.
Purpose of attesting and subscribing: The purpose of acknowledgement is to minimize fraud and
1. identification of the instrument; undue pressure and this purpose can be attained whether
2. protection of testator fraud and deception and acknowledgement takes place at the same time at same
other vices of consent; time as the signing or at some time thereafter.
3. to ascertain the TC of the testator The prohibition under this article on the retention of a copy
by the notary is grounded on the desire of the testator to
20
safeguard the secrecy of the contents of the will during the
lifetime of the testator so he will not be the object of What has been said makes it unnecessary for us to
importunities or pressure to change his will on the part of determine whether there is a sufficient recital in the
designing persons or relatives, or it may be that the testator attestation clause as to the signing of the will by the testator
wants to keep the secret of the will during his lifetime. in the presence of the witnesses, and by the latter in the
B: Special Requirements of attested wills are as follows presence of the testator and of each other. Wherefore, the
1. subscribed by the testator or his agent in his appealed decision is hereby affirmed, with costs against the
presence and by his express direction at the end petitioner. So ordered.
thereof, in the presence of the witnesses
2. attested and subscribed by at least three Balona vs. Abellana
credible witnesses in the presence of the testator Appeal from a decision of the Court of First Instance of
and of one another; Zamboanga City admitting to probate the will of one
3. the testator or his agent must sign every Anacleta Abellana.
page except the last, on the left margin in the "It appears on record that the last Will and
presence of the witnesses; Testament (Exhibit 'A'), which is sought to be
4. the witnesses must sign every page except probated, is written in the Spanish language and
last, on the left margin in the presence of the consists of two (2) typewritten pages (pages 4 and
testator and of one another; 5 of the record) double space. The first page is
5. all pages numbered correlatively in letters signed by Juan Bello and under his name appears
above page; typewritten 'Por la testadora Anacleta Abellana,
6. attestation clause stating: residence Certificate A-1167629, Enero 20, 1951,
a. number of pages; Ciudad de Zamboanga', and on the second page
b. testator or his agent under his direction appears the signature of the three (3) instrumental
signed the will and every page thereof, in the witnesses Blas Sebastian, Faustino Macaso and
presence of the witnesses; Rafael Ignacio, at the bottom of which appears the
c. the witnesses witnessed and signed signature of T. de los Santos and below his
evry page in the presence of testator and of signature is his official designation as the notary
one another; public who notarized the said testament. On the
7. acknowledged before a notary public first page on the left margin of the said instrument
Garcia vs. la Cuesta also appear the signatures of the instrumental
This is an appeal from a decision of the Court of Appeals witnesses. On the second page, which is the last
disallowing the will of Antero Mercado dated January 3, page of the said last Will and Testament, also
1943. The will is written in the Ilocano dialect and contains appears the signature of the three (3) instrumental
the following attestation clause: witnesses and on that second page on the left
margin appears the signature of Juan Bello under
"We, the undersigned, by these presents do whose name appears handwritten the following
declare that the foregoing testament of Antero phrase, 'Por la Testadora Anacleta Abellana'. The
Mercado was signed by himself and also by us will is duly acknowledged before Notary Public,
below his name and of this attestation clause and Attorney Timoteo de los Santos." (Italics supplied.)
that of the left margin of the three pages thereof. The present law, Article 805 of the Civil Code, in part
Page three the continuation of this attestation provides as follows:
clause; this will is written in Ilocano dialect which is
spoken and understood by the testator, and it "Every will, other than a holographic will, must be
bears the corresponding number in letter which subscribed at the end thereof by the testator
compose of three pages and all of them were himself or by the testator's name written by some
signed in the presence of the testator and other person in his presence, and by his express
witnesses, and the witnesses in the presence of direction, and attested and subscribed by three or
the testator and all and each and every one of us more credible witnesses in the presence of the
witnesses. testator and of one another." (Italics supplied.)
Note that the old law as well as the new require that the
"In testimony, whereof, we sign this testament, this testator himself sign the will, or if he cannot do so, the
the third day of January, one thousand nine testator's name must be written by some other person in his
hundred forty three, (1943) A.D. presence and by his express direction. Applying this
provision this Court said in the case of Ex Parte Pedro
(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) Arcenas, et al., 4 Phil., 700:
ROSENDO CORTES
(Sgd.) BIBIANA ILLEGIBLE" "It will be noticed from the above-quoted section
618 of the Code of Civil Procedure that where the
The will appears to have been signed by Atty. Florentino testator does not know how, or is unable, to sign,
Javier who wrote the name of Antero Mercado, followed it will not be sufficient that one of the attesting
below by "A ruego del testador" and the name of Florentino witnesses signs the will at the testator's request,
Javier. Antero Mercado is alleged to have written a cross the notary certifying thereto as provided in article
immediately after his name. The Court of Appeals, reversing 695 of the Civil Code, which, in this respect, was
the judgment of the Court of First Instance of Ilocos Norte, modified by section 618 above referred to, but it is
ruled that the attestation clause failed (1) to certify that the necessary that the testator's name be written by
will was signed on all the left margins of the three pages and the person signing in his stead in the place where
at the end of the will by Atty. Florentino Javier at the express he would have signed if he knew how or was able
request of the testator in the presence of the testator and so to do, and this in the testator's presence and by
each and every one of the witnesses; (2) to certify that after his express direction; so that a will signed in a
the signing of the name of the testator by Atty. Javier at the manner different than that prescribed by law shall
former's request said testator has written a cross at the end not be valid and will not be allowed to be
of his name and on the left margin of the three pages of probated.
which the will consists and at the end thereof; (3) to certify The same ruling was laid down in the case of Cuison vs.
that the three witnesses signed the will in all the pages Concepcion, 5 Phil., 552. In the case of Barut vs.
thereon in the presence of the testator and of each other. Cabacungan, 21 Phil., 461, we held that the important thing
is that it clearly appears that the name of the testatrix was
In our opinion, the attestation clause is fatally defective for signed at her express direction; it is unimportant whether the
failing to state that Antero Mercado caused Atty. Florentino person who writes the name of the testatrix signs his own or
Javier to write the testator's name under his express not. Cases of the same import are as follows: (Ex Parte Juan
direction, as required by section 618 of the Code of Civil Ondevilla, 13 Phil., 479, Caluya vs. Domingo, 27 Phil., 330;
Procedure. The herein petitioner (who is appealing by way of Garcia vs. Lacuesta, 90 Phil., 489).
certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the In the case at bar the name of the testatrix, Anacleta
cross written by the testator after his name is a sufficient Abellana, does not appear written under the will by said
signature and the signature of Atty. Florentino Javier is a Abellana herself, or by Dr. Juan Abello. There is, therefore, a
surplusage. Petitioner's theory is that the cross is as much a failure to comply with the express requirement in the law that
signature as a thumbmark, the latter having been held the testator must himself sign the will, or that his name be
sufficient by this Court in the cases of De Gala vs. Gonzales affixed thereto by Some other person in his presence and by
and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; his express direction. It appearing that the above provision
Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., of the law has not been complied with, we are constrained to
296 and Lopez vs. Liboro, 81 Phil., 429. declare that the said will of the deceased Anacleta Abellana
may not be admitted to probate.
It is not here pretended that the cross appearing on the will
is the usual signature of Antero Mercado or even one of the Nera vs. Rimando
ways by which he signed his name. After mature reflection, The only question raised by the evidence in this case as to
we are not prepared to liken the mere sign of a cross to a the due execution of the instrument propounded as a will in
thumbmark, and the reason is obvious. The cross cannot the court below, is whether one of the subscribing witnesses
and does not have the trustworthiness of a thumbmark. was present in the small room where it was executed at the
21
time when the testator and the other subscribing witnesses spoken and understood by the testator, and it
attached their signatures; or whether at that time he was bears the corresponding number in letter which
outside, some eight or ten feet away, in a large room compose of three pages and all of them were
connecting with the smaller room by a doorway, across signed in the presence of the testator and
which was hung a curtain which made it impossible for one witnesses, and the witnesses in the presence of
in the outside room to see the testator and the other the testator and all and each and every one of us
subscribing witnesses in the act of attaching their signatures witnesses.
to the instrument.
"In testimony, whereof, we sign this testament, this
A majority of the members of the court is of opinion that this the third day of January, one thousand nine
subscribing witness was in the small room with the testator hundred forty three, (1943) A.D.
and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding, (Sgd.) "NUMERIANO EVANGELISTA (Sgd.)
of course, disposes of the appeal and necessitates the ROSENDO CORTES
affirmance of the decree admitting the document to probate (Sgd.) BIBIANA ILLEGIBLE"
as the last will and testament of the deceased.
The will appears to have been signed by Atty. Florentino
The trial judge does not appear to have considered the Javier who wrote the name of Antero Mercado, followed
determination of this question of fact of vital importance in below by "A ruego del testador" and the name of Florentino
the determination of this case, as he was of opinion that Javier. Antero Mercado is alleged to have written a cross
under the doctrine laid down in the case of Jaboneta vs. immediately after his name. The Court of Appeals, reversing
Gustilo (5 Phil. Rep., 541) the alleged fact that one of the the judgment of the Court of First Instance of Ilocos Norte,
subscribing witnesses was in the outer room when the ruled that the attestation clause failed (1) to certify that the
testator and the other describing witnesses signed the will was signed on all the left margins of the three pages and
instrument in the inner room, had it been proven, would not at the end of the will by Atty. Florentino Javier at the express
be sufficient in itself to invalidate the execution of the will. request of the testator in the presence of the testator and
But we are unanimously of opinion that had this subscribing each and every one of the witnesses; (2) to certify that after
witness been proven to have been in the outer room at the the signing of the name of the testator by Atty. Javier at the
time when the testator and the other subscribing witnesses former's request said testator has written a cross at the end
attached their signatures to the instrument in the inner room, of his name and on the left margin of the three pages of
it would have been invalid as a will, the attaching of those which the will consists and at the end thereof; (3) to certify
signatures under circumstances not being done "in the that the three witnesses signed the will in all the pages
presence" of the witness in the outer room. This because the thereon in the presence of the testator and of each other.
line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been In our opinion, the attestation clause is fatally defective for
impeded by the curtain separating the inner from the outer failing to state that Antero Mercado caused Atty. Florentino
one "at the moment of inscription of each signature." Javier to write the testator's name under his express
direction, as required by section 618 of the Code of Civil
In the case just cited, on which the trial court relied, we held Procedure. The herein petitioner (who is appealing by way of
that: certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the
"The true test of presence of the testator and the cross written by the testator after his name is a sufficient
witnesses in the execution of a will is not whether signature and the signature of Atty. Florentino Javier is a
they actually saw each other sign, but whether surplusage. Petitioner's theory is that the cross is as much a
they might have been seen each other sign, had signature as a thumbmark, the latter having been held
they chosen to do so, considering their mental and sufficient by this Court in the cases of De Gala vs. Gonzales
physical condition and position with relation to and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479;
each other at the moment of inscription of each Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil.,
signature." 296 and Lopez vs. Liboro, 81 Phil., 429.

But it is especially to be noted that the position of the parties It is not here pretended that the cross appearing on the will
with relation to each other at the moment of the subscription is the usual signature of Antero Mercado or even one of the
of each signature, must be such that they may see each ways by which he signed his name. After mature reflection,
other sign if they choose to do so. This, of course, does not we are not prepared to liken the mere sign of a cross to a
mean that the testator and the subscribing witnesses may be thumbmark, and the reason is obvious. The cross cannot
held to have executed the instrument in the presence of and does not have the trustworthiness of a thumbmark.
each other if it appears that they would not have been able
to see each other sign at that moment, without changing What has been said makes it unnecessary for us to
their relative positions or existing conditions. The evidence in determine whether there is a sufficient recital in the
the case relied upon by the trial judge discloses that "at the attestation clause as to the signing of the will by the testator
moment when the witness Javellana signed the document in the presence of the witnesses, and by the latter in the
he was actually and physically present and in such position presence of the testator and of each other. Wherefore, the
with relation to Jaboneta that he could see everything that appealed decision is hereby affirmed, with costs against the
took place by merely casting his eyes in the proper direction petitioner. So ordered.
and without any physical obstruction to prevent his doing
so." And the decision merely laid down the doctrine that the Taboado vs. Rosal
question whether the testator and the subscribing witnesses
to an alleged will sign the instrument in the presence of each In the petition for probate filed with the respondent court, the
other does not depend upon proof of the fact that their eyes petitioner attached the alleged last will and testament of the
were actually cast upon the paper at the moment of its late Dorotea Perez. Written in Cebuano-Visayan dialect, the
subscription by each of them, but that at that moment will consists of two pages. The first page contains the entire
existing conditions and their position with relation to each testamentary dispositions and is signed at the end or bottom
other were such that by merely casting the eyes in the of the page by the testatrix alone and at the left hand margin
proper direction they could have seen each other sign. To by the three (3) instrumental witnesses. The second page
extend the doctrine further would open the door to the which contains the attestation clause and the
possibility of all manner of fraud, substitution, and the like, acknowledgment is signed at the end of the attestation
and would defeat the purpose for which this particular clause by the three 13) attesting witnesses and at the left
condition is prescribed in the code as one of the requisites in hand margin by the testatrix.
the execution of a will.
Since no opposition was filed after the petitioner's
The decree entered by the court below admitting the compliance with the requirement of publications, the trial
instrument propounded therein to probate as the last will and court commissioned the branch clerk of court to receive the
testament of Pedro Rimando, deceased, is affirmed with petitioner's evidence. Accordingly, the petitioner submitted
costs of this instance against the appellant. his evidence and presented Vicente Timkang, one of the
subscribing witnesses to the will, who testified on its
Garcia vs. la Cuesta genuineness and due execution.
This is an appeal from a decision of the Court of Appeals
disallowing the will of Antero Mercado dated January 3, The trial court, thru then Presiding Judge Ramon C.
1943. The will is written in the Ilocano dialect and contains Pamatian issued the questioned order denying the probate
the following attestation clause: of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also
"We, the undersigned, by these presents do required to submit the names of the intestate heirs with their
declare that the foregoing testament of Antero corresponding addresses so that they could be properly
Mercado was signed by himself and also by us notified and could intervene in the summary settlement of
below his name and of this attestation clause and the estate.
that of the left margin of the three pages thereof.
Page three the continuation of this attestation The respondent Judge interprets the above-quoted provision
clause; this will is written in Ilocano dialect which is of law to require that, for a notarial will to be valid, it is not
22
enough that only the testatrix signs at the "end" but all the " . . . Impossibility of substitution of this page is assured not
three subscribing witnesses must also sign at the same only (sic) the fact that the testatrix and two other witnesses,
place or at the end, in the presence of the testatrix and of did sign the defective page, but also by its bearing the
one another because the attesting witnesses to a will attest coincident imprint of the seal of the notary public before
not merely the will itself but also the signature of the testator. whom the testament was ratified by testatrix and all three
It is not sufficient compliance to sign the page, where the witnesses. The law should not be so strictly and literally
end of the will is found, at the left hand margin of that page. interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had
On the other hand, the petitioner maintains that Article 805 no control, where the purpose of the law to guarantee the
of the Civil Code does not make it a condition precedent or a identity of the testament and its component pages is
matter of absolute necessity for the extrinsic validity of the sufficiently attained, no intentional or deliberate deviation
will that the signatures of the subscribing witnesses should existed, and the evidence on record attest to the full
be specifically located at the end of the will after the observance of the statutory requisites. Otherwise, as stated in
signature of the testatrix. He contends that it would be Vda. de Gil. vs. Murciano, 49 Off. Gaz 1459, at 1479
absurd that the legislature intended to place so heavy an (decision on reconsideration) 'witnesses may sabotage the
import on the space or particular location where the will by muddling or bungling it or the attestation clause.'"
signatures are to be found as long as this space or particular
location wherein the signatures are found is consistent with WHEREFORE, the present petition is hereby granted. The
good faith and the honest frailties of human nature. orders of the respondent Court which denied the probate of
the will, the motion for reconsideration of the denial of
For the validity of a formal notarial will, does Article 805 of probate, and the motion for appointment of a special
the Civil Code require that the testatrix and all the three administrator are set aside.
instrumental and attesting witnesses sign at the end of the
will and in the presence of the testatrix and of one another? Icasiano vs. Icasiano
This special proceeding was begun on October 2, 1958 by a
Undoubtedly, under Article 805 of the Civil Code, the will petition for the allowance and admission to probate of the
must be subscribed or signed at its end by the testator original, Exhibit "A" as the alleged will of Josefa Villacorte,
himself or by the testator's name written by another person deceased, and for the appointment of petitioner Celso
in his presence, and by his express direction, and attested Icasiano as executor thereof.
and subscribed by three or more credible witnesses in the The evidence presented for the petitioner is to the effect that
presence of the testator and of one another. Josefa Villacorte died in the City of Manila on September 12,
1958; that on June 2, 1956, the late Josefa Villacorte
It must be noted that the law uses the terms attested and executed a last will and testament in duplicate at the house
subscribed. Attestation consists in witnessing the testator's of her daughter Mrs. Felisa Icasiano at Pedro Guevara
execution of the will in order to see and take note mentally Street, Manila, published before and attested by three
that those things are done which the statute requires for the instrumental witnesses, namely: attorneys Justo P. Torres,
execution of a will and that the signature of the testator Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will
exists as a fact. On the other hand, subscription is the was acknowledged by the testatrix and by the said three
signing of the witnesses' names upon the same paper for the instrumental witnesses on the same date before attorney
purpose of identification of such paper as the will which was Jose Oyengco Ong, Notary Public in and for the City of
executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911). Manila; and that the will was actually prepared by attorney
Fermin Samson, who was also present during the execution
Insofar as the requirement of subscription is concerned, it is and signing of the decedent's last will and testament,
our considered view that the will in this case was subscribed together with former Governor Emilio Rustia of Bulacan,
in a manner which fully satisfies the purpose of identification. Judge Ramon Icasiano and a little girl. Of the said three
instrumental witnesses to the execution of the decedent's
The law is to be liberally construed, "the underlying and last will and testament, attorneys Torres and Natividad were
fundamental objective permeating the provisions on the law in the Philippines at the time of the hearing, and both
on wills in this project consists in the liberalization of the testified as to the due execution and authenticity of the said
manner of their execution with the end in view of giving the will. So did the Notary Public before whom the will was
testator more freedom in expressing his last wishes but with acknowledged by the testatrix and attesting witnesses, and
sufficient safeguards and restrictions to prevent the also attorneys Fermin Samson, who actually prepared the
commission of fraud and the exercise of undue and improper document. The latter also testified upon cross examination
pressure and influence upon the testator. This objective is in that he prepared one original and two copies of Josefa
accord with the modern tendency in respect to the Villacorte last will and testament at his house in Baliuag,
formalities in the execution of a will" (Report of the Code Bulacan, but he brought only one original and one signed
Commission, p. 103). copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was
The objects of attestation and of subscription were fully met surrendered simultaneously with the filing of the petition and
and satisfied in the present case when the instrumental marked as Exhibit "A" consists of five pages, and while
witnesses signed at the left margin of the sole page which signed at the end and in every page, it does not contain the
contains all the testamentary dispositions, especially so signature of one of the attesting witnesses, Atty. Jose V.
when the will was properly identified by subscribing witness Natividad, on page three (3) thereof; but the duplicate copy
Vicente Timkang to be the same will executed by the attached to the amended and supplemental petition and
testatrix. There was no question of fraud or substitution marked as Exhibit "A-1" is signed by the testatrix and her
behind the questioned order. three attesting witnesses in each and every page.
Witness Natividad who testified on his failure to sign page
We have examined the will in question and noticed that the three (3) of the original, admits that he may have lifted two
attestation clause failed to state the number of pages used pages instead of one when he signed the same, but affirmed
in writing the will. This would have been a fatal defect were it that page three (3) was signed in his presence.
not for the fact that, in this case, it is discernible from the We have examined the record and are satisfied, as the trial
entire will that it is really and actually composed of only two court was, that the testatrix signed both original and
pages duly signed by the testatrix and her instrumental duplicate copies (Exhibits "A" and "A-1", respectively) of the
witnesses. As earlier stated, the first page which contains will spontaneously, on the same in the presence of the three
the entirety of the testamentary dispositions is signed by the attesting witnesses, the notary public who acknowledged the
testatrix at the end or at the bottom while the instrumental will; and Atty. Samson, who actually prepared the
witnesses signed at the left margin. The other page which is documents; that the will and its duplicate were executed in
marked as "Pagina dos" comprises the attestation clause Tagalog, a language known to and spoken by both the
and the acknowledgment. The acknowledgment itself states testator and the witnesses, and read to and by the testatrix
that "This Last Will and Testament consists of two pages and Atty. Fermin Samson, together before they were actually
including this page." signed; that the attestation clause is also in a language
known to and spoken by the testatrix and the witnesses. The
The ratio decidendi of these cases seems to be that the opinion of expert for oppositors, Mr. Felipe Logan, that the
attestation clause must contain a statement of the number of signatures of the testatrix appearing in the duplicate original
sheets or passes composing the will and that if this is were not written by the same had which wrote the signatures
missing or is omitted, it will have the effect of invalidating the in the original will leaves us unconvinced, not merely
will if the deficiency cannot be supplied, not by evidence because it is directly contradicted by expert Martin Ramos
aliunde, but by a consideration or examination of the will for the proponents, but principally because of the paucity of
itself. But here the situation is different. While the attestation the standards used by him to support the conclusion that the
clause does not state the number of sheets or pages upon differences between the standard and questioned signatures
which the will is written, however, the last part of the body of are beyond the writer's range of normal scriptural variation.
the will contains a statement that it is composed of eight The expert has, in fact, used as standards only three other
pages, which circumstance in our opinion takes this case out signatures of the testatrix besides those affixed to the
of the rigid rule of construction and places it within the realm original of the testament (Exh. A); and we feel that with so
of similar cases where a broad and more liberal view has few standards the expert's opinion and the signatures in the
been adopted to prevent the will of the testator from being duplicate could not be those of the testatrix becomes
defeated by purely technical considerations." extremely hazardous. This is particularly so since the
comparison charts Nos. 3 and 4 fail to show convincingly
23
that the are radical differences that would justify the charge and testament was not executed in accordance with law.
of forgery, taking into account the advanced age of the Notwithstanding her objection, the Court allowed the probate
testatrix, the evident variability of her signatures, and the of the said last will and testament. Hence this appeal by
effect of writing fatigue, the duplicate being signed right the certiorari which was given due course.
original. These, factors were not discussed by the expert. The only question presented for determination, on which the
Nor do we find adequate evidence of fraud or undue decision of the case hinges, is whether the supposed last
influence. The fact that some heirs are more favored than will and testament of Valente Z. Cruz (Exhibit "E") was
others is proof of neither (see In re Butalid, 10 Phil. 27; executed in accordance with law, particularly Articles 805
Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronal, 45 Phil. and 806 of the new Civil Code, the first requiring at least
216). Diversity of apportionment is the usual reason for three credible witnesses to attest and subscribe to the will,
making a testament; otherwise, the decedent might as well and the second requiring the testator and the witnesses to
die intestate. The testamentary dispositions that the heirs acknowledge the will before a notary public.
should not inquire into other property and that they should Of the three instrumental witnesses thereto, namely,
respect the distribution made in the will, under penalty of Deogracias T. Jamaoas, Jr., Dr. Francisco Pañares, and
forfeiture of their shares in the free part do not suffice to Atty. Angel H. Teves, Jr., one of them, the last named, is at
prove fraud or undue influence. They appear motivated by the same time the Notary Public before whom the will was
the desire to prevent prolonged litigation which, as shown by supposed to have been acknowledged.
ordinary experience, often results in a sizeable portion of the After weighing the merits of the conflicting claims of the
estate being diverted into the hands of non-heirs and parties, We are inclined to sustain that of the appellant that
speculators. Whether these clauses are valid or not is a the last will and testament in question was not executed in
matter to be litigated on another occassion. It is also well to accordance with law. The notary public before whom the will
note that, as remarked by the Court of Appeals in Sideco vs. was acknowledged cannot be considered as the third
Sideco, 45 Off. Gaz. 168, fraud and undue influence are instrumental witness since he cannot acknowledge before
mutually repugnant and exclude each other; their joining as himself his having signed the will. To acknowledge before
grounds for opposing probate shows absence of definite means to avow (Javellana v. Ledesma, 97 Phil. 258, 262;
evidence against the validity of the will. Castro v Castro, 100 Phil. 239, 247); to own as genuine, to
On the question of law, we hold that the inadvertent failure of assent, to admit; and "before" means in front or preceding in
one witness to affix his signature to one page of a testament, space or ahead of. (The New Webster Encyclopedic
due to the simultaneous lifting of two pages in the course of Dictionary of the English Language, p. 72; Funk & Wagnalls
signing, is not per se sufficient to justify denial of probate. New Standard Dictionary of the English Language, p. 252;
Impossibility of substitution of this page is assured not only Webster's New International Dictionary 2d. p. 245.)
the fact that the testatrix and two other witnesses did sign Consequently, if the third witness were the notary public
the defective page, but also by its bearing the coincident himself, he would have to avow, assent, or admit his having
imprint of the seal of the notary public before whom the signed the will in front of himself. This cannot be done
testament was ratified by testatrix and all three witnesses. because he cannot split his personality into two so that one
The law should not be so strictly and literally interpreted as will appear before the other to acknowledge his participation
to penalize the testatrix on account of the inadvertence of a in the making of the will. To permit such a situation to obtain
single witness over whose conduct she had no control, would be sanctioning a sheer absurdity.
where the purpose of the law to guarantee the identity of the Furthermore, the function of a notary public is, among
testament and its component pages is sufficiently attained, others, to guard against any illegal or immoral
no intentional or deliberate deviation existed, and the arrangements. Balinon v. De Leon, 50 O. G. 583.) That
evidence on record attests to the full observance of the function would be defeated if the notary public were one of
statutory requisites. Otherwise, as stated in Vda. de Gil. vs. the attesting or instrumental witnesses. For them he would
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on be interested in sustaining the validity of the will as it directly
reconsideration) "witnesses may sabotage the will by involves himself and the validity of his own act. It would
muddling or bungling it or the attestation clause". place him in an inconsistent position and the very purpose of
This would not be the first time that this Court departs from a the acknowledgment, which is to minimize fraud (Report of
strict and literal application of the statutory requirements, the Code Commission p. 106-107), would be thwarted.
where the purposes of the law are otherwise satisfied. Thus, These authorities do not serve the purpose of the law in this
despite the literal tenor of the law, this Court has held that a jurisdiction or are not decisive of the issue herein, because
testament, with the only page signed at its foot by testator the notaries public and witnesses referred to in the
and witnesses, but not in the left margin, could nevertheless aforecited cases merely acted as instrumental, subscribing
be probated (Abangan vs. Abangan, 41 Phil. 476); and that or attesting witnesses, and not as acknowledging witnesses.
despite the requirement for the correlative lettering of the Here the notary public acted not only as attesting witness
pages of a will, the failure to make the first page either by but also as acknowledging witness, a situation not
letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 envisaged by Article 805 of the Civil Code.
Phil. 429). These precedents exemplify the Court's policy to To allow the notary public to act as third witness, or one of
require satisfaction of the legal requirements in order to the attesting and acknowledging witnesses, would have the
guard against fraud and bid faith but without undue or effect of having only two attesting witnesses to the will which
unnecessary curtailment of the testamentary privilege. would be in contravention of the provisions of Article 805
The appellants also argue that since the original of the will is requiring at least three credible witnesses to act as such and
in existence and available, the duplicate (Exh. A-1) is not of Article 806 which requires that the testator and the
entitled to probate. Since they opposed probate of original required number of witnesses must appear before the notary
because it lacked one signature in its third page, it is easily public to acknowledge the will. The result would be, as has
discerned that oppositors-appellants run here into a been said, that only two witnesses appeared before the
dilemma; if the original is defective and invalid, then in law notary public for that purpose. In the circumstances, the law
there is no other will but the duly signed carbon duplicate would not be duly observed.
(Exh. A-1), and the same is probatable. If the original is valid Gabucan vs. Manta
and can be probated, then the objection to the signed This case is about the dismissal of a petition for the probate
duplicate need not be considered, being superfluous and of a notarial will on the ground that it does not bear a thirty-
irrelevant. At any rate, said duplicate, Exhibit A-1, serves to centavo documentary stamp.
prove that the omission of one signature in the third page of The Court of First Instance of Camiguin in its "decision" of
the original testament was inadvertent and not intentional. December 28, 1977 in Special Proceeding No. 41 for the
That the carbon duplicate, Exhibit A-1, was produced and probate of the will of the late Rogaciano Gabucan, dismissed
admitted without a new publication does not affect the the proceeding (erroneously characterizes as an "action").
jurisdiction of the probate court, already conferred by the The proceeding was dismissed because the requisite
original publication of the petition for probate. The amended documentary stamp was not affixed to the notarial
petition did not substantially alter the one first filed, but acknowledgment in the will and, hence, according to
merely supplemented it by disclosing the existence of the respondent The probate court assumed that the notarial
duplicate, and no showing is made that new interests were acknowledgment of the said will is subject to the thirty-
involved (the contents of Exhibit A and A-1 are admittedly centavo documentary stamp tax fixed in section 225 of the
identical); and appellants were duly notified of the proposed Tax Code, now section 237 of the 1977 Tax Code. Judge, it
amendment. It is nowhere proved or claimed that the was not admissible in evidence, citing section 238 of the Tax
amendment deprived the appellants of any substantial right, Code.
and we see no error in admitting the amended petition. We hold that the lower court manifestly erred in declaring
IN VIEW OF THE FOREGOING, the decision appealed from that, because no documentary stamp was affixed to the will,
is affirmed there was "no will and testament to probate" and,
Cruz vs. Villasor consequently, the alleged "action must of necessity be
Petition to review on certiorari the judgment of the Court of dismissed."
First Instance of Cebu allowing the probate of the last will What the probate court should have done was to require the
and testament of the late Valente Z. Cruz. Petitioner- petitioner or proponent to affix the requisite thirty-centavo
appellant Agapita N. Cruz, the surviving spouse of the said documentary stamp to the notarial acknowledgment of the
deceased, opposed the allowance of the will (Exhibit "E"), will which is the taxable portion of that document.
alleging that the will was executed through fraud, deceit, That procedure may be implied from the provision of section
misrepresentation and undue influence; that the said 238 that the non-admissibility of the document, which does
instrument was executed without the testator having been not bear the requisite documentary stamp, subsists only
fully informed of the contents thereof, particularly as to what "until the requisite stamp or stamps shall have been affixed
properties he was disposing; and that the supposed last will thereto and cancelled."
24
Thus, it was held that the documentary stamp may be and write; domicile in the Philippines;6. not convicted of a
affixed at the time the taxable document is presented in crime involving, falsification, perjury, or false testimony.
evidence (Del Castillo vs. Madrileña, 49 Phil. 749) If the Art. 821. The following are disqualified from being
promissory note does not bear a documentary stamp, the witnesses to a will:
court should have allowed plaintiff's tender of a stamp to (1) Any person not domiciled in the
supply the deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, Philippines;
71. Note the holding in Azarraga vs. Rodriguez, 9 Phil. 637, (2) Those who have been convicted of
that the lack of the documentary stamp on a document does falsification of a document, perjury or false
not invalidate such document. See Cia. General de Tabacos testimony. (n)
vs. Jeanjaquet, 12 Phil. 195, 201-2 and Delgado and T: The law requires that the witness be domiciled in the
Figueroa vs. Amenabar, 16 Phil. 403, 405-6.) Philippines mere residence is not sufficient. Domicile under
Art. 50, Art. 50. For the exercise of civil rights and the
Javellana vs. Ledesma fulfillment of civil obligations, the domicile of natural persons
By order of July 23, 1953, the Court of First Instance of Iloilo is the place of their habitual residence. (40a)
admitted to probate the documents in the Visayan dialect, Ratio of domicile requirement:
marked Exhibits D and E, as the testament and codicil duly 1. availability of witness when will is
executed by the deceased Da. Apolinaria Ledesma Vda. de probated if the same is within the Philippines;
Javellana, on March 30, 1950, and May 29, 1952, 2. witness domiciled in the Philippines
respectively, with Ramon Tabiana, Gloria Montinola de more likely to know the testator and be ablr to
Tabiana and Vicente Yap as witnesses. The contestant, Da. testify on his mental condition at the time of
Matea Ledesma, sister and nearest surviving relative of said execution of the will.
deceased, appealed from the decision, insisting that the said Except of course if the will was executed in a foreign country
exhibits were not executed in conformity with law. The the domicile requirement does not apply.
appeal was made directly to this Court because the value of There is citizenship requirement only domicile requirement.
the properties involved exceeded two hundred thousand Even aliens may witness as long as they are domiciled here.
pesos. As to conviction of perjury, falsification, and false testimony,
it is presumed that such witness cannot be relied upon fot
Originally the opposition to the probate also charged that the truthfulness. Conviction for any other crime, however, is not
testatrix lacked testamentary capacity and that the a disqualification
dispositions were procured through undue influence. These The notary public before whom the will was acknowledged
grounds were abandoned at the hearing in the court below, cannot act as witness because he cannot acknowledge
where the issue was concentrated into three specific before himself his having signed the will; this cannot be done
questions: (1) whether the testament of 1950 was executed because it would place him in an inconsistent position and
by the testatrix in the presence of the instrumental the very purpose of the acknowledgement, which is to
witnesses; (2) whether the acknowledgment clause was minimize fraud would be thwarted.
signed and the notarial seal affixed by the notary without the Art. 824. A mere charge on the estate of the testator for
presence of the testatrix and the witnesses; and (3) if so, the payment of debts due at the time of the testator's
whether the codicil was thereby rendered invalid and death does not prevent his creditors from being
ineffective. These questions are the same ones presented to competent witnesses to his will. (n)
us for resolution. B: Because This is not a testamentary disposition
Gonzales vs. CA
The contestant argues that the Court below erred in refusing This is a petition for review of the decision of the Court of
credence to her witnesses Maria Paderogao and Vidal Appeals, First Division, 1 promulgated on May 4, 1973 in
Allado, cook and driver, respectively, of the deceased CA-G. R. No. 36523-R which reversed the decision of the
Apolinaria Ledesma. Both testified that on March 30, 1950, Court of First Instance of Rizal dated December 15, 1964
they saw and heard Vicente Yap (one of the witnesses to the and allowed the probate of the last will and testament of the
will) inform the deceased that he had brought the deceased Isabel Gabriel.
"testamento" and urge her to go to attorney Tabiana's office It appears that on June 24, 1961, herein private respondent
to sign it; that Da. Apolinaria manifested that she could not Lutgarda Santiago filed a petition with the Court of First
go, because she was not feeling well; and that upon Yap's Instance of Rizal docketed as Special Proceedings No.
insistence that the will had to be signed in the attorney's 3617, for the probate of a will alleged to have been executed
office and not elsewhere, the deceased took the paper and by the deceased Isabel Gabriel and designating therein
signed it in the presence of Yap alone, and returned it with petitioner as the principal beneficiary and executrix.
the statement that no one would question it because the There is no dispute in the records that the late Isabel Andres
property involved was exclusively hers. Gabriel died as a widow and without issue in the municipality
At any rate, as observed by the Court below, whether or not of Navotas, province of Rizal her place of residence, on
the notary signed the certification of acknowledgment in the June 7, 1961 at the age of eighty-five (85), having been born
presence of the testatrix and the witnesses, does not affect in 1876. It is likewise not controverted that herein private
the validity of the codicil. Unlike the Code of 1889 (Art. 699), respondent Lutgarda Santiago and petitioner Rizalina
the new Civil Code does not require that the signing of the Gabriel Gonzales are nieces of the deceased, and that
testator, witnesses and notary should be accomplished in private respondent, with her husband and children, lived with
one single act. A comparison of Articles 805 and 806 of the the deceased at the latter's residence prior and up to the
new Civil Code reveals that while testator and witnesses time of her death.
must sign in the presence of each other, all that is thereafter The petition was opposed by Rizalina Gabriel Gonzales,
required is that "every will must be acknowledged before a herein petitioner, assailing the document purporting to be the
notary public by the testator and the witnesses" (Art. 806); will of the deceased on the following grounds:
i.e., that the latter should avow to the certifying officer the From this judgment of disallowance, Lutgarda Santiago
authenticity of their signatures and the voluntariness of their appealed to respondent Court, hence, the only issue
actions in executing the testamentary disposition. This was decided on appeal was whether or not the will in question
done in the case before us. The subsequent signing and was executed and attested as required by law. The Court of
sealing by the notary of his certification that the testament Appeals, upon consideration of the evidence adduced by
was duly acknowledged by the participants therein is no part both parties, rendered the decision now under review, holing
of the acknowledgment itself nor of the testamentary act. that the will in question was signed and executed by the
Hence their separate execution out of the presence of the deceased Isabel Gabriel on April 15, 1961 in the presence of
testatrix and her witnesses can not be said to violate the rule the three attesting witnesses, Matilde Orobia, Celso
that testaments should be completed without interruption Gimpaya and Maria Gimpaya, signing and witnessing the
(Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman document in the presence of the deceased and of each
maxim puts it, "uno eodem die ac tempore in eadem loco", other as required by law, 2 hence allowed probate.
and no reversible error was committed by the Court in so Petitioner, in her first assignment, contends that the
holding. It is noteworthy that Article 806 of the new Civil respondent Court of Appeals erred in holding that the
Code does not contain words requiring that the testator and document, Exhibit "F", was executed and attested as
the witnesses should acknowledge the testament on the required by law when there was absolutely no proof that the
same day or occasion that it was executed. three instrumental witnesses were credible witnesses. She
argues that the requirement in Article 806, Civil Code, that
The decision admitting the will to probate is affirmed, with the witnesses must be credible is an absolute requirement
costs against appellant. which must be complied with before an alleged last will and
Witnesses to a will testament may be admitted to probate and that to be a
d. who are competent? credible witness, there must be evidence on record that the
Art. 820. Any person of sound mind and of the age of witness has a good standing in his community, or that he is
eighteen years or more, and not bind, deaf or dumb, and honest and upright, or reputed to be trustworthy and reliable.
able to read and write, may be a witness to the According to petitioner, unless the qualifications of the
execution of a will mentioned in Article 805 of this Code. witness are first established, his testimony may not be
(n) favorably considered. Petitioner contends that the term
"credible" is not synonymous with "competent" for a witness
T: these are witnesses under an ordinary will. may be competent under Article 820 and 821 of the Civil
Code and still not be credible as required by Article 805 of
B: Six qualifications of a witness: 1. sound mind; 2. 18 years the same Code. It is further urged that the term "credible" as
of age; 3. not blind, deaf or dumb,; 4. literateor able to read used in the Civil Code should receive the same settled and
25
well-known meaning it has under the Naturalization Law, the law and long in the practice thereof, who thereafter notarized
latter being a kindred legislation with the Civil Code it. All of them are disinterested witnesses who stand to
provisions on wills with respect to the qualifications of receive no benefit from the testament. The signatures of the
witnesses. witnesses and the testatrix have been identified on the will
We find no merit to petitioner's first assignment of error. and there is no claim whatsoever and by anyone, much less
Article 820 of the Civil Code provides the qualifications of a the petitioner, that they were not genuine. In the last and
witness to the execution of wills while Article 821 sets forth final analysis, the herein conflict is factual and we go back to
the disqualification from being a witness to a will. These the rule that the Supreme Court cannot review and revise
Articles state: the findings of facts of the respondent Court of Appeals.
"Art. 820. Any person of sound mind and of the e. supervening incompetency
age of eighteen years or more, and not blind, deaf Art. 822. If the witnesses attesting the execution of a will
or dumb, and able to read and write, may be a are competent at the time of attesting, their becoming
witness to the execution of a will mentioned in subsequently incompetent shall not prevent the
article 805 of this Code. allowance of the will. (n)
"Art. 821. The following are disqualified from being B: As in the case of TC the time of execution of the will is the
witnesses to a will: only relevant temporal criterion in the determination of the
(1) Any person not domiciled in the competence of the witnesses.
Philippines, J: competency determined at the time of execution of will
(2) Those who have been convicted of and not at the time of presentation for probate.
falsification of a document, perjury or false f. Competency of interested
testimony. witnesses
Under the law, there is no mandatory requirement that the Art. 823. If a person attests the execution of a will, to
witness testify initially or at any time during the trial as to his whom or to whose spouse, or parent, or child, a devise
good standing in the community, his reputation for or legacy is given by such will, such devise or legacy
trustworthiness and reliableness, his honesty and shall, so far only as concerns such person, or spouse,
uprightness in order that his testimony may be believed and or parent, or child of such person, or any one claiming
accepted by the trial court. It is enough that the qualifications under such person or spouse, or parent, or child, be
enumerated in Article 820 of the Civil Code are complied void, unless there are three other competent witnesses
with, such that the soundness of his mind can be shown by to such will. However, such person so attesting shall be
or deduced from his answers to the questions propounded to admitted as a witness as if such devise or legacy had
him, that his age (18 years or more) is shown from his not been made or given. (n)
appearance, testimony, or competently proved otherwise, as T: This article does not refer to disqualification to be a
well as the fact that he is not blind, deaf or dumb and that he witness, but a disqualification to inherit. The devisee or
is able to read and write to the satisfaction of the Court, and legatee is not disqualified nor his spouse, parent or child to
that he has none of the disqualifications under Article 821 of be witness as long as he is competent and credible under
the Civil Code. We reject petitioner's contention that it must Art. 821 but the devise or legacy, however, shall be void.
first be established in the record the good standing of the But if the witness is not a devisee or legatee, but an heir, is
witness in the community, his reputation for trustworthiness the institution of such heir void? Notwithstanding the
and reliableness, his honesty and uprightness, because terminology of the article, we believe that even as instituted
such attributes are presumed of the witness unless the heir, or spouse, parent child is disqualified. The
contrary is proved otherwise by the opposing party. disqualification is intended to to aply to one succeeding by
In probate proceedings, the instrumental witnesses are not will, and it is not material in what concept he succeeds. This
character witnesses for they merely attest the execution of a is proved by Art. 1027 par. 4 on relative incapacity which
will or testament and affirm the formalities attendant to said makes no distinction between heirs, devisees or legatees.
execution. And We agree with the respondent that the B: this article pertains more on the capacity to succeed than
rulings laid down in the cases cited by petitioner concerning the capacity to be a witness. The witness will remain as such
character witnesses in naturalization proceedings are not but the legacy or devise shall be void.
applicable to instrumental witnesses to wills executed under The disqualification applies only to testamentary disposition .
the Civil Code of the Philippines. if the witness is also entitled to legitime or intestate share
In the case at bar, the finding that each and everyone of the this shall not be affected.
three instrumental witnesses, namely, Matilde Orobia, Celso 3.
Gimpaya and Maria Gimpaya, are competent and credible is pecial requirements for deaf, deaf mute and blind
satisfactorily supported by the evidence as found by the testators
respondent Court of Appeals, which findings of fact this Art. 807. If the testator be deaf, or a deaf-mute, he must
Tribunal is bound to accept and rely upon. Moreover, personally read the will, if able to do so; otherwise, he
petitioner has not pointed to any disqualification of any of the shall designate two persons to read it and communicate
said witnesses, much less has it been shown that anyone of to him, in some practicable manner, the contents
them is below 18 years of age, of unsound mind, deaf or thereof. (n)
dumb, or cannot read or write. Art. 808. If the testator is blind, the will shall be read to
In the strict sense, the competency of a person to be an him twice; once, by one of the subscribing witnesses,
instrumental witness to a will is determined by the statute, and again, by the notary public before whom the will is
that is Art. 820 and 821, Civil Code, whereas his credibility acknowledged. (n)
depends on the appreciation of his testimony and arises T: The reason for the requirement in this article is to make
from the belief and conclusion of the Court that said witness the provisions of the will known to the testator, so that he
is telling the truth. Thus, in the case of Vda. de Aroyo v. El may be able to object if they are not in accordance with his
Beaterio del Santissimo Rosario de Molo, No. L-22005, May wishes. Failure to comply with this requirement mkes the will
3, 1968, the Supreme Court held and ruled that: invalid.
"Competency as a witness is one thing, and it is another to An illiterate testator can see the paper and the writing
be a credible witness, so credible that the Court must accept thereon, but ne cannot understand what is written because
what he says. Trial courts may allow a person to testify as a he cannot read it. From the point of view of understanding or
witness upon a given matter because he is competent, but knowing the contents of the will, there is no difference
may thereafter decide whether to believe or not to believe between the illiterate testator and the blind testator.
his testimony." Therefore, the present article should likewise apply to an
In fine, We state the rule that the instrumental witnesses in illiterate testator.
order to be competent must be shown to have the B: the burden of proof of the compliance of this aticle is is
qualifications under Article 820 of the Civil Code and none of upon the proponent. No requirement that such compliance is
the disqualifications under Article 821 and for their testimony stated in the will or attestation clause
to be credible, that is worthy of belief and entitled to Garcia vs. Vasquez
credence, it is not mandatory that evidence be first Gliceria Avelino del Rosario died unmarried in the City of
established on record that the witnesses have a good Manila on 2 September 1965, leaving no descendents,
standing in the community or that they are honest and ascendants, brother or sister. At the time of her death, she
upright or reputed to be trustworthy and reliable, for a person was said to be 90 years old more or less, and possessed of
is presumed to be such unless the contrary is established an estate consisting mostly of real properties.
otherwise. In other words, the instrumental witnesses must The petition was opposed separately by several groups of
be competent and their testimonies must be credible before alleged heirs the latter five groups of persons all claiming to
the court allows the probate of the will they have attested. be relatives of Doña Gliceria within the fifth civil degree. The
We, therefore, reject petitioner's position that it was fatal for oppositions invariably charged that the instrument executed
respondent not to have introduced prior and independent in 1960 was not intended by the deceased to be her true will;
proof of the fact that the witnesses were "credible that the signatures of the deceased appearing in the will was
witnesses", that is, that they have a good standing in the procured through undue and improper pressure and
community and reputed to be trustworthy and reliable. influence the part of the beneficiaries and/or other persons;
Petitioner's exacerbation centers on the supposed that the testatrix did not know the object of her bounty; that
incredibility of the testimonies of the witnesses for the the instrument itself reveals irregularities in its execution,
proponent of the will, their alleged evasions, inconsistencies and that the formalities required by law for such execution
and contradictions. But in the case at bar, the three have not been complied with.
instrumental witnesses who constitute the best evidence of
the will-making have testified in favor of the probate of the Oppositor Lucio V. Garcia, who also presented for probate
will. So has the lawyer who prepared it, one learned in the the 1956 will of the deceased, joined the group of Dr. Jaime
26
Rosario in registering opposition to the appointment of provisions, the attestation clause and acknowledgment were
petitioner Consuelo S. Gonzales Vda. de Precilla as special crammed together into a single sheet of paper, to much so
administratrix, on the ground that the latter possesses that the words had to be written very close on the top,
interest adverse to the estate. After the parties were duly bottom and two sides of the paper, leaving no margin
heard, the probate court, in its order of 2 October 1965, whatsoever; the word "and" had to be written by the symbol
granted petitioner's prayer and appointed her special "&", apparently to save on space. Plainly, the testament was
administratrix of the estate upon a bond for P30,000.00. The not prepared with any regard for the defective vision of Doña
order was premised on the fact the petitioner was managing Gliceria. Further, typographical errors like "HULINH" for
the properties belonging to the estate even during the "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for
lifetime of the deceased, and to appoint another person as MERCEDES", "instrumental" for "Instrumental", and
administrator or co administrator at that stage of the "acknowledged" for "acknowledge'', remained uncorrected,
proceeding would only result in further confusion and thereby indicating that execution thereof must have been
difficulties. characterized by haste. It is difficult to understand that so
important a document containing the final disposition of
On 25 August 1966, the Court issued an order admitting to one's worldly possessions should be embodied in an
probate the 1960 will of Gliceria A. del Rosario (Exhibit "D"). informal and untidily written instrument; or that the glaring
In declaring the due execution of the will, the probate court spelling errors should have escaped her notice if she had
took note that no evidence had been presented to establish actually retained the ability to read the purported will and
that the testatrix was not of sound mind when the will was had done so. The record is thus convincing that the
executed; that the fact that she had prepared an earlier will supposed testatrix could not have physically read or
did not, prevent her from executing another one thereafter; understood the alleged testament, Exhibit "D", and that its
that the fact that the 1956 will consisted of 12 pages admission to probate was erroneous and should be
whereas the 1960 testament was contained in one page reversed.
does not render the latter invalid; that, the erasures and
alterations in the instrument were insignificant to warrant Thus, for all intents and purpose of the rules on probate, the
rejection; that the inconsistencies in the testimonies of the deceased Gliceria del Rosario was, as appellant oppositors
instrumental witnesses which were noted by the oppositors contend, not unlike a blind testator, and the due execution of
are even indicative of their truthfulness. The probate court, her will would have required observance of the provisions of
also considering that petitioner had already shown capacity Article 808 of the Civil Code.
to administer the properties of the estate and that from the
provisions of the will she stands as the person most "ART. 808. If the testator is
concerned and interested therein, appointed said petitioner blind, the will shall be read to him twice;
regular administratrix with a bond for P50,000.00. From this once, by one of the subscribing
order all the oppositors appealed, the case being docketed witnesses, and again, by the notary
in this Court as G.R. No. L-27200. public before whom the will is
Foremost of the questions to be determined here concerns acknowledged."
the correctness of the order allowing the probate of the 1960
will. The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will
The records of the probate proceeding fully establish the fact himself (as when he is illiterate), 18 is to make the
that the testatrix, Gliceria A. del Rosario, during her lifetime, provisions thereof known to him, so that he may be able to
executed two wills: one on 9 June 1956 consisting of 12 object if they are not in accordance with his wishes. That the
pages and written in Spanish, a language that she knew and aim of the law is to insure that the dispositions of the will are
spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. properly communicated to and understood by the
Ayala and Valentin Marquez, and acknowledged before handicapped testator, thus making them truly reflective of his
notary public Jose Ayala; and another dated 29 December desire, is evidenced by the requirement that the will should
1960, consisting of 1 page and written in Tagalog, witnessed be read to the latter, not only once but twice, by two different
by Messrs. Vicente Rosales, Francisco Decena, and persons, and that the witnesses have to act within the range
Francisco Lopez and acknowledged before notary public of his (the testator's) other senses. 19
Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, In connection with the will here in question, there is nothing
instrumental witnesses Decena, Lopez and Rosales in the records to show that the above requisites have been
uniformly declared that they were individually requested by complied with. Clearly, as already stated, the 1960 will
Alfonso Precilla (the late husband of petitioner special sought to be probated suffers from infirmity that affects its
administratrix) to witness the execution of the last will of due execution.
Doña Gliceria A. del Rosario; that they arrived at the house
of the old lady at No. 2074 Azcarraga, Manila, one after the On the matter of lis pendens (G.R. No. L-26864), the
other, in the afternoon of 29 December 1960; that the provisions of the Rules of Court are clear: notice of the
testatrix at the time was apparently of clear and sound mind, pendency of an action may be recorded in the office of the
although she was being aided by Precilla when she walked; register of deeds of the province in which the property is
3 that the will, which was already prepared, was first read situated, if the action affects "the title or the right of
"silently" by the testatrix herself before she signed it; possession of (such) real property." 23 In the case at bar,
The oppositors-appellants in the present case, however, the pending action which oppositors seek to annotate in the
challenging the correctness of the probate court's ruling, records of TCT Nos. 81735, 81736, and 81737 is the
maintain that on 29 December 1960 the eyesight of Gliceria mandamus proceeding filed in this Court (G.R. No. L-
del Rosario was so poor and defective that she could not 26615). As previously discussed in this opinion, however,
have read the provisions of the will, contrary to the that case is concerned merely with the correctness of the
testimonies of witnesses Decena, Lopez and Rosales. denial by the probate court of the motion for the removal of
Consuelo Gonzales Vda. de Precilla as special
On this point, we find the declarations in court of Dr. Jesus administratrix of the estate of the late Gliceria del Rosario. In
V. Tamesis very material and illuminating. Said short, the issue in controversy there is simply the fitness or
ophthalmologist, whose expertise was admitted by both unfitness of said special administratrix to continue holding
parties, testified, among other things, that when Doña the trust; it does not involve or affect at all the title to, or
Gliceria del Rosario saw him for consultation on 11 March possession of, the properties covered by said TCT Nos.
1960 he found her left eye to have cataract (opaque lens), 81735, 81736 and 81737. Clearly, the pendency of such
15 and that it was "above normal in pressure", denoting a case (L-26615) is not an action that can properly be
possible glaucoma, a disease that leads to blindness 16 annotated in the record of the titles to the properties.
As to the conditions of her right eye
The foregoing testimony of the ophthalmologist who treated FOR THE FOREGOING REASONS, the order of the court
the deceased and, therefore, has first hand knowledge of the below allowing to probate the alleged 1960 will of Gliceria A.
actual condition of her eyesight from August, 1960 up to del Rosario is hereby reversed and set aside.
1963, fully establish the fact that notwithstanding the 4. Substantial compliance
operation and removal of the cataract in her left eye and her Art. 809. In the absence of bad faith, forgery, or fraud, or
being fitted with aphakic lens (used by cataract patients), her undue and improper pressure and influence, defects
vision remained mainly for viewing distant objects and not and imperfections in the form of attestation or in the
for reading print. Thus, the conclusion is inescapable that language used therein shall not render the will invalid if
with the condition of her eyesight in August, 1960, and there it is proved that the will was in fact executed and
is no evidence that it had improved by 29 December 1960, attested in substantial compliance with all the
Gliceria del Rosario was incapable f reading, and could not requirements of Article 805.
have read the provisions of the will supposedly signed by T: The law on formal requirements of a will should be
her on 29 December 1960. It is worth noting that the liberally construed; while perfection in drafting is desirable,
instrumental witnesses stated that she read the instrument unsubstantial departures should be ignored, as long as the
"silently" (t.s.n., pages 164-165). which is a conclusion and possibility of fraud and bad faith are obviated.
not a fact. There are many people who are fluent and have a graet
mastery of grammar. Thus, grammatical errors which may
Against the background of defective eyesight of the alleged be noted from the general tenor of the attestation clause
testatrix, the appearance of the will, Exhibit "D", acquires must, therefore, be overlooked or corrected by construction,
striking significance. Upon its face, the testamentary so as not to frustrate the recognized intention of those who
27
intervened in the execution thereof. Where it appears from Its simplicity is an invitation to forgery, since the text may be
the context of the attestation that certain words were extremely short. If we want to permit the testator to keep his
ommtied inadvertently, the court may supply the omission. wishes secret in order to avoid importunity, it can be done on
It is sufficient if from the language employed it can be the basis of the closed will. (tstamento cerrado)
reasonably deduced that the attestation clause fulfills what May a blind testator make a valid holographic will? There is
the law expects of it. Hence, an attestation clause will be no question as to notarial wills it being allowed under the law
held sufficient, notwithstanding some imperfections in the provided the will was read twice to the testator. As to
grammatical constructions, where it is evident that the defect holographic wills, it is submitted that it may be allowed. The
is due to carelessness of the clerk or to lac of mastery of the testator, having written the holographic will by his own hand,
language, if the meaning sought to be conveyed can be knows what it contains. He may have learned to write before
determined from the clause itself. he became blind, or inspite of his blindness. This view has
Furthermore, the whole language of the attestation clause been sustained in Louisiana, where it has been held that
must be taken together to determine whether the testaor blindness does not of itself prevent the making of a valid
complied with the law. holographic.
The substantial compliance rule has been applied to such A HW may be in any form, but the intent to dispose mortis
extent as to allow the attestation clause to be contained in causa must clearly appear in the context.
the body of the will itself and not a separate portion therein, What would be the effect of words written by another and
expressed in the first preson as a recital of the testator, inserted among the words written by the testator?
provided that it is also signed by the three instrumental 1. if insertion was made after execution bu w/o consent,
witnesses. such is deemed not written;
Justice JBL Reyes’ criticism of this article is enlightening: 2. if the insertion was after execution with the consent of
The rule here is so broad that no matter how imperfect the testator, the will remains valid but the insertion void;
attestation clause happens to be, the same could be cured 3. if insertion was after execution and validated by testator
by evidence aliunde. It thus renders the attestation of no by his signature, the entire will is void because it is not
value in protecting fraud or really defective execution. The wholly written by the testator himself;
rule must be limited to disregarding those defects that can 4. if insertion is contemporaneous to the execution the
be supplied by an examination of the will itself: effect same as no. 3.
1. Whether all the pages are consecutively As to date, the day, month, and year on which the will was
numbered; made should be indicated therein. The day and the
2. W signature appears in each page; month,however, may be indicated by implication, so long as
3. W the subscribing witnesses are three the designation leaves no room for doubt as to exact date.
4. W the will is notarized The validity of the holographic will is defeated by the fact
All these are facts that the will itself can reveal, and defects that part of the date is printed. Such as that written on a daily
or even omissions concerning them in the attestation clause planner though the contents are entirely written by the hand
can be safely disregarded. But the total number of pages, but the testator relied on the date indicated on the planner,
and whether all persons required to sign did so in the the same is still extrinsically void.
number of pages, and whether all required to sign did so in Signatures of witnesses to a HW will not invalidate the will,
the presence of each other must substantially appear in the but will be disregarded as a mere surplusage.
attestation clause being the only check against perjury in A person can make a HW in the form of a letter in which he
probate proceedings. states his testamentary dispositions giving it a character of a
C. Holographic Wills will but the animus testatandi must be present.
Inaccuracy of the date due to involuntary error, or
1. inadvertence, the testator beingGin good faith, the court may
eneral requirements. allow proof of the true date, provided such proof even
extrinsic can have a basis in the will itself.
Art. 804. Every will must be in writing and executed in a The signature of the testator in HW is not the simple writing
language or dialect known to the testator. (n) of the name and surname of the testator. It is his name
written by him in his usual and habitual manner.
Our law does not recognize nuncupative wills, which is one Under our law, the signature musr be at the end of the will.
that is not written, but orally declared by the testator in his Thus can be inferred from article 812 by the reference to
last illness, in contemplation of death, and before a sufficient dispositions “written below his signature” this phrase implies
number of competent witnesses. that the signature is at the end of the will and any disposition
The above requirement applies to both holographic and below it must be further signed and dated.
notarial. In notarial wills it is immaterial who performs the Art. 812. In holographic wills, the dispositions of the
mechanical act writing the will, so long as the testator signs testator written below his signature must be dated and
it or has somebody sign his name in his presence upon his signed by him in order to make them valid as
direction. testamentary dispositions. (n)
As to the language or dialect, when a will is executed in a T: the dispositions written below the testator’s dignature to
certain province or locality, in the dialect currently usd in the will are considered as independent of the will itself;
such province or locality, there arises a presumption that the hence, they must be signed and dated by the testator. If one
testator knew the dialect so used, in the absence of contrary is not dated, even irf signed, that particular disposition will be
evidence. It is not required that the will express that the void, without affecting the validity of others or of the will
language is known by the testator it is a fact which may be itself. And an unsigned and undated postscript to a
proved by evidence aliunde. holographic will is invalid as to testamentary disposition.
The attestation clause of an ordinary will does not have to be Art. 813. When a number of dispositions appearing in a
written in a language or dialect known to the testator. It is not holographic will are signed without being dated, and the
part of the testamentary disposition. The language used in last disposition has a signature and a date, such date
the attestation clause does not even have to be known to the validates the dispositions preceding it, whatever be the
witness; it should, however, be translated to them. time of prior dispositions. (n)
Art. 810. A person may execute a holographic will which B: Thus, in case of several additional dispositions the
must be entirely written, dated, and signed by the hand additional ones before the last are dated but unsigned, only
of the testator himself. It is subject to no other form, and the last will be valid provided the last is dated and signed.
may be made in or out of the Philippines, and need not Roxas vs. De Jesus
be witnessed. (678, 688a)
T: the following are the advantages of a holographic will: Petitioner Simeon R. Roxas testified that after his
1. simple and easy to make for those a) who have no means appointment as administrator, he found a notebook
to employ a lawyer, b)who are timid and wants to reread belonging to the deceased Bibiana R. de Jesus and that on
their wills before signing, c) those who have only very little pages 21, 22, 23 and 24 thereof, a letter-will addressed to
property to dispose her children and entirely written and signed in the
2. It induces foreigners in this jurisdiction to set down their handwriting of the deceased Bibiana R. de Jesus was found.
last wishes; The will is dated "FEB./61" and states: "This is my will which
3. guaranties the absolute secrecy of the testamentary I want to be respected altho it is not written by a lawyer. . . "
disposition because it is not witnessed.
The disadvantages are: On August 24, 1973, respondent Judge Jose C. Colayco
1. does not gauranty testamentary capacity of testator; issued an order allowing the probate of the holographic Will
2. no protection against vices of consent which may not be which he found to have been duly executed in accordance
known in case of death; with law.
3. due to faulty expression, it may not express the true will of
the testator; Respondent Luz Roxas de Jesus filed a motion for
4. for the same reason, it can be easily concealed. reconsideration alleging inter alia that the alleged
JBL Reyes criticizes this form of a will: holographic Will of the deceased Bibiana R. de Jesus was
A holographic wills are peculiarly dangerous in case of not dated as required by Article 810 of the Civil Code. She
persons who have written very little. The validity of these contends that the law requires that the Will should contain
wills depends exclusively on the authenticity of the the day, month, and year of its execution and that this
handwriting, and if writing standards are not procurable, or should be strictly complied with.
not contemporaneous, the courts are left to the mercy of the
mendacity of witnesses. The only issue is whether or not the date "FEB./61"
appearing on the holographic Will of the deceased Bibiana
28
Roxas de Jesus is a valid compliance with the Article 810 of The holographic Will, as first written, named ROSA K.
the Civil Code which reads: Kalaw, a sister of the testatrix as her sole heir. Hence, on
November 10, 1971, petitioner ROSA K. Kalaw opposed
ART. 810. A person may execute a probate alleging, in substance, that the holographic Will
holographic will which must be entirely written, contained alterations, corrections, and insertions without the
dated, and signed by the hand of the testator proper authentication by the full signature of the testatrix as
himself. It is subject to no other form, and may be required by Article 814 of the Civil Code reading:
made in or out of the Philippines, and need not be
witnessed." "Art. 814. In case of any insertion,
cancellation, erasure or alteration in a
The petitioners contend that while Article 685 of the Spanish holographic will, the testator must
Civil Code and Article 688 of the Old Civil Code require the authenticate the same by his full
testator to state in his holographic Will the "year, month, and signature."
day of its execution," the present Civil Code omitted the
phrase "Año, mes y dia" and simply requires that the ROSA's position was that the holographic Will, as first
holographic Will should be dated. The petitioners submit that written, should be given effect and probated so that she
the liberal construction of the holographic Will should prevail. could be the sole heir thereunder.
From that Order, GREGORIO moved for reconsideration
We agree with the petitioner. arguing that since the alterations and/or insertions were
made by the testatrix, the denial to probate of her
This will not be the first time that this Court departs from a holographic Will would be contrary to her right of
strict and literal application of the statutory requirements testamentary disposition. Reconsideration was denied in an
regarding the due execution of Wills. We should not overlook Order, dated November 2, 1973, on the ground that "Article
the liberal trend of the Civil Code in the manner of execution 814 of the Civil Code being clear and explicit, (it) requires no
of Wills, the purpose of which, in case of doubt is to prevent necessity for interpretation."
intestacy — From that order, dated September 3, 1973, denying probate,
and the Order dated November 2, 1973 denying
"The underlying and fundamental objectives reconsideration, ROSA filed this Petition for Review on
permeating the provisions of the law on wills in this Certiorari on the sole legal question of whether or not the
Project consists in the liberalization of the manner original unaltered text after subsequent alterations and
of their execution with the end in view of giving the insertions were voided by the Trial Court for lack of
testator more freedom in expressing his last authentication by the full signature of the testatrix, should be
wishes, but with sufficient safeguards and probated or not, with her as sole heir.
restrictions to prevent the commission of fraud and Ordinarily, when a number of erasures, corrections, and
the exercise of undue and improper pressure and interlineations made by the testator in a holographic Will
influence upon the testator. have not been noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most only as respects
"This objective is in accord with the modern the particular words erased, corrected or interlined. 1
tendency with respect to the formalities in the Manresa gave an identical commentary when he said "la
execution of wills." (Report of the Code omision de la salvedad no anula el testamento, segun la
Commission, p. 103) regla de jurisprudencia establecida en la sentencia de 4 de
Abril de 1895." 2
". . . The law has a tender regard for the will of the However, when as in this case, the holographic Will in
testator expressed in his last will and testament on dispute had only one substantial provision, which was
the ground that any disposition made by the altered by substituting the original heir with another, but
testator is better than that which the law can which alteration did not carry the requisite of full
make. For this reason, intestate succession is authentication by the full signature of the testator, the effect
nothing more than a disposition based upon the must be that the entire Will is voided or revoked for the
presumed will of the decedent." simple reason that nothing remains in the Will after that
which could remain valid. To state that the Will as first
Thus, the prevailing policy is to require satisfaction of the written should be given efficacy is to disregard the seeming
legal requirements in order to guard against fraud and bad change of mind of the testatrix. But that change of mind can
faith but without undue or unnecessary curtailment of neither be given effect because she failed to authenticate it
testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422). in the manner required by law by affixing her full signature.
If a Will has been executed in substantial compliance with The ruling in Velasco, supra, must be held confined to such
the formalities of the law, and the possibility of bad faith and insertions, cancellations, erasures or alterations in a
fraud in the exercise thereof is obviated, said Will should be holographic Will, which affect only the efficacy of the altered
admitted to probate words themselves but not the essence and validity of the
Will itself. As it is, with the erasures, cancellations and
We have carefully reviewed the records of this case and alterations made by the testatrix herein, her real intention
found no evidence of bad faith and fraud in its execution nor cannot be determined with certitude. WHEREFORE, this
was there any substitution of Wills and Testaments. There is Petition is hereby dismissed and the Decision of respondent
no question that the holographic Will of the deceased Judge, dated September 3, 1973, is hereby affirmed in toto.
Bibiana Roxas de Jesus was entirely written, dated, and No costs
signed by the testatrix herself and in a language known to
her. There is also no question as to its genuineness and due V. INCORPORATION OF DOCUMENT BY REFERENCE
execution. All the children of the testatrix agree on the
genuineness of the holographic Will of their mother and that Art. 827. If a will, executed as required by this Code,
she had the testamentary capacity at the time of the incorporates into itself by reference any document or
execution of said Will. The objection interposed by the paper, such document or paper shall not be considered
oppositor-respondent Luz Henson is that the holographic a part of the will unless the following requisites are
Will is fatally defective because the date "FEB./61" present:
appearing on the holographic Will is not sufficient (1) The document or paper referred to in the
compliance with Article 810 of the Civil Code. This objection will must be in existence at the time of the
is too technical to be entertained. execution of the will;
(2) The will must clearly describe and identify
As a general rule, the "date" in a holographic Will should the same, stating among other things the
include the day, month, and year of its execution. However, number of pages thereof;
when as in the case at bar, there is no appearance of fraud, (3) It must be identified by clear and
bad faith, undue influence and pressure and the authenticity satisfactory proof as the document or paper
of the Will is established and the only issue is whether or not referred to therein; and
the date "FEB./61" appearing on the holographic Will is a (4) It must be signed by the testator and the
valid compliance with Article 810 of the Civil Code, probate witnesses on each and every page, except in
of the holographic Will should be allowed under the principle case of voluminous books of account or
of substantial compliance. inventories. (n)
Incorporation by reference is an exception to the rule that if
WHEREFORE, the instant petition is GRANTED. The order an instrument is not executed with all the formalities of a will
appealed from is REVERSED and SET ASIDE and the order it cannot be admitted to probate. If a will duly executed and
allowing the probate of the holographic Will of the deceased witnessed according to the requirements of the statute,
Bibiana Roxas de Jesus is reinstated incorporates in itself by reference any document or paper
Kalaw vs. Relova not so executed and witnessed, whether such paper referred
to be in the form of a will or codicil, or of a deed or indenture,
On September 1, 1971, private respondent GREGORIO K. or of a mere list or memorandum, the paper so referred to, if
KALAW, claiming to be the sole heir of his deceased sister, it was in existence at the time of the execution of the will and
Natividad K. Kalaw, filed a petition before the Court of First is identified by clear and satisfactory proof as the paper
Instance of Batangas, Branch VI, Lipa City, for the probate referred to therein, will take effect as part of the will and be
of her holographic Will executed on December 24, 1968. admitted to probate as such.

29
To establish a separate writing as part of the will it must 4. testator cannot renounce 4. can be disregarded by
appear on its face the ff: heirs
1. t
here must be distinct reference to such writing, so B: This characteristic is consistent with the principle laid
explicit as to identify it beyond doubt, less is down in Art. 777, successional rights vest only upon death.
sufficient, including parol evidence received.
2. C. Law Governing revocation t
he reference must indicate the writing as already Art. 829. A revocation done outside the Philippines, by a
existing; person who does not have his domicile in this country,
3. is valid when it is done according i to the law of the place
t can only be given effect to the extent that it where the will was made, or according to the law of the
appears prima facie to have been the wish of the place in which the testator had his domicile at the time;
testator. and if the revocation takes place in this country, when it
is in accordance with the provisions of this Code. (n)
The following must likewise be shown by extrinsic proof: Rules for revocation:
1. A. if revocation in the t Phil. Follow local laws
hat it is the very writing referred to in the will; B. if outside the Phil.
2. 1. testator not domiciled
t in the Phil
hat it was in fact made before will was executed a) follow law of the place where will
was made, or
B: This article refers to such documents as inventories, b) follow law of the domicile of
books of account, documents of titile, and papers of similar testator at time of revocation
nature; the docs should under no circumstances, make 2. testator domiciled in the Phil. Art. 829 not
testamentary dispositions because formal requirements of applicable:
wills may be circumvented. a) follow Phil. Law- domiciliary
principle, or
Can holographic wills incorporate documents by refernce? b) follow law of place of revocation-
It depends. No, because par. 4 of this article requires a lex loci celebrationis, or
witness to sign on every page except voluminous docs. Only c) follow law of the place where will
ordinary wills requires witnesses unless of course a HW is was made ( by analogy with Art. 829)
executed with witnesses superfluously. D. Modes of Revocation
Art. 830. No will shall be revoked except in the following
VI. CODICIL cases:
(1) By implication of law; or
A. Definitions and Solemnities (2) By some will, codicil, or other writing
executed as provided in case of wills; or
Art. 825. A codicil is supplement or addition to a will, (3) By burning, tearing, cancelling, or
made after the execution of a will and annexed to be obliterating the will with the intention of
taken as a part thereof, by which disposition made in the revoking it, by the testator himself, or by some
original will is explained, added to, or altered. (n) other person in his presence, and by his
Art. 826. In order that a codicil may be effective, it shall express direction. If burned, torn, cancelled, or
be executed as in the case of a will. (n) obliterated by some other person, without the
T: After a testator has already made a will, a subsequent express direction of the testator, the will may
instrument mortis causa may either be a codicil or a new will. still be established, and the estate distributed
If the subsequent instrument explains the original will, or in accordance therewith, if its contents, and
alters, or adds to it, then it is a codicil. But if the later due execution, and the fact of its unauthorized
instrument makes dispositions independent of those in the destruction, cancellation, or obliteration are
original will, then it is a new will, not a codicil. A codicil is established according to the Rules of Court.
always related to some prior will. (n)
There is revocation by implication of law when certain acts
B: The distinctions, however, is purely academic because or events take place subsequent to making of a will, which
Article 826 requires the codicil to be in the form of a will nullify or render inoperative either the will itself or some
anyway. testamentary disposition therein. Examples are the ff:

Must the codicil conform to the form of the will to which it 1. act of unworthiness by an heir, devisee, or legatee under
refers? Art. 1032;

The law does not require this. Thus, an attested will may 2. transformation, alienation or loss of the thing devised or
have a holographic codicil; a holographic will may have an legacy after execution of will (art. 957);
attested codicil. Needles to say, of course, the forms of the
will and the codicil may concur. 3. Judicial demand by the testator of a credit given as legacy
art. 936;
VII. REVOCATION OF WILLS AND TESTAMENTARY
DISPOSITIONS 4. preterition of compulsory heirs article 854;

A. Definitions of revocation 5. sale of property given as devise or legacy for the payment
of the debts of the testator.
Revocation is an act of the mind, terminating the potential
capacity of the will to operate at the death of the testator, Enumeration is not exclusive.
manifested by some outward and visible act or sign,
symbolic thereof. Subsequent Instrument
A subsequent will containing a clause revoking a previous
Revocation is the recall of some power, authority, or a thing will should possess all the requisites of a will, whether it be
granted or a destroying or making void of some deed that an ordinary or holographic will, and should be probated,in
had existence until the act of revocation made it void. order that the revocatory clause may produce the effect of
(Black’s Law Dictionary) revoking the previous will.

Destruction of a will

Art. 828. A will may be revoked by the testator at any 1. the testator must at the time or
time before his death. Any waiver or restriction of this revocation be of sound mind. The same
right is void. (737a) degree of mental capacity is required to
revoke a will as to make one;
T: During the life of the testator the will is said to be 2. the burning, tearing, canceling, or
ambulatory and may be altered, revoked, or superseded at obliteration of the will must be done with
any time. Its is of no possible effect as a will while the maker animo revocandi and must actually be carried
lives. out. The mental process or intent to revoke
must concur with the physical fact or actual
A will may be revoked at pleasure. Revocation is an act of destruction of the will;
the mind, terminating the potential capacity of the will to
operate at the death of the testator, manifested by some where a testatrix was about to burn a will in an envelope,
outward and visible act or sign, symbolic thereof. with the intention of revoking it, but a third person
fraudulently replced the will inside thought he testatrix
Revocation vs. Nullity believed the will was destroyed, still no revocation occurred.
1. act of testator 1. proceeds from law However, if the third person is a devisee or legatee who
2. presupposes a valid act 2. inherent from the will prevents the revocation by threats, fraud or violence, the will
3. inter vivos 3. invoked After death is revoked as to him, by implication of law on the ground of
unworthiness.
30
view of the positive proof that the same had been cancelled,
Third person may revoke a will if the same was done in the we are forced to the conclusion that the conclusions of the
presence of and by the express direction of the testator. lower court are in accordance with the weight of the
In cases where the destruction is unauthorized, there is no evidence.
revocation, and the contents of the will may be preoved by
secondary evidence. Casiano vs. CA
If the will was already partly burned or torn but was only
saved upon the interference of a third person the will is still On October 20, 1963, Adriana Maloto died leaving as heirs
deemed revoked as long as the testator intended to. No her niece and nephews, the petitioners Aldina Maloto-
matter how large or small the extent of the damage to the Casiano and Constancio Maloto, and the private
will even if the same is still legible, the same is still deemed respondents Panfilo Maloto and Felino Maloto. Believing that
revoked for all intents and purposes. This case is to be the deceased did not leave behind a last will and testament,
differentiated from the will that was replaced because here these four heirs commenced on November 4, 1963 an
the actual will itself has commenced destruction. intestate proceeding for the settlement of their aunt's estate.
The case was instituted in the then Court of First Instance of
Gago vs. Mamuyac Iloilo and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be exact
The purpose of this action was to obtain the probation of a on February 1, 1964, the parties — Aldina, Constancio,
last will and testament of Miguel Mamuyac, who died on the Panfilo, and Felino — executed an agreement of
2d day of January, 1922, in the municipality of Agoo of the extrajudicial settlement of Adriana's estate. The agreement
Province of La Union. It appears from the record that on or provided for the division of the estate into four equal parts
about the 27th day of July, 1918, the said Miguel Mamuyac among the parties. The Malotos then presented the
executed a last will and testament (Exhibit A). In the month extrajudicial settlement agreement to the trial court for
of January, 1922, the said Francisco Gago presented a approval which the court did on March 21, 1964. That should
petition in the Court of First Instance of the Province of La have signalled the end of the controversy, but, unfortunately,
Union for the probation of that will. The probation of the it had not.
same was opposed by Cornelio Mamuyac, Ambrosio Three years later, or sometime in March 1967, Atty. Sulpicio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil Palma, a former associate of Adriana's counsel, the late
cause No. 1144, Province of La Union). After hearing all of Atty. Eliseo Hervas, discovered a document entitled
the parties the petition for the probation of said will was "KATAPUSAN NGA PAGBULUT-AN (Testamento)," dated
denied by the Honorable C. M. Villareal on the 2d day of January 3, 1940, and purporting to be the last will and
November, 1923, upon the ground that the deceased had on testament of Adriana. Atty. Palma claimed to have found the
the 16th day of April, 1919, executed a new will and testament, the original copy, while he was going through
testament. some materials inside the cabinet drawer formerly used by
Atty. Hervas. The document was submitted to the office of
On the 21st day of February, 1925, the present action was the clerk of the Court of First Instance of Iloilo on April 1,
commenced. Its purpose was to secure the probation of the 1967. Incidentally, while Panfilo and Felino are still named
said will of the 16th day of April, 1919 (Exhibit 1). To said as heirs in the said will, Aldina and Constancio are
petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana bequeathed much bigger and more valuable shares in the
Bauzon, and Catalina Mamuyac presented their oppositions, estate of Adriana than what they received by virtue of the
alleging (a) that the said will is a copy of the second will and agreement of extrajudicial settlement they had earlier
testament executed by the said Miguel Mamuyac; (b) that signed. The will likewise gives devises and legacies to other
the same had been cancelled and revoked during the parties, among them being the petitioners Asilo de Molo, the
lifetime of Miguel Mamuyac and (c) that the said will was not Roman Catholic Church of Molo, and Purificacion Miraflor.
the last will and testament of the deceased Miguel There is no doubt as to the testamentary capacity of the
Mamuyac. testatrix and the due execution of the will. The heart of the
case lies on the issue as to whether or not the will was
"That Exhibit A is a mere carbon copy of its original which revoked by Adriana. The provisions of the new Civil Code
remained in the possession of the deceased testator Miguel pertinent to the issue can be found in Article 830.
Mamuyac, who revoked it before his death as per testimony Art. 830. No will shall be revoked except in the following
of witnesses Jose Fenoy, who typed the will of the testator cases:
on April 16, 1919, and Carlos Bejar, who saw on December (1) By implication of law; or
30, 1920, the original of Exhibit A (will of 1919) actually (2) By some will, codicil, or other writing executed as
cancelled by the testator Miguel Mamuyac, who assured provided in case of wills: or
Carlos Bejar that inasmuch as he had sold him a house and (3) By burning, tearing, cancelling, or
the land where the house was built, he had to cancel it the obliterating the will with the intention of revoking it,
will of 1919), executing thereby a new testament. Narcisa by the testator himself, or by some other person in
Gago in a way corroborates the testimony of Jose Fenoy, his presence, and by his express direction. If
admitting that the will executed by the deceased (Miguel burned, torn, cancelled, or obliterated by some
Mamuyac) in 1919 was found in the possession of father other person, without the express direction of the
Miguel Mamuyac. The opponents have successfully testator, the will may still be established, and the
established the fact that father Miguel Mamuyac had estate distributed in accordance therewith, if its
executed in 1920 another will. The same Narcisa Gago, the contents, and due execution, and the fact of its
sister of the deceased, who was living in the house with him, unauthorized destruction, cancellation, or
when cross-examined by attorney for the opponents, obliteration are established according to the Rules
testified that the original of Exhibit A could not be found. For of Court. (Emphasis Supplied.)
the foregoing consideration and for the reason that the It is clear that the physical act of destruction of a will, like
original of Exhibit A has been cancelled by the deceased burning in this case, does not per se constitute an effective
father Miguel Mamuyac, the court disallows the probate of revocation, unless the destruction is coupled with animus
Exhibit A for the applicant." From that order the petitioner revocandi on the part of the testator. It is not imperative that
appealed. the physical destruction be done by the testator himself. It
may be performed by another person but under the express
With reference to the said cancellation, it may be stated that direction and in the presence of the testator. Of course, it
there is positive proof, not denied, which was accepted by goes without saying that the document destroyed must be
the lower court, that the will in question had been cancelled the will itself.
in 1920. The law does not require any evidence of the The respondent appellate court in assessing the evidence
revocation or cancellation of a will to. be preserved. It presented by the private respondents as oppositors in the
therefore becomes difficult at times to prove the revocation trial court, concluded that the testimony of the two witnesses
or cancellation of wills. The fact that such cancellation or who testified in favor of the will's revocation appear
revocation has taken place must either remain unproved or "inconclusive." We share the same view. Nowhere in the
be inferred from evidence showing that after due search the records before us does it appear that the two witnesses,
original will cannot be found. Where a will which cannot be Guadalupe Vda. de Corral and Eladio Itchon, both illiterates,
found is shown to have been in the possession of the were unequivocably positive that the document burned was
testator, when last seen, the presumption is, in the absence indeed Adriana's will. Guadalupe, we think, believed that the
of other competent evidence, that the same was cancelled papers she destroyed was the will only because, according
or destroyed. The same presumption arises where it is to her, Adriana told her so. Eladio, on the other hand,
shown that the testator had ready access to the will and it obtained his information that the burned document was the
cannot be found after his death. It will not be presumed that will because Guadalupe told him so, thus, his testimony on
such will has been destroyed by any other person without this point is double hearsay.
the knowledge or authority of the testator. The force of the At this juncture, we reiterate that "(it) is an important matter
presumption of cancellation or revocation by the testator, of public interest that a purported will is not denied
while varying greatly, being weak or strong according to the legalization on dubious grounds. Otherwise, the very
circumstances, is never conclusive, but may be overcome by institution of testamentary succession will be shaken to its
proof that the will was not destroyed by the testator with very foundations . . . " 4
intent to revoke it. One last note. The private respondents point out that
revocation could be inferred from the fact that "(a) major and
In view of the fact that the original will of 1919 could not be substantial bulk of the properties mentioned in the will had
found after the death of the testator Miguel Mamuyac and in been disposed of: while an insignificant portion of the
31
properties remained at the time of death (of the testatrix); 1918, (Exhibit A) and another executed on June 20, 1939,
and, furthermore, more valuable properties have been (Exhibit I). The latter will contains a clause which expressly
acquired after the execution of the will on January 3, 1940." revokes the will executed in 1918.
7 Suffice it to state here that as these additional matters
raised by the private respondents are extraneous to this The next contention of appellants refers to the revocatory
special proceeding, they could only be appropriately taken clause contained in the 1939 will of the deceased which was
up after the will has been duly probated and a certificate of denied probate. They contend that, notwithstanding the
its allowance issued. disallowance of said will, the revocatory clause is valid and
WHEREFORE, judgment is hereby rendered REVERSING still has the effect of nullifying the prior will of 1918. Counsel
and SETTING ASIDE the Decision dated June 7, 1985 and for petitioner meets this argument by invoking the doctrine
the Resolution dated October 22, 1986, of the respondent laid down in the case of Samson vs. Naval, (41 Phil., 838).
Court of Appeals, and a new one ENTERED for the He contends that the facts involved in that case are on all
allowance of Adriana Maloto's last will and testament. Costs fours with the facts of this case. Hence, the doctrine in that
against the private respondents. case is here controlling.

E. Effect of revocation There is merit in this contention. We have carefully read the
facts involved in the Samson case and we are indeed
Art. 831. Subsequent wills which do not revoke the impressed by their striking similarity with the facts of this
previous ones in an express manner, annul only such case. We do not need to recite here what those facts are; it
dispositions in the prior wills as are inconsistent with or is enough to point out that they contain many points and
contrary to those contained in the latter wills. (n) circumstances in common. No reason, therefore, is seen
why the doctrine laid down in that case (which we quote
Revocation may be: hereunder) should not apply and control the present case.
Express- when the later declares the former or all former
wills revoked. "A subsequent will, containing a clause revoking a previous
will, having been disallowed, for the reason that it was not
Implied- when it merely makes disposition inconsistent with executed in conformity with the provisions of section 618 of
the provisions of the former wills, the later will annuls only the Code of Civil Procedure as to the making of wills, cannot
such disposiotion in prior wills as are inconsisten with those produce the effect of annulling the previous will, inasmuch
contained in the subsequent will. Or if there appears an as said revocatory clause is void." (41 Phil., 838.)
intention of the testator to dispose of his property in a
manner different from the first will, it is to the extent revoked. "It is universally agreed that where the second will
is invalid on account of not being executed in
If two similar wills are executed on the same day they may accordance with the provisions of the statute, or
constituted as the same will. where the testator has not sufficient mental
Art. 832. A revocation made in a subsequent will shall capacity to make a will or the will is procured
take effect, even if the new will should become through undue influence, or the such, in other
inoperative by reason of the incapacity of the heirs, words, where the second will is really no will, it
devisees or legatees designated therein, or by their does not revoke the first will or affect it in any
renunciation. (740a) manner." Mort vs. Baker University (1935) 229
The Doctrine of Dependent Relative Revocation entails that Mo. App., 632, 78 S. W. (2d), 498."
the revocation will be conditional and dependent upon the
efficacy of the new disposition; and if, for any reason, the These treaties cannot be mistaken. They uphold the view on
new will intended to be made as substitute is inoperative, the which the ruling in the Samson case is predicated. They
revocation fails and the original will remain in full force. The reflect the opinion that this ruling is sound and good and for
failure of the new testamentary disposition is equivalent to this reason we see no justification for abandoning it as now
the non-fulfillment of a suspensive condition which prebvents suggested by counsel for the oppositors.
revocation of the first will.
The article contemplates a case where a subsequent will It is true that our law on the matter (sec. 623, Code of Civil
revokes a prior one, and the validity of the later will is Procedure) provides that a will may be revoked "by some
established, but its provisions cannot be carried out because will, codicil, or other writing executed as provided in case of
of incapacity of or renunciation by the beneficiaries named wills"; but it cannot be said that the 1939 will should be
therein. The revocation is ineffective, because of the clear regarded, not as a will within the meaning of said word, but
intent of the testator to revoke , contained in a valid will. The as "other writing executed as provided in the case of wills",
validity of the new will prevents the operation of the principle simply because it was denied probate. And even if it be
of dependent relative revocation, even if the new regarded as any other writing within the meaning of said
dispositions cannot be carried out. clause, there is authority for holding that unless said writing
Art. 833. A revocation of a will based on a false cause or is admitted to probate, it cannot have the effect of
an illegal cause is null and void. (n) revocation. (See 57 Am. Jur. pp. 329-330).
T: if the act of revocation is induced by a belief which turns
out to be false, there is no revocation. The fact, with regard Granting for the sake of argument that the earlier will was
to which the mistake was made, must, however, appear voluntarily destroyed by the testator after the execution of
upon the face of the instrument. Parol evidence not the second will, which revoked the first, could there be any
competent tp prove revocation was induced by false doubt, under this theory, that said earlier will was destroyed
assumption of fact or law. by the testator in the honest belief that it was no longer
Where the facts alleged by the testator were peculiarly w/in necessary because he had expressly revoked it in his will of
his knowledge, or the testator must have known the truth of 1939? In other words, can we not say that the destruction of
the facts alleged by him, it does not matter whether they are the earlier will was but the necessary consequence of the
true or not; the revocation in such case is absolute. testator's belief that the revocatory clause contained in the
B: Requisites for Article 833: subsequent will was valid and the latter would be given
1. the cause must be concrete, factual and not effect? If such is the case, then it is our opinion that the
purely subjective earlier will can still be admitted to probate under the principle
2. it must be false; of "dependent relative revocation".
3. the testator must know its falsity
4. it must appear that the testator is revoking "This doctrine is known as that of dependent
because of the cause which is false. relative revocation, and is usually applied where
5. the illegal cause should be stated in the will the testator cancels or destroys a will or executes
as the cause of revocation an instrument intended to revoke a will with a
Art. 834. The recognition of an illegitimate child does not present intention to make a new testamentary
lose its legal effect, even though the will wherein it was disposition as a substitute for the old, and the new
made should be revoked. (714) disposition is not made or, if made, fails of effect
T: the recognition does not lose its legal effect even if the will for some reason. The doctrine is not limited to the
is revoked, because the recognition is not a testamentary existence of some other document, however, and
disposition; it takes effect upon the execution of the will and has been applied where a will was destroyed as a
not upon the death of the testator. consequence of a mistake of law . . .." (68 C. J. p.
B: Recognition is an irrevocable act, even if will is revoked 799).
recognition remains.
Molo vs. Molo "The rule is established that where the act of
destruction is connected with the making of
Mariano Molo y Legaspi died on January 24, 1941, in the another will so as fairly to raise the inference that
municipality of Pasay, province of Rizal, without leaving any the testator meant the revocation of the old to
forced heir either in the descending or ascending line. He depend upon the efficacy of the new disposition
was survived, however, by his wife, the herein petitioner intended to be substituted, the revocation will be
Juana Juan Vda. de Molo, and by his nieces and nephew, conditional and dependent upon the efficacy of the
the oppositors-appellants, Luz, Gliceria and Cornelio, all new disposition; and if, for any reason, the new
surnamed Molo, who were the legitimate children of Candido will intended to be made as a substitute is
Molo y Legaspi, deceased brother of the testator. Mariano inoperative, the revocation fails and the original
Molo y Legaspi left two wills, one executed on August 17, will remains in full force." (Gardner, pp. 232, 233.)
32
2. consent was not vitiated
"This is the doctrine of dependent relative 3. will was signed by the required number of witnesses
revocation. The failure of the new testamentary 4. it is genuine and authentic
disposition, upon whose validity the revocation
depends, is equivalent to the non-fulfillment of a In sum it involves:
suspensive condition, and hence prevents the
revocation of the original will. But a mere intent to a. Testatmentary Capacity
make at some time a will in place of that destroyed b. due execution thereof
will not render the destruction conditional. It must c. genuineness
appear that the revocation is dependent upon the 6. De Borja vs. De Borja
valid execution of a new will." (1 Alexander, p. It is uncontested that Francisco de Borja, upon the death of
751; Gardner, p. 233.) his wife Josefa Tangco on 6 October 1940, filed a petition for
the probate of her will which was docketed as Special
We hold, therefore, that even in the supposition that the Proceeding No. R-7866 of the Court of First Instance of
destruction of the original will by the testator could be Rizal, Branch I. The will was probated on 2 April 1941. In
presumed from the failure of the petitioner to produce it in 1946, Francisco de Borja was appointed executor and
court, such destruction cannot have the effect of defeating administrator: in 1952, their son, Jose de Borja, was
the prior will of 1918 because of the fact that it is founded on appointed co-administrator. When Francisco died, on 14
the mistaken belief that the will of 1939 has been validly April 1954, Jose became the sole administrator of the testate
executed and would be given due effect. The theory on estate of his mother, Jose Tangco While a widower
which this principle is predicated is that the testator did not Francisco de Borja allegedly took unto himself a second
intend to die intestate. And this intention is clearly manifest wife, Tasiana Ongsingco. Upon Francisco's death, Tasiana
when he executed two wills on two different occasions and instituted testate proceedings in the Court of First Instance
instituted his wife as his universal heir. There can therefore of Nueva Ecija, where, in 1955, she was appointed special
be no mistake as to his intention of dying testate. administratrix. The validity of Tasiana's marriage to
Francisco was questioned in said proceeding.
The remaining question to be determined refers to the The relationship between the children of the first marriage
sufficiency of the evidence to prove the due execution of the and Tasiana Ongsingco has been plagued with several court
will. suits and counter-suits; including the three cases at bar,
some eighteen (18) cases remain pending determination in
The will in question was attested, as required by law, by the courts. The testate estate of Josefa Tangco alone has
three witnesses, Lorenzo Morales, Rufino Enriquez, and been unsettled for more than a quarter of a century. In order
Angel Cuenca. The first two witnesses died before the to put an end to all these litigations, a compromise
commencement of the present proceedings. So the only agreement was entered into on 12 October 1963, 2 by and
instrumental witness available was Angel Cuenca and under between "[T]he heir and son of Francisco de Borja by his
our law and precedents, his testimony is sufficient to prove first marriage, namely, Jose de Borja personally and as
the due execution of the will. However, petitioner presented administrator of the Testate Estate of Josefa Tangco," and
not only the testimony of Cuenca but placed on the witness "[T]he heir and surviving spouse of Francisco de Borja by his
stand Juan Salcedo, the notary public who prepared and second marriage, Tasiana Ongsingco Vda. de Borja,
notarized the will upon the express desire and instruction of assisted by her lawyer, Atty. Luis Panaguiton, Jr."
the testator. The testimony of these witnesses shows that On 16 May 1966, Jose de Borja submitted for Court
the will had been executed in the manner required by law. approval the agreement of 12 October 1963 to the Court of
We have read their testimony and we were impressed by First Instance of Rizal, in Special Proceeding No. R-7866;
their readiness and sincerity. We are convinced that they and again, on 8 August 1966, to the Court of First Instance
told the truth. of Nueva Ecija, in Special Proceeding No. 832. Tasiana
Ongsingco Vda. de de Borja opposed in both instances. The
VIII. REPUBLICATION AND REVIVAL OF WILLS Rizal court approved the compromise agreement, but the
Nueva Ecija court declared it void and unenforceable.
Art. 835. The testator cannot republish, without Special administratrix Tasiana Ongsingco Vda. de de Borja
reproducing in a subsequent will, the dispositions appealed the Rizal Court's order of approval (now Supreme
contained in a previous one which is void as to its form. Court G.R. case No. L-28040), while administrator Jose de
(n) Borja appealed the order of disapproval (G.R. case No. L-
Art. 836. The execution of a codicil referring to a 28568) by the Court of First Instance of Nueva Ecija.
previous will has the effect of republishing the will as The genuineness and due execution of the compromise
modified by the codicil. (n) agreement of 12 October 1963 is not disputed, but its validity
Art. 837. If after making a will, the testator makes a is, nevertheless, attacked by Tasiana Ongsingco on the
second will expressly revoking the first, the revocation ground that: (1) the heirs cannot enter into such kind of
of the second will does not revive the first will, which agreement without first probating the will of Francisco de
can be revived only by another will or codicil. (739a) Borja; (2) that the same involves a compromise on the
validity of the marriage between Francisco de Borja and
IX. ALLOWANCE OF WILLS Tasiana Ongsingco; and (3) that even if it were valid, it has
ceased to have force and effect.
Art. 838. No will shall pass either real or personal In assailing the validity of the agreement of 12 October
property unless it is proved and allowed in accordance 1963, Tasiana Ongsingco and the Probate Court of Nueva
with the Rules of Court. Ecija rely on this Court's decision in Guevara vs. Guevara.
The testator himself may, during his lifetime, petition the 74 Phil. 479, wherein the Court's majority held the view that
court having jurisdiction for the allowance of his will. In the presentation of a will for probate is mandatory and that
such case, the pertinent provisions of the Rules of Court the settlement and distribution of an estate on the basis of
for the allowance of wills after the testator's a death intestacy when the decedent left a will, is against the law
shall govern. and public policy. It is likewise pointed out by appellant
The Supreme Court shall formulate such additional Tasiana Ongsingco that Section 1 of Rule 74 of the Revised
Rules of Court as may be necessary for the allowance of Rules explicitly conditions the validity of an extrajudicial
wills on petition of the testator. settlement of a decedent's estate by agreement between
Subject to the right of appeal, the allowance of the will, heirs, upon the facts that "(if) the decedent left no will and no
either during the lifetime of the testator or after his debts, and the heirs are all of age, or the minors are
death, shall be conclusive as to its due execution. (n) represented by their judicial and legal representatives . . ."
A. Concept of Probate The will of Francisco de Borja having been submitted to the
To probate a will means to prove before some officer or Nueva Ecija Court and still pending probate when the 1963
tribunal, vested by law with authority for that purpose, that agreement was made, those circumstances, it is argued, bar
the instrument offered to be proved is the last will and the validity of the agreement.
testament of the deceased person whose testamentary act it Upon the other hand, in claiming the validity of the
is alleged to be, and that it has been executed, attested and compromise agreement, Jose de Borja stresses that at the
published as required by law, and that the testator was of time it was entered into, on 12 October 1963, the governing
sound and disposing mind. It is a civil proceeding to provision was Section 1, Rule 74 of the original Rules of
establish the validity of the will. Court of 1940, which allowed the extrajudicial settlement of
the estate of a deceased person regardless of whether he
Revocation vs. Disallowance left a will or not. He also relies on the dissenting opinion of
1. by the act of testator 1. by decree of court Justice Moran, in Guevara vs. Guevara, 74 Phil. 479,
2. even without cause 2. exclusive grounds by law wherein was expressed the view that if the parties have
3. may be partial 3. entire will already divided the estate in accordance with a decedent's
will, the probate of the will is a useless ceremony; and if they
B. Necessity of Probate have divided the estate in a different manner, the probate of
the will is worse than useless.
A final decree of probate is conclusive as to the due This provision evidences beyond doubt that the ruling in the
execution and formal validity of a will, hence, probate is Guevara case is not applicable to the cases at bar. There
necessary to determine the following: was here no attempt to settle or distribute the estate of
Francisco de Borja among the heirs thereto before the
1. testator was of sound mind probate of his will. The clear object of the contract was
33
merely the conveyance by Tasiana Ongsingco of any and all original compromise (Annex "A") and justifies the act of Jose
her individual share and interest, actual or eventual, in the de Borja in finally seeking a court order for its approval and
estate of Francisco de Borja and Josefa Tangco. There is no enforcement from the Court of First Instance of Rizal, which,
stipulation as to any other claimant, creditor or legatee And as heretofore described, decreed that the agreement be
as a hereditary share in a decedent's estate is transmitted or ultimately performed within 120 days from the finality of the
vested immediately from the moment of the death of such order, now under appeal. We conclude that in so doing, the
causante or predecessor in interest (Civil Code of the Rizal court acted in accordance with law, and, therefore, its
Philippines, Art. 777) 3 there is no legal bar to a successor order should be upheld, while the contrary resolution of the
(with requisite contracting capacity) disposing of her or his Court of First Instance of Nueva Ecija should be, and is,
hereditary share immediately after such death, even if the reversed.
actual extent of such share is not determined until the
subsequent liquidation of the estate. 4 Of course, the effect C. Modes of Probate
of such alienation is to be deemed limited to what is
ultimately adjudicated to the vendor heir. However, the Two kinds of probate under Art. 838
aleatory character of the contract does not affect the validity
of the transaction; neither does the coetaneous agreement 1. Ante mortem probate or that which is had
that the numerous litigations between the parties (the during the lifetime of the testator. This is an
approving order of the Rizal Court enumerates fourteen of innovation to our laws on succession.
them, Rec. App. pp. 79-82) are to be considered settled and Ratio:
should be dismissed, although such stipulation, as noted by a. easier for the courts to determine the mental
the Rizal Court, gives the contract the character of a condition of testator during his lifetime.
compromise that the law favors, for obvious reasons, if only b. Fraud, intimidation, undue influence are
because it serves to avoid a multiplicity of suits. minimized
It is likewise worthy of note in this connection that as the c. If will found to be non conforming to the
surviving spouse of Francisco de Borja, Tasiana Ongsingco requirements provided for by law the same maybe
was his compulsory heir under article 995 et seq. of the corrected at once
present Civil Code. Wherefore, barring unworthiness or valid d. Will lessen the number of contest upon wills,
disinheritance, her successional interest existed since testator still alive his animus testandi is
independent of Francisco de Borja's last will and testament, determinable at once.
and would exist even if such will were not probated at all.
Thus, the prerequisite of a previous probate of the will, as 2. Post mortem or that which is had after death
established in the Guevara and analogous cases, can not
apply to the case of Tasiana Ongsingco Vda. de de Borja.
This brings us to the plea that the Court of First In stance of D. Requirements for Probate
Rizal had no jurisdiction to approve the compromise with
Jose de Borja (Annex A) because Tasiana Ongsingco was The Revised rules of Court provides for the requirements
not an heir in the estate of Josefa Tangco pending and procedure for probating a will as follows:
settlement in the Rizal Court, but she was an heir of RULE 75
Francisco de Borja, whose estate was the object of Special PRODUCTION OF WILL. ALLOWANCE OF WILL
Proceeding No. 832 of the Court of First Instance of Nueva NECESSARY
Ecija. This circumstance is irrelevant, since what was sold by SECTION 1. Allowance necessary. Conclusive as to
Tasiana Ongsingco was only her eventual share in the execution.—No will shall pass either real or personal estate
estate of her late husband, not the estate itself; and as unless it is proved and allowed in the proper court. Subject
already shown, that eventual share she owned from the time to the right of appeal, such allowance of the will shall be
of Francisco's death and the Court of Nueva Ecija could not conclusive as to its due execution.
bar her selling it. As owner of her undivided hereditary SEC. 2. Custodian of will to deliver.—The person who has
share, Tasiana could dispose of it in favor of whomsoever custody of a will shall, within twenty (20) days after he knows
she chose Such alienation is expressly recognized and of the death of the testator, deliver the will to the court
provided for by article 1088 of the present Civil Code: having jurisdiction, or to the executor named In the will.
SEC. 3. Executor to present will and accept or refuse
Art. 1088. Should any of the heirs sell his hereditary rights to trust.—A person named as executor in a will shall, within
a stranger before the partition, any or all of the co-heirs may twenty (20) days after he knows of the death of the testator,
be subrogated to the rights of the purchaser by reimbursing or within twenty (20) days after he knows that be is named
him for the price of the sale, provided they do so within the executor if he obtained such knowledge after the death of
period of one month from the time they were notified in writing the testator, present such will to the court having jurisdiction,
of the sale of the vendor." unless the will has reached the court in any other manner,
Tasiana Ongsingco further argues that her contract with and shall, within such period, signify to the court in writing
Jose de Borja (Annex "A") is void because it amounts to a his acceptance of the trust or his refusal to accept it.
compromise as to her status and marriage with the late SEC. 4. Custodian and executor subject to fine for
Francisco de Borja. The point is without merit, for the very neglect.—A person who neglects any of the duties required
opening paragraph of the agreement with Jose de Borja in the two last preceding sections without excuse
(Annex "A") describes her as "the heir and surviving spouse satisfactory to the court shall be fined not exceeding two
of Francisco de Borja by his second marriage, Tasiana thousand pesos.
Ongsingco Vda. de de Borja", which is in itself definite SEC. 5. Person retaining will may be committed.—A person
admission of her civil status. There is nothing in the text of having custody of a will after the death of the testator who
the agreement that would show that this recognition of neglects without reasonable cause to deliver the same,
Ongsingco's status as the surviving spouse of Francisco de when ordered so to do, to the court having jurisdiction, may
Borja was only made in consideration of the cession of her be committed to prison and there kept until he delivers the
hereditary rights. will.
It is difficult to believe, however, that the amicable settlement RULE 76
referred to in the order and motion above-mentioned was the ALLOWANCE OR DISALLOWANCE OF WILL
compromise agreement of 13 October 1963, which already SECTION 1. Who may petition for the allowance of will.—
had been formally signed and executed by the parties and Any executor, devisee, or legatee named in a will, or any
duly notarized. What the record discloses is that some time other person interested in the estate, may, at any time after
after its formalization, Ongsingco had unilaterally attempted the death of the testator, petition the court having jurisdiction
to back out from the compromise agreement, pleading to have the will allowed, whether the same be in his
various reasons restated in the opposition to the Court's possession or not, or is lost or destroyed.
approval of Annex "A" (Record on Appeal, L-20840, page The testator himself may, during his lifetime, petition the
23): that the same was invalid because of the lapse of the court for the allowance of his will.
allegedly intended resolutory period of 60 days and because SEC. 2. Contents of petition.—A petition for the allowance of
the contract was not preceded by the probate of Francisco a will must show, so far as known to the petitioner:
de Borja's will, as required by this Court's Guevarra vs. (a) The jurisdictional facts;
Guevara ruling; that Annex "A" involved a compromise (b) The names, ages, and residences of the heirs,
affecting Ongsingco's status as wife and widow of Francisco legatees, and devisees of the testator or decedent;
de Borja, etc., all of which objections have been already (c) The probable value and character of the property of
discussed. the estate;
It was natural that in view of the widow's attitude, Jose de (d) The name of the person for whom letters are
Borja should attempt to reach a new settlement or novatory prayed;
agreement before seeking judicial sanction and enforcement (e) If the will has not been delivered to the court, the
of Annex "A", since the latter step might ultimately entail a name of the person having custody of it.
longer delay in attaining final remedy. That the attempt to But no defect in the petition shall render void the allowance
reach another settlement failed is apparent from the letter of of the will, or the issuance of letters testamentary or of
Ongsingco's counsel to Jose de Borja quoted in pages 35-36 administration with the will annexed.
of the brief for appellant Ongsingco in G.R. No. L-28040; SEC. 3. Court to appoint time for proving will. Notice thereof
and it is more than probable that the order of 21 September to be published.—When a will is delivered to, or a petition for
1964 and the motion of 17 June 1964 referred to the failure the allowance of a will is filed in, the court having jurisdiction,
of the parties' quest for a more satisfactory compromise. But such court shall fix a time and place for proving the will when
the inability to reach a novatory accord can not invalidate the all concerned may appear to contest the allowance thereof,
34
and shall cause notice of such time and place to be it, or are otherwise of doubtful credibility, the will may,
published three (3) weeks successively, previous to the time nevertheless, be allowed if the court is satisfied from the
appointed, in a newspaper of general circulation in the testimony of other witnesses and from all the evidence
province. presented that the will was executed and attested in the
But no newspaper publication shall be made where the manner required by law.
petition for probate has been filed by the testator himself. If a holographic will is contested, the same shall be allowed
SEC. 4. Heirs, devisees, legatees, and executors to be if at least three (3) witnesses who know the handwriting of
notified by mail or personally.—The court shall also cause the testator explicitly declare that the will and the signature
copies of the notice of the time and place fixed for proving are in the handwriting of the testator; in the absence of any
the will to be addressed to the designated or other known competent witness, and if the court deem it necessary,
heirs, legatees, and devisees of the testator resident in the expert testimony may be resorted to.
Philippines at their places of residence, and deposited in the SEC. 12. Proof where testator petitions for allowance of
post office with the postage thereon prepaid at least twenty holographic will.—Where the testator himself petitions for the
(20) days before the hearing, if such places of residence be probate of his holographic will and no contest is filed, the
known. A copy of the notice must in like manner be mailed to fact that he affirms that the holographic will and the
the person named as executor, if he be not the petitioner, signature are in his own handwriting, shall be sufficient
also, to any person named as co-executor not petitioning, if evidence of the genuineness and due execution thereof. If
their places of residence be known. Personal service of the holographic will is contested, the burden of disproving
copies of the notice at least ten (10) days before the day of the genuineness and due execution thereof shall be on the
hearing shall be equivalent to mailing. contestant The testator may, in his turn, present such
If the testator asks for the allowance of his own will, notice additional proof as may be necessary to rebut the evidence
shall be sent only to his compulsory heirs. for the contestant.
SEC. 5. Proof at hearing. What sufficient in absence of SEC. 13. Certificate of allowance attached to proved will. To
contest.—At the hearing compliance with the provisions of be recorded in the Office of Register of Deeds.—If the court
the last two preceding sections must be shown before the is satisfied, upon proof taken and filed, that the will was duly
introduction of testimony in support of the will. All such executed, and that the testator at the time of its execution
testimony shall be taken under oath and reduced to writing. was of sound and disposing mind, and not acting under
If no person appears to contest the allowance of the will, the duress, menace, and undue influence, or fraud, a certificate
court may grant allowance thereof on the testimony of one of of its allowance, signed by the judge, and attested by the
the subscribing witnesses only, if such witness testify that seal of the court shall be attached to the will and the will and
the will was executed as is required by law. certificate filed and recorded by the clerk. Attested copies of
In the case of a holographic will, it shall be necessary that at the will devising real estate and of certificate of allowance
least one witness who knows the handwriting and signature thereof, shall be recorded in the register of deeds of the
of the testator explicitly declare that the will and the province in which the lands lie.
signature are in the handwriting of the testator. In the
absence of any such competent witness, and if the court Art. 811. In the probate of a holographic will, it shall be
deem it necessary, expert testimony may be resorted to. necessary that at least one witness who knows the
SEC. 6. Proof of lost or destroyed will. Certificate handwriting and signature of the testator explicitly
thereupon.—No will shall be proved as a lost or destroyed declare that the will and the signature are in the
will unless the execution and validity of the same be handwriting of the testator. If the will is contested, at
established and the will is proved to have been in existence least three of such witnesses shall be required.
at the time of the death of the testator, or is shown to have In the absence of any competent witness referred to in
been fraudulently or accidentally destroyed in the lifetime of the preceding paragraph, and if the court deem it
the testator without his knowledge, nor unless its provisions necessary, expert testimony may be resorted to. (619a)
are clearly and distinctly proved by at least two (2) credible Gan vs. Yap
witnesses. When a lost will is proved, the provisions thereof On November 20, 1951, Felicidad Esguerra Alto Yap died of
must be distinctly stated and certified by the judge, under the heart failure in the University of Santo Tomas Hospital,
seal of the court, and the certificate must be filed and leaving properties in Pulilan, Bulacan, and in the City of
recorded as other wills are filed and recorded. Manila.
SEC. 7. Proof when witnesses do not reside in province.—If On March 17, 1952, Fausto E. Gan initiated these
it appears at the time fixed for the hearing that none of the proceedings in the Manila court of first instance with a
subscribing witnesses resides in the province, but that the petition for the probate of a holographic will allegedly
deposition of one or more of them can be taken elsewhere, executed by the deceased, Opposing the petition, her
the court may, on motion, direct It to be taken, and may surviving husband Ildefonso Yap asserted that the deceased
authorize a photographic copy of the will to be made and to had not left any will, nor executed any testament during her
be presented to the witness on his examination, who may be lifetime.
asked the same questions with respect to it and to the Sometime in 1950 after her last trip abroad, Felicidad
handwriting of the testator and others, as would be pertinent Esguerra mentioned to her first cousin, Vicente Esguerra,
and competent if the original will were present. her desire to make a will. She confided however that it would
SEC. 8. Proof when witnesses dead or insane or do not be useless if her husband discovered or knew about it.
reside in the Philippines.—If it appears at the time fixed for Vicente consulted with Fausto E. Gan, nephew of Felicidad,
the hearing that the subscribing witnesses are dead or who was then preparing for the bar examinations. The latter
insane, or that none of them resides in the Philippines, the replied it could be done without any witness, provided the
court may admit the testimony of other witnesses to prove document was entirely in her handwriting, signed and dated
the sanity of the testator, and the due execution of the will; by her. Vicente Esguerra lost no time in transmitting the
and as evidence of the execution of the will, it may admit information, and on the strength of it, in the morning of
proof of the handwriting of the testator and of the subscribing November 5, 1951, in her residence at Juan Luna Street,
witnesses, or of any of them. Manila, Felicidad wrote, signed and dated a holographic will
SEC. 9. Grounds for disallowing will.—The will shall be substantially of the tenor above transcribed, in the presence
disallowed in any of the following cases: of her niece, Felina Esguerra (daughter of Vicente), who was
(a) If not executed and attested as required by law; invited to read it. In the afternoon of that day, Felicidad was
(b) If the testator was insane, or otherwise mentally visited by a distant relative, Primitivo Reyes, and she
incapable to make a will, at the time of its execution; allowed him to read the will in the presence of Felina
(c) If it was executed under duress, or the influence of Esguerra, who again read it.
fear, or threats; The trial judge refused to credit the petitioner's evidence for
(d) If it was procured by undue and improper pressure several reasons, the most important of which were these: (a)
and influence, on the part of the beneficiary, or of if according to his evidence, the decedent wanted to keep
some other person for his benefit; her will a secret, so that her husband would not know it, it is
(e) If the signature of the testator was procured by strange she executed it in the presence of Felina Esguerra,
fraud or trick, and he did not intend that the instrument knowing as she did that witnesses were unnecessary; (b) in
should be his will at the time of fixing his signature the absence of a showing that Felina was a confidant of the
thereto. decedent it is hard to believe that the latter would have
SEC. 10. Contestant to file grounds of contest.—Anyone allowed the former to see and read the will several times; (c)
appearing to contest the will must state in writing his it is improbable that the decedent would have permitted
grounds for opposing its allowance, and serve a copy Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to
thereof on the petitioner and other parties interested in the read her will, when she precisely wanted its contents to
estate. remain a secret during her lifetime; (d) it is also improbable
SEC. 11. Subscribing witnesses produced or accounted for that her purpose being to conceal the will from her husband
where will contested.—If the will is contested, all the she would carry it around, even to the hospital, in her purse
subscribing witnesses, and the notary in the case of wills which could for one reason or another be opened by her
executed under the Civil Code of the Philippines, if present husband; (e) if it is true that the husband demanded the
in the Philippines, and not insane, must be produced and purse from Felina in the U.S.T. Hospital and that the will was
examined, and the death, absence, or insanity of any of there, it is hard to believe that he returned it without
them must be satisfactorily shown to the court. If all or some destroying the will, the theory of the petitioner being
of such witnesses are present in the Philippines but outside precisely that the will was executed behind his back for fear
the province where the will has been filed, their deposition he will destroy it.
must be taken. If any or all of them testify against the due The New Civil Code effective in 1950 revived holographic
execution of the will, or do not remember having attested to wills in its arts. 810-814. "A person may execute a
35
holographic will which must be entirely written, dated, and show her will precisely to relatives who had received nothing
signed by the hand of the testator himself. It is subject to no from it: Socorro Olarte and Primitivo Reyes. These could
other form and may be made in or out of the Philippines, and pester her into amending her will to give them a share, or
need not be witnessed." threaten to reveal its execution to her husband Ildefonso
The object of such requirements it has been said, is to close Yap. And this leads to another point: if she wanted so much
the door against bad faith and fraud, to prevent substitution to conceal the will from her husband, why did she not entrust
of wills, to guarantee their truth and authenticity (Abangan it to her beneficiaries? Opportunity to do so was not lacking:
vs. Abangan, 40 Phil., 476) and to avoid that those who for instance, her husband's trip to Davao, a few days after
have no right to succeed the testator would succeed him and the alleged execution of the will.
be benefited with the probate of same. (Mendoza vs. Pilapil, In fine, even if oral testimony were admissible to establish
40 off. Gaz., 1855). However, formal imperfections may be and probate a lost holographic will, we think the evidence
brushed aside when authenticity of the instrument is duly submitted by herein petitioner is so tainted with
proved. improbabilities and inconsistencies that it fails to measure up
Now, in the matter of holographic wills, no such guaranties to that "clear and distinct" proof required by Rule 77, sec. 6.
of truth and veracity are demanded, since as stated, they 11
need no witnesses; provided however, that they are "entirely Rodelas vs. Aranza
written, dated, and signed by the hand of the testator
himself." The law, it is reasonable to suppose, regards the ". . . On January 11, 1977, appellant filed a petition
document itself as material proof of authenticity, and as its with the Court of First Instance of Rizal for the
own safeguard, since it could at any time, be demonstrated probate of the holographic will of Ricardo B.
to be — or not to be — in the hands of the testator himself. Bonilla and the issuance of letters testamentary in
"In the probate of a holographic will" says the New Civil her favor. The petition, docketed as Sp. Proc. No.
Code, "it shall be necessary that at least one witness who 8432, was opposed by the appellees Amparo
knows the handwriting and signature of the testator explicitly Aranza Bonilla, Wilferine Bonilla Treyes, Expedita
declare that the will and the signature are in the handwriting Bonilla Frias and Ephraim Bonilla on the following
of the testator. If the will is contested, at least three such grounds:
witnesses shall be required. In the absence of any such
witnesses, (familiar with decedent's handwriting) and if the "(3) The alleged holographic will
court deem it necessary, expert testimony may be resorted itself, and not an alleged copy thereof,
to." must be produced, otherwise it would
The witnesses so presented do not need to have seen the produce no effect, as held in Gan v.
execution of the holographic will. They may be mistaken in Yap, 104 Phil. 509; and
their opinion of the handwriting, or they may deliberately lie
in affirming it is in the testator's hand. However, the The only question here is whether a holographic will
oppositor may present other witnesses who also know the which was lost or can not be found can be proved by
testator's handwriting, or some expert witnesses, who after means of a photostatic copy. Pursuant to Article 811 of the
comparing the will with other writings or letters of the Civil Code, probate of holographic wills is the allowance of
deceased, have come to the conclusion that such will has the will by the court after its due execution has been proved.
not been written by the hand of the deceased. (Sec. 50, Rule The probate may be uncontested or not. If uncontested, at
123). And the court, in view of such contradictory testimony least one identifying witness is required and, if no witness is
may use its own visual sense, and decide in the face of the available, experts may be resorted to. If contested, at least
document, whether the will submitted to it has indeed been three identifying witnesses are required. However, if the
written by the testator. holographic will has been lost or destroyed and no other
Taking all the above circumstances together, we reach the copy is available, the will can not be probated because the
conclusion that the execution and the contents of a lost or best and only evidence is the handwriting of the testator in
destroyed holographic will may not be proved by the bare said will. It is necessary that there be a comparison between
testimony of witnesses who have seen and/or read such will. sample handwritten statements of the testator and the
At this point, before proceeding further, it might be handwritten will. But, a photostatic copy or xerox copy of the
convenient to explain why, unlike holographic wills, ordinary holographic will may be allowed because comparison can be
wills may be proved by testimonial evidence when lost or made with the standard writings of the testator. In the case
destroyed. The difference lies in the nature of the wills. In of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the
the first, the only guarantee of authenticity is the handwriting execution and the contents of a lost or destroyed
itself; in the second, the testimony of the subscribing or holographic will may not be proved by the bare testimony of
instrumental witnesses (and of the notary, now). The loss of witnesses who have seen and/or read such will. The will
the holographic will entails the loss of the only medium of itself must be presented; otherwise, it shall produce no
proof; if the ordinary will is lost, the subscribing witnesses effect. The law regards the document itself as material
are available to authenticate. proof of authenticity." But, in Footnote 8 of said decision, it
In the case of ordinary wills, it is quite hard to convince three says that "Perhaps it may be proved by a photographic or
witnesses (four with the notary) deliberately to lie. And then photostatic copy. Even a mimeographed or carbon copy; or
their lies could be checked and exposed, their whereabouts by other similar means, if any, whereby the authenticity of
and acts on the particular day, the likelihood that they would the handwriting of the deceased may be exhibited and
be called by the testator, their intimacy with the testator, etc. tested before the probate court." Evidently, the photostatic or
And if they were intimates or trusted friends of the testator xerox copy of the lost or destroyed holographic will may be
they are not likely to lend themselves to any fraudulent admitted because then the authenticity of the handwriting of
scheme to distort his wishes. Last but not least, they can not the deceased can be determined by the probate court.
receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony WHEREFORE, the order of the lower court dated October 3,
were admissible 9 only one man could engineer the whole 1979, denying appellant's motion for reconsideration dated
fraud this way: after making a clever or passable imitation of August 9, 1979, of the Order dated July 23, 1979, dismissing
the handwriting and signature of the deceased, he may her petition to approve the will of the late Ricardo B. Bonilla,
contrive to let three honest and credible witnesses see and is hereby SET ASIDE.
read the forgery; and the latter, having no interest, could
easily fall for it, and in court they would in all good faith Azaola vs. Singson
affirm its genuineness and authenticity. The will having been "Briefly speaking, the following facts were
lost — the forger may have purposely destroyed it in an established by the petitioner; that on September 9,
"accident" — the oppositors have no way to expose the trick 1957, Fortunata S. Vda. de Yance died at 13
and the error, because the document itself is not at hand. Luskot, Quezon City, known to be the last
And considering that the holographic will may consist of two residence of said testatrix; that Francisco Azaola,
or three pages, and only one of them need be signed, the petitioner herein for probate of the holographic
substitution of the unsigned pages, which may be the most will, submitted the said holographic will (Exh. C)
important ones, may go undetected. whereby Maria Milagros Azaola was made the
If testimonial evidence of holographic wills be permitted, one sole heir as against the nephew of the deceased
more objectionable feature — feasibility of forgery — would Cesario Singson; that witness Francisco Azaola
be added to the several objections to this kind of wills listed testified that he saw the holographic will (Exh. C)
by Castan, Sanchez Roman and Valverde and other well- one month, more or less, before the death of the
known Spanish Commentators and teachers of Civil Law. 10 testatrix, as the same was handed to him and his
One more fundamental difference: in the case of a lost will, wife; that the witness testified also that he
the three subscribing witnesses would be testifying to a fact recognized all the signatures appearing in the
which they saw, namely the act of the testator of subscribing holographic will (Exh. C) as the handwriting of the
the will; whereas in the case of a lost holographic will, the testatrix and to reinforce said statement, witness
witnesses would testify as to their opinion of the handwriting presented the mortgage (Exh. E), the special
which they allegedly saw, an opinion which can not be power of attorney (Exh. F), and the general power
tested in court, nor directly contradicted by the oppositors, of attorney (Exh. F-1), besides the deeds of sale
because the handwriting itself is not at hand. (Exhs. G and G-1) including an affidavit (Exh. G-
Turning now to the evidence presented by the petitioner, we 2), and that there were further exhibited in court
find ourselves sharing the trial judge's disbelief. In addition to two residence certificates (Exhs. H and H-1) to
the dubious circumstances described in the appealed show the signatures of the testatrix, for
decision, we find it hard to believe that the deceased should comparison purposes; that said witness, Azaola,
36
testified that the penmanship appearing in the and in fact it should, resort to handwriting experts. The duty
aforesaid documentary evidence is in the of the court, in fine, is to exhaust all available lines of inquiry,
handwriting of the testatrix as well as the for the state is as much interested as the proponent that the
signatures appearing therein are the signatures of true intention of the testator be carried into effect.
the testatrix; that said witness, in answer to a
question of his counsel admitted that the And because the law leaves it to the trial court to decide if
holographic will was handed to him by the experts are still needed, no unfavourable inference can be
testatrix, "apparently it must have been written by drawn from a party's failure to offer expert evidence, until
her" (t.s.n., p. 11). However, on page 16 on the and unless the court expresses dissatisfaction with the
same transcript of the stenographic notes, when testimony of the lay witnesses. Our conclusion is that the
the same witness was asked by counsel if he was rule of the first paragraph of Article 811 of the Civil Code is
familiar with the penmanship and handwriting of merely directory and is not mandatory.
the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he Considering, however, that this is the first occasion in which
was asked again whether the penmanship this Court has been called upon to construe the import of
referred to in the previous answer as appearing in said article, the interest of justice would be better served, in
the holographic will (Exh. C) was hers (testatrix'), our opinion, by giving the parties ample opportunity to
he answered, "I would definitely say it is hers"; that adduce additional evidence, including expert witnesses,
it was also established in the proceedings that the should the Court deem them necessary. In view of the
assessed value of the property of the deceased in foregoing, the decision appealed from is set aside, and the
Luskot, Quezon City, is in the amount of records ordered remanded to the Court of origin, with
P7,000.00." instructions to hold a new trial in conformity with this opinion.
But evidence already on record shall not be retaken. No
The opposition to the probate was on the ground that (1) the costs.
execution of the will was procured by undue and improper
pressure and influence on the part of the petitioner and his Codoy vs. Calugay
wife, and (2) that the testatrix did not seriously intend the
instrument to be her last will, and that the same was actually On April 6, 1990, Evangeline Calugay, Josephine Salcedo
written either on the 5th or 6th day of August 1957 and not and Eufemia Patigas, devisees and legatees of the
on November 20, 1956 as appears on the will. holographic will of the deceased Matilde Seño Vda. de
Ramonal, filed with the Regional Trial Court, Misamis
The probate was denied on the ground that under Article Oriental, Branch 18, a petition 3 for probate of the
811 of the Civil Code, the proponent must present three holographic will of the deceased, who died on January 16,
witnesses who could declare that the will and the signature 1990.
are in the writing of the testatrix, the probate being In the petition, respondents claimed that the deceased
contested; and because the lone witness presented by the Matilde Seño Vda. de Ramonal, was of sound and disposing
proponent "did not prove sufficiently that the body of the will mind when she executed the will on August 30, 1978, that
was written in the handwriting of the testatrix." there was no fraud, undue influence, and duress employed
in the person of the testator, and the will was written
The proponent appealed, urging: first, that he was not bound voluntarily. The assessed value of the decedent’s property,
to produce more than one witness because the will's including all real and personal property was about
authenticity was not questioned; and second, that Article 811 P400,000.00, at the time of her death. 4
does not mandatorily require the production of three On June 28, 1990, Eugenia Ramonal Codoy and Manuel
witnesses to identify the handwriting and signature of a Ramonal filed an opposition 5 to the petition for probate,
holographic will, even if its authenticity should be denied by alleging that the holographic will was a forgery and that the
the adverse party. same is even illegible. This gives an impression that a "third
hand" of an interested party other than the "true hand" of
We agree with the appellant that since the authenticity of the Matilde Seño Vda. de Ramonal executed the holographic
will was not contested, he was not required to produce more will.
than one witness; but even if the genuineness of the Petitioners argued that the repeated dates incorporated or
holographic will were contested, we are of the opinion that appearing on the will after every disposition is out of the
Article 811 of our present Civil Code can not be interpreted ordinary. If the deceased was the one who executed the will,
as to require the compulsory presentation of three witnesses and was not forced, the dates and the signature should
to identify the handwriting of the testator, under penalty of appear at the bottom after the dispositions, as regularly done
having the probate denied. Since no witness may have been and not after every disposition. And assuming that the
present at the execution of a holographic will, none being holographic will is in the handwriting of the deceased, it was
required by law (Art. 810, new Civil Code), it becomes procured by undue and improper pressure and influence on
obvious that the existence of witnesses possessing the the part of the beneficiaries, or through fraud and trickery.
requisite qualifications is a matter beyond the control of the On December 12, 1990, respondents filed a notice of
proponent. For it is not merely a question of finding and appeal, 8 and in support of their appeal, the respondents
producing any three witnesses; they must be witnesses "who once again reiterated the testimony of the following
know the handwriting and signature of the testator" and who witnesses, namely: (1) Augusto Neri; (2) Generosa Senon;
can declare (truthfully, of course, even if the law does not so (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal
express) "that the will and the signature are in the Rodolfo Waga; and (6) Evangeline Calugay.
handwriting of the testator". There may be no available According to the Court of Appeals, Evangeline Calugay,
witness acquainted with the testator's hand; or even if so Matilde Ramonal Binanay and other witnesses definitely and
familiarized, the witnesses may be unwilling to give a in no uncertain terms testified that the handwriting and
positive opinion. Compliance with the rule of paragraph 1 of signature in the holographic will were those of the testator
Article 811 may thus become an impossibility. herself.Thus, upon the unrebutted testimony of appellant
As can be seen, the law foresees the possibility that no Evangeline Calugay and witness Matilde Ramonal Binanay,
qualified witness may be found (or what amounts to the the Court of Appeals sustained the authenticity of the
same thing, that no competent witness may be willing to holographic will and the handwriting and signature therein,
testify to the authenticity of the will), and provides for resort and allowed the will to probate.
to expert evidence to supply the deficiency. In this petition, the petitioners ask whether the provisions of
Article 811 of the Civil Code are permissive or mandatory.
It may be true that the rule of this article (requiring that three The article provides, as a requirement for the probate of a
witnesses be presented if the will is contested and only one contested holographic will, that at least three witnesses
if no contest is had) was derived from the rule established explicitly declare that the signature in the will is the genuine
for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., signature of the testator.
291; Tolentino vs. Francisco, 57 Phil. 742). But it can not be We are convinced, based on the language used, that Article
ignored that the requirement can be considered mandatory 811 of the Civil Code is mandatory. The word "shall"
only in the case of ordinary testaments, precisely because connotes a mandatory order. We have ruled that "shall" in a
the presence of at least three witnesses at the execution of statute commonly denotes an imperative obligation and is
ordinary wills is made by law essential to their validity (Art. inconsistent with the idea of discretion and that the
805). Where the will is holographic, no witness need be presumption is that the word "shall," when used in a statute
present (Art. 10), and the rule requiring production of three is mandatory." 11
witnesses must be deemed merely permissive if absurd Laws are enacted to achieve a goal intended and to guide
results are to be avoided. against an evil or mischief that aims to prevent. In the case
at bar, the goal to achieve is to give effect to the wishes of
Again, under Article 811, the resort to expert evidence is the deceased and the evil to be prevented is the possibility
conditioned by the words "if the Court deem it necessary", that unscrupulous individuals who for their benefit will
which reveal that what the law deems essential is that the employ means to defeat the wishes of the testator.
Court should be convinced of the will's authenticity. Where What Ms. Binanay saw were pre-prepared receipts and
the prescribed number of witnesses is produced and the letters of the deceased, which she either mailed or gave to
court is convinced by their testimony that the will is genuine, her tenants. She did not declare that she saw the deceased
it may consider it unnecessary to call for expert evidence. sign a document or write a note. In her testimony it was
On the other hand, if no competent witness is available, or also evident that Ms. Binanay kept the fact about the will
none of those produced is convincing, the Court may still, from petitioners, the legally adopted children of the
37
deceased. Such actions put in issue her motive of keeping On October 24, 1941, the testamentary heirs, the Gallanosa
the will a secret to petitioners and revealing it only after the spouses and Adolfo Fortajada, submitted a project of
death of Matilde Seño Vda. de Ramonal. So, the only partition covering sixty-one parcels of land located in various
reason that Evangeline can give as to why she was familiar parts of Sorsogon, large cattle and several pieces of
with the handwriting of the deceased was because she lived personal property which were distributed in accordance with
with her since birth. She never declared that she saw the Florentino's will. The heirs assumed the obligations of the
deceased write a note or sign a document. estate amounting to P7,129.27 in the portion of P2,376.42
From the testimonies of these witnesses, the Court of for Adolfo Fortajada and P4,752.85 for the Gallanosa
Appeals allowed the will to probate and disregard the spouses. The project of partition was approved by Judge
requirement of three witnesses in case of contested Doroteo Amador in his order of March 13, 1943, thus
holographic will, citing the decision in Azaola vs. Singson, 31 confirming the heirs' possession of their respective shares.
ruling that the requirement is merely directory and not The testator's legal heirs did not appeal from the decree of
mandatory. In the case of Ajero vs. Court of Appeals, 32 probate and from the order of partition and distribution.
we said that "the object of the solemnities surrounding the On February 20, 1952, Leon Hitosis and the heirs of
execution of wills is to close the door against bad faith and Florentino's deceased brothers and sisters instituted an
fraud, to avoid substitution of wills and testaments and to action in the Court of First Instance of Sorsogon against
guaranty their truth and authenticity. Therefore, the laws on Pedro Gallanosa for the recovery of the said sixty-one
this subject should be interpreted in such a way as to attain parcels of land. They alleged that they, by themselves or
these primordial ends. But, on the other hand, also one must through their predecessors-in-interest, had been in
not lose sight of the fact that it is not the object of the law to continuous possession of those lands en concepto de dueño
restrain and curtail the exercise of the right to make a will." and that Gallanosa entered those lands in 1951 and
However, we cannot eliminate the possibility of a false asserted ownership over the lands. They prayed that they be
document being adjudged as the will of the testator, which is declared the owners of the lands and that they be restored
why if the holographic will is contested, that law requires to the possession thereof. They also claimed damages (Civil
three witnesses to declare that the will was in the Case No. 696).
handwriting of the deceased. The will was found not in the The plaintiffs did not appeal from that order of dismissal
personal belongings of the deceased but with one of the which should have set the matter at rest. But the same
respondents, who kept it even before the death of the plaintiffs or oppositors to the probate of the will, and their
deceased. In the testimony of Ms. Binanay, she revealed heirs, with a persistence befitting a more meritorious case,
that the will was in her possession as early as 1985, or five filed on September 21, 1967, or fifteen years after the
years before the death of the deceased. dismissal of Civil Case No. 696 and twenty-eight years after
There was no opportunity for an expert to compare the the probate of the will, another action in the same court
signature and the handwriting of the deceased with other against the Gallanosa spouses and Adolfo Fortajada for the
documents signed and executed by her during her lifetime. "annulment" of the will of Florentino Hitosis and for the
The only chance at comparison was during the cross- recovery of the same sixty-one parcels of land. They prayed
examination of Ms. Binanay when the lawyer of petitioners for the appointment of a receiver.
asked Ms. Binanay to compare the documents which The petitioners or the defendants below contend in this
contained the signature of the deceased with that of the certiorari case that the lower court has no jurisdiction to set
holographic will and she is not a handwriting expert. Even aside the 1939 decree of probate and the 1952 order of
the former lawyer of the deceased expressed doubts as to dismissal in Civil Case No. 696 and that it acted with grave
the authenticity of the signature in the holographic will. abuse of discretion in not dismissing private respondents'
A visual examination of the holographic will convince us that 1967 complaint.
the strokes are different when compared with other The issue is whether, under the facts set forth above, the
documents written by the testator. The signature of the private respondents have a cause of action for the
testator in some of the disposition is not readable. There "annulment" of the will of Florentino Hitosis and for the
were uneven strokes, retracing and erasures on the will. recovery of the sixty-one parcels of land adjudicated under
Comparing the signature in the holographic will dated that will to the petitioners. We hold that the lower court
August 30, 1978, 33 and the signatures in several committed a grave abuse of discretion in reconsideration its
documents such as the application letter for pasture permit order of dismissal and in ignoring the 1939 testamentary
dated December 30, 1980, 34 and a letter dated June 16, case and the 1952 Civil Case No. 696 which is the same as
1978, 35 the strokes are different. In the letters, there are the instant 1967 case.
continuous flows of the strokes, evidencing that there is no What the plaintiffs seek is the "annulment" of a last will and
hesitation in writing unlike that of the holographic will. We, testament duly probated in 1939 by the lower court itself.
therefore, cannot be certain that the holographic will was in The proceeding is coupled with an action to recover the
the handwriting by the deceased. lands adjudicated to the defendants by the same court in
IN VIEW WHEREOF, the decision appealed from is SET 1943 by virtue of the probated will, which action is a
ASIDE. The records are ordered remanded to the court of resuscitation of the complaint of the same parties that the
origin with instructions to allow petitioners to adduce same court dismissed in 1952. It is evident from the
evidence in support of their opposition to the probate of the allegations of the complaint and from defendants' motion to
holographic will of the deceased Matilde Seño Vda. de dismiss that plaintiffs' 1967 action is barred by res judicata a
Ramonal. double-barrelled defense, and by prescription, acquisitive
E. Effect of Allowance of wills and extinctive, or by what are known in the jus civile and the
jus gentium as usucapio, longi temporis possesio and
The matter of due execution of the will and capacity of the praescriptio (See Ramos vs. Ramos, L-19872, December 3,
testator acquire the character of res judicata and cannot 1974, 61 SCRA 284).
again be brought into question, all judicial questions in We say that the defense of res judicata, as a ground for the
connection therewith being for once and forever closed. dismissal of plaintiffs' 1967 complaint, is a two-pronged
defense because (1) the 1939 and 1943 decrees of probate
The probate court does not look upon the intrinsic validity of and distribution in Special Proceeding No. 3171 and (2) the
the will. However, it was held that the trial court may pass 1952 order of dismissal in Civil Case No. 696 of the lower
upon the intrinsic validity even before its formal validity had court constitute bars by former judgment
been established. Otherwise, the probate of the will might The 1939 decree of probate is conclusive as to the due
become an idle ceremony if on its face it appears intrinsically execution or formal validity of the will. That means that the
void. Where practical considerations demand that the testator was of sound and disposing mind at the time when
intrinsic validity of the will be passed upon even before he executed the will and was not acting under duress,
probated; the court should meet the issue. menace, fraud, or undue influence; that the will was signed
by him in the presence of the required number of witnesses,
Gallanosa vs. Arcangel and that the will is genuine and is not a forgery. Accordingly,
The case involves the sixty-one parcels of land in Sorsogon these facts cannot again be questioned in a subsequent
left by Florentino Hitosis, with an estimated value of proceeding, not even in a criminal action for the forgery of
P50,000, and claims for damages exceeding one million the will. After the finality of the allowance of a will, the issue
pesos. as to the voluntariness of its execution cannot be raised
On June 24, 1939 a petition for the probate of his will was anymore
filed in the Court of First Instance of Sorsogon (Special It is a fundamental concept in the organization of every jural
Proceeding No. 3171). The notice of hearing was duly system, a principle of public policy, that, at the risk of
published In that will. Florentino bequeathed his one-half occasional errors, judgments of courts should become final
share in the conjugal estate to his second wife, Tecla at some definite date fixed by law. Interest rei publicae ut
Dollentas, and, should Tecla predecease him, as was the finis sit litum. The very object for which the courts were
case, his one-half share would be assigned to the spouses constituted was to put an end to controversies. After the
Pedro Gallanosa and Corazon Grecia, the reason being that period for seeking relief from a final order or judgment under
Pedro, Tecla's son by her first marriage, grew up under the Rule 38 of the Rules of Court has expired, a final judgment
care of Florentino: he had treated Pedro as his foster child, or order can be set aside only on the grounds of (a) lack of
and Pedro has rendered services to Florentino and Tecla. jurisdiction or lack of due process of law or (b) that the
Florentino likewise bequeathed his separate properties judgment was obtained by means of extrinsic or collateral
consisting of three parcels of abaca land and parcel of fraud. In the latter case, the period for annulling the
riceland to his protege (sasacuyang ataman) Adolfo judgment is four years from the discovery of the fraud
Fortajada, a minor. That ruling is a glaring error Article 1410 cannot possibly
apply to last wills and testaments. The trial court and
38
plaintiffs' counsel relied upon the case of Dingle vs. the intestate proceeding is void because Grimm died testate
Guillermo, 48 O.G. 4410, allegedly decided by this Court, and that the partition was contrary to the decedent's wills.
which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that
mere lapse of time cannot give efficacy to void contracts, a Ethel filed a motion to dismiss the petition. Judge Leonidas
ruling elevated to the category of a codal provision in article denied it for lack of merit in his order of October 27, 1980.
1410. The Dingle case was decided by the Court of Appeals. Ethel then filed a petition for certiorari and prohibition in this
Even the trial court did not take pains to verify the Court, praying that the testate proceeding be dismissed, or,
misrepresentation of plaintiffs' counsel that the Dingle case alternatively that the two proceedings be consolidated and
was decided by this Court. An elementary knowledge of civil heard in Branch 20 and that the matter of the annulment of
law could have alerted the trial court to the egregious error the Utah compromise agreement be heard prior to the
of plaintiffs' counsel in arguing that article 1410 applies to petition for probate (pp. 22-23, Rollo).
wills.
Ruling. — We hold that respondent judge did not commit
Roberts vs. Leonidas any grave abuse of discretion, amounting to lack of
jurisdiction, in denying Ethel's motion to dismiss.
The question in this case is whether a petition for allowance
of wills and to annul a partition, approved in an intestate A testate proceeding is proper in this case because Grimm
proceeding by Branch 20 of the Manila Court of First died with two wills and "no will shall pass either real or
Instance, can be entertained by its Branch 38 (after a personal property unless it is proved and allowed" (Art. 838,
probate in the Utah district court). Civil Code; sec. 1, Rule 75, Rules of Court). The probate of
the will is mandatory (Guevara vs. Guevara, 74 Phil. 479
Antecedents. — Edward M. Grimm, an American resident of and 98 Phil. 249; Baluyot vs. Paño, L-42088, May 7, 1976,
Manila, died at 78 in the Makati Medical Center on 71 SCRA 86). It is anomalous that the estate of a person
November 27, 1977. He was survived by his second wife, who died testate should be settled in an intestate
Maxine Tate Grimm, and their two children, named Edward proceeding. Therefore, the intestate case should be
Miller Grimm II (Pete) and Linda Grimm, and by Juanita consolidated with the testate proceeding and the judge
Grimm Morris and Ethel Grimm Roberts (McFadden), his two assigned to the testate proceeding should continue hearing
children by a first marriage which ended in divorce (Sub- the two cases.
Annexes A and B, pp. 36-47, Rollo).
Ethel may file within twenty days from notice of the finality of
He executed on January 23, 1959 two wills in San this judgment an opposition and answer to the petition
Francisco, California. One will disposed of his Philippine unless she considers her motion to dismiss and other
estate which he described as conjugal property of himself pleadings sufficient for the purpose. Juanita G. Morris, who
and his second wife. The second will disposed of his estate appeared in the intestate case, should be served with copies
outside the Philippines. of orders, notices and other papers in the testate case.
WHEREFORE, the petition is dismissed. The temporary
In both wills, the second wife and two children were favored. restraining order is dissolved. No costs.
The two children of the first marriage were given their
legitimes in the will disposing of the estate situated in this Nepomuceno vs. CA
country. In the will dealing with his property outside this
country, the testator said: "I purposely have made no Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left
provision in this will for my daughter, Juanita Grimm Morris, a last Will and Testament duly signed by him at the end of
or my daughter, Elsa Grimm McFadden (Ethel Grimm the Will on page three and on the left margin of pages 1, 2
Roberts), because I have provided for each of them in a and 4 thereof in the presence of Celestina Alejandro, Myrna
separate will disposing of my Philippine property." (First C. Cortez, and Leandro Leaño, who in turn, affixed their
clause, pp. 43-47, Rollo). signatures below the attestation clause and on the left
margin of pages 1, 2 and 4 of the Will in the presence of the
The two wills and a codicil were presented for probate by testator and of each other and the Notary Public. The Will
Maxine Tate Grimm and E. La Var Tate on March 7, 1978 in was acknowledged before the Notary Public Romeo
Probate No. 3720 of the Third Judicial District Court of Escareal by the testator and his three attesting witnesses.
Tooele County, Utah. Juanita Grimm Morris of Cupertino,
California and Mrs. Roberts of 15 C. Benitez Street, In the said Will, the testator named and appointed herein
Horseshoe Village, Quezon City were notified of the probate petitioner Sofia J. Nepomuceno as his sole and only
proceeding executor of his estate. It is clearly stated in the Will that the
Two weeks later, or on April 25, 1978, Maxine and her two testator was legally married to a certain Rufina Gomez by
children Linda and Pete, as the first parties, and Ethel, whom he had two legitimate children, Oscar and Carmelita,
Juanita Grimm Morris and their mother Juanita Kegley but since 1952, he had been estranged from his lawfully
Grimm, as the second parties, with knowledge of the wedded wife and had been living with petitioner as husband
intestate proceeding in Manila, entered into a compromise and wife. In fact, on December 5, 1952, the testator Martin
agreement in Utah regarding the estate. It was signed by Jugo and the petitioner herein, Sofia J. Nepomuceno were
David E. Salisbury and Donald B. Holbrook, as lawyers of married in Victoria, Tarlac before the Justice of the Peace.
the parties, by Pete and Linda and the attorney-in-fact of The testator devised to his forced heirs, namely, his legal
Maxine and by the attorney-in-fact of Ethel, Juanita Grimm wife Rufina Gomez and his children Oscar and Carmelita his
Morris and Juanita Kegley Grimm. entire estate and the free portion thereof to herein petitioner.

In that agreement, it was stipulated that Maxine, Pete and On August 21, 1974, the petitioner filed a petition for the
Ethel would be designated as personal representatives probate of the last Will and Testament of the deceased
(administrators) of Grimm's Philippine estate (par. 2). It was Martin Jugo in the Court of First Instance of Rizal, Branch
also stipulated that Maxine's one-half conjugal share in the XXXIV, Caloocan City and asked for the issuance to her of
estate should be reserved for her and that would not be less letters testamentary. On May 13, 1975, the legal wife of the
than $1,500,000 plus the homes in Utah and Santa Mesa, testator, Rufina Gomez and her children filed an opposition
Manila (par. 4). The agreement indicated the computation of alleging inter alia that the execution of the Will was procured
the "net distributable estate". It recognized that the estate by undue and improper influence on the part of the
was liable to pay the fees of the Angara law firm petitioner; that at the time of the execution of the Will, the
testator was already very sick and that petitioner having
Acting on the declaration of heirs and project of partition admitted her living in concubinage with the testator, she is
signed and filed by lawyers Limqueco and Macaraeg (not wanting in integrity and thus letters testamentary should not
signed by Maxine and her two children), Judge Conrado M. be issued to her.
Molina in his order of July 27, 1979 adjudicated to Maxine
one-half (4/8) of the decedent's Philippine estate and one- On January 6, 1976, the lower court denied the probate of
eighth (1/8) each to his four children or 12-1/2% (pp. 140- the Will on the ground that as the testator admitted in his Will
142, Record). No mention at all was made of the will in that to cohabiting with the petitioner from December 1952 until
order. his death on July 16, 1974, the Will's admission to probate
will be an idle exercise because on the face of the Will, the
Petition to annul partition and testate proceeding No. invalidity of its intrinsic provisions is evident.
134559. — On September 8, 1980, Rogelio A. Vinluan of the On June 2, 1982, the respondent court set aside the
Angara law firm, in behalf of Maxine, Pete and Linda, filed in decision of the Court of First Instance of Rizal denying the
Branch 38 of the lower court a petition praying for the probate of the Will. The respondent court declared the Will to
probate of Grimm's two wills (already probated in Utah), that be valid except that the devise in favor of the petitioner is
the 1979 partition approved by the intestate court be set null and void pursuant to Article 739 in relation with Article
aside and the letters of administration revoked, that Maxine 1028 of the Civil Code of the Philippines.
be appointed executrix and that Ethel and Juanita Morris be
ordered to account for the properties received by them and The main issue raised by the petitioner is whether or not the
to return the same to Maxine (pp. 25-35, Rollo). respondent court acted in excess of its jurisdiction when
after declaring the last Will and Testament of the deceased
Grimm's second wife and two children alleged that they were Martin Jugo validly drawn, it went on to pass upon the
defraud due to the machinations of the Roberts spouses, intrinsic validity of the testamentary provision in favor of
that the 1978 Utah compromise agreement was illegal, that herein petitioner.
39
The petitioner submits that the validity of the testamentary X. DISALLOWANCE OF WILLS
provision in her favor cannot be passed upon and decided in
the probate proceedings but in some other proceedings Art. 839. The will shall be disallowed in any of the
because the only purpose of the probate of a Will is to following cases:
establish conclusively as against everyone that a Will was (1) If the formalities required by law have not
executed with the formalities required by law and that the been complied with;
testator has the mental capacity to execute the same. The (2) If the testator was insane, or otherwise
petitioner further contends that even if the provisions of mentally incapable of making a will, at the time
paragraph 1 of Article 739 of the Civil Code of the of its execution;
Philippines were applicable, the declaration of its nullity (3) If it was executed through force or under
could only be made by the proper court in a separate action duress, or the influence of fear, or threats;
brought by the legal wife for the specific purpose of obtaining (4) If it was procured by undue and improper
a declaration of the nullity of the testamentary provision in pressure and influence, on the part of the
the Will in favor of the person with whom the testator was beneficiary or of some other person;
allegedly guilty of adultery or concubinage. (5) If the signature of the testator was procured
by fraud;
We agree with the respondents. The respondent court acted (6) If the testator acted by mistake or did not
within its jurisdiction when after declaring the Will to be intend that the instrument he signed should be
validly drawn, it went on to pass upon the intrinsic validity of his will at the time of affixing his signature
the Will and declared the devise in favor of the petitioner null thereto. (n)
and void. The general rule is that in probate proceedings, Art. 1335. There is violence when in order to wrest
the court's area of inquiry is limited to an examination and consent, serious or irresistible force is employed.
resolution of the extrinsic validity of the Will. There is intimidation when one of the contracting parties
is compelled by a reasonable and well-grounded fear of
"Art IV. That since 1952, I have been an imminent and grave evil upon his person or property,
living, as man and wife, with one Sofia or upon the person or property of his spouse,
J. Nepomuceno, whom I declare and descendants or ascendants, to give his consent.
avow to be entitled to may love and To determine the degree of intimidation, the age, sex
affection, for all the things which she and condition of the person shall be borne in mind.
has done for me, now and in the past; A threat to enforce one's claim through competent
that while Sofia J. Nepomuceno has authority, if the claim is just or legal, does not vitiate
with my full knowledge and consent, did consent. (1267a)
comport and represent myself as her Art. 1336. Violence or intimidation shall annul the
own husband, in truth and in fact, as obligation, although it may have been employed by a
well as in the eyes of the law, I could not third person who did not take part in the contract. (1268)
bind her to me in the holy bonds of Art. 1337. There is undue influence when a person takes
matrimony because of my improper advantage of his power over the will of
aforementioned previous marriage;" another, depriving the latter of a reasonable freedom of
choice. The following circumstances shall be
The rule, however, is not inflexible and absolute. Given considered: the confidential, family, spiritual and other
exceptional circumstances, the probate court is not relations between the parties, or the fact that the person
powerless to do what the situation constrains it to do and alleged to have been unduly influenced was suffering
pass upon certain provisions of the Will. from mental weakness, or was ignorant or in financial
distress. (n)
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, Art. 1338. There is fraud when, through insidious words
the testator instituted the petitioner as universal heir and or machinations of one of the contracting parties, the
completely preterited her surviving forced heirs. A will of this other is induced to enter into a contract which, without
nature, no matter how valid it may appear extrinsically, them, he would not have agreed to. (1269)
would be null and void. Separate or latter proceedings to T: A will void as to form does not transmit property. But it can
determine the intrinsic validity of the testamentary provisions give rise to a natural obligation; so that even if a legatee
would be superfluous. named therein cannot legally claim the legacy, the voluntary
delivery thereof by the intestate heir is valid.
"We are of the opinion that in view of certain unusual Is a will executed by virtue of fraud upon testator susceptible
provisions of the will, which are of dubious legality, and of ratification?
because of the motion to withdraw the petition for probate T: We submit that this conclusion overlooks the difference
(which the lower court assumed to have been filed with the between the law on wills and the law on contracts. In the law
petitioner's authorization), the trial court acted correctly in on contracts, fraud merely makes the contract voidable;
passing upon the will's intrinsic validity even before its formal while in the law on wills, fraud is a ground for the
validity had been established. The probate of a will might disallowance of the will, that is, it renders the will void ab
become an idle ceremony if on its face it appears to be initio. There is nothing in the law on wills which allows
intrinsically void. Where practical considerations demand implied confirmation or ratification of a void will, while there
that the intrinsic validity of the will be passed upon, even are provsions allowing it in the law on contracts.
before it is probated, the court should meet the issue However, the fact that the testOR did nor revoke his will after
knowledge of the alleged fraud may be evidence against the
There appears to be no more dispute at this time over the existence of fraud.
extrinsic validity of the Will. Both parties are agreed that the Pascual vs. Dela Cruz
Will of Martin Jugo was executed with all the formalities On 2 January 1960, Catalina de la Cruz, single and without
required by law and that the testator had the mental capacity any surviving descendant or ascendant, died at the age of
to execute his Will. The petitioner states that she completely 89 in her residence at San Roque, Navotas, Rizal. On 14
agrees with the respondent court when in resolving the January 1960, a petition for the probate of her alleged will
question of whether or not the probate court correctly denied was filed in the Court of First Instance of Rizal by Andres
the probate of Martin Jugo's last Will and Testament, The Pascual, who was named in the said will as executor and
only issue, therefore, is the jurisdiction of the respondent sole heir of the decedent. 1
court to declare the testamentary provision in favor of the Opposing the petition, Pedro de la Cruz and 26 other
petitioner as null and void. nephews and nieces of the late Catalina de la Cruz
contested the validity of the will on the grounds that the
There is no question from the records about the fact of a formalities required by law were not complied with; that the
prior existing marriage when Martin Jugo executed his Will. testatrix was mentally incapable of disposing of her
There is also no dispute that the petitioner and Mr. Jugo properties by will at the time of its execution; that the will
lived together in an ostensible marital relationship for 22 was procured by undue and improper pressure and
years until his death. It is also a fact that on December 2, influence on the part of the petitioner; and that the signature
1952, Martin Jugo and Sofia J. Nepomuceno contracted a of the testatrix was obtained through fraud.
marriage before the Justice of the Peace of Victoria, Tarlac. After hearing, during which the parties presented their
The man was then 51 years old while the woman was 48. respective evidences, the probate court rendered judgment
Nepomuceno now contends that she acted in good faith for upholding the due execution of the will, and, as therein
22 years in the belief that she was legally married to the provided, appointed petitioner Andres Pascual executor and
testator. administrator of the estate of the late Catalina de la Cruz
without bond. The oppositors appealed directly to the Court,
Moreover, the prohibition in Article 739 of the Civil Code is the properties involved being valued at more than
against the making of a donation between persons who are P300,000.00, raising only the issue of the due execution of
living in adultery or concubinage. It is the donation which the will.
becomes void. The giver cannot give even assuming that the In this instance, oppositors-appellees claim that the
recipient may receive. The very wordings of the Will lower court erred in giving credence to the testimonies of the
invalidate the legacy because the testator admitted he was subscribing witnesses and the notary that the will was duly
disposing the properties to a person with whom he had been executed, notwithstanding the existence of inconsistencies
living in concubinage. WHEREFORE, the petition is and contradictions in the testimonies, and in disregarding
DISMISSED for lack of merit. their evidence that the will was not signed by all the
40
witnesses in the presence of one another, in violation of the evidence of undue influence (Bugnao vs. Ubag, 14 Phil. 163;
requirement of the law. Pecson vs. Coronel, 45 Phil. 416).
In this jurisdiction, it is the observed rule that, where a Tested against these rulings, the circumstances
will is contested, the subscribing with are generally regarded marshalled by the contestants certainly fail to establish
as the best qualified to testify on its due execution. However, actual undue influence or improper pressure exercised on
it is similarly recognized that for the testimony of such the testarix by the proponent. Their main reliance is on the
witnesses to be entitled to full credit, it must be reasonable assertion of the latter, in the course of his testimony, that the
and unbiased, and not overcome by competent evidence, deceased "did not like to sign anything unless I knew it"
direct or circumstantial. 2 For it must be remembered that the (t.s.n., page 7, 27 January 1962), which does not amount to
law does not simply require the presence of three proof that she would sign anything that proponent desired.
instrumental witnesses; it demands that the witnesses be On the contrary, the evidence of contestants-appellants, that
credible. 3 proponent purchased a building in Manila for the testarix,
In connection with the issue under consideration, we placed the title in his name, but caused the name "Catalina
agree with the trial judge that the contradictions and de la Cruz" to be painted thereon in bold letters to mislead
inconsistencies appearing in the testimonies of the the deceased, even if true, demonstrates that proponent's
witnesses and the notary, pointed out by the oppositors- influence was not such as to overpower to destroy the free
appellants (such as the weather condition at the time the will will of the testarix. Because if the mind of the latter were
was executed; the sequence of the signing by the witnesses; really subjugated by him to the extent pictured by the
and the length of time it took to complete the act), relate to contestants, then proponent had no need to recourse to
unimportant details of the impressions of the witnesses the deception averred.lawphi1.�et
about certain details which could have been affected by the Nor is the fact that it was proponent, and not the
lapse of time and the treachery of human memory, and testarix, who asked Dr. Sanchez to be one of the
which inconsistencies, by themselves, would not alter the instrumental witnesses evidence of such undue influence,
probative value of their testimonies on the due execution of for the reason that the rheumetism of the testarix made it
the will [cf. Peo. vs. Sigue, 86 Phil. 139-140 (3 years difficult for her to look for all the witnesses. That she did not
interval)]. resort to relatives or friends is, likewise explainable: it would
Not having heard Jiongco testify, this court is not in a have meant the disclosure of the terms of her will to those
position to contradict the appreciation of the trial court that interested in her succession but who were not favored by
the voice in the tape recording was not really that of Jiongco. her, thereby exposing her to unpleasant importunity and
And considering that he denied that fact under oath, that the recriminations that an aged person would naturally seek to
tape recording was not supported by truly impartial avoid. The natural desire to keep the making of a will secret
evidence, and was done without the knowledge of the can, likewise, account for the failure to probate the
witness, we cannot see our way clear to rule that Jiongco testament during her lifetime.
has been successfully impeached, and shown guilty of false We conclude that the trial court committed no error in
testimony. It would be dangerous to rule otherwise. finding the appellant's evidence established at most grounds
The second point that renders incredible the alleged for suspicion but fell far short of establishing actual exercise
assertion of Jiongco in the tape recording, that he signed the of improper pressure or influence. Considering that testarix
testament only in 1958 or 1959, is that in the Notarial considered proponent as her own son, to the extent that she
Registry of the notary, Gatdula, the ratification of the expressed no objection to his being made the sole heir of
testament appears among the entries for 1954, as well as in her sister, Florentina Cruz, in derogation of her own rights,
the corresponding copies (Exhibit I) filed by him with we find nothing abnormalin her instituting proponent also as
Bonifacio Sumulong, the employee in charge of the Notarial her own beneficiary. As stated by the Court in the Knutson
Section of the Clerk of Court's office, who produced them at case �
the trial upon subpoena, and who testified to his having The truth of the matter is that bequests and devises to those
searched for and found them in the vaults of the Clerk of in whom the testator has confidence and who have won his
Court's office. No evidence exists that these documents affection are more likely to be free from undue influence that
were not surrendered and filed at the Clerk of Court's office, bequests or devises to others. (In re Knutson's Will, 41 Pac.
as required by law, and in the regular course of official duty. 2d 793). Appellants invoked presumption of undue influence
Certainly, the notary could not have reported in 1954 what held to exist by American authorities where the beneficiary
did not happen until 1958. participates in the drafting of execution of the will favoring
In view of the evidence, we do not feel justified in him; but since the will was prepared by Atty. Pascual,
concluding that the trial court erred in accepting the although nephew of the proponent, we do not think the
concordant testimony of the instrumental witnesses as presumption applies; for in the normal course of events, said
warranting the probate of the will in question, taking into attorney would follow the instructions of the testatrix; and a
account the unexcelled opportunity of the court a quo to member of the bar in good standing may not be convicted of
observe the demeanor, and judge the credibility, of the unprofessional conduct, or of having conspired to falsify a
witness thereby. Furthermore, it would not be the first time in statement, except upon clear proof.
this jurisdiction that a will has been admitted to probate even The charge of fraud, being premised on the existence
if the instrumental witness testified contrary to the other two, of undue influence, needs no separate discussion.
provided the court is satisfied, as in this case, that the will WHEREFORE, the decree of probate appealed from is
was executed and attested in the manner provided by law affirmed;
(Fernandez vs. Tantoco, 49 Phil. 380; Tolentino vs.
Francisco, 57 Phil. 742; Cuyugan vs. Baron, 69 Phil. 639;
Ramirez vs. Butte, 100 Phil 635). There is greater reason to XI. LEGITIME
admit the will to probate where only the testimony of one
witness is subjected to serious, if unsuccessful attack. A. Concept.
Contestants further assail the admission to probate on
the ground that the execution of the will was tainted by fraud Art. 886. Legitime is that part of the testator's property
and undue influence exerted by proponent on the testarix, which he cannot dispose of because the law has
and affirm that it was error for the lower court to have reserved it for certain heirs who are, therefore, called
rejected their claim. Said the court in this regard (Record on compulsory heirs. (806)
Appeal, page 87):
Before considering the correctness of these findings, it is
worthwhile to recall the basic principles on undue pressure Three principal systems of distribution of hereditary property:
and influence as laid down by the jurisprudence of this 1. Absolute freedom of disposition
Court: that to be sufficient to avoid a will, the influence 2. Total reservation
exerted must be of a kind that so overpowers and 3. Partial reservation
subjugates the mind of the testator as to destroy his
free agency and make him express the will of another T: Considering the customs and traditions of the Filipinos for
rather than his own (Coso vs. Fernandez Deza, 42 Phil. the sake of family solidarity, the present code preserved the
596; Icasiano vs. Icasiano, L-18979, 30 June 1964; Teotico system of legitimes. However, changes have been made as
vs. Del Val, L-18753, 26 March 196); that the contention that follows:
a will was obtained by undue influence or improper pressure
cannot be sustained on mere conjecture or suspicion, as it is 1. with respect to the amounts of that coumpulsory heirs
enough that there was opportunity to exercise undue receive;
influence, or a possibility that it may have been exercised 2. illegitimate children have been made compulsory heirs
(Ozaeta vs. Cuartero, L-5597, 31 May 1956); that the though with a smaller legitime;
exercise of improper pressure and undue influence must be 3. legitime of surviving spouse has been changed from a
supported by substantial evidence that it was actually mere usufruct to a full ownership.
exercised (Ozatea vs. Cuartero, ante; Teotico vs. Del Val, L- 4. eliminates the mejora which resulted in the increase of
18753, 26 March 1965); that the burden is on the person both the legitime and the free portion
challenging the will to show that such influence was exerted
at the time of its execution (Teotico vs. Del Val, ante); that
mere general or reasonable influence is not sufficient to Thus, Justice JBL Reyes has this to say:
invalidate a will (Coso vs. Fernandez Deza, ante); nor is
moderate and reasonable solicitation and entreaty The increase of the legitime to ½ as against the 1/3 in the
addressed to the testator (Barreto vs. Reyes, L-5831-31, 31 old code, and the suppression of the mejora, operate to limit
January 1956), or omission of relatives, not forced heirs, the freedom of choice of the testator to a greater extent than
41
under the old code, for the testator, under that law, could at Illegitimate Children – the FC abolished the distinctions in
least select the individual descendants who should receive the old civil code thus merging them to one group.
the third betterment. Social and humanitarian reasons justify this grant of rights.
These children are brought to the world without their fault
Jurisprudence, however, interpreted the ultimate purpose of and under circumstances beyond their control. To leave
the systems of legitime. It is a limitation upon the freedom of illegitimate children w/o successional rights not only weighs
the testator to dispose of his property. Its purpose is to them down with the moral handicap of their status but also
protect those heirs, for whom the testator is presumed to denies them the material assistance which they may need
have an obligation to reserve certain portions of his estate, after their parent’s death so as not to become social
from his unjust ire or weakness or thoughtlessness. burdens.
They are not required to be recognized by putative parents
Ratio of the free portion: but must only prove their filiation.
1. An owner’s jus disponendi In the enforcement of this new right it is the death of the
2. man as a member of society can entertain parent which determines the right of the child to succeed
not only familial affections, but also legitimate and not the birth of the latter.
affections to his fellowmen, thus, should not be Surviving Spouse – there should be a valid marriage
absolutely be restrained from disposing property between the deceased and the surviving spouse. Thus, the
according to dictates of generosity. following marriages has different effect on the capacity of the
widow or widower to succeed:
The legitime does not consist in determinate or specific 1. null and void marriages such as
property which the testator must reserve for his compulsory incestuous or bigamous ones. Except in cases of
heirs. It consists of a part of fraction of the entire mass of the bigamous marriages where two wives contract in
hereditary estate. The standard for determination is fixed by good faith with the same husband, both are
law, but quantity may vary according to number and relation entitled to inherit equally from the deceased
of the heirs to the testator. husband.
2. Voidable marriages entitle the widow/er
to legitime because there exists a valid marriage
B. Who are entitled? until it is annulled. Thus, once annulled before
death of a spouse they are incapacitated to inherit.
Art. 887. The following are compulsory heirs: However, pending the case of annulment and one
(1) Legitimate children and descendants, with spouse dies the widow/er, nevertheless, inherits
respect to their legitimate parents and the legitime because the marriage can no longer
ascendants; be annulled after death of one.
(2) In default of the foregoing, legitimate 3. Legal separation of the spouses before
parents and ascendants, with respect to their death entitles the widow/er the Legitime if he /she
legitimate children and descendants; is the innocent spouse. Unless reconciliation
(3) The widow or widower; occurred before the death of the spouse, the
(4) Acknowledged natural children, and natural survivor will inherit regardless of his guilt. In such
children by legal fiction; case that the decree is pending upon death of one
(5) Other illegitimate children referred to in spouse then the decision should be awaited. The
Article 287. fact that the innocent spouse instituted the legal
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not separation manifest his desire to not to allow the
excluded by those in Nos. 1 and 2; neither do they guilty spouse to benefir fro his estate. The
exclude one another. accident of death should not defeat this purpose.
In all cases of illegitimate children, their filiation must be 4. Separation in fact by amicable
duly proved. settlement does not incapacitate the guilty spouse
The father or mother of illegitimate children of the three to inherit though there may be valid grounds for
classes mentioned, shall inherit from them in the legal separation there being no judicial decree, the
manner and to the extent established by this Code. right of legitime is preserved.
(807a) Art. 902. The rights of illegitimate children set forth in
Compulsory heirs are those who succeed whether the the preceding articles are transmitted upon their death
testator likes it or not and they cannot be deprived of their to their descendants, whether legitimate or illegitimate.
legitime except only by disinheritance. (843a)
An heir, of whatever class is absolutely free to accept or The article allows the legitimate and illegitimate descendants
renounce the inheritance because the law on legitime is a to represent the illegitimate child who predecease his own
restriction not on the freedom of the heir to accept or parent. But the illegitimate children of of an illegitimate child
repudiate, but on the freedom of testator to dispose of his can represent the latter only in the rights “set forth in the
property. preceding articles” namely 894, 895, 896, 899, and 901.
Kinds of Compulsory heirs: The criticism on this article is that the law gives better rights
1. Primary – those who exclude other to the illegitimate children of an illegitimate child and not to
compulsory heirs ex. Legit children & ascendants the illegitimate children of a legitimate child. This is absurd
2. secondary – succeed only in the absence of since the position of the illegitimate children is no better than
the primary. ex. Legit parents & ascenadants or equal to that of the legitimate child. However, though
3. Concurring – succeed together with the unfair to the latter this is an express provision of law which
primary and secondary cannot be excluded by we are confronted with. Thus, dura lex sed lex
them. Ex. Widow/er & illegit children Rosales vs. Rosales
Legitimate children and ascendants – in the ordinary In this Petition for Review of two (2) Orders of the Court of
course of nature father or mother die ahead of the child; the First Instance of Cebu the question raised is whether the
law confers preferential legitimary rights upon them. Thus widow whose husband predeceased his mother can inherit
the law intends that property of the decedent pass not to from the latter, her mother-in-law.
strangers but to his natural successor.
Legitimated Children – the NCC is silent as to this kind of In the course of the intestate proceedings, the trial court
children but the Family code under Art. 272 grants the same issued an Order dated June 16, 1972 declaring the following
rights to legitimated as that of the legitimate. Hence they are individuals the legal heirs of the deceased and prescribing
included as a compulsory heir. their respective share of the estate — Fortunato T. Rosales
Adopted Children – Art. 189 of the FC provides that for civil (husband) 1/4; Magna R. Acebes (daughter), 1/4;
purposes, the adopted shall be deemed a legitimate child of Macikequerox Rosales, 1/4; and Antonio Rosales (son), 1/4.
the adopters and both shall acquire reciprocal rights and
obligations from a parent-child relationship. Hence, This declaration was reiterated by the trial court in its Order
considered as legitimate child of the deceased adopting dated February 4, 1975. These Orders notwithstanding,
parent both as CH and LH. Irenea Rosales insisted in getting a share of the estate in her
Illegitimate Parents – they are compulsory heirs only in the capacity as the surviving spouse of the late Carterio
absence of legitimate, or illegitimate children of the decedent Rosales, son of the deceased, claiming that she is a
as provided under Art. 903. compulsory heir of her mother-in-law together with her son,
Adopting parents – they are not compulsory heirs of the Macikequerox Rosales.
adopted child because Art. 190 of the FC only provides that
they shall be legal heirs of the deceased adopted and is In sum, the petitioner poses two (2) questions for Our
silent as to their becoming compulsory heir. This indicates resolution. First — is a widow (surviving spouse) an intestate
that the latter was not intended. heir of her mother-in-law? Second — are the Orders of the
Ratio: Adoption is for the benefit of the adopted, and unless trial court which excluded the widow from getting a share of
the law clearly intends to favor the adopter, all doubts should the estate in question final as against the said widow?
be resolved against him. Because of the silence of the law
on legitimes, he cannot be entitiled to the legitime of the Our answer to the first question is in the negative. Intestate
legitimate parents; and in the law of testacy , he is not given, or legal heirs are classified into two (2) groups, namely,
in general, the same rights as a legitimate parent but only those who inherit by their own right, and those who inherit by
such as are specifically provided in Article 190 of the FC. the right of representation. 1 Restated, an intestate heir can
Legitimes of CH are restrictions on the freedom of the only inherit either by his own right, as in the order of
testator and must not be presumed but viewed strictly. intestate succession provided for in the Civil Code, 2 or by
42
the right of representation provided for in Article 981 of the parents should have died, the whole shall pass to the
same law. survivor.
If the testator leaves neither father nor mother, but is
There is no provision in the Civil Code which states that a survived by ascendants of equal degree of the paternal
widow (surviving spouse) is an intestate heir of her mother- and maternal lines, the legitime shall be divided equally
in-law. The entire Code is devoid of any provision which between both lines. If the ascendants should be of
entitles her to inherit from her mother-in-law either by her different degrees, it shall pertain entirely to the ones
own right or by the right of representation. The provisions of nearest in degree of either line. (810)
the Code which relate to the order of intestate succession Art. 892. If only one legitimate child or descendant of the
(Articles 978 to 1014) enumerate with meticulous exactitude deceased survives, the widow or widower shall be
the intestate heirs of a decedent, with the State as the final entitled to one-fourth of the hereditary estate. In case of
intestate heir. The conspicuous absence of a provision a legal separation, the surviving spouse may inherit if it
which makes a daughter-in-law an intestate heir of the was the deceased who had given cause for the same.
deceased all the more confirms Our observation. If the If there are two or more legitimate children or
legislature intended to make the surviving spouse an descendants, the surviving spouse shall be entitled to a
intestate heir of the parent-in-law, it would have so provided portion equal to the legitime of each of the legitimate
in the Code. children or descendants.
The aforesaid provision of law 3 refers to the estate of the In both cases, the legitime of the surviving spouse shall
deceased spouse in which case the surviving spouse (widow be taken from the portion that can be freely disposed of
or widower) is a compulsory heir. It does not apply to the by the testator. (834a)
estate of a parent-in-law. Indeed, the surviving spouse is T: As to legitimate children, the law makes no distinction
considered a third person as regards the estate of the whether of the previous marriage or the marriage dissolved
parent-in-law by death, hence, children in both cases are included
The surviving spouse concurring with legitimate children
By the same token, the provision of Article 999 of the Civil receives only equal to the legitime of each of the legitimate
Code aforecited does not support petitioner's claim. A children and ascendants.
careful examination of the said Article confirms that the What if there are no legitimate children only
estate contemplated therein is the estate of the deceased descendants? Does this mean that the spouse shall
spouse. The estate which is the subject matter of the receive equal to each descendants which may be even
intestate estate proceedings in this case is that of the more than the number of children of the deceased? NO.
deceased Petra V. Rosales, the mother-in-law of the whatever the number of descendants is immaterial the
petitioner. It is from the estate of Petra V. Rosales that divisor is still the number of children they represent because
Macikequerox Rosales draws a share of the inheritance by the descendants only inherit by representation. Even if all
the right of representation as provided by Article 981 of the the children repudiate the legitime the divisor shall still be
Code. the number of children. But if only some of the children
repudiate, the basis of computation should be the number of
Article 971 explicitly declares that Macikequerox Rosales is children who accept the inheritance
called to succession by law because of his blood If the surviving spouse receives a devise or legacy, is he
relationship. He does not succeed his father, Carterio entitiled to the same in addition to his legitime?
Rosales (the person represented) who predeceased his T: if the testator gives a devise or legacy to the surviving
grandmother, Petra Rosales, but the latter whom his father spouse, and there is enough of the portion subject to his
would have succeeded. Petitioner cannot assert the same disposal which can cover such devise or legacy, then the
right of representation as she has no filiation by blood with surviving spouse should get the devise or legacy in addition
her mother-in-law. to his legitime. To merge the devise or legacy in the legitime
would leave a part of the free portion undisposed of; this is
Petitioner however contends that at the time of the death of contrary to the policy of law against intestate succession and
her husband Carterio Rosales he had an inchoate or against the express will of the testator. We believe,
contingent right to the properties of Petra Rosales as therefore, that the devise or legacy should be first taken from
compulsory heir. Be that as it may, said right of her husband the remaining disposable portion, and if there is any excess
was extinguished by his death that is why it is their son of the devise or legacy over the disposable portion, that
Macikequerox Rosales who succeeded from Petra Rosales excess charged against or merged in the legitime of the
by right of representation. He did not succeed from his surviving spouse.
deceased father, Carterio Rosales. If however, the legitime of the surviving spouse is already
protected by the disposition giving him an amount or portion
On the basis of the foregoing observations and conclusions, equivalent to that legitime, then he cannot ask for more
We find it unnecessary to pass upon the second question unless, the testator provides it as addition to his legitime.
posed by the petitioner. Accordingly, it is Our considered Art. 893. If the testator leaves no legitimate
opinion, and We so hold, that a surviving spouse is not an descendants, but leaves legitimate ascendants, the
intestate heir of his or her parent-in-law. WHEREFORE, in surviving spouse shall have a right to one-fourth of the
view of the foregoing, the Petition is hereby DENIED for lack hereditary estate.
of merit, with costs against the petitioner. Let this case be This fourth shall be taken from the free portion of the
remanded to the trial court for further proceedings. estate. (836a)
Art. 894. If the testator leaves illegitimate children, the
C. Concurrence of compulsory heirs and their legitimes. surviving spouse shall be entitled to one-third of the
hereditary estate of the deceased and the illegitimate
Art. 888. The legitime of legitimate children and children to another third. The remaining third shall be at
descendants consists of one-half of the hereditary the free disposal of the testator. (n)
estate of the father and of the mother. Art. 895. The legitime of each of the acknowledged
The latter may freely dispose of the remaining half, natural children and each of the natural children by legal
subject to the rights of illegitimate children and of the fiction shall consist of one-half of the legitime of each of
surviving spouse as hereinafter provided. (808a) the legitimate children or descendants.
The enlargement of the legitime and the free portion to half The legitime of an illegitimate child who is neither an
each is primarily the result of removal of the 1/3 mejora or acknowledged natural, nor a natural child by legal
betterment in the old code where the testator disposes a fiction, shall be equal in every case to four-fifths of the
portion in favor of his legitimate children for their betterment legitime of an acknowledged natural child.
or reward. The NCC eliminated the mejora for the following The legitime of the illegitimate children shall be taken
reasons: from the portion of the estate at the free disposal of the
1. The natural inequalities among children is but testator, provided that in no case shall the total legitime
imaginary and parent reward merely on better of such illegitimate children exceed that free portion,
qualities of one children and that the legitime of the surviving spouse must first
2. such reward may be effected by the father or be fully satisfied. (840a)
mother by disposing of part or all of the free half Article repealed by Article 176 of the Family Code which
3. the testator should have greater freedom to provides that the legitime of each illegitimate children is one-
dispoe of his estate by will half of that of legitimate child.
the supposed free portion is not always disposable by the Ratio: the law rewards more the fruits of legal unions, thus,
testator; it is expressly made subject to the rights of giving preference and greater portion of the hereditary
illegitimate children and the surviving spouse. Only the estate. However, for humanitarian reasons the illegitimate
remainder thereafter shall be disposable, if there is any left. children should not be disregarded because they are just as
Art. 889. The legitime of legitimate parents or innocent and blameless as the legitimate children for being
ascendants consists of one-half of the hereditary born in this world beyond their control.
estates of their children and descendants. Limitations to the rights of Legitimate children:
The children or descendants may freely dispose of the 1. filiation must be proved
other half, subject to the rights of illegitimate children 2. their share comes only from the free portion
and of the surviving spouse as hereinafter provided. 3. surviving spouse is preferred over them, the
(809a) legitme of the spouse is satisfied first
Art. 890. The legitime reserved for the legitimate parents 4. their share is susceptible of proportionate
shall be divided between them equally; if one of the reduction if their total legitimes exceeds the free
portion
43
Art. 896. Illegitimate children who may survive with (2) Dissolve the authority vested in the natural
legitimate parents or ascendants of the deceased shall parent or parents, except where the adopter is
be entitled to one-fourth of the hereditary estate to be the spouse of the surviving natural parent;
taken from the portion at the free disposal of the (3) Entitle the adopted person to use the
testator. (841a) adopter's surname; and
Art. 897. When the widow or widower survives with (4) Make the adopted person a legal heir of the
legitimate children or descendants, and acknowledged adopter: Provided, That if the adopter is
natural children, or natural children by legal fiction, survived by legitimate parents or ascendants
such surviving spouse shall be entitled to a portion and by an adopted person, the latter shall not
equal to the legitime of each of the legitimate children have more successional rights than an
which must be taken from that part of the estate which acknowledged natural child: Provided, further,
the testator can freely dispose of. (n) That any property received gratuitously by the
Art. 898. If the widow or widower survives with adopted from the adopter shall revert to the
legitimate children or descendants, and with illegitimate adopter should the former predecease the
children other than acknowledged natural, or natural latter without legitimate issue unless the
children by legal fiction, the share of the surviving adopted has, during his lifetime, alienated
spouse shall be the same as that provided in the such property: Provided, finally, That in the
preceding article. (n) last case, should the adopted leave no
The Family Code has already abolished the distinction property other than that received from the
between natural and other illegitimate children placing them adopter, and he is survived by illegitimate
under one category of illegitimate children. issue or a spouse, such illegitimate issue
Art. 899. When the widow or widower survives with collectively or the spouse shall receive one-
legitimate parents or ascendants and with illegitimate fourth of such property; if the adopted is
children, such surviving spouse shall be entitled to one- survived by illegitimate issue and a spouse,
eighth of the hereditary estate of the deceased which then the former collectively shall receive one-
must be taken from the free portion, and the illegitimate fourth and the latter also one-fourth, the rest in
children shall be entitled to one-fourth of the estate any case reverting to the adopter, observing in
which shall be taken also from the disposable portion. the case of the illegitimate issue the proportion
The testator may freely dispose of the remaining one- provided for in Article 895 of the Civil Code.
eighth of the estate. (n) The adopter shall not be a legal heir of the adopted
T: This seems to be an unjustified discrimination against the person, whose parents by nature shall inherit from him,
surviving spouse because he receives a graeter or an equal except that if the latter are both dead, the adopting
amount when she survives with either the IC or the LP but parent or parents take the place of the natural parents in
with both at the same time she only receives a measly 1/8 of the line of succession, whether testate or interstate.
the estate. Undoubtedly, the code seems to have wanted to
save portion of the estate for the free disposal of the D. Restrictions regarding the legitime
deceased. This is not a sufficient justification for
discriminating against the surviving spouse and destroying Art. 904. The testator cannot deprive his compulsory
the balance between the legitimes, after vall, there are heirs of their legitime, except in cases expressly
instances in w/c the free portion is merely theoretical. specified by law.
Art. 900. If the only survivor is the widow or widower, Art. 872. The testator cannot impose any charge,
she or he shall be entitled to one-half of the hereditary condition, or substitution whatsoever upon the legitimes
estate of the deceased spouse, and the testator may prescribed in this Code. Should he do so, the same shall
freely dispose of the other half. (837a) be considered as not imposed. (813a)
If the marriage between the surviving spouse and the The legitime goes to the heir by operation of law and not by
testator was solemnized in articulo mortis, and the the will of the testator; hence it cannot be subject to the
testator died within three months from the time of the freedom of the latter to impose encumbrances, conditions
marriage, the legitime of the surviving spouse as the and substitutions. Any encumbrance is simply disregarded
sole heir shall be one-third of the hereditary estate, and considered as not written. The CH’s right to the legitime
except when they have been living as husband and wife is free, unencumbered, and pure.
for more than five years. In the latter case, the legitime Art. 905. Every renunciation or compromise as regards a
of the surviving spouse shall be that specified in the future legitime between the person owing it and his
preceding paragraph. (n) compulsory heirs is void, and the latter may claim the
Presupposes that the surviving spouse is the only same upon the death of the former; but they must bring
compulsory heir. to collation whatever they may have received by virtue
T: We believe that this rule will apply only when the of the renunciation or compromise. (816)
deceased is the spouse who was at the point of death at the 1. The future legitime between is merely an
time of marriage; hence, it will not apply when the spouse expectancy, and the heir does not acquire any
who was at the point of death at the time of marriage is the right over the same until death of testator.
one who survives, and the other is the one who dies w/in 2. The renunciation or compromise does not
three months after the marriage. become valid by the mere failure of the
Ratio for the rule is the presumption that the marriage is compulsory heirs to assert its invalidity because
contracted exclusively for inheriting. However, this suspicion the matter of its legal effect cannot be left to the
is erased if the spouses had been living together as husband will of the parties.
and wife for at least five years on account of companionship 3. all renunciations of future legitimes are void.
and affection for such length of time. However, a mere statement made by a son of the
This distinction does not apply to intestacy properties ne has received from his father, still
Art. 901. When the testator dies leaving illegitimate living, for the purpose of taking the same into
children and no other compulsory heirs, such account in case of partition in the event the father
illegitimate children shall have a right to one-half of the dies, is not a renunciation or compromise on future
hereditary estate of the deceased. legitime.
The other half shall be at the free disposal of the 4. Since the legitime is a part of the inheritance,
testator. (842a) and a compromise is contract, it is obvious that all
Art. 903. The legitime of the parents who have an compromises on future legitimes, by and between
illegitimate child, when such child leaves neither the heirs themselves to the exclusion of the
legitimate descendants, nor a surviving spouse, nor testator, must be held void if not under this article,
illegitimate children, is one-half of the hereditary estate under the general prohibition of Art. 1347.
of such illegitimate child. If only legitimate or illegitimate 5. the nullity of the renunciation or compromise
children are left, the parents are not entitled to any may be claimed, not only by the CH who made it,
legitime whatsoever. If only the widow or widower by co-heirs prejudiced thereby.
survives with parents of the illegitimate child, the 6. the giving of donations as advance of the
legitime of the parents is one-fourth of the hereditary legitime is not prohibited by this article nor 1347
estate of the child, and that of the surviving spouse also but governed by rules on donation and the
one-fourth of the estate. (n) reduction thereof whenever inofficoius.
It must be noted that in illegitimate filiation, the right to Art. 906. Any compulsory heir to whom the testator has
succeed in the ascending line terminates with the parent of left by any title less than the legitime belonging to him
the deceased illegitimate child. There is, therefore, no may demand that the same be fully satisfied. (815)
reciprocity of successional reights between the illegitimate By the word testator, irt is believed thiat this principle applies
grandparent and the illegitimate grandchild. only when that which has been left is in a will or testament. If
P.D. 603; Art. 39. Effects of Adoption. - The adoption there is no testatmentery disposition in his favor, the heir
shall: cannot ask for completion of his legitime, because there is
(1) Give to the adopted person the same rights nothing to complete; instead, there should be case of
and duties as if he were a legitimate child of preterition or total omission, and in such case the forced heir
the adopter: Provided, That an adopted child in the direct line is entitled to ask, not merely for the
cannot acquire Philippine citizenship by virtue completion of his legitime, but for the annulment of the
of such adoption: institution of heir.
But when it is not evedent that the testator has forgotten the
compulsory heir and it appears as a fact that the compulsory
44
heir had already received something in the way of advance The second concept entails that property donated by the
upon his legitime, it cannot be presumed that the testator testator during his lifetime must be brought back actually and
had forgotten the compulsory heir. There is no real returened to the hereditary estate whenever it is found that
preterition, although nothing has been left by will to the CH. such donation exceeds the disposable portion of the estate.
The purpose of Article 906 evidently is to give the The purpose of which is to complete the assets necessary
compulsory heir only that ehich has been reserved for him for the payment of the shares of the compulsory heirs.
by the law, nothing less nothing more. If he was not Collation is thus for the benefit of the CH, and not the
forgotten then he is entitled only to that which the testator creditors of the decedent. The presence of the latter,
cannot deprive him. however, must be determined at the time of the testator’s
Even when the CH has not been mentioned in the will or has death, not at the time the donation was made. The value of
not been gien an advance on his legitime, if the the property donated, however, is determined on the date
testamentary dispositions do not cover the entire estate but the donations were made.
something is left undisposed, and the CH is also a To the net value of the hereditary estate, shall be added
compulsory heir is also an intestate heir. The indisposed the value of all donations by the testator that are subject
portion would pass by the rule of intestacy to the CH; if it is to collation, at the time he made them. (818a)
not enough to cover his legitime, then he may ask for the Art. 909. Donations given to children shall be charged to
completion of such legitme. It is to be presumed that the their legitime.
testator intended to give him the undisposed portion. Donations made to strangers shall be charged to that
Art. 907. Testamentary dispositions that impair or part of the estate of which the testator could have
diminish the legitime of the compulsory heirs shall be disposed by his last will.
reduced on petition of the same, insofar as they may be Insofar as they may be inofficious or may exceed the
inofficious or excessive. (817) disposable portion, they shall be reduced according to
Only the CHs whose legitme has been impaired can avail of the rules established by this Code. (819a)
the right to ask for the reduction of inofficious donations, Art. 910. Donations which an illegitimate child may have
devises, or legacies. received during the lifetime of his father or mother, shall
Art. 1347. All things which are not outside the commerce be charged to his legitime.
of men, including future things, may be the object of a Should they exceed the portion that can be freely
contract. All rights which are not intransmissible may disposed of, they shall be reduced in the manner
also be the object of contracts. prescribed by this Code. (847a)
No contract may be entered into upon future inheritance Any donation to the grandchild is not subject to collation
except in cases expressly authorized by law. because the same is not a CH but it may be charged against
All services which are not contrary to law, morals, good the free portion as a donation to stranger.
customs, public order or public policy may likewise be When the donation to a compulsory heir exceeds his
the object of a contract. (1271a) legitime, the excess is chargeable against the free portion
It is essential that the object must be in existence at the time which is at the disposal of the the testator, just as any
of perfection of the contract, or that it has the possibility or donation to stranger, subject to the resk of reduction.
potentiality of coming into existence at some future time. By If the donation to a stranger exceeds the free portion, then it
way of exception, the law generally does not allow contracts will have to be reduced as inofficious. The purpose of the
on future inheritance. In order to be future inheritance, the law is not to prevent the stranger from getting more from the
succession must not have been opened at the time of the inheritance, but to ascertain that the CH do not get less than
contract. A contract to fall within the prohibition of this article, what pertains to them as legitime.
the following requisites are necessary: 1. that the succession Art. 911. After the legitime has been determined in
is yet to be opened. 2. the object forms part of the accordance with the three preceding articles, the
inheritance. 3. the promissor has an expectant right over the reduction shall be made as follows:
object which is purely hereditary in nature. (1) Donations shall be respected as long as the
An agreement to partition an estate of a living person by legitime can be covered, reducing or annulling,
those who inherit from him is void. A contract renouncing the if necessary, the devises or legacies made in
right to inherit from one who is still alive is void. the will;
After the death of the person, however, the properties and (2) The reduction of the devises or legacies
rights left by him by way of inheritance can be the subject shall be pro rata, without any distinction
matter of a contract among or by his heirs, even before a whatever.
partition thereof has been made, because the rights of the If the testator has directed that a certain devise
heirs are transmitted to them from the death of the or legacy be paid in preference to others, it
predecessor. shall not suffer any reduction until the latter
When the object of the contract is not a part of the have been applied in full to the payment of the
inheritance, the prohibition does not apply, even if delivery of legitime.
such object is dependent upon the death of one of the (3) If the devise or legacy consists of a
contracting parties. Thus, life insurance contracts, and usufruct or life annuity, whose value may be
stipulations providing for reversion of property donated in considered greater than that of the disposable
marriage settlements in the event of the death of the donee, portion, the compulsory heirs may choose
are valid. Likewise, if the right of the party over the thing is between complying with the testamentary
not by virtue of succession, but as creditor, the contract does provision and delivering to the devisee or
not fall within the prohibition of this article. It has been held legatee the part of the inheritance of which the
that in a contract of purchase by co-owners, it is valid to testator could freely dispose. (820a)
stipulate that in the event of death of any of them, those who Donation intervivos is preferred over disposition mortis
survive will acquire the share of the predeceased. causa. Ratio:
E. Determination of computation 1. Donation intervivos are by nature irrevocable
Art. 908. To determine the legitime, the value of the to allow annulment on account of legacies and
property left at the death of the testator shall be devise in excess of free portion in effect allows the
considered, deducting all debts and charges, which revocation to depend on the will of the donor-
shall not include those imposed in the will. testator.
Steps to determine legitime: 2. Donation is a bilateral act based on the
1. Determination of the value of the property sgreement of donor and donee while a will is
which remains at the time of the testator’s death; unilateral;
either by: 3. Priority in time is priority in right.
a. judicial proceedings in the The article provides a rule on preference to determine which
settlement of the estate assisted by tax devise or legacy is to be reduced whenervr it execeeds the
appraisers free portion or to the extent that it impairs the legitime.
b. true value of the property not Art. 950 also provides the following order of reduction of
merely assessed value for taxation legacy or devise:
purposes 1. remunatory legacy or devise;
2. determination of the obligations, debts, and 2. legacy or devise declared by testator to be
charges which have to be paid out or deducted preferred;
from the value of the property 3. legacies for support;
3. the difference between the assets and the 4. legacies for education;
liabilities, giving rise to the net hereditary estate; 5. specific determinate thing ehich form part of the
4. addition to the net value of the estate of estate;
donations subject to collation 6. all others pro rata.
5. determination of the amount of legitimes by Where lies the distintion bet. 950 and 911?
getting from the total thus found the portion that Article 911 will apply as to the manner of reducing legacies:
the law provides as the legitimes of each a. when reduction is necessary to preserve
respective CH. legitime of CH from impairment wheter there are
The remainder after deduction of the debts and charges is donation inter vivos;
the net hereditary estate. b. when although legitime has been preserve by
Collation, in the first concept is the imaginary or fictitious the testator, by giving sufficient portion to cover
reconstitution of the estate of the testator by mere legitime of CH, thereare donations inter vivos
mathematical process of adding all that is donated during concurring with legacies or devises within the free
the lifrtime of the testator to CH or strangers. portion.
45
Article 950 applies when the question of reduction is a. IP alone – ½
exclusively among the legatees themselves, either because b. IP w/ LC or IC – excluded by the latter
ther are no compulsory heirs, or because the legitme of CH c. IP w/ SS – ¼, ¼
has already been provided for by the testator in his will and
there are no donation inter vivos.
As to usufruct, use or habitation, or life annuity there shall be COLLATION
taken into account the probable life of the beneficiary in
accordance with the American Tropical Experience table at Art. 1061. Every compulsory heir, who succeeds with
8% per annum. other compulsory heirs, must bring into the mass of the
Donations are reduced first the most recent ones with regard estate any property or right which he may have received
the excess. Thus, priority in time priority in right. If several from the decedent, during the lifetime of the latter, by
donations made on the same date they are reduced pro rata way of donation, or any other gratuitous title, in order
A property donated once alienated by donee cannot be set that it may be computed in the determination of the
aside. It would be dangerous to the stability of property and legitime of each heir, and in the account of the partition.
inimical to the freedom of alienation. (1035a)
In the above instance, can the inofficious part of the Art. 1062. Collation shall not take place among
donation be taken from other proerty of the donee? compulsory heirs if the donor should have so expressly
We believe that in such case the donee should be made to provided, or if the donee should repudiate the
respond fro the value of the excess or inofficoius part. It was inheritance, unless the donation should be reduced as
the act of the donee which made it impossible to recover the inofficious. (1036)
inofficoius part to the hereditary estate. He is conclusively Art. 1063. Property left by will is not deemed subject to
presumed to knoe that that the donation stands the risk of collation, if the testator has not otherwise provided, but
reduction. the legitime shall in any case remain unimpaired. (1037)
What if the donee is insolvent and cannot return anything to Art. 1064. When the grandchildren, who survive with
the estate to complete the impaired legitime; who shall bear their uncles, aunts, or cousins, inherit from their
the loss? grandparents in representation of their father or mother,
It is submitted that that the amount to be returned by the they shall bring to collation all that their parents, if alive,
insolvent must be borne and paid by those whose donation would have been obliged to bring, even though such
are within the free portion. As between the compulsory heir, grandchildren have not inherited the property.
whose rights are derived from law, and the donees, whose They shall also bring to collation all that they may have
rights spring from the will of the deceased, the former should received from the decedent during his lifetime, unless
be protected from the impairment of their shares. the testator has provided otherwise, in which case his
Art. 912. If the devise subject to reduction should wishes must be respected, if the legitime of the co-heirs
consist of real property, which cannot be conveniently is not prejudiced. (1038)
divided, it shall go to the devisee if the reduction does Art. 1065. Parents are not obliged to bring to collation in
not absorb one-half of its value; and in a contrary case, the inheritance of their ascendants any property which
to the compulsory heirs; but the former and the latter may have been donated by the latter to their children.
shall reimburse each other in cash for what respectively (1039)
belongs to them. Art. 1066. Neither shall donations to the spouse of the
The devisee who is entitled to a legitime may retain the child be brought to collation; but if they have been given
entire property, provided its value does not exceed that by the parent to the spouses jointly, the child shall be
of the disposable portion and of the share pertaining to obliged to bring to collation one-half of the thing
him as legitime. (821) donated. (1040)
Art. 913. If the heirs or devisees do not choose to avail Art. 1067. Expenses for support, education, medical
themselves of the right granted by the preceding article, attendance, even in extraordinary illness,
any heir or devisee who did not have such right may apprenticeship, ordinary equipment, or customary gifts
exercise it; should the latter not make use of it, the are not subject to collation. (1041)
property shall be sold at public auction at the instance Art. 1068. Expenses incurred by the parents in giving
of any one of the interested parties. (822) their children a professional, vocational or other career
T: Division under this article means a material division, which shall not be brought to collation unless the parents so
is inconvenient, because the the property is not susceptible provide, or unless they impair the legitime; but when
of such division, or because it will lose or diminish its value their collation is required, the sum which the child
or utitlity when so divided. Hence, although the law would have spent if he had lived in the house and
specifically refers only to devise, it should be considered company of his parents shall be deducted therefrom.
applicable to all objects whether movable or immovable, of (1042a)
the same nature, such as vessels. Art. 1069. Any sums paid by a parent in satisfaction of
Query: if the reduction should be exactly ½ of the value, the debts of his children, election expenses, fines, and
does it mean that the hir gets to retain it not being less than similar expenses shall be brought to collation. (1043a)
½? “does not absorb ½” Art. 1070. Wedding gifts by parents and ascendants
It is submitted that the thing should be retained by the consisting of jewelry, clothing, and outfit, shall not be
devisee. The intention of the testaor in making a devise of a reduced as inofficious except insofar as they may
determinate object is clearly so that the legatee may enjoy exceed one-tenth of the sum which is disposable by will.
that particular property. Out of respect for this intention, and (1044)
since the will of the testator is the governing law in the Art. 1071. The same things donated are not to be
succession, the thing should be given to the devisee in case brought to collation and partition, but only their value at
he is entitled to half its value and the heirs the other half. the time of the donation, even though their just value
may not then have been assessed.
Summary of Legitimes of Compulsory Heirs Their subsequent increase or deterioration and even
their total loss or destruction, be it accidental or
1. Legitimate Children with other CH culpable, shall be for the benefit or account and risk of
the donee. (1045a)
c. LC alone – ½ Art. 1072. In the collation of a donation made by both
d. 1 LC w/ SS- ½, ¼ parents, one-half shall be brought to the inheritance of
e. 2 or more LC w/ SS – ½, same as 1 LC the father, and the other half, to that of the mother. That
receives given by one alone shall be brought to collation in his or
f. LC w/ IC – ½, half of 1 LC her inheritance. (1046a)
g. 1LC, SS, IC – ½, ¼, half of 1 LC Art. 1073. The donee's share of the estate shall be
h. LCs, SS, IC – ½, same as 1 LC, half of 1 LC reduced by an amount equal to that already received by
him; and his co-heirs shall receive an equivalent, as
2. Legitimate Parents & Ascendants w/ other CH much as possible, in property of the same nature, class
and quality. (1047)
a. LPA alone – 1/2 Art. 1074. Should the provisions of the preceding article
b. LPA w/ SS – ½, ¼ be impracticable, if the property donated was
c. LPA w/ IC – ½, ¼ immovable, the co-heirs shall be entitled to receive its
d. LPA, SS, IC – ½, 1/8, ¼ equivalent in cash or securities, at the rate of quotation;
and should there be neither cash or marketable
3. Illegitimate Children w/ other IC securities in the estate, so much of the other property as
may be necessary shall be sold at public auction.
a. IC alone – ½ If the property donated was movable, the co-heirs shall
b. IC w/ SS – 1/3, 1/3 only have a right to select an equivalent of other
personal property of the inheritance at its just price.
4. Surviving Spouse alone – ½ (1048)
Art. 1075. The fruits and interest of the property subject
Except in articulo mortis marriage and spouse dies w/in to collation shall not pertain to the estate except from
3 mos. Surviving spouse entitled only to 1/3 the day on which the succession is opened.
For the purpose of ascertaining their amount, the fruits
5. Illegitimate Parents w/ other CH and interest of the property of the estate of the same

46
kind and quality as that subject to collation shall be 1. Whether or not the testamentary dispositions
made the standard of assessment. (1049) made in the testatrix' will are in the nature of devises
Art. 1076. The co-heirs are bound to reimburse to the imputable to the free portion of her estate, and
donee the necessary expenses which he has incurred therefore subject to reduction;
for the preservation of the property donated to him,
though they may not have augmented its value. 2. Whether the appellants are entitled to the devise
The donee who collates in kind an immovable which has plus their legitime under Article 1063, or merely to
been given to him must be reimbursed by his co-heirs demand completion of their legitime under Article 906
for the improvements which have increased the value of of the Civil Code; and
the property, and which exist at the time the partition if
effected. 3. Whether the appellants may be compelled to
As to works made on the estate for the mere pleasure of accept payment in cash on account of their legitime,
the donee, no reimbursement is due him for them; he instead of some of the real properties left by the
has, however, the right to remove them, if he can do so Testatrix;
without injuring the estate. (n)
Art. 1077. Should any question arise among the co-heirs The testator's wishes and intention constitute the first and
upon the obligation to bring to collation or as to the principal law in the matter of testaments, and to paraphrase
things which are subject to collation, the distribution of an early decision of the Supreme Court of Spain. 9 when
the estate shall not be interrupted for this reason, expressed clearly and precisely in his last will amount to the
provided adequate security is given. (1050) only law whose mandate must imperatively be faithfully
obeyed and complied with by his executors, heirs and
Dizon-Rivera vs. Dizon devisees and legatees, and neither these interested parties
nor the courts may substitute their own criterion for the
On January 28, 1961, the testatrix, Agripina J. Valdez. a testator's will. Guided and restricted by these fundamental
widow, died in Angeles, Pampanga, and was survived by premises, the Court finds for the appellee.
seven compulsory heirs, to wit, six legitimate children named
Estela Dizon, Tomas V. Dizon, Bernardita Dizon, Marina This was properly complied with in the executrix-appellee's
Dizon (herein executrix-appellee), Angelina Dizon and project of partition, wherein the five oppositors-appellants
Josefina Dizon, and a legitimate grand-daughter named Lilia namely Estela. Bernardita, Angelina, Josefina and Lilia, were
Dizon, who is the only legitimate child and heir of Ramon adjudicated the properties respectively distributed and
Dizon, a pre-deceased legitimate son of the said decedent. assigned to them by the testatrix in her will, and the
Six of these seven compulsory heirs (except Marina Dizon, differential to complete their respective legitimes of
the executrix-appellee) are the oppositors-appellants. P129,362.11 each were taken from the cash and/or
In her will, the testatrix divided, distributed and disposed of properties of the executrix-appellee, Marina, and their co-
all her properties appraised at P1,801,960.00 (except, two oppositor-appellant, Tomas, who admittedly were favored by
small parcels of land appraised at P5,849.60, household the testatrix and received in the partition by will more than
furniture valued at P2,500.00, a bank deposit in the sum of their respective legitimes.
P409.95 and ten shares of Pampanga Sugar Development
Company valued at P350.00) among her abovenamed heirs. This right of a testator to partition his estate by will was
recognized even in Article 1056 of the old Civil Code which
Testate proceedings were in due course commenced 2 and has been reproduced now as Article 1080 of the present
by order dated March 13, 1961, the last will and testament of Civil Code. The only amendment in the provision was that
the decedent was duly allowed and admitted to probate, and Article 1080 "now permits any person (not a testator, as
the appellee Marina Dizon-Rivera was appointed executrix under the old law) to partition his estate by act inter vivos."
of the testatrix' estate, and upon her filing her bond and oath 11 This was intended to repeal the then prevailing doctrine
of office, letters testamentary were duly issued to her. 12 that for a testator to partition his estate by an act inter
vivos, he must first make a will with all the formalities
The real and personal properties of the testatrix at the time provided by law. Authoritative commentators doubt the
of her death thus had a total appraised value of efficacy of the amendment 13 but the question does not
P1,811,695.60, and the legitime of each of the seven here concern us, for this is a clear case of partition by will,
compulsory heirs amounted to P129,362.11. 3 (1/7 of the duly admitted to probate, which perforce must be given full
half of the estate reserved for the legitime of legitimate validity and effect. Aside from the provisions of Articles 906
children and descendants). 4 In her will, the testatrix and 907 above quoted, other codal provisions support the
"commanded that her property be divided" in accordance executrix-appellee's project of partition as approved by the
with her testamentary disposition, whereby she devised and lower court rather than the counter-project of partition
bequeathed specific real properties comprising practically proposed by oppositors-appellants whereby they would
the entire bulk of her estate among her six children and eight reduce the testamentary disposition or partition made by the
grandchildren. testatrix to one-half and limit the same, which they would
consider as mere devises or legacies, to one-half of the
Under the oppositors' counter-project of partition, the estate as the disposable free portion, and apply the other
testamentary disposition made by the testatrix of practically half of the estate to payment of the legitimes of the seven
her whole estate of P1,801,960.01, as above stated, were compulsory heirs. Oppositors' proposal would amount
proposed to be reduced to the amounts set forth after the substantially to a distribution by intestacy and pro tanto
names of the respective heirs and devisees totalling one-half nullify the testatrix' will, contrary to Article 791 of the Civil
while the other half of the estate (P905,534.78) would he Code. It would further run counter to the provisions of Article
deemed as constituting the legitime of the executrix-appellee 1091 of the Civil Code that "(A) partition legally made
and oppositors-appellants, to be divided among them in confers upon each heir the exclusive ownership of the
seven equal parts of P129,362.11 as their respective property adjudicated to him.
legitimes.
The burden of oppositors' contention is that the testamentary
The lower court, after hearing, sustained and approved the dispositions in their favor are in the nature of devises of real
executrix' project of partition, ruling that "(A)rticles 906 and property, citing the testatrix' repeated use of the words "I
907 of the New Civil Code specifically provide that when the bequeath" in her assignment or distribution of her real
legitime is impaired or prejudiced, the same shall be properties to the respective heirs. From this erroneous
completed and satisfied. While it is true that this process has premise, they proceed to the equally erroneous conclusion
been followed and adhered to in the two projects of partition, that "the legitime of the compulsory heirs passes to them by
it is observed that the executrix and the oppositors differ in operation of law and that the testator can only dispose of the
respect to the source from which the portion or portions shall free portion, that is, the remainder of the estate after
be taken in order to fully restore the impaired legitime. The deducting the legitime of the compulsory heirs . . . and all
proposition of the oppositors, if upheld, will substantially testamentary dispositions, either in the nature of institution of
result in a distribution of intestacy, which is in controversion heirs or of devises or legacies, have to be taken from the
of Article 791 of the New Civil Code" adding that "the remainder of the testator's estate constituting the free
testatrix has chosen to favor certain heirs in her will for portion."
reasons of her own, cannot be doubted. This is legally
permissible within the limitation of the law, as aforecited." Oppositors' conclusions necessarily are in error. The
With reference to the payment in cash of some P230,552.38, testamentary dispositions of the testatrix, being dispositions
principally by the executrix as the largest beneficiary of the in favor of compulsory heirs, do not have to be taken only
will to be paid to her five co-heirs, the oppositors (excluding from the free portion of the estate, as contended, for the
Tomas Dizon), to complete their-impaired legitimes, the second paragraph of Article 842 of the Civil Code precisely
lower court ruled that "(T)he payment in cash so as to make provides that "(O)ne who has compulsory heirs may dispose
the proper adjustment to meet with the requirements of the of his estate provided he does not contravene the provisions
law in respect to legitimes which have been impaired is, in of this Code with regard to the legitime of said heirs." And
our opinion, a practical and valid solution in order to give even going by oppositors' own theory of bequests, the
effect to the last wishes of the testatrix." second paragraph of Article 912 of the Civil Code covers
precisely the case of the executrix-appellee, who admittedly
m the lower court's orders of approval, oppositors-appellants was favored by the testatrix with the large bulk of her estate
have filed this appeal, and raise anew the following issues: in providing that "(T)he devisee who is entitled to a legitime
may retain the entire property, provided its value does not
47
exceed that of the disposable portion and of the share upon is whether these lands are subject to collation. The
pertaining to him as legitime." For "diversity of apportionment private respondent vigorously argues that it is, conformably
is the usual reason for making a testament; otherwise, the to Article 1061 of the Civil Code. Buhay, for her part, citing
decedent might as well die intestate." 18 Fundamentally, of Article 1062, claims she has no obligation to collate because
course, the dispositions by the testatrix constituted a the decedent prohibited such collation and the donation was
partition by will, which by mandate of Article 1080 of the Civil not officious.
Code and of the other cited codal provisions upholding the The issue was resolved in favor of the petitioner by the trial
primacy of the testator's last will and testament, have to be court, * which held that the decedent, when she made the
respected insofar as they do not prejudice the legitime of the donation in favor of Buhay, expressly prohibited collation.
other compulsory heirs. Moreover, the donation did not impair the legitimes of the
two adopted daughters as it could be accommodated in, and
Oppositors' invoking of Article 1063 of the Civil Code that in fact was imputed to, the free portion of Candelaria's
"(P)roperty left by will is not deemed subject to collation, if estate. 3
the testator has not otherwise provided, but the legitime shall
in any case remain unimpaired" and invoking of the On appeal, the order of the trial court was reversed, the
construction thereof given by some authorities that "'not respondent court ** holding that the deed of donation
deemed subject to collation' in this article really means not contained no express prohibition to collate as an exception
imputable to or chargeable against the legitime", while it may to Article 1062. Accordingly, it ordered collation and equally
have some plausibility 19 in an appropriate case, has no divided the net estate of the decedent, including the fruits of
application in the present ease. Here, we have a case of a the donated property, between Buhay and Rosalinda. 4
distribution and partition of the entire estate by the testatrix,
without her having made any previous donations during her We agree with the respondent court that there is nothing in
lifetime which would require collation to determine the the above provisions expressly prohibiting the collation of
legitime of each heir nor having left merely some properties the donated properties. As the said court correctly observed,
by will which would call for the application of Articles 1061 to the phrase "sa pamamagitan ng pagbibigay na di na
1063 of the Civil Code on collation. The amount of the mababawing muli" merely described the donation as
legitime of the heirs is here determined and undisputed. "irrevocable" and should not be construed as an express
prohibition against collation. 6 The fact that a donation is
With this resolution of the decisive issue raised by irrevocable does not necessarily exempt the subject thereof
oppositors-appellants, the secondary issues are likewise from the collation required under Article 1061.
necessarily resolved. Their right was merely to demand
completion of their legitime under Article 906 of the Civil We surmise from the use of such terms as "legitime" and
Code and this has been complied with in the approved "free portion" in the deed of donation that it was prepared by
project of partition, and they can no longer demand a further a lawyer, and we may also presume he understood the legal
share from the remaining portion of the estate, as consequences of the donation being made. It is reasonable
bequeathed and partitioned by the testatrix principally to the to suppose, given the precise language of the document,
executrix-appellee. that he would have included therein an express prohibition to
collate if that had been the donor's intention.
Neither may the appellants legally insist on their legitime
being completed with real properties of the estate instead of Anything less than such express prohibition will not suffice
being paid in cash, per the approved project of partition. The under the clear language of Article 1062. The suggestion
properties are not available for the purpose, as the testatrix that there was an implied prohibition because the properties
had specifically partitioned and distributed them to her heirs, donated were imputable to the free portion of the decedent's
and the heirs are called upon, as far as feasible to comply estate merits little consideration. Imputation is not the
with and give effect to the intention of the testatrix as question here, nor is it claimed that the disputed donation is
solemnized in her will, by implementing her manifest wish of officious. The sole issue is whether or not there was an
transmitting the real properties intact to her named express prohibition to collate, and we see none.
beneficiaries, principally the executrix-appellee. The
appraisal report of the properties of the estate as filed by the The intention to exempt from collation should be expressed
commissioner appointed by the lower court was approved in plainly and unequivocally as an exception to the general rule
toto upon joint petition of the parties, and hence, there announced in Article 1062. Absent such a clear indication of
cannot be said to be any question — and none is presented that intention, we apply not the exception but the rule, which
— as to fairness of the valuation thereof or that the legitime is categorical enough.
of the heirs in terms of cash has been understated. The
plaint of oppositors that the purchasing value of the Locsin vs. CA
Philippine peso has greatly declined since the testatrix'
death in January, 1961 provides no legal basis or Mariano Locsin executed a Last Will and Testament
justification for overturning the wishes and intent of the instituting his wife, Catalina, as the sole and universal heir of
testatrix. The transmission of rights to the succession are all his properties 3 . The will was drawn up by his wife's
transmitted from the moment of death of the decedent nephew and trusted legal adviser, Attorney Salvador
(Article 777, Civil Code) and accordingly, the value thereof Lorayes. Attorney Lorayes disclosed that the spouses being
must be reckoned as of then, as otherwise, estates would childless, they had agreed that their properties, after both of
never be settled if there were to be a revaluation with every them shall have died should revert to their respective sides
subsequent fluctuation in the values of the currency and of the family, i.e., Mariano's properties would go to his
properties of the estate. There is evidence in the record that "Locsin relatives" (i.e., brothers and sisters or nephews and
prior to November 25, 1964, one of the oppositors, nieces), and those of Catalina to her "Jaucian relatives. 4 "
Bernardita, accepted the sum of P50,000.00 on account of
her inheritance, which, per the parties' manifestation, 20 Don Mariano Locsin died of cancer on September 14, 1948
"does not in any way affect the adjudication made to her in after a lingering illness. In due time, his will was probated in
the projects of partition of either party as the same is a mere Special Proceedings No. 138, CFI of Albay without any
advance of the cash that she should receive in both projects opposition from both sides of the family. As directed in his
of partition." The payment in cash by way of making the will, Doña Catalina was appointed executrix of his estate.
proper adjustments in order to meet the requirements of the Her lawyer in the probate proceedings was Attorney
law on non-impairment of legitimes as well as to give effect Lorayes. In the inventory of her husband's estate 5 which
to the last will of the testatrix has invariably been availed of she submitted to the probate court for approval, 6 Catalina
and sanctioned. 21 That her co-oppositors would receive declared that "all items mentioned from Nos. 1 to 33 are the
their cash differentials only now when the value of the private properties of the deceased and form part of his
currency has declined further, whereas they could have capital at the time of the marriage with the surviving spouse,
received them earlier, like Bernardita, at the time of approval while items Nos. 34 to 42 are conjugal." 7
of the project of partition and when the peso's purchasing
value was higher, is due to their own decision of pursuing Among her own and Don Mariano's relatives, Doña Catalina
the present appeal. was closest to her nephew, Attorney Salvador Lorayes, her
nieces, Elena Jaucian, Maria Lorayes-Cornelio and Maria
De Roma vs. CA Olbes-Velasco, and the husbands of the last two: Hostilio
Cornelio and Fernando Velasco. 8 Her trust in Hostilio
Candelaria de Roma had two legally adopted daughters, Cornelio was such that she made him custodian of all the
Buhay de Roma and Rosalinda de Roma. She died intestate titles of her properties; and before she disposed of any of
on April 30, 1971, and administration proceedings were them, she unfailingly consulted her lawyer-nephew, Attorney
instituted in the Court of First Instance of Laguna by the Salvador Lorayes. It was Atty. Lorayes who prepared the
private respondent as guardian of Rosalinda. Buhay was legal documents and, more often than not, the witnesses to
appointed administratrix and in due time filed an inventory of the transactions were her nieces Elena Jaucian, Maria
the estate. This was opposed by Rosalinda on the ground Lorayes-Cornelio, Maria Olbes-Velasco, or their husbands.
that certain properties earlier donated by Candelaria to Her niece, Elena Jaucian, was her life-long companion in her
Buhay, and the fruits thereof, had not been included. 1 house.

The properties in question consisted of seven parcels of Don Mariano relied on Doña Catalina to carry out the terms
coconut land worth P10,297.50. 2 There is no dispute of their compact, hence, nine (9) years after his death, as if
regarding their valuation; what the parties cannot agree in obedience to his voice from the grave, and fully cognizant
48
that she was also advancing in years, Doña Catalina began passed away, she also sold a 43-hectare land to another
transferring, by sale, donation or assignment, Don Locsin nephew, Jose R. Locsin. 14 The next year, or on
Mariano's, as well as her own, properties to their respective March 22, 1967, she sold a 5,000-sq.m. portion of Lot 2020
nephews and nieces. She made the following sales and to Julian Locsin. 15
donations of properties which she had received from her
husband's estate, to his Locsin nephews and nieces: Among Doña Catalina's last transactions before she died in
1977 were the sales of property which she made in favor of
Doña Catalina died on July 6, 1977. Four years before her Aurea Locsin and Mariano Locsin in 1975. 18
death, she had made a will on October 22, 1973 affirming
and ratifying the transfers she had made during her lifetime There is not the slightest suggestion in the record that Doña
in favor of her husband's, and her own, relatives. After the Catalina was mentally incompetent when she made those
reading of her will, all the relatives agreed that there was no dispositions. Indeed, how can any such suggestion be made
need to submit it to the court for probate because the in light of the fact that even as she was transferring
properties devised to them under the will had already been properties to the Locsins, she was also contemporaneously
conveyed to them by the deceased when she was still alive, disposing of her other properties in favor of the Jaucians?
except some legacies which the executor of her will or She sold to her nephew, Vicente Jaucian, on July 16, 1964
estate, Attorney Salvador Lorayes, proceeded to distribute. (21 years before her death) one-half (or 5,000 sq.m.) of Lot
2020. Three years later, or on March 22, 1967, she sold
In 1989, or six (6) years after Doña Catalina's demise, some another 5,000 sq.m. of the same lot to Jualian Locsin. 19
of her Jaucian nephews and nieces who had already
received their legacies and hereditary shares from her This Court finds no reason to disbelieve Attorney Lorayes'
estate, filed action in the Regional Trial Court of Legaspi City testimony that before Don Mariano died, he and his wife
(Branch VIII, Civil Case No. 7152) to recover the properties (Doña Catalina), being childless, had agreed that their
which she had conveyed to the Locsins during her lifetime, respective properties should eventually revert to their
alleging that the conveyances were in officious, without respective lineal relatives. As the trusted legal adviser of the
consideration, and intended solely to circumvent the laws on spouses and a full-blood nephew of Doña Catalina, he would
succession. Those who were closest to Doña Catalina did not have spun a tale out of thin air that would also prejudice
not join the action. his own interest.

After the trial, judgment was rendered on July 8, 1985 in Their desistance persuasively demonstrates that Doña
favor of the plaintiffs (Jaucian), and against the Locsin Catalina acted as a completely free agent when she made
defendants the conveyances in favor of the petitioners. In fact,
considering their closeness to Doña Catalina it would have
The petition has merit and should be granted. The trial court been well-nigh impossible for the petitioners to employ
and the Court of Appeals erred in declaring the private "fraud, undue pressure, and subtle manipulations" on her to
respondents, nephews and nieces of Doña Catalina J. Vda. make her sell or donate her properties to them. Doña
de Locsin, entitled to inherit the properties which she had Catalina's niece, Elena Jaucian, daughter of her brother,
already disposed of more than ten (10) years before her Eduardo Jaucian, lived with her in her house. Her nephew-
death. For those properties did not form part of her in-law, Hostilio Cornelio, was the custodian of the titles of
hereditary estate, i.e., "the property and transmissible rights her properties.
and obligations existing at the time of (the decedent's) death
and those which have accrued thereto since the opening of Apart from the foregoing considerations, the trial court and
the succession." 10 The rights to a person's succession the Court of Appeals erred in not dismissing this action for
are transmitted from the moment of his death, and do not annulment and reconveyance on the ground of prescription.
vest in his heirs until such time. 11 Property which Doña Commenced decades after the transactions had been
Catalina had transferred or conveyed to other persons consummated, and six (6) years after Doña Catalina's death,
during her lifetime no longer formed part of her estate at the it prescribed four (4) years after the subject transactions
time of her death to which her heirs may lay claim. Had she were recorded in the Registry of Property, 28 whether
died intestate, only the property that remained in her estate considered an action based on fraud, or one to redress an
at the time of her death devolved to her legal heirs; and even injury to the rights of the plaintiffs. The private respondents
if those transfers were, one and all, treated as donations, the may not feign ignorance of said transactions because the
right arising under certain circumstances to impugn and registration of the deeds was constructive notice thereof to
compel the reduction or revocation of a decedent's gifts inter them and the whole world. 29
vivos does not inure to the respondents since neither they WHEREFORE, the petition for review is granted.
nor the donees are compulsory (or forced) heirs. 12

There is thus no basis for assuming an intention on the part F. Freedom to dispose free portion
of Doña Catalina, in transferring the properties she had
received from her late husband to his nephews and nieces, Art. 914. The testator may devise and bequeath the free
an intent to circumvent the law in violation of the private portion as he may deem fit.
respondents' rights to her succession. Said respondents are
not her compulsory heirs, and it is not pretended that she The article reiterates the principle embodied already in
had any such, hence there were no legitimes that could article 842. thus, superfluous and at some point misleading.
conceivably be impaired by any transfer of her property In many cases, the testator cannot really dispose of part or
during her lifetime. All that the respondents had was an whole of the free portion, because the legitimes of
expectancy that in nowise restricted her freedom to dispose concurring compulsory heirs, like the surviving spouse and
of even her entire estate subject only to the limitation set illegitimate children when there are legitimate children or
forth in Art. 750, Civil Code which, even if it were breached, descendants, are taken from the free portion. Hence, he can
the respondents may not invoke: only dispose that which is the remainder of the free portion
when this is partly consumed by the legitimes of concurring
"Art 750. The donation may compulsory heirs. The phrase, “as he may deem fit”, is
comprehend all the present property of therefore erroneous. The testator does not absolute freedom
the donor, or part thereof, provided he over the free portion when concurring CH are present and
reserves, in, full ownership or in only to those qualified to succeed.
usufruct, sufficient means for the
support of himself, and of all relatives
who, at the time of the acceptance of
the donation, are by law entitled to be
supported by the donor. Without such
reservation, the donation shall be
reduced on petition of any person
affected. (634a). PRINCIPLES AFFECTING LEGITIME

The lower court capitalized on the fact that Doña Catalina XII. PRETERITION
was already 90 years old when she died on July 6, 1977. It
insinuated that because of her advanced years she may Art. 854. The preterition or omission of one, some, or all
have been imposed upon, or unduly influenced and morally of the compulsory heirs in the direct line, whether living
pressured by her husband's nephews and nieces (the at the time of the execution of the will or born after the
petitioners) to transfer to them the properties which she had death of the testator, shall annul the institution of heir;
inherited from Don Mariano's estate. The records do not but the devises and legacies shall be valid insofar as
support that conjecture. they are not inofficious.
If the omitted compulsory heirs should die before the
For as early as 1957, or twenty-eight (28) years before her testator, the institution shall be effectual, without
death, Doña Catalina had already begun transferring to her prejudice to the right of representation. (814a)
Locsin nephews and nieces the properties which she Art. 855. The share of a child or descendant omitted in a
received from Don Mariano. She sold a 962-sq.m. lot on will must first be taken from the part of the estate not
January 26, 1957 to his nephew and namesake Mariano disposed of by the will, if any; if that is not sufficient, so
Locsin II. 13 On April 7, 1966, or 19 years before she
49
much as may be necessary must be taken proportionally Lucy Duncan as instituted heir should be merely reduced to
from the shares of the other compulsory heirs. (1080a) the extent necessary to cover the legitimate of Helen Garcia,
The article does not necessarily refer to preterition. It refers equivalent to 1/4 of the entire estate
to a child or descendant omitted in a will.
The share of the omitted child is to be determined by other The trial court ruled, and appellee now maintains, that there
provisions of law; once that is determined this article has been preterition of Helen Garcia, a compulsory heir in
provides the manner in which that share shall be satisfied. the direct line, resulting in the annulment of the institution of
This article suffers serious defects. The term cjold pr heir pursuant to Article 854 of the Civil Code, which
descendant should be construed as compulsory heirs, in provides:
much the same way that the first paragraph of article 909
has been construed by commentators to refer to compulsory On the other hand, appellant contends that this is not a case
heirs. of preterition, but is governed by Article 906 of the Civil
Theree is patent fundamental mistake in the last sentence of Code, which says: "Any compulsory heir to whom the
the article because it creates a confusion and does not testator has left by any title less the legitime belonging to
express the true intent of the law. It should have been him may demand that the same be fully satisfied," Appellant
reworded in this wise: also suggests that considering the provisions of the will
“the share of the compulsory heir omitted in a will must first whereby the testator expressly denied his relationship with
be taken from the part of the estate not diposed of by will, if Helen Garcia, but left to her a legacy nevertheless, although
any; it that is not sufficient, so much as may be necessary less than the amount of her legitime, she was in effect
must be taken PROPORTIONALLY FROM THE SHARES defectively disinherited within the meaning of Article 918,
OF THE OTHER HEIRS GIVEN TO THEM BY WILL” which reads:
Art. 906. Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him Thus, according to appellant, under both Articles 906 and
may demand that the same be fully satisfied. (815) 918, Helen Garcia is entitled only to her legitime, and not to
If there is no testamentary disposition in his favor, the heir a share of the estate equal that of Lucy Duncan as if the
cannot ask for completion of his legitime, because there is succession were intestate.
nothing to complete; instead there should be a case
preterition or total omission, and in such case the forced heir Article 854 is a reproduction of Article 814 of the Spanish
in the direct line is entitled to ask, not merely for the Civil Code; and Article 906 of Article 815. On the difference
completion of his legitime. But for the annulment of the between preterition of a compulsory heir and the right to ask
institution of heir. for completion of his legitime
Art. 918. Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted, Manresa defines preterition as the omission of the heir in the
is not proved, or which is not one of those set forth in will, either by not naming him at all or, while mentioning him
this Code, shall annul the institution of heirs insofar as as father, son, etc., by not instituting him as heir without
it may prejudice the person disinherited; but the devises disinheriting him expressly, nor assigning to him some part
and legacies and other testamentary dispositions shall of the properties.
be valid to such extent as will not impair the legitime.
(851a) The question may be posed: In order that the right of a
This article pertain to effects of a disinheritance which does forced heir may be limited only to the completion of his
not have one or more of the essential requisites for its legitime (instead of the annulment of the institution of heirs)
validity. It likewise applies to cases of reconciliation after a is it necessary that what has been left to him in the will "by
disinheritance has been made. any title," as by legacy, be granted to him in his capacity as
The ineffective disinheritance does not affect the disposition heir, that is, a titulo de heredero? In other words, should he
of the testator with respect to the free portion. The reason is be recognized or referred to in the will as heir? This question
the disinheritance in this case refers only only to the legitime is pertinent because in the will of the deceased Edward E.
of the heir, and therefore, it is only this portion that is Christensen Helen Garcia is not mentioned as an heir —
affected by the nullity or ineffectiveness of such indeed her status as such is denied — but is given a legacy
disinheritance. of P3,600.00
Where the disinheritance is ineffective in this case, the
compulsory heir must be given all that he is entitiled to Manresa cites particularly three decisions of the Supreme
receive as if the disinheritance has not been made, without Court of Spain dated January 16, 1895, May 25, 1917, and
prejudice to lawful dispositions made by the testator in favor April 23, 1932, respectively. In each one of those cases the
of others. testator left to one who was a forced heir a legacy worth less
Aznar vs. Duncan than the legitime, but without referring to the legatee as an
heir or even as a relative, and willed the rest of the estate to
Edward E. Christensen, a citizen of California with domicile other persons. It was held that Article 815 applied, and the
in the Philippines, died leaving a will executed on March 5, heir could not ask that the institution of heirs be annulled
1951. The will was admitted to probate by the Court of First entirely, but only that the legitimate be completed. (6
Instance of Davao in its decision of February 28, 1954. In Manresa, pp. 438, 441.)
that same decision the court declared that Maria Helen
Christensen Garcia (hereinafter referred to as Helen Garcia) The foregoing solution is indeed more in consonance with
was a natural child of the deceased. The declaration was the expressed wished of the testator in the present case as
appealed to this Court, and was affirmed in its decision of may be gathered very clearly from the provisions of his will.
February 14, 1958 (G.R. No. L-11484) He refused to acknowledge Helen Garcia as his natural
daughter, and limited her share to a legacy of P3,600.00.
In another incident relative to the partition of the deceased's The fact that she was subsequently declared judicially to
estate, the trial court approved the project submitted by the possess such status is no reason to assume that had the
executor in accordance with the provisions of the will, which judicial declaration come during his lifetime his subjective
said court found to be valid under the law of California. attitude towards her would have undergone any change and
Helen Garcia appealed form the order of approval, and this that he would have willed his estate equally to her and to
Court, on January 31, 1963, reversed the same on the Lucy Duncan, who alone was expressly recognized by him.
ground that the validity of the provisions of the will should be
governed by Philippine law, and returned the case to the The decision of this Court in Neri, et al. v. Akutin, 74 Phil.
lower court with instructions that the partition be made as 185, is cited by appellees in support of their theory of
provided by said law (G.R. No. L-16749) preterition. That decision is not here applicable, because it
referred to a will where "the testator left all his property by
On October 29, 1964, the Court of First Instance of Davao universal title to the children by his second marriage, and
issued an order approving the project of partition submitted (that) without expressly disinheriting the children by h is first
by the executor, dated June 30, 1964, wherein the marriage, he left nothing to them or, at least, some of them."
properties of the estate were divided equally between Maria In the case at bar the testator did not entirely omit oppositor-
Lucy Christensen Duncan (named in the will as Maria Lucy appellee Helen Garcia, but left her a legacy of P3,600.00
Christensen Daney, and hereinafter referred to as merely
Lucy Duncan), whom the testator had expressly recognized The estate of the deceased Christensen upon his death
in his will as his daughter (natural) and Helen Garcia, who consisted of 399 shares of stocks in the Christensen
had been judicially declared as such after his death. The Plantation Company and a certain amount in cash. One-
said order was based on the proposition that since Helen fourth (1/4) of said estate descended to Helen Garcia as her
Garcia had been preterited in the will the institution of Lucy legitime. Since she became the owner of her share as of the
Duncan as heir was annulled, and hence the properties moment of the death of the decedent (Arts. 774, 777, Civil
passed to both of them as if the deceased had died Code), she is entitled to a corresponding portion of all the
intestate, saving only the legacies left in favor of certain fruits or increments thereof subsequently accruing. These
other persons, which legacies have been duly approved by include the stock dividends on the corporate holdings. The
the lower court and distributed to the legatees. contention of Lucy Duncan that all such dividends pertain to
her according to the terms of the will cannot be sustained,
The case is once more before us on appeal, this time by for it would in effect impair the right of ownership of Helen
Lucy Duncan, on the sole question of whether the estate, Garcia with respect to her legitime.
after deducting the legacies, should pertain to her and to
Helen Garcia in equal shares, or whether the inheritance of
50
One point deserves to be here mentioned. although no and in clear terms, Article 854 offers no leeway for inferential
reference to it has been made in the brief for oppositor- interpretation. Giving it an expansive meaning will tear up by
appellant. It is the institution of substitute heirs to the estate the roots the fabric of the statute. On this point, Sánchez
bequeathed to Lucy Duncan in the event she should die Román cites the "Memoria annual del Tribunal Supremo,
without living issue. This substitution results in effect from correspondiente a 1908," which in our opinion expresses the
the fact that under paragraph 12 of the will she is entitled rule of interpretation, viz:
only to the income from said estate, unless prior to her As aforesaid, there is no other provision in the will before us
decease she should have living issue, in which event she except the institution of petitioner as universal heir. That
would inherit in full ownership; otherwise the property will go institution, by itself, is null and void. And, intestate
to the other relatives of the testator named in the will. succession ensues.
Without deciding this point, since it is not one of the issues
raised before us, we might call attention to the limitations Preterition "consists in the omission in the testator's will of
imposed by law upon this kind of substitution, particularly the forced heirs or anyone of them, either because they are
that which says that it can never burden the legitime (Art. not mentioned therein, or, though mentioned, they are
864 Civil Code), which means that the legitime must neither instituted as heirs nor are expressly disinherited."
descend to the heir concerned in fee simple. 16 Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heir of his share in the legitime for
Nuguid vs. Nuguid a cause authorized by law." 17 In Manresa's own words:
"La privación expresa de la legitima constituye le
Rosario Nuguid, a resident of Quezon City, died on desheredación. La privación tácita de la misma se denomina
December 30, 1962, single, without descendants, legitimate preterición. 18 Sánchez Román emphasizes the distinction
or illegitimate. Surviving her were her legitimate parents, by stating that disinheritance "es siempre voluntaria";
Felix Nuguid and Paz Salonga Nuguid, and 6 brothers and preterition, upon the other hand, is presumed to be
sisters namely: Alfredo, Federico, Remedios, Conrado, "involuntaria." 19 Express as disinheritance should be, the
Lourdes and Alberto, all surnamed Nuguid. On May 18, same must be supported by a legal cause specified in the
1963, petitioner Remedios Nuguid filed in the Court of First will itself. 20
Instance of Rizal a holographic will allegedly executed by The will here does not explicitly disinherit the testatrix's
Rosario Nuguid on November 17, 1951, some 11 years parents, the forced heirs. It simply omits their names
before her demise. Petitioner prayed that said will be altogether. Said will rather than be labeled ineffective
admitted to probate and that letters of administration with the disinheritance is clearly one in which the said forced heirs
will annexed be issued to her. suffer from preterition.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, On top of this the fact that the effects flowing from preterition
concededly the legitimate father and mother of the deceased are totally different from those of disinheritance. Preterition
Rosario Nuguid, entered their opposition to the probate of under Article 854 of the Civil Code, we repeat, "shall annul
her will. Ground therefor, inter alia, is that by the institution of the institution of heir." This annulment is in toto, unless in the
petitioner Remedios Nuguid as universal heir of the will there are, in addition, testamentary dispositions in the
deceased, oppositors — who are compulsory heirs of the form of devises or legacies. In ineffective disinheritance
deceased in the direct ascending line — were illegally under Article 918 of the same Code, such disinheritance
preterited and that in consequence the institution is void. shall also "annul the institution of heirs," but only "insofar as
it may prejudice the person disinherited," which last phrase
The court's order of November 8, 1963, held that "the will in was omitted in the case of preterition. 21 Better stated yet,
question is a complete nullity and will perforce create in disinheritance the nullity is limited to that portion of the
intestacy of the estate of the deceased Rosario Nuguid" and estate of which the disinherited heirs have been illegally
dismissed the petition without costs. deprived. Manresa's expressive language, in commenting on
the rights of the preterited heirs in the case of preterition on
A peculiar situation is here thrust upon us. The parties the one hand and legal disinheritance on the other, runs
shunted aside the question of whether or not the will should thus: "Preteridos, adquieren el derecho a todo; deshereda
he allowed probate. For them, the meat of the case is the dos, solo les corresponde un tercio o dos tercios, 22
intrinsic validity of the will. Normally, this comes only after según el caso." 23
the court has declared that the will been duly authenticated.
2 But petitioner and oppositors, in the court below and here This is best answered by a reference to the opinion of Mr.
on appeal, travelled on the issue of law, to wit: Is the will Justice Moran in the Neri case heretofore cited, viz:
intrinsically a nullity?
"But the theory is advanced that the bequest made
We pause to reflect. If the case were to be remanded for by universal title in favor of the children by the
probate of the will, nothing will be gained. On the contrary, second marriage should be treated as legado and
this litigation will be protracted. And for aught that appears in mejora and, accordingly, it must not be entirely
the record, in the event of probate or if the court rejects the annulled but merely reduced. This theory, if
will, probability exists that the case will come once again adopted, will result in a complete abrogation of
before us on the same issue of the intrinsic validity or nullity articles 814 and 851 of the Civil Code. If every
of the will. Result: waste of time, effort, expense, plus added case of institution of heirs may be made to fall into
anxiety. These are the practical considerations that induce the concept of legacies and betterments reducing
us to a belief that we might as well meet head-on the issue the bequest accordingly, then the provisions of
of the nullity of the provisions of the will in question. 3 After articles 814 and 851 regarding total or partial
all, there exists a justiciable controversy crying for solution. nullity of the institution, would be absolutely
meaningless and will]l never have application at
Petitioner's sole assignment of error challenges the all. And the remaining provisions contained in said
correctness of the conclusion below that the will is a articles concerning the reduction of inofficious
complete nullity. The statute we are called upon to apply is legacies or betterments would be a surplusage
Article 854 of the Civil Code. A comprehensive because they would be absorbed by article 817.
understanding of the term preterition employed in the law Thus, instead of construing, we would be
becomes a necessity. destroying integral provisions of the Civil Code.

And now, back to the facts and the law. The deceased The destructive effect of the theory thus advanced
Rosario Nuguid left no descendants, legitimate or is due mainly to a failure to distinguish institution
illegitimate. But she left forced heirs in the direct ascending of heirs from legacies and betterments, and a
line — her parents, now oppositors Felix Nuguid and Paz general from a special provision. With reference to
Salonga Nuguid. And, the will completely omits both of them: Article 814, which is the only provision material to
They thus received nothing by the testament; tacitly, they the disposition of this case, it must be observed
were deprived of their legitime; neither were they expressly that the institution of heirs is therein dealt with a
disinherited. This is a clear case of preterition. Such thing separate and distinct from legacies or
preterition in the words of Manresa "anulará siempre la betterment. And they are separate and distinct not
institución de heredero, dando carácter absoluto a este only because they are distinctly and separately
ordenamiento," referring to the mandate of Article 814, now treated in said article but because they are in
854 of the Civil Code. 9 The one- sentence will here themselves different. Institution of heirs is a
institutes petitioner as the sole, universal heir — nothing bequest by universal title of property that is
more. No specific legacies or bequests are therein provided undetermined. Legacy refers to specific property
for. It is in this posture that we say that the nullity is bequeathed by a particular or special title. . . But
complete. Perforce, Rosario Nuguid died intestate. again an institution of heirs cannot be taken as a
legacy," 25
Really, as we analyze the word annul employed in the
statute, there is no escaping the conclusion that the The disputed order, we observe, declares the will in question
universal institution of petitioner to the entire inheritance "a complete nullity". Article 854 of the Civil Code in turn
results in totally abrogating the will. Because, the nullification merely nullifies "the institution of heir." Considering,
of such institution of universal heir — without any other however, that the will before us solely provides for the
testamentary disposition in the will — amounts to a institution of petitioner as universal heir, and nothing more,
declaration that nothing at all was written. Carefully worded the result is the same. The entire will is null.
51
It is, however, argued for the appellee that since the court's
Reyes vs. Barretodatu distribution of the estate of the late Bibiano Barretto was
predicated on the project of partition executed by Salud
When Bibiano Barretto died on February 18, 1936, Barretto and the widow, Maria Gerardo (who signed for
in the City of Manila, he left his share of these herself and as guardian of the minor Milagros Barretto), and
properties in a will to Salud Barretto, mother of since no evidence was taken of the filiation of the heirs, nor
plaintiff's wards, and Lucia Milagros Barretto and a were any findings of fact or law made, the decree of
small portion as legacies to his two sisters Rosa distribution can have no greater validity than that of the basic
Barretto and Felisa Barretto and his nephew and partition, and must stand or fall with it, being in the nature of
nieces. The usufruct of the fishpond situated in a judgment by consent, based on a compromise. Saminiada
barrio San Roque, Hagonoy, Bulacan, vs. Mata, 92 Phil. 426, is invoked in support of the
abovementioned, however, was reserved for his proposition. That case is authority for the proposition that a
widow, Maria Gerardo. In the meantime, Maria judgment by compromise may be set aside on the ground of
Gerardo was appointed administratrix. By virtue mistake or fraud, upon petition filed in due time, where
thereof, she prepared a project of partition, which petition for "relief was filed before the compromise
was signed by her in her own behalf and as agreement, a proceeding, was consummated" (cas. cit. at p.
guardian of the minor Milagros Barretto. Said 436). In the case before us, however, the agreement of
project of Partition was approved by the Court of partition was not only ratified by the court's decree of
First Instance of Manila on November 22, 1939. distribution, but actually consummated, so much so that the
The distribution of the estate and the delivery of titles in the name of the deceased were cancelled, and new
the shares of the heirs followed forthwith. As a certificates issued in favor of the heirs, long before the
consequence, Salud Barretto took immediate decree was attacked. Hence, Saminiada vs. Mata does not
possession of her share and secured the apply.
cancellation of the original certificates of title and
the issuance of new titles in her own name. That defendant Milagros Barretto was a minor at the time the
probate court distributed the estate of her father in 1939
Having thus lost this fight for a share in the estate does not imply that the said court was without jurisdiction to
of Maria Gerardo, as a legitimate heir of Maria enter the decree of distribution.
Gerardo, plaintiff now falls back upon the remnant
of the estate of the deceased Bibiano Barretto, The only instance that we can think of in which a
which was given in usufruct to his widow Maria party interested in a probate proceedings may
Gerardo. Hence, this action for the recovery of have a final liquidation set aside is when he is left
one-half portion thereof. out by reason of circumstances beyond his control
or through mistake or inadvertence not imputable
This action afforded the defendant an opportunity to negligence. Even then, the better practice to
to set up her right of ownership, not only of the secure relief is reopening of the same case by
fishpond under litigation, but of all the other proper motion within the reglementary period,
properties willed and delivered to Salud Barretto, instead of an independent action the effect of
for being a spurious heir, and not entitled to any which, if successful, would be, as in the instant
share in the estate of Bibiano Barretto, thereby case, for another court or judge to throw out a
directly attacking the validity, not only of the decision or order already final and executed and
project of partition but of the decision of the court reshuffle properties long ago distributed and
based thereon as well. disposed of."

The defendant contends that the Project of ". . . It is argued that Lucia Milagros Barretto was a
Partition from which Salud acquired the fishpond minor when she signed the partition, and that
in question is void ab initio and Salud Barretto did Maria Gerardo was not her judicially appointed
not acquire any valid title thereto, and that the guardian. The claim is not true. Maria Gerardo
court did not acquire any jurisdiction of the person signed as guardian of the minor. (Secs. 3 and 5,
of the defendant, who was then a minor.' " Rule 97, Rules of Court.) The mere statement in
Finding for the defendant (now appellee), Milagros Barretto, the project of partition that the guardianship
the lower court declared the project of partition submitted in proceedings of the minor Lucia Milagros Barretto
the proceedings for the settlement of the estate of Bibiano are pending in the court, does not mean that the
Barretto (Civil Case No. 49629 of the Court of First Instance guardian had not yet been appointed; it meant that
of Manila) to be null and void ab initio (not merely voidable) the guardianship proceedings, had not yet been
because the distributee, Salud Barretto, predecessor of terminated and as a guardianship proceedings
plaintiffs (now appellants), was not a daughter of the begin with the appointment of a guardian, Maria
spouses Bibiano Barretto and Maria Gerardo. The nullity of Gerardo must have been already appointed when
the project of partition was decreed on the basis of Article she signed the project of partition. There is,
1081 of the Civil Code of 1889 (then in force) providing as therefore, no irregularity or defect or error in the
follows: project of partition, apparent on the record of the
testate proceedings, which shows that Maria
"A partition in which a person was believed to be Gerardo had no power or authority to sign the
an heir, without being so, has been included, shall project of partition as guardian of the minor Lucia
be null and void." Milagros Barretto, and, consequently, no ground
for the contention that the order approving the
Plaintiffs-appellants correctly point out that Article 1081 of project of partition is absolutely null and void and
the old Civil Code has been misapplied to the present case may be attacked collaterally in these
by the court below. The reason is obvious: Salud Barretto proceedings."
admittedly had been instituted heir in the late Bibiano
Barretto's last will and testament together with defendant Defendant-appellee further pleads that as her mother and
Milagros; hence, the partition had between them could not guardian (Maria Gerardo) could not have ignored that the
be one such had with a party who was believed to be an heir distributee Salud was not her child, the act of said widow in
without really being one, and was not null and void under agreeing to the oft-cited partition and distribution was a fraud
said article. The legal precept (Article 1081) does not speak on appellee's rights and entitles her to relief. In the first
of children, or descendants, but of heirs (without distinction place, there is no evidence that when the estate of Bibiano
between forced, voluntary or intestate ones), and the fact Barretto was judicially settled and distributed appellants'
that Salud happened not to be a daughter of the testator predecessor, Salud Lim Boco Barretto, knew that she was
does not preclude her being one of the heirs expressly not Bibiano's child; so that if fraud was committed, it was the
named in his testament; for Bibiano Barretto was at liberty to widow, Maria Gerardo, who was solely responsible, and
assign the free portion of his estate to whomsoever he neither Salud nor her minor children, appellants herein, can
chose. While the share (1/2) assigned to Salud impinged on be held liable therefor. In the second place, granting that
the legitime of Milagros, Salud did not for that reason cease there was such fraud, relief therefrom can only be obtained
to be a testamentary heir of Bibiano Barretto. within 4 years from its discovery, and the record shows that
this period had elapsed long ago.
Nor does the fact that Milagros was allotted in her father's
will a share smaller than her legitime invalidate the institution Because at the time of the distribution Milagros Barretto was
of Salud as heir, since there was here no preterition, or total only 16 years old (Exhibit 24), she became of age five years
omission, of a forced heir. For this reason, Neri vs. Akutin, later, in 1944. On that year, her cause of action accrued to
72 Phil. 322, invoked by appellee, is not at all applicable, contest on the ground of fraud the court decree distributing
that case involving an instance of preterition or omission of her father's estate and the four-year period of limitation
children of the testator's former marriage. started to run, to expire in 1948 (Section 43, Act 190). In
fact, conceding that Milagros only became aware of the true
It is thus apparent that where a court has validly issued a facts in 1946 (Appellee's Brief, p. 27), her action still became
decree of distribution of the estate, and the same has extinct in 1950. Clearly, therefore, the action was already
become final, the validity or invalidity of the project of barred when in August 31, 1956 she filed her counterclaim in
partition becomes irrelevant. this case contesting the decree of distribution of Bibiano
Barretto's estate.
52
Until all the known creditors and the legatees have been
In resume, we hold (1) that the partition had between Salud paid, it shall be understood that the estate is under
and Milagros Barretto in the proceedings for the settlement administration, says article 1026 of the Civil Code, and in
of the estate of Bibiano Barretto, duly approved by the Court conformity with this legal provision the supreme tribunal has
of First Instance of Manila in 1939, in its Civil Case No. established the doctrine that "only after payment of all the
49629, is not void for being contrary to either articles 1081 or obligations of the estate can the net amount divisible among
1814 of the Civil Code of 1889; (2) that Milagros Barretto's the heirs be known." (Decision of March 2, 1896.)
action to contest said partition and decree of distribution is
barred by the statute of limitations; and (3) that her claim Section 753 of the Code of Civil Procedure confirms the
that plaintiff-appellant guardian is a possessor in bad faith provision of the Civil Code and the legal doctrine mentioned
and should account for the fruits received from the above, inasmuch as it provides that, after payment of the
properties inherited by Salud Barretto (nee Lim Boco) is debts, funeral charges, and expenses of administration, and
legally untenable. It follows that the plaintiffs' action for the allowances for the expense of maintenance of the family
partition of the fishpond described in the complaint should of the deceased, the court shall assign the residue of the
have been given due course. estate to the persons entitled to the same, naming the
persons and proportions or parts to which each is entitled,
Wherefore, the decision of the Court of First Instance of etc.
Bulacan now under appeal is reversed and set aside in so So that by reason of the claims made by the creditor of the
far as it orders plaintiff-appellant to reconvey to appellee estate of Emilio Escuin de los Santos and by her natural
Milagros Barretto Datu the properties enumerated in said son, duly recognized by his father, an ordinary action should
decision, and the same is affirmed in so far as it denies any have been brought before the Court of First Instance, from
right of said appellee to accounting. Let the records be whose judgment appeal may be taken to this court by means
returned to the court of origin, with instructions to proceed of the corresponding bill of exceptions under the provisions
with the action for partition of the fishpond (Lot No. 4, Plan of section 777 of the Code of Civil Procedure; and while the
Psu-4709), covered by TCT No. T-13734 of the Office of the ultimate decision in the matter of the said claims against the
Register of Deeds of Bulacan, and for the accounting of the resolution of the commissioners has not become final, and
fruits thereof, as prayed for in the complaint. No costs. until all the obligations of the estate have been paid, there
can really be no inheritance, nor can it be distributed among
the persons interested therein according to the will of the
37. Esculin vs. Esculin testator, or under the provisions of the law.

On the 19th of January, 1899, Emilio Antonio Escuin de los With respect to the questions which form the basis of this
Santos executed a will before a notary public of Sevilla, litigation and refer to the second assignment of errors, it
Spain, stating therein that he was a native of Cavite, the son should be noted that the late testator did not leave any
of Francisco Escuin and Eugenia de los Santos, the latter legitimate descendants or ascendants, but did leave a
being deceased; that he was married about six months recognized natural child, the appellant minor, and a widow;
previously to Maria Teresa Ponce de Leon, and that he had that the said minor, Emilio Escuin y Batac, is the general heir
no lawful descendants; the testator, however, stated in of his natural father, the said testator, who recognized him
clause three of his will, that in case he had a duly registered while living (art. 807, Civil Code), and in the present case is
successor, his child would be his sole and universal heir; but entitled to one-third of his estate, which amount constitutes
that if, as would probably be the case, there should be no the legal portion of a natural child (art. 842 of the said code);
such heir, then in clause four he named his said father and for the reason that the minor was ignored by his natural
Francisco Escuin, and his wife Maria Teresa Ponce de Leon father in his will, the designation of heirs made therein was,
his universal heirs, they to divide the estate in equal shares as a matter of fact annulled by force of law, in so far as the
between them. legal portion of the said minor was thereby impaired.
Legacies and betterments shall be valid, in so far as they are
The testator died on the 20th of January, 1899, as certified not illegal, for the reason that a testator can not deprive the
to by the municipal court of Magdalena, Sevilla, on the 20th heirs of their legal portions, except in the cases expressly
of March, 1900. indicated by law. (Arts. 763, 813, 814, Civil Code.)
On the 30th of September, 1905, the court below found that
Emilio Escuin y Batac was the recognized natural child of As has been seen, the testator wished to dispose of his
the late Emilio Escuin de los Santos, had by Julia Batac; that property in his will, designating as heirs his natural father,
the testator was also the natural son of the defendant Francisco Escuin, and his wife, Maria Teresa Ponce de
Francisco Escuin and Eugenia de los Santos, and was Leon, altogether ignoring his recognized natural child who is
recognized by his father; and that the plaintiff minor, Emilio his general heir. In view thereof, and for the reason that he
Escuin y Batac, is one of the heirs of the late testator. exceeded his rights, the said designation of heirs became
void in so far as it impaired the right of his general heir and
Upon the will having been admitted to probate, deprived him of his legal portion; the will, however, is valid
commissioners were appointed to consider claims against with respect to the two-thirds of the property which the
the estate, and, according to a report presented to the Court testator could freely dispose of. (Arts. 763, 764, 806, 813,
of First Instance on the 20th of June, 1907, one claim was 842, Civil Code.)
allowed amounting to 3,696.50 pesetas.
Notwithstanding the fact that the designation of heirs is
It appears in the proposed partition of the 3d of September, annulled and that the law recognizes the title of the minor,
1906, that, according to the opinion of the administrator by Escuin y Batac, to one-third of the property of his natural
whom it was signed and the result of the proceedings, the father, as his lawful and general heir, it is not proper to
property left by the testator, in accordance with the accounts assert that the late Emilio Escuin de los Santos died
passed upon by the court, amounted to P8,268.02 intestate in order to establish the conclusion that his said
natural recognized child is entitled to succeed to the entire
Deducting this amount from the funds estate under the provisions of article 939 of the Civil Code,
of the estate, there remains a balance of 5,014.81 inasmuch as in accordance with the law a citizen may die
partly testate and partly intestate (art. 764, Civil Code). It is
That the said credit of P1,321.40, equivalent to 3,696.50 clear and unquestionable that it was the wish of the testator
pesetas, allowed by the commissioners, is the only claim to favor his natural father and his wife with certain portions of
presented within the legal term against the estate; that his property which, under the law, he had a right to dispose
Francisco Escuin, the father of the testator, his wife or of by will, as he has done, provided the legal portion of his
widow, Teresa Ponce de Leon, and his natural child, the general heir was not thereby impaired, the two former
minor Emilio Escuin y Batac, represented by his mother and persons being considered as legatees under the will.
guardian Julia Batac, are entitled to the succession; that, by
setting aside one-third of the estate in favor of the natural The above-mentioned will is neither null, void, nor illegal in
son recognized in accordance with article 842 of the Civil so far as the testator leaves two-thirds of his property to his
Code, there only remains the question as to how the father and wife; testamentary provisions impairing the legal
remaining two-thirds of the inheritance shall be bestowed, portion of a general heir shall be reduced in so far as they
taking into account the directions of the testator in his will; are illegal or excessive. (Art. 817, Civil Code.) The partition
that the same does not disclose that he had left any child by of the property of the said testator shall be proceeded with in
his wife; that the latter, as the widow of the testator, besides accordance with the foregoing legal bases.
being a designated heir entitled to one-half of the hereditary By virtue of the foregoing considerations it is our opinion that
funds, is entitled to the usufruct of the portion fixed by the the orders of the court below, of October 30, 1906, and
law, and that the funds to be apportioned are composed August 24, 1907, should be reversed, and upon receipt of a
wholly of cash or ready money. certified copy of this decision the court below shall take
action in accordance with the law and the terms herein
On the 30th of September, 1905, the court below found that contained with respect to the claims and appeals from the
Emilio Escuin y Batac was the recognized natural child of resolutions of the commissioners pending judicial decision.
the late Emilio Escuin de los Santos, had by Julia Batac; that So ordered.
the testator was also the natural son of the defendant
Francisco Escuin and Eugenia de los Santos, and was Balanay vs. Martinez
recognized by his father; and that the plaintiff minor, Emilio
Escuin y Batac, is one of the heirs of the late testator.
53
Felix Balanay, Jr. appealed by certiorari from the order of the although she was a coowner thereof, her share was
Court of First Instance of Davao dated February 28, 1974, inchoate and proindiviso (Art. 143, Civil Code; Madrigal and
declaring illegal and void the will of his mother, Leodegaria Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But that
Julian, converting the testate proceeding into an intestate illegal declaration does not nullify the entire will. It may be
proceeding and ordering the issuance of the corresponding disregarded.
notice to creditors (Special Case No. 1808). The
antecedents of the appeal are as follows: The provision of the will that the properties of the testatrix
Felix J. Balanay, Jr. filed in the lower court a petition dated should not be divided among her heirs during her husband’s
February 27, 1973 for the probate of his mother’s notarial lifetime but should be kept intact and that the legitimes
will dated September 5, 1970 which is written in English. In should be paid in cash is contrary to article 1080 of the Civil
that will Leodegaria Julian declared (a) that she was the Code which reads:
owner of the "southern half" of nine conjugal lots (par. II); (b)
that she was the absolute owner of two parcels of land which "ART. 1080. Should a person
she inherited from her father (par. III), and (c) that it was her make a partition of his estate by an act
desire that her properties should not be divided among her inter vivos, or by will, such partition shall
heirs during her husband’s lifetime and that their legitimes be respected, insofar as it does not
should be satisfied out of the fruits of her properties (Par. prejudice the legitime of the compulsory
IV). heirs.

Then, in paragraph V of the will she stated that after her "A parent who, in the interest of his or
husband’s death (he was eighty-two years old in 1973) her her family, desires to keep any
paraphernal lands and all the conjugal lands (which she agricultural, industrial, or manufacturing
described as "my properties") should be divided and enterprise intact, may avail himself of
distributed in the manner set forth in that part of her will. She the right granted him in this article, by
devised and partitioned the conjugal lands as if they were all ordering that the legitime of the other
owned by her. She disposed of in the will her husband’s children to whom the property is not
one-half share of the conjugal assets. * assigned, be paid in cash. (1056a)"

Felix Balanay, Sr. and Avelina B. Antonio opposed the The testatrix in her will made a partition of the entire
probate of the will on the grounds of lack of testamentary conjugal estate among her six children (her husband had
capacity, undue influence, preterition of the husband and renounced his hereditary rights and his one-half conjugal
alleged improper partition of the conjugal estate. The share). She did not assign the whole estate to one or more
oppositors claimed that Felix Balanay, Jr. should collate children as envisaged in article 1080. Hence, she had no
certain properties which he had received from the testatrix. right to require that the legitimes be paid in cash. On the
other hand, her estate may remain undivided only for a
Felix Balanay, Jr., in his reply to the opposition, attached period of twenty years. So, the provision that the estate
thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973 should not be divided during her husband’s lifetime would at
wherein he withdrew his opposition to the probate of the will most be effective only for twenty years from the date of her
and affirmed that he was interested in its probate. On the death unless there are compelling reasons for terminating
same date Felix Balanay, Sr. signed an instrument the coownership (Art. 1083, Civil Code).
captioned "Conformation (sic) of Division and Renunciation Subject to the foregoing observations and the rules on
of Hereditary Rights" wherein he manifested that out of collation, the will is intrinsically valid and the partition therein
respect for his wife’s will he "waived and renounced" his may be given effect if it does not prejudice the creditors and
hereditary rights in her estate in favor of their six children. In impair the legitimes. The distribution and partition would
that same instrument he confirmed the agreement, which he become effective upon the death of Felix Balanay, Sr. In the
and his wife had perfected before her death, that their meantime, the net income should be equitably divided
conjugal properties would be partitioned in the manner among the children and the surviving spouse.
indicated in her will.
Montaña in his motion assailed the provision of the will It should be stressed that by reason of the surviving
which partitioned the conjugal assets or allegedly effected a husband’s conformity to his wife’s will and his renunciation of
compromise of future legitimes. He prayed that the probate his hereditary rights, his one-half conjugal share be a part of
of the will be withdrawn and that the proceeding be his deceased wife’s estate. His conformity had the effect of
converted into an intestate proceeding. In another motion of validating the partition made in paragraph V of the will
the same date he asked that the corresponding notice to without prejudice, of course, to the rights of the creditors and
creditors be issued. the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired
The basic issue is whether the probate court erred in after the making of a will shall only pass thereby, as if the
passing upon the intrinsic validity of the will, before ruling on testator had possessed it at the time of making the will,
its allowance or formal validity, and in declaring it void. should it expressly appear by the will that such was his
intention". Under article 930 of the Civil Code "the legacy or
We are of the opinion that in view of certain unusual devise of a thing belonging to another person is void, if the
provisions of the will, which are of dubious legality, and testator erroneously believed that the thing pertained to him.
because of the motion to withdraw the petition for probate But if the thing bequeathed, though not belonging to the
(which the lower court assumed to have been filed with the testator when he made the will, afterwards becomes his, by
petitioner’s authorization), the trial court acted correctly in whatever title, the disposition shall take effect."
passing upon the will’s intrinsic validity even before its formal
validity had been established. The probate of a will might In the instant case there is no doubt that the testatrix and her
become an idle ceremony if on its face it appears to be husband intended to partition the conjugal estate in the
intrinsically void. Where practical considerations demand manner set forth in paragraph V of her will. It is true that she
that the intrinsic validity of the will be passed upon, even could dispose of by will only her half of the conjugal estate
before it is probated, the court should meet the issue (Art. 170, Civil Code) but since the husband, after the
(Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare dissolution of the conjugal partnership, had assented to her
with Sumilang vs. Ramagosa, L-23135, December 26, 1967, testamentary partition of the conjugal estate, such partition
21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, has become valid, assuming that the will may be probated.
13 SCRA 693).
The instant case is different from the Nuguid case, supra,
But the probate court erred in declaring in its order of where the testatrix instituted as heir her sister and preterited
February 28, 1974 that the will was void and in converting her parents. Her will was intrinsically void because it
the testate proceeding into an intestate proceeding preterited her compulsory heirs in the direct line. Article 854
notwithstanding the fact that in its order of June 18, 1973 it of the Civil Code provides that "the preterition or omission of
gave effect to the surviving husband’s conformity to the will one, some, or all of the compulsory heirs in the direct line,
and to his renunciation of his hereditary rights which whether living at the time of the execution of the will or born
presumably included his one-half share of the conjugal after the death of the testator, shall annul the institution of
estate. heir; but the devises and legacies shall be valid insofar as
they are not inofficious." Since the preterition of the parents
The rule is that "the invalidity of one of several dispositions annulled the institution of the sister of the testatrix and there
contained in a will does not result in the invalidity of the other were no legacies and devises, total intestacy resulted (Art.
dispositions, unless it is to he presumed that the testator 960[2], Civil Code).
would not have made such other dispositions if the first
invalid disposition had not been made" (Art. 792, Civil Code). In the instant case, the preterited heir was the surviving
"Where some of the provisions of a will are valid and others spouse. His preterition did not produce intestacy. Moreover,
invalid, the valid parts will be upheld if they can be separated he signified his conformity to his wife’s will and renounced
from the invalid without defeating the intention of the testator his hereditary rights.
or interfering with the general testamentary scheme, or
doing injustice to the beneficiaries" (95 C.J.S. 873). It results that the lower court erred in not proceeding with the
probate of the will as contemplated in its uncancelled order
The statement of the testatrix that she owned the "southern of June 18, 19713. Save in an extreme case where the will
half" of the conjugal lands is contrary to law because, on its face is intrinsically void, it is the probate court’s duty to
54
pass first upon the formal validity of the will. Generally, the which was duly probated in the same Special Proceedings
probate of the will is mandatory (Art. 838, Civil Code; No. 842, and concluding that total intestacy resulted.
Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249;
Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 ZONIA additionally assails the jurisdiction of the Trial Court
SCRA 428). in declaring null and void the institution of heir in SOLANO's
To give effect to the intention and wishes of the testatrix is will; in concluding that total intestacy resulted therefrom; and
the first and principal law in the matter of testaments (Dizon- distributing the shares of the parties in SOLANO's estate
Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, when said estate was under the jurisdiction and control of
561). Testacy is preferable to intestacy. An interpretation the Probate Court in Special Proceedings No. 842.
that will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of Normally, this would be the general rule. However, a
the will (Arts. 788 and 791, Civil Code). peculiar situation is thrust upon us here. It should be recalled
that SOLANO himself instituted the petition for probate of the
Testacy is favored. Doubts are resolved in favor of testacy Will during his lifetime, That proceeding was not one to settle
especially where the will evinces an intention on the part of the estate of a deceased person that would be deemed
the testator to dispose of practically his whole estate. So terminated only upon the final distribution of the residue of
compelling is the principle that intestacy should be avoided the hereditary estate. With the Will allowed to probate, the
and that the wishes of the testator should prevail that case would have terminated except that it appears that the
sometimes the language of the will can be varied for the parties, after SOLANO's death, continued to file pleadings
purpose of giving it effect (Austria vs. Reyes, L-23079, therein Secondly, upon motion of the GARCIAS, and over
February 27, 1970, 31 SCRA 754, 762). the objection of ZONIA, the Trial Court ordered the
impleading of the estate of SOLANO and proceeded on that
As far as is legally possible, the expressed desire of the basis. In effect, therefore, the two cases were consolidated.
testator must be followed and the dispositions of the The records further disclose that the action for recognition
properties in his will should be upheld (Estorque vs. (Civil Case No. 3956) and Spec. Procs. No. 842 were
Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546). pending before the same Branch of the Court and before the
The law has a tender regard for the wishes of the testator as same Presiding Judge. Thirdly, it is settled that the
expressed in his will because any disposition therein is allowance of a Will is conclusive only as to its due execution.
better than that which the law can make (Castro vs. Bustos, 5 A probate decree is not concerned with the intrinsic validity
L-25913, February 28, 1969, 27 SCRA 327, 341). or legality of the provisions of the Will. 6

Thus, the Trial Court and the Appellate Court had jurisdiction
Solano vs. CA to conclude that, upon the facts, the GARCIAS and ZONIA
were in the same category as illegitimate children; that
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia ZONIA's acknowledgment as a "natural child" in a notarial
(GARCIAS), claiming to be illegitimate children of Dr. Meliton document executed by SOLANO and Trinidad Tuagnon on
SOLANO, filed an action for recognition against him. In his December 22, 1943 was erroneous because at the time of
Answer, SOLANO denied paternity. On February 3, 1970, her birth in 1941, SOLANO was still married to Lilly Gorand,
during the pendency of the suit, SOLANO died. Petitioner his divorce having been obtained only in 1943, and,
ZONIA Ana Solano was ordered substituted for the therefore, did not have the legal capacity to contract
DECEDENT as the only surviving heir mentioned in his Last marriage at the time of ZONIA's conception, 7 that being
Will and Testament probated on March 10, 1969, or prior to compulsory heirs, the GARCIAS were, in fact, preterited
his death, in Special Proceedings No. 842 of the same from SOLANO's Last Will and Testament; and that as a
Court. ZONIA entered her formal appearance as a result of said preterition, the institution of ZONIA as sole heir
"substitute defendant" on March 4, 1970 claiming by SOLANO is null and void pursuant to Article 854 of the
additionally that she was the sole heir of her father, Civil Code.
SOLANO, and asking that she be allowed to assume her
duties as executrix of the probated Will with the least As provided in the foregoing provision, the disposition in the
interference from the GARCIAS who were "mere pretenders Will giving the usufruct in favor of Trinidad Tuagnon over the
to be illegitimate children of SOLANO". five parcels of land in Bantayan, Tabaco, Albay, is a legacy,
recognized in Article 563 of the Civil Code, 9 and should be
In the hearing of May 13, 1970, the Trial Court specified the respected in so far as it is not inofficious. 10
legal issues to be treated in the parties' respective
Memoranda as: 1) the question of recognition of the Since the legitime of illegitimate children consists of one-half
GARCIAS; 2) the correct status of ZONIA, and 3) the (1/2) of the hereditary estate, 13 the GARCIAS and ZONIA
hereditary share of each of them in view of the probated Will. each have a right to participation therein in the proportion of
2 one-third (1/3) each. ZONIA's hereditary share will,
therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the
Appealed to the Court of Appeals by ZONIA, said Court GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of
affirmed the judgment in toto (CA-G.R. No. 49018). the value of the estate.
ZONIA seeks a reversal of that affirmance in this petition,
which was given due course. The case of Nuguid vs. Nuguid, et al., 14 reiterating the
ruling in Neri, et al. vs. Akutin, et al., 15 which held that
At the outset, we should state that we are bound by the where the institution of a universal heir is null and void due
findings of fact of both the Trial Court and the Appellate to preterition, the Will is a complete nullity and intestate
Court, particularly, the finding that the GARCIAS and ZONIA succession ensues, is not applicable herein because in the
are, in fact, illegitimate children of the DECEDENT. The oral Nuguid case, only a one-sentence Will was involved with no
testimony and the documentary evidence of record inevitably other provision except the institution of the sole and
point to that conclusion, as may be gleaned from the universal heir; there was no specification of individual
following background facts: SOLANO, a resident of Tabaco, property; there were no specific legacies or bequests. It was
Albay, married Pilar Riosa. The latter died. On a world tour upon that factual setting that this Court declared:
he met a French woman, Lilly Gorand, who became his
second wife in 1928. The union was short-lived as she left Acain vs. CA
him in 1929. In the early part of 1930, SOLANO started
having amorous relations with Juana Garcia, out of which On May 29, 1984 petitioner Constantino Acain filed in the
affair was born Bienvenido Garcia on March 24, 1931 Regional Trial Court of Cebu City Branch XIII, a petition for
(Exhibits "A" & "3"); and on November 3, 1935, Emeteria the probate of the will of the late Nemesio Acain and for the
Garcia was born (Exhibits "B" & "2"). Their birth certificates issuance to the same petitioner of letters testamentary,
and baptismal certificates mention only the mother's name docketed as Special Proceedings No. 591-A-CEB (Rollo, p.
without the father's name. The facts establish, however, that 29), on the premise that Nemesio Acain died leaving a will in
SOLANO during his lifetime recognized the GARCIAS as his which petitioner and his brothers Antonio, Flores and Jose
children by acts of support and provisions for their and his sisters Anita, Concepcion, Quirina and Laura were
education. instituted as heirs. The will allegedly executed by Nemesio
Acain on February 17, 1960 was written in Bisaya (Rollo, p.
In 1935, SOLANO started living with Trinidad Tuagnon. 27) with a translation in English (Rollo, p. 31) submitted by
Three children were born out of this relation but only petitioner without objection raised by private respondents.
petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is The will contained provisions on burial rites, payment of
living. In her Birth Certificate, her status was listed as debts, and the appointment of a certain Atty. Ignacio G.
"illegitimate"; her mother as Trinidad Tuagnon; her father as Villagonzalo as the executor of the testament.
"P.N.C." (Exhibit "V"), or "padre no conocido".
Obviously, Segundo pre-deceased Nemesio. Thus, it is the
Directly challenged is the jurisdiction of the lower Court, in children of Segundo who are claiming to be heirs, with
an action for recognition: 1) to declare ZONIA as an Constantino as the petitioner in Special Proceedings No.
illegitimate child of SOLANO; 2) to order the division of the 591-A-CEB. After the petition was set for hearing in the
estate in the same action despite the pendency of Special lower court on June 25, 1984 the oppositors (respondents
Proceedings No. 842; and 3) to declare null and void the herein Virginia A. Fernandez, a legally adopted daughter
institution of heir in the Last Will and Testament of SOLANO, of the deceased and the latter's widow Rosa Diongson
Vda. de Acain) filed a motion to dismiss on the following
55
grounds: (1) the petitioner has no legal capacity to institute entertained, particularly where appeal would not afford
these proceedings; (2) he is merely a universal heir and (3) speedy and adequate relief. (Maninang v. Court of Appeals,
the widow and the adopted daughter have been preterited. supra).
(Rollo, p. 158). Said motion was denied by the trial judge.
PREMISES CONSIDERED, the petition is hereby DENIED
The pivotal issue in this case is whether or not private for lack of merit and the questioned decision of respondent
respondents have been preterited. Court of Appeals promulgated on August 30, 1985 and its
Resolution dated October 23, 1985 are hereby AFFIRMED.
Article 854 of the Civil Code provides:

"Art. 854. The preterition or omission of one, XII. RESERVA TRONCAL


some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of Art. 891. The ascendant who inherits from his
the will or born after the death of the testator, shall descendant any property which the latter may have
annul the institution of heir; but the devisees and acquired by gratuitous title from another ascendant, or a
legacies shall be valid insofar as they are not brother or sister, is obliged to reserve such property as
inofficious. he may have acquired by operation of law for the benefit
of relatives who are within the third degree and who
If the omitted compulsory heirs should die before belong to the line from which said property came. (871)
the testator, the institution shall be effectual, A number of Reservas and Reversions where allowed under
without prejudice to the right of representation." the old civil code but they were eliminated under the new
civil code leaving only the Reserva Troncal. The elimination
Preterition consists in the omission in the testator's will of the was in line with one of the principal objectives of the new
forced heirs or anyone of them either because they are not civil code in the law of succession; namely, to prevent the
mentioned therein, or, though mentioned, they are neither estate from being entailed.
instituted as heirs nor are expressly disinherited (Nuguid v. The following are some of the reasons for its abolition:
Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 1. creates uncertainty in the pwnership of property, because
114 SCRA 478 [1982]). Insofar as the widow is concerned, of the suspended ownership the reservista has no
Article 854 of the Civil Code may not apply as she does not enthusiasm to preserve or improve the property
ascend or descend from the testator, although she is a 2. confinement of property w/in a certain family for
compulsory heir. Stated otherwise, even if the surviving generations incompatible with the principle of socialization of
spouse is a compulsory heir, there is no preterition even if ownership
she is omitted from the inheritance, for she is not in the 3. reserve is limited to the legitimate members of the family,
direct line. (Art. 854, Civil Code) However, the same thing and the father or mother of a natural child who inherits
cannot be said of the other respondent Virginia A. property from this child, and who in turn acquired it from
Fernandez, whose legal adoption by the testator has not snother progenitor acquires absolute dominion of the
been questioned by petitioner (Memorandum for the property w/o reservation.
Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known 4. in reserve viudal, the surviving spouse is obliged to resrve
as the Child and Youth Welfare Code, adoption gives to the properties left by deceased spouse to his if she remarries,
adopted person the same rights and duties as if he were a but the concubine is not obliged, thus, giving ptotection to
legitimate child of the adopter and makes the adopted illegitimate relation.
person a legal heir of the adopter. It cannot be denied that Purpose of Reserva troncal
she was totally omitted and preterited in the will of the a. Resrve certain property in favor of certain relatives.
testator and that both adopted child and the widow were b. maintain as is possible, with respect to the property to
deprived of at least their legitime. Neither can it be denied which it refers, a separation between the paternal and
that they were not expressly disinherited. Hence, this is a maternal lines, so that property of one line may not pass to
clear case of preterition of the legally adopted child. the other, or through them to strangers.
Nature of Reserva
Preterition annuls the institution of an heir and annulment It creates a double resolutory condition to which the right of
throws open to intestate succession the entire inheritance ownership of the person obliged to reserve is subjected. The
including "la porcion libre (que) no hubiese dispuesto en resolutory condition, are first, the death of the ascendant
virtual de legado, mejora o donacion" (Manresa, as cited in obliged to reserve, and, second, the survivial at that moment
Nuguid v. Nuguid, supra, Maninang v. Court of Appeals, 114 of the relatives within the tird degree belonging to the line
SCRA [19821). The only provisions which do not result in from which the property came.
intestacy are the legacies and devises made in the will for No reserve will exist in favor of illegitimate relatives, because
they should stand valid and respected, except insofar as the the law has not used qualifying terms natural or illegitimate
legitimes are concerned. with respect to the descendant or ascendant or relatives it is
to be presumed to refer only to legitimate ones.
The universal institution of petitioner together with his Relatives within the third degree:
brothers and sisters to the entire inheritance of the testator 1st degree
results in totally abrogating the will because the nullification 1. father or mother only when no descendants,
of such institution of universal heirs - without any other 2nd degree
testamentary disposition in the will - amounts to a 2. grandparents of the line where thw property came,
declaration that nothing at all was written. Carefully worded brothers of full blood or half-blood
and in clear terms, Article 854 of the Civil Code offers no 3rd degree
leeway for inferential interpretation (Nuguid v. Nuguid), 3. great GP, uncles by consanguinity full or half-blood, and
supra. No legacies nor devises having been provided in the nephews and nieces of full or half blood.
will the whole property of the deceased has been left by 38. Sienes vs. Esparcia
universal title to petitioner and his brothers and sisters. The
effect of annulling the institution of heirs will be, necessarily, Appellants commence this action below to secure judgments
the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 (1) declaring null and void the sale executed by Paulina and
[1943]) except that proper legacies and devises must, as Cipriana Yaeso in favor of appellees, the spouses Fidel
already stated above, be respected. Esparcia and Paulina Sienes; (2) ordering the Esparcia
spouses to reconvey to appellants Lot 3368 of the Cadastral
For private respondents to have tolerated the probate of the Survey of Ayuquitan (now Amlan), Oriental Negros; and (3)
will and allowed the case to progress when on its face the ordering all the appellees to pay, jointly and severally, to
will appears to be intrinsically void as petitioner and his appellants the sum of P500.00 as damages, plus the costs
brothers and sisters were instituted as universal heirs of suit. In their answer appellees disclaimed any knowledge
coupled with the obvious fact that one of the private or information regarding the sale allegedly made on April 20,
respondents had been preterited would have been an 1951 by Andrea Gutang in favor of appellants and alleged
exercise in futility. It would have meant a waste of time, that if such sale was made, the same was void on the
effort, expense, plus added futility. The trial court could have ground that Andrea Gutang had no right to dispose of the
denied its probate outright or could have passed upon the property subject matter thereof. They further alleged that
intrinsic validity of the testamentary provisions before the said property had never been in possession of appellants,
extrinsic validity of the will was resolved (Cayetano v. the truth being that appellees, as owners, had been in
Leonidas, supra; Nuguid v. Nuguid, supra). The remedies of continuous possession thereof since the death of Francisco
certiorari and prohibition were properly availed of by private Yaeso. By way of affirmative defense and counterclaim, they
respondents. further alleged that on July 30, 1951, Paulina and Cipriana
Yaeso, as the only surviving heirs of Francisco Yaeso,
Thus, this Court ruled that where the grounds for dismissal executed a public instrument of sale in favor of the spouses
are indubitable, the defendants had the right to resort to the Fidel Esparcia and Paulina Sienes, the said sale having
more speedy, and adequate remedies of certiorari and been registered together with an affidavit of adjudication
prohibition to correct a grave abuse of discretion, amounting executed by Paulina and Cipriana on July 18, 1951, as sole
to lack of jurisdiction, committed by the trial court in not surviving heirs of the aforesaid deceased; that since then the
dismissing the case, (Vda. de Bacang v. Court of Appeals, Esparcias had been in possession of the property as
supra) and even assuming the existence of the remedy of owners.
appeal, the Court harkens to the rule that in the broader
interests of justice, a petition for certiorari may be
56
From the above decision the Sienes spouses interposed the the paragraphs of said will, all his property should be divided
present appeal, their principal contentions being, firstly, that among all of his children of both marriages.
the lower court erred in holding that Lot 3368 of the That Apolonio Florentino III, the posthumos son of the
Cadastral Survey of Ayuquitan was a reservable property; second marriage, died in 1891; that his mother, Severina
secondly, in annuling the sale of said lot executed by Andrea Faz de Leon, succeeded to all his property described in the
Gutang in their favor; and lastly, in holding that Cipriana complaint; that the widow, Severina Faz de Leon died on
Yaeso, as reservee, was entitled to inherit said land. November 18, 1908, leaving a will instituting as her universal
As held by the trial court, it is clear upon the facts already heiress her only living daughter, Mercedes Florentino; that,
stated, that the land in question was reservable property. as such heir, said daughter took possession of all the
Francisco Yaeso inherited it by operation of law from his property left at the death of her mother, Severina Faz de
father Saturnino, and upon Francisco's death, unmarried and Leon; that among same is included the property, described
without descendants, it was inherited, in turn, by his mother, in the complaint, which the said Severina Faz de Leon
Andrea Gutang. The latter was, therefore, under obligation inherited from her deceased son, the posthumos Apolonio,
to reserve it for the benefit of relatives within the third degree as reservable property; that, as a reservist, the heir of the
belonging to the line from which said property came, if any said Mercedes Florentino deceased had been gathering for
survived her. The record discloses in this connection that herself alone the fruits of lands described in the complaint;
Andrea Gutang died on December 13, 1951, the lone that each and every one of the parties mentioned in said
reservee surviving her being Cipriana Yaeso who died only complaint is entitled to one-seventh of the fruits of the
on January 13, 1952 (Exh. 10). reservable property described therein, either by direct
participation or by representation, in the manner mentioned
In connection with reservable property, the weight of opinion in paragraph 9 of the complaint.
is that the reserva creates two resolutory conditions, namely, In order to decide whether the plaintiffs are or are not
(1) the death of the ascendant obliged to reserve and (2) the entitled to invoke, in their favor, the provisions of article 811
survival, at the time of his death, of relatives within the third of the Civil Code, and whether the same article is applicable
degree belonging to the line from which the property came to the question of law presented in this suit, it is necessary to
(6 Manresa 268-269; 6 Sanchez Roman 1934). The Court determine whether the property enumerated in paragraph 5
has held in connection with this matter that the reservista of the complaint is of the nature of reservable property; and,
has the legal title and dominion to the reservable property if so, whether in accordance with the provision of the Civil
but subject to a resolutory condition; that he is like a life Code in article 811, Severina Faz de Leon (the widow of the
usufructuary of the reservable property; that he may alienate deceased Apolonio Isabelo Florentino) who inherited said
the same but subject to reservation, said alienation property from her son Apolonio Florentino III (born after the
transmitting only the revocable and conditional ownership of death of his father Apolonio Isabelo) had the obligation to
the reservista, the rights acquired by the transferee being preserve and reserve same for the relatives, within the third
revoked or resolved by the survival of reservatorios at the degree, of her aforementioned deceased son Apolonio III.
time of death of the reservista (Edroso vs. Sablan, 25 Phil., The posthumos son, Apolonio Florentino III, acquired the
295; Lunsod vs. Ortega, 46 Phil., 664; Florentino vs. property, now claimed by his brothers, by a lucrative title or
Florentino, 40 Phil., 480; and Director of Lands vs. Aguas, by inheritance from his aforementioned legitimate father,
63 Phil., 279). Apolonio Isabelo Florentino II. Although said property was
inherited by his mother, Severina Faz de Leon,
The sale made by Andrea Gutang in favor of appellees was, nevertheless, she was in duty bound, according to article
therefore, subject to the condition that the vendees would 811 of the Civil Code, to reserve the property thus acquired
definitely acquire ownership, by virtue of the alienation, only for the benefit of the relatives, within the third degree, of the
if the vendor died without being survived by any person line from which such property came.
entitled to the reservable property. Inasmuch as when According to the provisions of law, ascendants do not inherit
Andrea Gutang died, Cipriano Yaeso was still alive, the the reservable property, but its enjoyment, use or trust,
conclusion becomes inescapable that the previous sale merely for the reason that said law imposes the obligation to
made by the former in favor of appellants became of no legal reserve and preserve same for certain designated persons
effect and the reservable property subject matter thereof who, on the death of the said ascendants-reservists, (taking
passed in exclusive ownership to Cipriana. into consideration the nature of the line from which such
property came) acquire the ownership of said property in fact
On the other hand, it is also clear that the sale executed by and by operation of law in the same manner as forced heirs
the sisters Paulina and Cipriana Yaesco in favor of the (because they are also such) said property reverts to said
spouse Fidel Esparcia and Paulina Sienes was subject to a line as long as the aforementioned persons who, from the
similar resolutory condition. The reserve instituted by law in death of the ascendantreservists, acquire in fact the right of
favor of the heirs within the third degree belonging to the line reservatarios (persons for whom property is reserved), and
from which the reservable property came, constitutes a real are relatives, within the third degree, of the descendant from
right which the reservee may alienate and dispose of, albeit whom the reservable property came.
conditionally, the condition being that the alienation shall Any ascendant who inherits from his descendant any
transfer ownership to the vendee only if and when the property, while there are living, within the third degree,
reservee survives the person obliged to reserve. In the relatives of the latter, is nothing but a life usufructuary or a
present case, Cipriana Yaeso, one of the reservees, was still fiduciary of the reservable property received. He is, however,
alive when Andrea Gutang, the person obliged to reserve, the legitimate owner of his own property which is not
died. Thus the former became the absolute owner of the reservable, property and which constitutes his legitime,
reservable property upon Andrea's death. While it may be according to article 809 of the Civil Code. But if, afterwards,
true that the sale made by her and her sister prior to this all of the relatives, within the third degree, of the descendant
event, became effective because of the occurrence of the (from whom came the reservable property) die or disappear,
resolutory condition, we are not now in a position to reverse the said property becomes free property, by operation of
the appealed decision, in so far as it orders the reversion of law, and is thereby converted into the legitime of the
the property in question to the Estate of Cipriana Yaeso, ascendant heir who can transmit it at his death to his
because the vendees — the Esparcia spouses — did not legitimate successors or testamentary heirs. This property
appeal therefrom. has now lost its nature of reservable property, pertaining
thereto at the death of the relatives, called reservatarios,
WHEREFORE, the appealed decision — as above modified who belonged within the third degree to the line from which
— is affirmed, with costs, and without prejudice to whatever such property came.
action in equity the Esparcia spouses may have against the Following the order prescribed by law in legitimate
Estate of Cipriana Yaeso for the reconveyance of the succession, when there are relatives of the descendant
property in question. within the third degree, the right of the nearest relative,
called reservatario, over the property which the reservista
Florentino vs. Florentino (person holding it subject to reservation) should return to
him, excludes that of the one more remote. The right of
That Apolonio Isabelo Florentino II married the first time representation cannot be alleged when the one claiming
Antonia Faz de Leon; that during the marriage he begot nine same as a reservatario of the reservable property is not
children called Jose, Juan, Maria, Encarnacion, Isabel, among the relatives within the third degree belonging to the
Espirita, Gabriel, Pedro, and Magdalena of the surname line from which such property came, inasmuch as the right
Florentino y de Leon; that on becoming a widower he granted by the Civil Code in article 811 is in the highest
married the second time Severina Faz de Leon with whom degree personal and for the exclusive benefit of designated
he had two children, Mercedes and Apolonio III of the persons who are the relatives, within the third degree, of the
surname Florentino y de Leon; that Apolonio Isabelo person from whom the reservable property came. Therefore,
Florentino II died on February 13, 1890; that he was relatives of the fourth and the succeeding degrees can never
survived by his second wife Severina Faz de Leon and the be considered as reservatarios, since the law does not
ten children first above mentioned; that his eleventh son, recognize them as such.
Apolonio III, was born on the following 4th of March 1890. In spite of what has been said relative to the right of
That on January 17 and February 13, 1890, Apolonio representation on the part of one alleging his right as
Isabelo Florentino executed a will before the notary public of reservatario who is not within the third degree of
Ilocos Sur, instituting as his universal heirs his relationship, nevertheless there is right of representation on
aforementioned ten children, the posthumos ApoIonio III and the part of reservatarios who are within the third degree,
his widow Severina Faz de Leon; that he declared, in one of mentioned by law, as in the case of nephews of the
deceased person from whom the reservable property came.
57
These reservatarios have the right to represent their Just because she has a forced heiress, with a right to her
ascendants (fathers and mothers) who are the brothers of inheritance, does not relieve Severina of her obligation to
the said deceased person and relatives within the third reserve the property which she received from her deceased
degree in accordance with article 811 of the Civil Code. son, nor did same lose the character of reservable property,
There are then seven "reservatarios" who are entitled to the held before the reservatarios received same
reservable property left at the death of Apolonio III; the
posthumos son of the aforementioned Apolonio Isabelo II, to For the foregoing reasons it follows that with the reversal of
wit, his three children of his first marriage- Encarnacion, the order of decision appealed from we should declare, as
Gabriel, Magdalena; his three children, Jose, Espirita and we hereby do, that the aforementioned property, inherited by
Pedro who are represented by their own twelve children the deceased Severina Faz de Leon from her son Apolonio
respectively; and Mercedes Florentino, his daughter by a Florentino III, is reservable property; that the plaintiffs, being
second marriage. All of the plaintiffs are the relatives of the relatives of the deceased Apolonio III within the third degree,
deceased posthumos son, Apolonio Florentino III, within the are entitled to six-sevenths of said reoervable property; that
third degree (four of whom being his half-brothers and the the defendant Mercedes is entitled to the remaining seventh
remaining twelve being his nephews as they are the children part thereof; that the latter, together with her husband Angel
of his three half-brothers). As the first four are his relatives Encarnacion, shall deliver to the plaintiffs, jointly, six-
within the third degree in their own right and the other twelve sevenths of the fruits or rents, claimed from said portion of
are such by representation, all of them are indisputably the land and of the quantity claimed, from January 17, 1918,
entitled as reservatarios to the property which came from the until fully delivered; and that the indemnity for one thousand
common ancestor, Apolonio Isabelo, to Apolonio Florentino pesos (P1,000) prayed for in the complaint is denied, without
III by inheritance during his life-time, and in turn by special findings as to the costs of both instances. So
inheritance to his legitimate mother, Severina Faz de Leon, ordered.
widow of the aforementioned Apolonio Isabelo Florentino II.
The judgment appealed from is also founded on the theory Chua vs. CFI
that article 811 of the Civil Code does not destroy the
system of legitimate succession and that the pretension of It appears that in the first marriage of Jose Frias Chua with
the plaintiffs to apply said article in the instant case would be Patricia S. Militar alias Sy Quio, he sired three children,
permitting the reservable right to reduce and impair the namely: Ignacio, Lorenzo and Manuel, all surnamed Frias
forced legitime which exclusively belongs to the defendant Chua. When Patricia S. Militar died, Jose Frias Chua
Mercedes Florentino, in violation of the precept of article 813 contracted a second marriage with Consolacion de la Torre
of the same Code which provides that the testator cannot with whom he had a child by the name of Juanito Frias
deprive his heirs of their legitime, except in the cases Chua. Manuel Frias Chua died without leaving any issue.
expressly determined by law. Neither can he impose upon it Then in 1929, Jose Frias Chua died intestate leaving his
any burden, condition, or substitution of any kind widow Consolacion de la Torre and his son Juanito Frias
whatsoever, saving the provisions concerning the usufruct of Chua of the second marriage and sons Ignacio Frias Chua
the surviving spouse, citing the decision of the Supreme and Lorenzo Frias Chua of his first marriage. In Intestate
Court of Spain of January 4, 1911. Proceeding No. 4816, the lower court issued an order dated
The principal question submitted to the court for decision January 15, 1931 1 adjudicating, among others, the one-
consists mainly in determining whether the property left at half (1/2) portion of Lot No. 399 and the sum of P8,000.00 in
the death of Apolonio III, the posthumos son of Apolonio favor of Jose Frias Chua's widow, Consolacion de la Torre,
Isabelo II, was or was not invested with the character of the other half of Lot No. 399 in favor of Juanito Frias Chua,
reservable property when it was received by his mother, his son in the second marriage; marriage; P3,000.00 in favor
Severina Faz de Leon. of Lorenzo Frias Chua; and P1,550.00 in favor of Ignacio
The property enumerated by the plaintiffs in paragraph 5 of Frias, Chua , his sons in the second marriage; By the virtue
their complaint came, without any doubt whatsoever, from of said adjudication, Transfer Certificate of Title No. TR-980
the common ancestor Apolonio Isabelo II, and when, on the (14483) 2 dated April 28, 1932 was issued by the Register
death of Apolonio III without issue, the same passed by of Deeds in the names of Consolacion de la Torre and
operation of law into the hands of his legitimate mother, Juanito Frias Chua as owners-pro-indiviso of Lot No. 339.
Severina Faz de Leon, it became reservable property, in
accordance with the provision of article 811 of the Code, On February 27, 1952, Juanito Frias Chua of the second
with the object that the same should not fall into the marriage died intestate without any issue. After his death, is
possession of persons other than those comprehended mother Consolacion de la Torre succeeded to his pro-
within the order of succession traced by the law from indiviso share of her son Juanito as a result of which
Apolonio Isabelo II, the source of said property. If this Transfer Certificate of Title No. 31796 covering the whole
property was in fact clothed with the character and condition Lot No. 399 was issued in her name. Then on March 5,
of reservable property when Severina Faz de Leon inherited 1966, Consolacion de la Torre died intestate leaving no
same from her son Apolonio, III, she did not thereby acquire direct heir either in the descending or ascending line except
the dominion or right of ownership but only the right of her brother and sisters.
usufruct or of fiduciary, with the necessary obligation to
preserve and to deliver or return it as such reservable on May 11, 1966 before the respondent Court of First
property to her deceased son's relatives within the third Instance of Negros Occidental, Branch V, praying that the
degree, among whom is her daughter, Mercedes Florentino. one-half (1/2) portion of Lot No. 399 which formerly
Reservable property neither comes, nor falls under, the belonged to Juanito Frias Chua but which passed to
absolute dominion of the ascendant who inherits and Consolacion de la Torre upon the latter's death, be declared
receives same from his descendant, therefore it does not as reservable property for the reason that the lot in question
form part of his own property nor become the legitimate of was subject to reserva troncal pursuant to Article 981 of the
his forced heirs. It becomes his own property only in case New Civil code. private respondent as administratrix of the
that all the relatives of his descendant shall have died estate of the Consolacion de la Torre and the heirs of the
(reservista), in which case said reservable property losses latter traversed individually the complaint of petitioners. 4
such character.
With full right Severina Faz de Leon could have disposed in On July 29, 1968, the respondent Court rendered a decision
her will of all her own property in favor of her only living dismissing the complaint of petitioners. Hence this instant
daughter, Mercedes Florentino, as forced heiress. But petition.
whatever provision there is in her will concerning the
reservable property received from her son Apolonio III, or The pertinent provision on reserva troncal under the New
rather, whatever provision will reduce the rights of the other Civil Code provides:
reservatarios, the half brothers and nephews of her daughter
Mercedes, is unlawful, null and void, inasmuch as said "ART. 891. The ascendant who
property is not her own and she has only the right of usufruct inherits from his descendant any
or of fiduciary, with the obligation to preserve and to deliver property which the latter may have
same to the reservatarios, one of whom is her own daughter, required by gratuitous title from another
Mercedes Florentino. ascendant, or a brother or sister, is
For this reason, in no manner can it be claimed that the obliged to reserve such property as he
legitime of Mercedes Florentino, coming from the in may have acquired by operation of law
heritance of her mother Severina Faz de Leon, has been for the benefit of relatives who are within
reduced and impaired; and the application of article 811 of the third degree and belong to the line
the Code to the instant case in no way prejudices the rights Iron which said property came."
of the defendant Mercedes Florentino, inasmuch as she is
entitled to a part only of the reservable property, there being Pursuant to the foregoing provision, in order that a property
no lawfull or just reason which serves as real foundation to may be impressed with a reservable character the following
disregard the right to Apolonio III's other relatives, within the requisites must exist, to wit: (1) that the property was
third degree, to participate in the reservable property in acquired by a descendant from an ascendant or from a
question. As these relatives are at present living, claiming for brother or sister by gratuitous title; (2) that said descendant
it with an indisputable right, we cannot find any reasonable died without an issue: (3) that the property is inherited by
and lawful motive why their rights should not be upheld and another ascendant by operation of law; and (4) that there are
why they should not be granted equal participation with the relatives within the third degree belonging to the line from
defendant in the litigated property. which said property came. 5 In the case before Us, all of the
foregoing requisites are present. Thus, as borne out by the
58
records, Juanito Frias Chua of the second marriage died Tongko-Camacho is entitled to the whole of the seven (7)
intestate in 1952; he died without leaving any issue; his pro- parcels of land in question, or whether the plaintiffs, as third
indiviso of 1/2 share of Lot No. 399 was acquired by his degree relatives of Faustino Dizon are reservatarios
mother, Consolacion de la Torre by operation of law. When (together with said defendant) of the one-half pro-indiviso
Consolacion de la Torre died, Juanito Frias Chua who died share therein which was inherited by Eustacio Dizon from
intestate had relatives within the third degree. These his son Faustino Dizon, and entitled to three-fourths (3/4) of
relatives are Ignacio Frias Chua and Dominador Chua and said one-half pro-indiviso share, or three-eights (3/8) of said
Remedios Chua, the supposed legitimate children of the seven (7) parcels of land, and, therefore, to three eights
deceased Lorenzo Frias Chua, who are the petitioners (3/8) of the rentals collected and to be collected by
herein. defendant Dalisay P. Tongko Camacho from the tenants of
said parcels of land, minus the expenses and/or real estate
The crux of the problem in instant petition is focused on the taxes corresponding to plaintiffs' share in the rentals.
first requisite of reserva troncal — whether the property in
question as acquired by Juanito Frias Chua from his father, In view of the fact that the parties are close blood relatives
Jose Frias Chua, gratuitously or not. In resolving this point, and have acted upon legal advice in pursuing their
the respondent Court said: respective claims, and in order to restore and preserve
harmony in their family relations, they hereby waive all their
We are not prepared to sustain the respondent Court's claims against each other for damages (other than legal
conclusion that the lot in question is not subject to a reserva interest on plaintiffs' share in the rentals which this
troncal under Art. 891 of the New Civil Code. It is, As Honorable Court may deem proper to award), attorney's fees
explained by Manresa which this Court quoted with approval and expenses of litigation which shall be borne by the
in Cabardo v. Villanueva, 44 Phil. 186, "The transmission is respective parties." 1
gratuitous or by gratuitous title when the recipient does not
give anything in return." It matters not whether the property The issue raised is whether, as contended by the plaintiffs-
transmitted be or be not subject to any prior charges; what is appellees and ruled by the lower Court, all relatives of the
essential is that the transmission be made gratuitously, or by praepositus within the third degree in the appropriate line
an act of mere liberality of the person making it, without succeed without distinction to the reservable property upon
imposing any obligation on the part of the recipient; and that the death of the reservista, as seems to be implicit in Art.
the person receiving the property gives or does nothing in 891 of the Civil Code, which reads: or, as asserted by the
return; or, as ably put by an eminent Filipino commentator, defendant-appellant, the rights of said relatives are subject
6 "the essential thing is that the person who transmits it does to, and should be determined by, the rules on intestate
so gratuitously, from pure generosity, without requiring from succession.
the transferee any prestation." It is evident from the record
that the transmission of the property in question to Juanito That question has already been answered in Padura vs.
Frias Chua of the second marriage upon the death of his Baldovino, 3 where the reservatario was survived by eleven
father Jose Frias Chua was by means of a hereditary nephews and nieces of the praepositus in the line of origin,
succession and therefore gratuitous. four of whole blood and seven of half blood, and the claim
was also made that all eleven were entitled to the
But the obligation of paying the Standard Oil Co. of New reversionary property in equal shares. This Court, speaking
York the amount of P3,971.20 is imposed upon Consolacion through Mr. Justice J.B.L. Reyes, declared the principles of
de la Torre and Juanito Frias Chua not personally by the intestacy to be controlling, and ruled that the nephews and
deceased Jose Frias Chua in his last will and testament but nieces of whole blood were each entitled to a share double
by an order of the court in the Testate Proceeding No. 4816 that of each of the nephews and nieces of half blood in
dated January 15, 1931. As long as the transmission of the accordance with Article 1006 of the Civil Code.
property to the heirs is free from any condition imposed by
the deceased himself and the property is given out of pure "The issue in this appeal may be formulated as follows: In a
generosity, it is gratuitous. It does not matter if later the court case of reserva troncal where the only reservatarios
orders one of the heirs, in this case Juanito Frias Chua, to (reserves) surviving the reservista, and belonging to the line
pay the Standard Oil Co. of New York the amount of of origin, are nephews of the descendant (prepositus), but
P3,971.20 This does not change the gratuitous nature of the some are nephews of the half blood and the others are
transmission of the property to him. As far as the deceased nephews of the whole blood, should the reserved properties
Jose Frias Chua is concerned the transmission of the be apportioned among them equally, or should the nephews
property to his heirs is gratuitous. This being the case the lot of the whole blood take a share twice as large as that of the
in question is subject to reserva troncal under Art. 891 of the nephews of the half blood?
New Civil Code.
The case is one of first impression and has divided the
De papa vs. Camacho Spanish commentators on the subject. After mature
reflection, we have concluded that the position of the
They stipulate that Romana Tioco during her lifetime appellants is correct. The reserva troncal is a special rule
gratuitously donated four (4) parcels of land to her niece designed primarily to assure the return of the reservable
Toribia Tioco (legitimate sister of plaintiffs), which parcels of property to the third degree relatives belonging to the line
land are presently covered by Transfer Certificates of Title from which the property originally came, and avoid its being
Nos. A-64165, 64166 and 64167 of the Registry of Deeds of dissipated into and by the relatives of the inheriting
Manila, copies of which are attached to this stipulation as ascendant (reservista).
Annexes 'B', 'B-1', and 'B-2'.
"Following the order prescribed by law in legitimate
They stipulate that Toribia Tioco died intestate in 1915, succession when there are relatives of the descendant
survived by her husband, Eustacio Dizon, and their two within the third degree, the right of the nearest relative,
legitimate children, Faustino Dizon and Trinidad Dizon called reservatario, over the property which the reservista
(mother of defendant Dalisay D. Tongko-Camacho) and (person holding it subject to reservation) should return to
leaving the afore-mentioned four (4) parcels of land as the him, excludes that of the one more remote. The right of
inheritance of her said two children in equal pro-indiviso representation cannot be alleged when the one claiming
shares. same as a reservatario of the reservable property is not
among the relatives within the third degree belonging to the
They stipulate that in 1937, Faustino Dizon died intestate, line from which such property came, inasmuch as the right
single and without issue, leaving his one-half (1/2) pro- granted by the Civil Code in Article 811 is in the highest
indiviso share in the seven (7) parcels of land above- degree personal and for the exclusive benefit of designated
mentioned to his father, Eustacio Dizon, as his sole intestate persons who are within the third degree of the person from
heir, who received the said property subject to a reserva whom the reservable property came. Therefore, relatives of
troncal which was subsequently annotated on the Transfer the fourth and the succeeding degrees can never be
Certificates of Title Annexes 'B', 'B-l', 'B-2', 'C' and 'C-1'. considered as reservatarios, since the law does not
recognize them as such.
They stipulate that in 1939 Trinidad Dizon-Tongko died
intestate, and her rights and interests in the parcels of land "In spite of what has been said relative to the right of
abovementioned were inherited by her only legitimate child, representation on the part of one alleging his right as
defendant Dalisay D. Tongko-Camacho, subject to the reservatario who is not within the third degree of
usufructuary right of her surviving husband, defendant Primo relationship, nevertheless there is right of representation on
Tongko. They stipulate that on June 14, 1965, Eustacio the part of reservatarios who are within the third degree
Dizon died intestate, survived his only legitimate mentioned by law, as in the case of nephews of the
descendant, defendant Dalisay D. Tongko-Camacho. deceased person from whom the reservable property came .
. ."
The parties agree that defendant Dalisay D. Tongko-
Camacho now owns one-half (1/2) of all the seven (7) Proximity of degree and right of representation are basic
parcels of land abovementioned as her inheritance from her principles of ordinary intestate succession; so is the rule that
mother, Trinidad Dizon-Tongko. whole blood brothers and nephews are entitled to a share
double that of brothers and nephews of half blood. If in
The parties hereby agree to submit for judicial determination determining the rights of the reservatarios inter se, proximity
in this case the legal issue of whether defendant Dalisay D. of degree and the right of representation of nephews are
59
made to apply, the rule of double share for immediate That any property received gratuitously by the
collaterals of the whole blood should be likewise operative. adopted from the adopter shall revert to the
adopter should the former predecease the
In other words, the reserva troncal merely determines the latter without legitimate issue unless the
group of relatives (reservatarios) to whom the property adopted has, during his lifetime, alienated
should be returned; but within that group, the individual right such property: Provided, finally, That in the
to the property should be decided by the applicable rules of last case, should the adopted leave no
ordinary intestate succession, since Art. 891 does not property other than that received from the
specify otherwise. This conclusion is strengthened by the adopter, and he is survived by illegitimate
circumstance that the reserva being an exceptional case, its issue or a spouse, such illegitimate issue
application should be limited to what is strictly needed to collectively or the spouse shall receive one-
accomplish the purpose of the law. fourth of such property; if the adopted is
survived by illegitimate issue and a spouse,
Reversion of the reservable property being governed by the then the former collectively shall receive one-
rules on intestate succession, the plaintiffs-appellees must fourth and the latter also one-fourth, the rest in
be held without any right thereto because, as aunt and any case reverting to the adopter, observing in
uncles, respectively, of Faustino Dizon (the praepositus), the case of the illegitimate issue the proportion
they are excluded from the succession by his niece, the provided for in Article 895 of the Civil Code.
defendant-appellant, although they are related to him within The adopter shall not be a legal heir of the adopted
the same degree as the latter. person, whose parents by nature shall inherit from him,
except that if the latter are both dead, the adopting
It will be seen that under the preceding articles, brothers and parent or parents take the place of the natural parents in
sisters and nephews and nieces inherited ab intestato ahead the line of succession, whether testate or interstate.
of the surviving spouse, while other collaterals succeeded
only after the widower or widow. The present Civil Code of
the Philippines merely placed the spouse on a par with the Teotica vs. Del Val Chan
nephews and nieces and brothers and sisters of the
deceased, but without altering the preferred position of the Maria Mortera y Balsalobre Vda. de Aguirre died on July 14,
latter vis a vis the other collaterals." 1955 in the City of Manila leaving properties worth
This conclusion is fortified by the observation, also made in P600,000.00. She left a will written in Spanish which she
Padura, supra, that as to the reservable property, the executed at her residence in No. 2 Legarda St., Quiapo,
reservatarios do not inherit from the reservista, but from the Manila. She affixed her signature at the bottom of the will
descendant praepositus: and on the left margin of each and every page thereof in the
presence of Pilar Borja, Pilar G. Sanchez, and Modesto
". . . It is likewise clear that the reservable property is no part Formilleza, who in turn affixed their signatures below the
of the estate of the reservista, who may not dispose of it by attestation clause and on the left margin of each and every
will, as long as there are reservatarios existing (Arroyo vs. page of the will in the presence of the testatrix and of each
Gerona, 58 Phil. 237). The latter, therefore, do not inherit other. Said will was acknowledged before Notary Public
from the reservista, but from the descendant prepositus, of Niceforo S. Agaton by the testatrix and her witnesses.
whom the reservatarios are the heirs mortis causa, subject
to the condition that they must survive the reservista. Among the many legacies and devises made in the will was
one of P20,000.00 to Rene A. Teotico, married to the
"The contention that an intestacy proceeding is still testatrix's niece named Josefina Mortera. To said spouses
necessary rests upon the assumption that the reservatario the testatrix left the usufruct of her interest in the Calvo
will succeed in, or inherit, the reservable property from the building, while the naked ownership thereof she left in equal
reservista. This is not true. The reservatario is not the parts to her grandchildren who are the legitimate children of
reservista's successor mortis causa nor is the reservable said spouses. The testatrix also instituted Josefina Mortera
property part of the reservista's estate; the reservatario as her sole and universal heir to all the remainder of her
receives the property as a conditional heir of the descendant properties not otherwise disposed of in the will.
(prepositus), said property merely reverting to the line of
origin from which it had temporarily and accidentally strayed Ana del Val Chan, claiming to be an adopted child of
during the reservista's lifetime. The authorities are all agreed Francisca Mortera, a deceased sister of the testatrix, as well
that there being reservatarios that survive the reservista, the as an acknowledged natural child of Jose Mortera, a
matter must be deemed to have enjoyed no more than a life deceased brother of the same testatrix, filed on September
interest in the reservable property. 2, 1955 an opposition to the probate of the will alleging the
following grounds: (1) said will was not executed as required
It is a consequence of these principles that upon the death by law; (2) the testatrix was physically and mentally
of the reservista, the reservatario nearest to the prepositus incapable to execute the will at the time of its execution; and
(the appellee in this case) becomes, automatically and by (3) the will was executed under duress, threat or influence of
operation of law, the owner of the reservable property. As fear.
already stated, that property is no part of the estate of the
reservista, and does not even answer for the debts of the After the parties had presented their evidence, the probate
latter . . ." court rendered its decision on November 10, 1960 admitting
the will to probate but declaring the disposition made in favor
Had the reversionary property passed directly from the of Dr. Rene Teotico void with the statement that the portion
praepositus, there is no doubt that the plaintiffs-appellees to be vacated by the annulment should pass to the testatrix's
would have been excluded by the defendant-appellant under heirs by way of intestate succession.
the rules of intestate succession. There is no reason why a
different result should obtain simply because "the The motions for reconsideration above adverted to having
transmission of the property was delayed by the interregnum been denied, both petitioner and oppositor appealed from
of the reserva;" 6 i.e., the property took a "detour" through the decision, the former from that portion which nullifies the
an ascendant — thereby giving rise to the reservation — legacy in favor of Dr. Rene Teotico and declares the vacated
before its transmission to the reservatario. Upon the portion as subject of succession in favor of the legal heirs,
stipulated facts, and by virtue of the rulings already cited, the and the latter from that portion which admits the will to
defendant-appellant Dalisay Tongko-Camacho is entitled to probate. And in this instance both petitioner and oppositor
the entirety of the reversionary property to the exclusion of assign several error which, stripped of non-essentials, may
the plaintiffs-appellees. be boiled down to the following: (1) Has oppositor Ana del
Val Chan the right to intervene in this proceeding?; (2) Has
XIV. RESERVA ADOPTIVA the will in question been duly admitted to probate?; and (3)
Did the probate court commit an error in passing on the
P.D. 603; Art. 39. Effects of Adoption. - The adoption intrinsic validity of the provisions of the will and in
shall: determining who should inherit the portion to be vacated by
(1) Give to the adopted person the same rights the nullification of the legacy made in favor of Dr. Rene
and duties as if he were a legitimate child of Teotico?
the adopter: Provided, That an adopted child
cannot acquire Philippine citizenship by virtue It is a well-settled rule that in order that a person may be
of such adoption: allowed to intervene in a probate proceeding he must have
(2) Dissolve the authority vested in the natural an interest in the estate, or in the will, or in the property to be
parent or parents, except where the adopter is affected by it either as executor or as a claimant of the
the spouse of the surviving natural parent; estate (Ngo The Hua vs. Chung Kiat Hua, et al., L-17091,
(3) Entitle the adopted person to use the September 30, 1963); and an interested party has been
adopter's surname; and defined as one who would be benefitted by the estate such
(4) Make the adopted person a legal heir of the as an heir or one who has a claim against the estate like a
adopter: Provided, That if the adopter is creditor (Idem.). On the other hand, in Saguinsin vs.
survived by legitimate parents or ascendants Lindayag, et al., L-17750, December 17, 1962, this Court
and by an adopted person, the latter shall not said:
have more successional rights than an
acknowledged natural child: Provided, further,
60
"According to Section 2, Rule 80 of the Rules of Court, a decided by this Court in a long line of decisions among
petition for letters of administration must be filed by an which the following may be cited: "Opposition to the intrinsic
'interested person.' An interested party has been defined in validity or legality of the provisions of the will cannot be
this connection as one who would be benefitted by the entertained in probate proceeding because its only purpose
estate, such as an heir, or one who has a claim against the is merely to determine if the will has been executed in
estate, such as a creditor (Intestate Estate of Julio accordance with the requirements of the law."
Magbanwa 40 O.G., 1171). And it is well settled in this
jurisdiction that in civil actions as well as special "To establish conclusively as against everyone, and once for
proceedings, the interest required in order that a person may all, the facts that a will was executed with the formalities
be a party thereto must be material and direct, and not required by law and that the testator was in a condition to
merely indirect or contingent. (Trillana vs. Crisostomo, G. R. make a will, is the only purpose of the proceedings under the
No. L-3370, August 22, 1951; Rapinosa vs. Barrion, 70 Phil. new code for the probate of a will. (Sec. 625.) The judgment
311)." in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the
The question now may be asked: Has oppositor any interest validity of any provisions made in the will. It can not decide,
in any of the provisions of the will, and, in the negative, for example, that a certain legacy is void and another one
would she acquire any right to the estate in the event that valid."
the will is denied probate?
II. DISINHERITANCE
Under the terms of the will, oppositor has no right to
intervene because she has no interest in the estate either as Art. 915. A compulsory heir may, in consequence of
heir, executor, or administrator, nor does she have any claim disinheritance, be deprived of his legitime, for causes
to any property affected by the will, because it nowhere expressly stated by law. (848a)
appears therein any provision designating her as heir,
legatee or devisee of any portion of the estate. She has also Disinheritance may be defined as the act by which the
no interest in the will either as administratrix or executrix. testator, for a just cause, deprives a compulsory heir of his
Neither has she any claim against any portion of the estate right to the legitime.
because she is not a co-owner thereof, and while she It is a means given to the testator to punish such of his
previously had an interest in the Calvo building located in compulsory heirs who have committed acts which render
Escolta, she had already disposed of it long before the them unworthy of benefit or generosity. The law saves the
execution of the will. testator from the pain of seeing a portion of his property
pass forcibly to an ungrateful heir or to one who may have
"'Between the natural child and the legitimate relatives of the brought dishonor to him.
father or mother who acknowledged it, the Code denies any
right of succession. They cannot be called relatives and they A disinheritance totally excludes the disinherited heir from
have no right to inherit. Of course, there is a blood tie, but the inheritance not only the legitme but the entire amount
the law does not recognize it. In this, article 943 is based that he would have received as intestate heir.
upon the reality of the facts and upon the presumptive will of Ratio: the law of intestacy is merely the presumed will of the
the interested parties; the natural child is disgracefully testator, and cannot prevail over the expressed will in the
looked down upon by the legitimate family; the legitimate form of a valid disinheritance. If the disinheritance deprives
family is, in turn, hated by the natural child; the latter the compulsory heir of his legitime reserved by law to him all
considers the privileged condition of the former and the the more that he should be deprived of the portion which ca
resources of which it is thereby deprived; the former, in turn, nbe freely disposed of.
sees in the natural child nothing but the product of sin, a
palpable evidence of a blemish upon the family. Every As to the intestate heirs such as the collateral relatives or
relation is ordinarily broken in life; the law does no more those within the fifth civil degree of consanguinity the
them recognize this truth, by avoiding further grounds of testator may disinherit them for any reason at all. They are
resentment.' (7 Manresa, 3d ed., p. 110.)" not heirs protected by law as a compulsory heir designated.
Since they are mere heirs of the presumed will their
The oppositor cannot also derive comfort from the fact that succession depends only upon the discretion of the testator
she is an adopted child of Francisca Mortera because under or his presumed will when none was made.
our law the relationship established by adoption is limited Art. 916. Disinheritance can be effected only through a
solely to the adopter and the adopted does not extend to the will wherein the legal cause therefor shall be specified.
relatives of the adopting parents or of the adopted child (849)
except only as expressly provided for by law. Hence, no Art. 917. The burden of proving the truth of the cause for
relationship is created between the adopted and the disinheritance shall rest upon the other heirs of the
collaterals of the adopting parents. As a consequence, the testator, if the disinherited heir should deny it. (850)
adopted is an heir of the adopter but not of the relatives of Requisites of disinheritance:
the adopter. 1. heir must be designated by name as to leave
no doubt;
"The relationship established by the adoption, however, is 2. must be for cause provided by law;
limited to the adopting parent, and does not extend to his 3. made in the will;
other relatives, except as expressly provided by law. Thus, 4. made expressly stating the causes in the will;
the adopted child cannot be considered as a relative of the 5. cause msut be certain, true , and proved
ascendants and collaterals of the adopting parents, nor of 6. must be unconditional;
the legitimate children which they may have after the 7. must be total
adoption, except that the law imposes certain impediments There can be no extension of the causes for disinheritance
to marriage by reason of adoption. Neither are the children by analogy. The causes assigned by the testator may be
of the adopted considered as descendants of the adopter. graver or more serious than those given by the law, but if
The relationship created is exclusively between, the adopter they are not among those enumerated by the law, the
and the adopted, and does not extend to the relatives of disinheritance will be ineffective.
either." (Tolentino, Civil Code of the Philippines, Vol. 1, p. The will must be valid. Otherwise, the disinheritance will not
652) be effective.
The law does not admit tacit disinheritance.
We have examined the evidence on the matter and we are The last will of a person may be expressed in different
fully in accord with the foregoing observation. Moreover, the statements, all of them combined being considered as one
mere claim that Josefina Mortera and her husband Rene last expression of his will mortis causa. There will be a valid
Teotico had the opportunity to exert pressure on the testatrix disinheritance if the cause for it has been expressed in one
simply because she lived in their house several years prior statement, and the disinheritance is made in another,
to the execution of the will and that she was old and provided that the necessary connection between the cause
suffering from hypertension in that she was virtually isolated and the disinheritance is clearly established.
from her friends for several years prior to her death is As a general rule, a disineritance must be unconditional. But
insufficient to disprove what the instrumental witnesses had when the disinheritance is made in the form of a conditional
testified that the testatrix freely and voluntarily and with full pardon, it is generally considered as walid. In such case,
consciousness of the solemnity of the occasion executed the there is an existing legal cause for disinheritance, but the
will under consideration. The exercise of improper pressure pardon for such cause is made dependent upon some
and undue influence must be supported by substantial condition. The condition, however, should be related to the
evidence and must be of a kind that would overpower and cause for disinheritance, and not by a mere caprice or whim
subjugate the mind of the testatrix as to destroy her free of the testator. Ir is clear that it is the conditional pardon, and
agency and make her express the will of another rather than not the conditional disinheritance, properly speaking, that is
her own (Coso vs. Deza, 42 Phil., 596). The burden is on the allowable.
person challenging the will that such influence was exerted A partial disinheritance with partial pardon is inconceivable.
at the time of its execution, a matter which here was not The offense is one; it cannot be separated into component
done, for the evidence presented not only is sufficient but parts. The testator cannot be partly offended and partly not.
was disproved by the testimony the instrumental witnesses. Art. 918. Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted,
The question of whether the probate court could determine is not proved, or which is not one of those set forth in
the intrinsic validity of the provisions of a will has been this Code, shall annul the institution of heirs insofar as
61
it may prejudice the person disinherited; but the devises caused by his or her bad conduct or by the lack of
and legacies and other testamentary dispositions shall application to work, so long as this cause subsists.
be valid to such extent as will not impair the legitime. (152a)
(851a) Maltreatment by deed covers all acts of violence against the
This article pertain to effects of a disinheritance which does testator short of an attempt against the life. Maltreatment by
not have one or more of the essential requisites for its word amounts to slander addressed directly against the
validity. It likewise applies to cases of reconciliation after a testator himself conviction, though, is not necessary. Except
disinheritance has been made. when:
The ineffective disinheritance does not affect the disposition 1. unintentional;
of the testator with respect to the free portion. The reason is 2. on account of lack of discernment due to
the disinheritance in this case refers only only to the legitime tender age or mental incapacity
of the heir, and therefore, it is only this portion that is What is dishonorable or disgraceful life is largely a matter of
affected by the nullity or ineffectiveness of such appreciation and opinion. If denied, the burden of proof is
disinheritance. lodeged to the others interested in the estate. Ultimately, it is
Where the disinheritance is ineffective in this case, the the opinion of the court which will be the basis of the
compulsory heir must be given all that he is entitiled to disinheritance.
receive as if the disinheritance has not been made, without The conviction of the crime which carries the penalty of Civil
prejudice to lawful dispositions made by the testator in favor interdiction must be by final judgement.
of others. Art. 920. The following shall be sufficient causes for the
Art. 919. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether
disinheritance of children and descendants, legitimate legitimate or illegitimate:
as well as illegitimate: (1) When the parents have abandoned their
(1) When a child or descendant has been found children or induced their daughters to live a
guilty of an attempt against the life of the corrupt or immoral life, or attempted against
testator, his or her spouse, descendants, or their virtue;
ascendants; (2) When the parent or ascendant has been
(2) When a child or descendant has accused convicted of an attempt against the life of the
the testator of a crime for which the law testator, his or her spouse, descendants, or
prescribes imprisonment for six years or more, ascendants;
if the accusation has been found groundless; (3) When the parent or ascendant has accused
(3) When a child or descendant has been the testator of a crime for which the law
convicted of adultery or concubinage with the prescribes imprisonment for six years or more,
spouse of the testator; if the accusation has been found to be false;
(4) When a child or descendant by fraud, (4) When the parent or ascendant has been
violence, intimidation, or undue influence convicted of adultery or concubinage with the
causes the testator to make a will or to change spouse of the testator;
one already made; (5) When the parent or ascendant by fraud,
(5) A refusal without justifiable cause to violence, intimidation, or undue influence
support the parent or ascendant who causes the testator to make a will or to change
disinherits such child or descendant; one already made;
(6) Maltreatment of the testator by word or (6) The loss of parental authority for causes
deed, by the child or descendant; specified in this Code;
(7) When a child or descendant leads a (7) The refusal to support the children or
dishonorable or disgraceful life; descendants without justifiable cause;
(8) Conviction of a crime which carries with it (8) An attempt by one of the parents against
the penalty of civil interdiction. (756, 853, 674a) the life of the other, unless there has been a
Attempt against the life includes all the different degrees of reconciliation between them. (756, 854, 674a)
commission of the crime, such as attempted, frustrated, and Abandonment should be understood in a general sense, so
consummated. It is essential though, that the heir be as to include failure to give due care, attention, and support.
convicted despite the following: What is corrupt and immoral life will ultimately be MATTER
a. prescription of penalty; OF JUDICIAL APPRAISAL and opinion, if the parent denies
b. pardon and amnesty both of which imply this cause for disinheritance. The acts which the daughter
conviction; has been indiuced by the parent to commit should be
c. mere accomplice in the crime proved. Daughters in the article must be construed to
Exception on attempt against the life are the following: include all female descendants.
1. intention is lacking Attempt against the virtue does not require final conviction. It
2. conviction for mere reckless imprudence or is enough that he has committed acts which would have
negligence though mitigated amounted to rape, seduction, or acts of lasciviousness,
3. justifying circumstance under the RPC against such daughter.
4. accessory after the fact Loss of parental are provided for in the Family Code.
5. prosecution dismissed even if provisional Art. 229. Unless subsequently revived by a final judgment,
only parental authority also terminates:
6. prescription of the crime (1) Upon adoption of the child;
7. appeal to the higher court reverses conviction (2) Upon appointment of a general guardian;
Elements od false accusation: (3) Upon judicial declaration of abandonment of
1. act of accusing the testator; the child in a case filed for the purpose;
2. judicial declaration that such accusation is (4) Upon final judgment of a competent court
false; divesting the party concerned of parental
3. offense charged is punishable be 6 years authority; or
imprisonment. (5) Upon judicial declaration of absence or
The heir convicted of adultery or concubinage with the incapacity of the person exercising parental
spouse of testator is disinherited by the law. But the law authority. (327a)
does not provide when the testator himself is guilty of Art. 230. Parental authority is suspended upon conviction of
adultery. In such case article 1028 will apply in relation to the parent or the person exercising the same of a crime
article 729, prohibition to donate to a paramour. which carries with it the penalty of civil interdiction. The
Judicial demand for support is not necessary. The law does authority is automatically reinstated upon service of the
not require it, the question of whether there has been a penalty or upon pardon or amnesty of the offender. (330a)
refusal to give such support without justifiable cause is open Art. 231. The court in an action filed for the purpose in a
to proof if the disinherited child or descendant denies it. related case may also suspend parental authority if the
Article 303 gives cause for the termination of the obligation parent or the person exercising the same:
the support and these are justifiable grounds to refuse (1) Treats the child with excessive harshness or
support except of course the death of the preson entitiled to cruelty;
support. (2) Gives the child corrupting orders, counsel or
Art. 303. The obligation to give support shall also cease: example;
(1) Upon the death of the recipient; (3) Compels the child to beg; or
(2) When the resources of the obligor have been (4) Subjects the child or allows him to be
reduced to the point where he cannot give the subjected to acts of lasciviousness.
support without neglecting his own needs and The grounds enumerated above are deemed to include
those of his family; cases which have resulted from culpable negligence of the
(3) When the recipient may engage in a trade, parent or the person exercising parental authority.
profession, or industry, or has obtained work, or If the degree of seriousness so warrants, or the welfare of
has improved his fortune in such a way that he no the child so demands, the court shall deprive the guilty party
longer needs the allowance for his subsistence; of parental authority or adopt such other measures as may
(4) When the recipient, be he a forced heir or not, be proper under the circumstances.
has committed some act which gives rise to The suspension or deprivation may be revoked and the
disinheritance; parental authority revived in a case filed for the purpose or in
(5) When the recipient is a descendant, brother or the same proceeding if the court finds that the cause
sister of the obligor and the need for support is therefor has ceased and will not be repeated. (33a)
62
Art. 232. If the person exercising parental authority has
subjected the child or allowed him to be subjected to sexual General pardon is not sufficient. The pardon must expressly
abuse, such person shall be permanently deprived by the refer to the heir disinherited and specifically to the acts
court of such authority. (n) causing the disinheritance. Such pardon must be accepted
There are temporary loss of parental authority which causes by the heir. There must be a real reconciliation between the
disinheritance but will the recovery of authority revoke the parties.
disinheritance? No. the cause for disinheritance subsists
even when parental authority is regained. The reason There are some grounds for disinheritance which are also
advanced is that the real cause for disinheritance is not the causes for incapacity by reason of unworthiness. What then
loss of the parental authority, but the fact of having would be the effect of a subsequent reconciliation between
committed something sufficient to occasion such loss. The the parties, if a disinheritance has already been made on
right to inherit is odious, because it involves the deprivation any of the grounds which are also causes for unworthiness?
of property; this fact, together with the fact that
disinheritaqnce is an exception to the rules of legitime Same effect, the heir may inherit as a CH and intestate.
justifies a strict construction. Incapacity by reason of unworthiness is merely an
Attempt against the life does not require conviction of the expression of the implied will of a person who has not
offending parent. But the reconciliation between the expressed his intention in a will. If the express intention,
offending parent and the parent against whose life the manifested by the testator in a disinheriting clause in a will,
attempt was made deprives the child of the right to disinherit is rendered ineffective by a subsequent reconciliation, how
the offender. can the implied intention be logically held to exist?
Art. 921. The following shall be sufficient causes for
disinheriting a spouse: If a disinheritance has been made, and then reconciliation
(1) When the spouse has been convicted of an takes place, it will be the same as if there had been no
attempt against the life of the testator, his or disinheritance. The disinheritance does not legally exist, and
her descendants, or ascendants; the rights established by law in favor of the person
(2) When the spouse has accused the testator provisionally disinherited recover their supremacy over the
of a crime for which the law prescribes express disposition of thetestator.
imprisonment of six years or more, and the
accusation has been found to be false; Disinheritance may be revoked by:
(3) When the spouse by fraud, violence, 1. reconciliation;
intimidation, or undue influence cause the 2. subsequent institution of the disinherited heir;
testator to make a will or to change one 3. the nullity of the will containing the
already made; disinheritance, such as when denied probate.
(4) When the spouse has given cause for legal
separation; Once revoked it cannot be renewed except for other
(5) When the spouse has given grounds for the causes subsequent to the revocation. Thus, after
loss of parental authority; reconciliation a new disinheritance can be based only
(6) Unjustifiable refusal to support the children on new grounds.
or the other spouse. (756, 855, 674a)
It is the fact of having given cause for the legal separation Art. 923. The children and descendants of the person
which is the ground; in other words, it is necessary that the disinherited shall take his or her place and shall
legal separation be actually obtained. preserve the rights of compulsory heirs with respect to
Art. 55. A petition for legal separation may be filed on any of the legitime; but the disinherited parent shall not have
the following grounds: the usufruct or administration of the property which
(1) Repeated physical violence or grossly abusive constitutes the legitime. (857)
conduct directed against the petitioner, a common
child, or a child of the petitioner; The causes of disinheritance are personal to the disinherited
(2) Physical violence or moral pressure to compel heir; he alone is at fault, and nobody else should suffer the
the petitioner to change religious or political effects of such culpability. His children and ascendants
affiliation; therefore should not be penalized for acts not imputable to
(3) Attempt of respondent to corrupt or induce the them.
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance The article allows the children and descendants of the
in such corruption or inducement; person disinherited to take his place and retain the rights of
(4) Final judgment sentencing the respondent to compulsory heirs in respect to the legitime.
imprisonment of more than six years, even if The disinherited person can be represented only if he is a
pardoned; child or descendant, a disinherited ascendant or spouse
(5) Drug addiction or habitual alcoholism of the cannot be represented. Right of representation applies.
respondent;
(6) Lesbianism or homosexuality of the The representation should extend to everything that would
respondent; have passed to the disinherited heir by operation of law; this
(7) Contracting by the respondent of a subsequent includes the amount that pertains to him as intestate heir
bigamous marriage, whether in the Philippines or and not only that as compulsory heir.
abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of PRINCIPLES AFFECTING THE FREELY DISPOSABLE
the petitioner; or PORTION
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one year. XVI. INSTITUTION OF HEIRS
For purposes of this Article, the term "child" shall include a
child by nature or by adoption. (9a) A. In General

Art. 63. The decree of legal separation shall have the Art. 840. Institution of heir is an act by virtue of which a
following effects: testator designates in his will the person or persons
(1) The spouses shall be entitled to live separately who are to succeed him in his property and
from each other, but the marriage bonds shall not transmissible rights and obligations. (n)
be severed;
(2) The absolute community or the conjugal The will of the testator is the supreme law which succession
partnership shall be dissolved and liquidated but is governed, thus, the beneficiaries under the will must be
the offending spouse shall have no right to any designated with clearness so that there can be no doubt as
share of the net profits earned by the absolute to who are intended by the testator.
community or the conjugal partnership, which shall
be forfeited in accordance with the provisions of Since the institution of heirs and the designation of legatees
Article 43(2); and devisees spring exclusively from the will of the testator,
(3) The custody of the minor children shall be only the portion of the inheritance that is subject to the
awarded to the innocent spouse, subject to the disposal of the testator would be affected by such institution
provisions of Article 213 of this Code; and or designation. It cannot affect the portion known as the
(4) The offending spouse shall be disqualified from legitime.
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the Art. 785. The duration or efficacy of the designation of
offending spouse made in the will of the innocent heirs, devisees or legatees, or the determination of the
spouse shall be revoked by operation of law. portions which they are to take, when referred to by
(106a) name, cannot be left to the discretion of a third person.
(670a)
Art. 922. A subsequent reconciliation between the T: The matters mentioned in this article are testamentary in
offender and the offended person deprives the latter of nature; they constitute expressions of the will or disposition
the right to disinherit, and renders ineffectual any of the testator. Hence, pursuant to Art. 784, it cannot be
disinheritance that may have been made. (856) delegated.
63
B: The ff. constitute the essence of will making or the Art. 845. Every disposition in favor of an unknown
exercise of the disposing power, and thus, non-delegable: person shall be void, unless by some event or
1. the designation of heirs, devisees, legatees; circumstance his identity becomes certain. However, a
2. the duration or efficacy of such designation disposition in favor of a definite class or group of
including such things as conditions, terms, persons shall be valid. (750a)
substitutions Art. 786. The testator may entrust to a third person the
3. the determination of the portions they are to distribution of specific property or sums of money that
recieve he may leave in general to specified classes or causes,
Art. 787. The testator may not make a testamentary and also the designation of the persons, institutions or
disposition in such manner that another person has to establishments to which such property or sums are to
determine whether or not it is to be operative. (n) be given or applied. (671a)
Art. 841. A will shall be valid even though it should not T: the third person here does not make any disposition, but
contain an institution of an heir, or such institution simply carries out details in the execution of the
should not comprise the entire estate, and even though testamentary disposition made by the testator himself in the
the person so instituted should not accept the will.
inheritance or should be incapacitated to succeed. B: for this article to take effect the testator must determine
The heir may be instituted to succeed to the whole or to an the ff:
aliquot part of the inheritance. The existence of the 1. the property or amount of money given and;
institution does not depend upon the designation or name 2. the class or cause to be benefited
which the testator gives to his testamentary disposition. and the ff. may be delegated:
In such cases the testamentary dispositions made in 1. designation of persons, institutions, or
accordance with law shall be complied with and the establishments within the class or cause;
remainder of the estate shall pass to the legal heirs. 2. the manner of distribution.
(764) Art. 846. Heirs instituted without designation of shares
Art. 842. One who has no compulsory heirs may dispose shall inherit in equal parts. (765)
by will of all his estate or any part of it in favor of any Art. 848. If the testator should institute his brothers and
person having capacity to succeed. sisters, and he has some of full blood and others of half
The article pertains to the principle of freedom of distribution blood, the inheritance shall be distributed equally
by will. The extent of his freedom of disposition depends unless a different intention appears. (770a)
upon the existence, knid, and number of compulsory heirs. Art. 847. When the testator institutes some heirs
When there are CH the law limits this freedom to such extent individually and others collectively as when he says, "I
that legitime is not impaired. Besides the civil law, special designate as my heirs A and B, and the children of C,"
laws also restrict this freedom such as the Public Land Act those collectively designated shall be considered as
which vests upon the heirs of the applicant or grantee the individually instituted, unless it clearly appears that the
ownership of land in such case that the latter dies. Thus, he intention of the testator was otherwise. (769a)
does not have free disposal of the subject land. Art. 849. When the testator calls to the succession a
The body of the deceased testator will not pass under his person and his children they are all deemed to have
will or become part of the estate because it is not a property. been instituted simultaneously and not successively.
But the testator may be allowed to such extent for scientific (771)
or educational purposes. Art. 850. The statement of a false cause for the
One who has compulsory heirs may dispose of his institution of an heir shall be considered as not written,
estate provided he does not contravene the provisions unless it appears from the will that the testator would
of this Code with regard to the legitime of said heirs. not have made such institution if he had known the
(763a) falsity of such cause. (767a)
Art. 843. The testator shall designate the heir by his Austria vs. Reyes
name and surname, and when there are two persons
having the same names, he shall indicate some On July 7, 1956 Basilia Austria vda. de Cruz filed with the
circumstance by which the instituted heir may be Court of First Instance of Rizal (Special Proceedings 2457) a
known. petition for probate, ante mortem, of her last will and
Even though the testator may have omitted the name of testament. The probate was opposed by the present
the heir, should he designate him in such manner that petitioners Ruben Austria, Consuelo Austria-Benta and
there can be no doubt as to who has been instituted, the Lauro Austria Mozo, and still others who, like the petitioner,
institution shall be valid. (772) are nephews and nieces of Basilia. This opposition was,
Art. 844. An error in the name, surname, or however, dismissed and the probate of the will allowed after
circumstances of the heir shall not vitiate the institution due hearing.
when it is possible, in any other manner, to know with
certainty the person instituted. The bulk of the estate of Basilia, admittedly, was destined
If among persons having the same names and under the will to pass on to the respondents Perfecto Cruz,
surnames, there is a similarity of circumstances in such Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz
a way that, even with the use of the other proof, the Cruz-Salonga, all of whom had been assumed and declared
person instituted cannot be identified, none of them by Basilia as her own legally adopted children.
shall be an heir. (773a) Finally, on November 5, 1959, the present petitioners filed in
Art. 789. When there is an imperfect description, or the same proceedings a petition in intervention for partition
when no person or property exactly answers the alleging in substance that they are the nearest of kin of
description, mistakes and omissions must be corrected, Basilia, and that the five respondents Perfecto Cruz, et al.,
if the error appears from the context of the will or from had not in fact been adopted by the decedent in accordance
extrinsic evidence, excluding the oral declarations of the with law, in effect rendering these respondents mere
testator as to his intention; and when an uncertainty strangers to the decedent and without any right to succeed
arises upon the face of the will, as to the application of as heirs.
any of its provisions, the testator's intention is to be
ascertained from the words of the will, taking into In the meantime, the contending sides debated the matter of
consideration the circumstances under which it was authenticity or lack of it of the several adoption papers
made, excluding such oral declarations. (n) produced and presented by the respondents. On motion of
T: The first part of this article pertains to patent or extrinsic the petitioners Ruben Austria, et al., these documents were
ambiguity which appears upon the face of the instrument referred to the National Bureau of Investigation for
such as when the testator gives a devise or legacy to examination and advice. N.B.I. report seems to bear out the
“SOME of the six children of his cousin Juan” genuineness of the documents, but the petitioners, evidently
The second part pertains to latent or intrinsic ambiguity dissatisfied with the results, managed to obtain a preliminary
which cannot be seen from a mere perusal or reading of the opinion from a Constabulary questioned-document examiner
will but appears only upon consideration of extrinsic whose views undermine the authenticity of the said
circumstances, such as giving legacy to “my cousin Pedro”, documents. The petitioners Ruben Austria, et al., thus
when I fact he has two cousins named Pedro. Thus. It moved the lower court to refer the adoption papers to the
occurs when: Philippine Constabulary for further study. The petitioners
1. two or more persons or things answer the name or likewise located former personnel of the court which
description; appeared to have granted the questioned adoption, and
2. misdescription of the beneficiary or the gift obtained written depositions from two of them denying any
Extrinsic evidence is admissible to show the situation of the knowledge of the pertinent adoption proceedings.
testator and all the relevant facts and circumstances
surrounding him at the time of making the will, for the The complaint in intervention filed in the lower court assails
purpose of explaining or resolving patent ambiguity. the legality of the tie which the respondent Perfecto Cruz
B: method of resolving ambiguity, whether latent or patent is and his brothers and sisters claim to have with the decedent.
any evidence admissible and relevant excluding the oral The lower court had, however, assumed, by its orders in
declarations of testator as to his intention. question, that the validity or invalidity of the adoption is not
Ratio for the exclusion: B: can a dead man refute a tale? material nor decisive on the efficacy of the institution of
T: the testator whose lips have been sealed by death can no heirs; for, even if the adoption in question were spurious, the
longer deny or affirm the truth of what witnesses may say he respondents Perfecto Cruz, et al., will nevertheless succeed
declared, would create confusion and give rise to false not as compulsory heirs but as testamentary heirs instituted
claims.
64
in Basilia's will. This ruling apparently finds support in article class of heirs instituted and the abstract object of the
842 of the Civil Code which reads: inheritance. They offer no absolute indication that the
decedent would have willed her estate other than the way
"One who has no compulsory heirs may she did if she had known that she was not bound by law to
dispose of by will all his estate or any make allowance for legitimes. Her disposition of the free
part of it in favor of any person having portion of her estate (libre disposicion) which largely favored
capacity to succeed. the respondent Perfecto Cruz, the latter's children, and the
children of the respondent Benita Cruz, shows a perceptible
"One who has compulsory heirs may inclination on her part to give to the respondents more than
dispose of his estate provided he does what she thought the law enjoined her to give to them.
not contravene the provisions of this Compare this with the relatively small devise of land which
Code with regard to the legitime of said the decedent had left for her blood relatives, including the
heirs." petitioners Consuelo Austria-Benta and Lauro Mozo and the
The petitioners nephews and niece, upon the other hand, children of the petitioner Ruben Austria. Were we to exclude
insist that the entire estate should descend to them by the respondents Perfecto Cruz, et al, from the inheritance,
intestacy by reason of the intrinsic nullity of the institution of then the petitioners and the other nephews and nieces
heirs embodied in the decedent's will. They have thus raised would succeed to the bulk of the estate by intestacy — a
squarely the issue of whether or not such institution of heirs result which would subvert the clear wishes of the decedent.
would retain efficacy in the event there exists proof that the
adoption of the same heirs by the decedent is false. Whatever doubts one entertains in his mind should be swept
away by these explicit injunctions in the Civil Code: "The
The petitioners cite, as the controlling rule, article 850 of the words of a will are to receive an interpretation which will give
Civil Code which reads: to every expression some effect, rather than one which will
render any of the expressions inoperative; and of two modes
"The statement of a false cause for the of interpreting a will, that is to be preferred which will prevent
institution of an heir shall be considered intestacy." 1
as not written, unless it appears from
the will that the testator would not have Testacy is favored and doubts are resolved on its side,
made such institution if he had known especially where the will evinces an intention on the part of
the falsity of such cause." the testator to dispose of practically his whole estate, 2 as
The tenor of the language used, the petitioners argue, gives was done in this case. Moreover, so compelling is the
rise to the inference that the late Basilia was deceived into principle that intestacy should be avoided and the wishes of
believing that she was legally bound to bequeath one-half of the testator allowed to prevail, that we could even vary the
her entire estate to the respondents Perfecto Cruz, et al. as language of the will for the purpose of giving it effect. 3 A
the latter's legitime. The petitioners further contend that had probate court has found, by final judgment, that the late
the deceased known the adoption to be spurious, she would Basilia Austria Vda. de Cruz was possessed of testamentary
not have instituted the respondents at all — the basis of the capacity and her last will executed free from falsification,
institution being solely her belief that they were compulsory fraud, trickery or undue influence. In this situation, it
heirs. Proof therefore of the falsity of the adoption would becomes our duty to give full expression to her will. 4
cause a nullity of the institution of heirs and the opening of
the estate wide to intestacy. Did the lower court then abuse At all events, the legality of the adoption of the respondents
its discretion or act in violation of the rights of the parties in by the testatrix can be assailed only in a separate action
barring the petitioners nephews and niece from registering brought for that purpose, and cannot be the subject of a
their claim even to properties adjudicated by the decedent in collateral attack. 5
her will?
Art. 851. If the testator has instituted only one heir, and
Before the institution of heirs may be annulled under article the institution is limited to an aliquot part of the
850 of the Civil Code, the following requisites must concur: inheritance, legal succession takes place with respect to
First, the cause for the institution of heirs must be stated in the remainder of the estate.
the will; second, the cause must be shown to be false; and The same rule applies if the testator has instituted
third, it must appear from the face of the will that the testator several heirs, each being limited to an aliquot part, and
would not have made such institution if he had known the all the parts do not cover the whole inheritance. (n)
falsity of the cause. Art. 852. If it was the intention of the testator that the
instituted heirs should become sole heirs to the whole
The petitioners would have us imply, from the use of the estate, or the whole free portion, as the case may be,
terms, "sapilitang tagapagmana" (compulsory heirs) and and each of them has been instituted to an aliquot part
"sapilitang mana" (legitime), that the impelling reason or of the inheritance and their aliquot parts together do not
cause for the institution of the respondents was the cover the whole inheritance, or the whole free portion,
testatrix's belief that under the law she could not do each part shall be increased proportionally. (n)
otherwise. If this were indeed what prompted the testatrix in Art. 853. If each of the instituted heirs has been given an
instituting the respondents, she did not make it known in her aliquot part of the inheritance, and the parts together
will. Surely if she was aware that succession to the legitime exceed the whole inheritance, or the whole free portion,
takes place by operation of law, independent of her own as the case may be, each part shall be reduced
wishes, she would not have found it convenient to name her proportionally. (n)
supposed compulsory heirs to their legitimes. Her express Art. 856. A voluntary heir who dies before the testator
adoption of the rules on legitimes should very well indicate transmits nothing to his heirs.
her complete agreement with that statutory scheme. But A compulsory heir who dies before the testator, a
even this, like the petitioners' own proposition, is highly person incapacitated to succeed, and one who
speculative of what was in the mind of the testatrix when she renounces the inheritance, shall transmit no right to his
executed her will. One fact prevails, however, and it is that own heirs except in cases expressly provided for in this
the decedent's will does not state in a specific or Code. (766a)
unequivocal manner the cause for such institution of heirs.
We cannot annul the same on the basis of guesswork or B. Kinds of Institution
uncertain implications. 1. Simple or Pure
Art. 777. The rights to the succession are transmitted
And even if we should accept the petitioners' theory that the from the moment of the death of the decedent. (657a)
decedent instituted the respondents perfecto Cruz, et al. 2. Conditional
solely because she believed that the law commanded her to Art. 871. The institution of an heir may be made
do so, on the false assumption that her adoption of these conditionally, or for a certain purpose or cause. (790a)
respondents was valid, still such institution must stand.
Viuda de Kilayko vs. Tengco
Article 850 of the Civil Code, quoted above, is a positive
injunction to ignore whatever false cause the testator may These consolidated cases seek to annul the orders 1 dated
have written in his will for the institution of heirs. Such September 20, 1978, January 7, 1977 and January 31, 1977
institution may be annulled only when one is satisfied, after of the then Court of First Instance of Negros Occidental,
an examination of the will, that the testator clearly would not Branch IV, respectively, cancelling the notice of lis pendens
have made the institution if he had known the cause for it to filed by Celsa L. Vda. de Kilayko, et al. with the Register of
be false. Now, would the late Basilia have caused the Deeds of Negros Occidental, denying the motion for
revocation of the institution of heirs if she had known that reconsideration of the order dated September 20, 1976 filed
she was mistaken in treating these heirs as her legally by Celsa L. Vda. de Kilay ko, et al., and holding in abeyance
adopted children? Or would she have instituted them the resolution of defendants' motion to dismiss.
nonetheless?
On January 28, 1968, Maria Lizares y Alunan died without
The decedent's will, which alone should provide the answer, any issue leaving said "testamento" in the possession and
is mute on this point or at best is vague and uncertain. The custody of her niece, Eustaquia Lizares. 3 On February 6,
phrases, "mga sapilitang tagapagmana" and "sapilitang 1968, Eustaquia filed a petition for the settlement of the
mana," were borrowed from the language of the law on testate estate of Maria Lizares y Alunan, before the Court of
succession and were used, respectively, to describe the
65
First Instance of Negros Occidental, Branch IV, docketed as property of the estate and assigned exclusively to Eustaquia
Special Proceedings No. 8452. 4 as a devisee of Maria Lizares. In accordance with said
On July 10, 1968, Eustaquia filed a project of partition 6 project of partition which was approved by the probate court,
which was granted by the probate court in an order dated Encarnacion Lizares Vda. de Panlilio, Remedios Lizares
January 8, 1971. Simultaneously, said court declared the Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes
heirs, devisees, legatees and usufructuaries mentioned in Mendoza and Eustaquia Lizares executed an Agreement of
the project of partition as the only heirs, devisees, legatees Partition and Subdivision on November 28, 1972, whereby
and usufructuaries of the estate; adjudicated to them the they agreed to terminate their co-ownership over Lots Nos.
properties respectively assigned to each and every one of 550, 514, 553, 1287-C of SWO-7446 and 552 covered by
them, and ordered the Register of Deeds of Negros Transfer Certificates of Title Nos. T-65004, T-65005, T-
Occidental and Bacolod City to effect the corresponding 65006, T-65007 and T-65008. These facts taken altogether
transfer of the real properties to said heirs as well as the show that the Lizares sisters recognized the decree of
transfer of shares, stocks, and dividends in different partition sanctioned by the probate court and in fact reaped
corporations, companies and partnerships in the name of the fruits thereof.
Maria Lizares to the heirs and legatees, and the closure of
the testate proceedings of Maria Lizares. 7 Hence, they are now precluded from attacking the validity of
the partition or any part of it in the guise of a complaint for
A year later or on November 23, 1973, Eustaquia Lizares reconveyance. A party cannot, in law and in good
died single without any descendant. 11 In due time, conscience be allowed to reap the fruits of a partition,
Rodolfo Lizares and Amelo Lizares were appointed joint agreement or judgment and repudiate what does not suit
administrators of Eustaquia's intestate estate. him. 39 Thus, where a piece of land has been included in
a partition and there is no allegation that the inclusion was
On the strength of the testamentary provisions contained in effected through improper means or without petitioner's
paragraphs 10 and 11 of the will of Maria Lizares, which knowledge, the partition barred any further litigation on said
were allegedly in the nature of a simple substitution, Celsa title and operated to bring the property under the control and
Vda. de Kilayko, Encarnacion Vda. de Panlilio, and jurisdiction of the court for its proper disposition according to
Remedios Vda. de Guinto (hereinafter collectively referred to the tenor of the partition. 40 The question of private
as Celsa L. Vda. de Kilayko, et al.) filed a motion in Special respondents' title over the lots in question has been
Proceedings No. 8452 to reopen once again the testate concluded by the partition and became a closed matter.
estate proceedings of Maria Lizares. They prayed among A final decree of distribution of the estate of a deceased
others that a substitute administrator be appointed; that the person vests the title to the land of the estate in the
order dated January 8, 1971 be reconsidered and amended distributees. If the decree is erroneous, it should be
by declaring them as heirs to 1/3 of 1/14 of Hda. Minuluan corrected by opportune appeal, for once it becomes final, its
and to 1/6 of Hda. Matab-ang, both of which form an binding effect is like any other judgment in rem, unless
aggregate area of 33 hectares; that the Register of Deeds of properly set aside for lack of jurisdiction or fraud. Where the
Negros Occidental, after such amendment, be ordered to court has validly issued a decree of distribution and the
register at the back of their respective certificates of title, the same has become final, the validity or invalidity of the project
order of probate and a "declaration" that movants are the of partition becomes irrelevant. 41
heirs of said properties, and correspondingly issue new
certificates of title in their names. 12 It is a fundamental concept in the origin of every jural
system, a principle of public policy, that at the risk of
Two (2) sets of intestate heirs of the deceased Eustaquia occasional errors, judgments of courts should become final
Lizares namely: Socorro L. Vda. de Escario, Rodolfo at some definite time fixed by law, interest rei publicae ut
Lizares, Mario Lizares, Lucrecia Gustilo, and Aurora Lizares finis sit litum. "The very object of which the courts were
Wagner opposed the aforesaid motion. They alleged that the constituted was to put an end to controversies." 42 The
court had no more jurisdiction to reopen the testate estate only instance where a party interested in a probate
proceedings of Maria Lizares as the order of closure had proceeding may have a final liquidation set aside is when he
long become final and that the testamentary provisions is left out by reason of circumstances beyond his control or
sought to be enforced are null and void. 13 through mistake or inadvertence not imputable to
negligence. Even then, the better practice to secure relief is
On April 13, 1977, the joint administrators filed before this the opening of the same by proper motion within the
Court a petition for certiorari, prohibition and/or mandamus reglementary period, instead of an independent action, the
with prayer for a writ of preliminary injunction. It was effect of which if successful, would be for another court or
docketed as G.R. No. L-45965. Petitioners contend that the judge to throw out a decision or order already final and
lower court had no jurisdiction over Civil Case No. 11639 as executed and reshuffle properties long ago distributed and
it involves the interpretation of the will of Maria Lizares, its disposed of. 43
implementation and/or the adjudication of her properties.
They assert that the matter had been settled in Special The fundamental principle upon which the doctrine of res
Proceedings No. 8452 which had become final and judicata rests is that parties ought not to be permitted to
unappealable long before the complaint in Civil Case No. litigate the same issue more than once, that, when a right or
11639 was filed, and therefore, the cause of action in the fact has been judicially tried and determined by a court of
latter case was barred by the principle of res judicata. They competent jurisdiction, or an opportunity for such trial has
aver that the claim of Celsa, Encarnacion and Remedios, been given, the judgment of the court, so long as it remains
sisters of Maria Lizares, over the properties left by their unreversed, should be conclusive upon the parties and
niece Eustaquia and which the latter had inherited by will those in privity with then in law or estate. 44
from Maria Lizares, was groundless because paragraphs 10 Granting that res judicata has not barred the institution of
and 11 of Maria's will on which Celsa L. Vda. de Kilayko, et Civil Case No. 11639, the contention of Celsa L. Vda. de
al. base their claim, conceived of a fideicommissary Kilay ko et al. that they are conditional substitute heirs of
substitution of heirs. Petitioners contend that said provisions Eustaquia in the testate estate of Maria Lizares 46 is not
of the will are not valid because under Article 863 of the Civil meritorious. While the allegation of the joint administrators
Code, they constitute an invalid fideicommissary substitution that paragraphs 10 and 11 of Maria Lizares' last will and
of heirs. testament conceives of a fideicommissary substitution under
Article 863 of the Civil Code is also baseless as said
The petition in G.R. No. L-45965 is impressed with merit. paragraphs do not impose upon Eustaquia a clear obligation
to preserve the estate in favor of Celsa L. Vda. de Kilay ko,
In testate succession, there can be no valid partition among et al., neither may said paragraphs be considered as
the heirs until after the will has been probated. 30 The law providing for a vulgar or simple substitution.
enjoins the probate of a will and the public requires it,
because unless a will is probated and notice thereof given to It should be remembered that when a testator merely names
the whole world, the right of a person to dispose of his an heir and provides that if such heir should die a second
property by will may be rendered nugatory. 31 The heir also designated shall succeed, there is no
authentication of a will decides no other question than such fideicommissary substitution. The substitution should then
as touch upon the capacity of the testator and the be construed as a vulgar or simple substitution under Art.
compliance with those requirements or solemnities which the 859 of the Civil Code but it shall be effective only if the first
law prescribes for the validity of a will. 32 heir dies before the testator. 47 In this case, the instituted
The probate court, in the exercise of its jurisdiction to heir, Eustaquia, survived the testatrix, Maria Lizares. Hence,
distribute the estate, has the power to determine the there can be no substitution of heirs for, upon Maria Lizares
proportion or parts to which each distributee is entitled . . . death, the properties involved unconditionally devolved upon
37 A project of partition is merely a proposal for the Eustaquia. Under the circumstances, the sisters of Maria
distribution of the hereditary estate which the court may Lizares could only inherit the estate of Eustaquia by
accept or reject. It is the court that makes that distribution of operation of the law of intestacy
the estate and determines the persons entitled thereto. 38
With respect to the cancellation of the notice of lis pendens
In the instant case, the records will show that in the on the properties involved, there is no merit in the contention
settlement of the testate estate of Maria Lizares, the of Celsa L. Vda. de Kilay ko, et al., that the lower court acted
executrix, Eustaquia Lizares submitted on January 8, 1971, contrary to law and/or gravely abused its discretion in
a project of partition in which the parcels of land, subject cancelling the notice of lis pendens. The cancellation of such
matters of the complaint for reconveyance, were included as a precautionary notice, being a mere incident in an action,
66
may be ordered by the court having jurisdiction over it at any its expiration. But in the first case he shall not enter into
given time. 48 Under Sec. 24, Rule 14 of the Rules of possession of the property until after having given
Court, a notice of lis pendens may be cancelled "after proper sufficient security, with the intervention of the instituted
showing that the notice is for the purpose of molesting the heir. (805)
adverse party, or that it is not necessary to protect the rights
of the party who caused it to be recorded" 49 In this case, Art. 878. A disposition with a suspensive term does not
the lower court ordered the cancellation of said notice on the prevent the instituted heir from acquiring his rights and
principal reason that the administrators of the properties transmitting them to his heirs even before the arrival of
involved are subject to the supervision of the court and the the term. (799a)
said properties are under custodia legis. Therefore, such Art. 880. If the heir be instituted under a suspensive
notice was not necessary to protect the rights of Celsa L. condition or term, the estate shall be placed under
Vda. de Kilay ko, et al. More so in this case where it turned administration until the condition is fulfilled, or until it
out that their claim to the properties left by Eustaquia is becomes certain that it cannot be fulfilled, or until the
without any legal basis. arrival of the term.
The same shall be done if the heir does not give the
Art. 872. The testator cannot impose any charge, security required in the preceding article. (801a)
condition, or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall 4. Modal Institutions
be considered as not imposed. (813a) Art. 882. The statement of the object of the institution, or
Art. 873. Impossible conditions and those contrary to the application of the property left by the testator, or the
law or good customs shall be considered as not charge imposed by him, shall not be considered as a
imposed and shall in no manner prejudice the heir, even condition unless it appears that such was his intention.
if the testator should otherwise provide. (792a) That which has been left in this manner may be claimed
Art. 874. An absolute condition not to contract a first or at once provided that the instituted heir or his heirs give
subsequent marriage shall be considered as not written security for compliance with the wishes of the testator
unless such condition has been imposed on the widow and for the return of anything he or they may receive,
or widower by the deceased spouse, or by the latter's together with its fruits and interests, if he or they should
ascendants or descendants. disregard this obligation. (797a)
Nevertheless, the right of usufruct, or an allowance or Art. 883. When without the fault of the heir, an institution
some personal prestation may be devised or referred to in the preceding article cannot take effect in
bequeathed to any person for the time during which he the exact manner stated by the testator, it shall be
or she should remain unmarried or in widowhood. (793a) complied with in a manner most analogous to and in
Art. 1183. Impossible conditions, those contrary to good conformity with his wishes.
customs or public policy and those prohibited by law If the person interested in the condition should prevent
shall annul the obligation which depends upon them. If its fulfillment, without the fault of the heir, the condition
the obligation is divisible, that part thereof which is not shall be deemed to have been complied with. (798a)
affected by the impossible or unlawful condition shall be XVII. SUBSTITUTION OF HEIRS
valid. A. Concept of substitution
The condition not to do an impossible thing shall be
considered as not having been agreed upon. (1116a) Art. 857. Substitution is the appointment of another heir
Art. 875. Any disposition made upon the condition that so that he may enter into the inheritance in default of the
the heir shall make some provision in his will in favor of heir originally instituted. (n)
the testator or of any other person shall be void. (794a) B. Kinds of substitution
Art. 876. Any purely potestative condition imposed upon Art. 858. Substitution of heirs may be:
an heir must be fulfilled by him as soon as he learns of (1) Simple or common;
the testator's death. (2) Brief or compendious;
This rule shall not apply when the condition, already (3) Reciprocal; or
complied with, cannot be fulfilled again. (795a) (4) Fideicommissary. (n)
Art. 877. If the condition is casual or mixed, it shall be Art. 859. The testator may designate one or more
sufficient if it happens or be fulfilled at any time before persons to substitute the heir or heirs instituted in case
or after the death of the testator, unless he has provided such heir or heirs should die before him, or should not
otherwise. wish, or should be incapacitated to accept the
Should it have existed or should it have been fulfilled at inheritance.
the time the will was executed and the testator was A simple substitution, without a statement of the cases
unaware thereof, it shall be deemed as complied with. to which it refers, shall comprise the three mentioned in
If he had knowledge thereof, the condition shall be the preceding paragraph, unless the testator has
considered fulfilled only when it is of such a nature that otherwise provided. (774)
it can no longer exist or be complied with again. (796) Art. 860. Two or more persons may be substituted for
Art. 1034. In order to judge the capacity of the heir, one; and one person for two or more heirs. (778)
devisee or legatee, his qualification at the time of the Art. 861. If heirs instituted in unequal shares should be
death of the decedent shall be the criterion. reciprocally substituted, the substitute shall acquire the
In cases falling under Nos. 2, 3, or 5 of Article 1032, it share of the heir who dies, renounces, or is
shall be necessary to wait until final judgment is incapacitated, unless it clearly appears that the intention
rendered, and in the case falling under No. 4, the of the testator was otherwise. If there are more than one
expiration of the month allowed for the report. substitute, they shall have the same share in the
If the institution, devise or legacy should be conditional, substitution as in the institution. (779a)
the time of the compliance with the condition shall also Art. 862. The substitute shall be subject to the same
be considered. (758a) charges and conditions imposed upon the instituted
Art. 879. If the potestative condition imposed upon the heir, unless and testator has expressly provided the
heir is negative, or consists in not doing or not giving contrary, or the charges or conditions are personally
something, he shall comply by giving a security that he applicable only to the heir instituted. (780)
will not do or give that which has been prohibited by the Art. 863. A fideicommissary substitution by virtue of
testator, and that in case of contravention he will return which the fiduciary or first heir instituted is entrusted
whatever he may have received, together with its fruits with the obligation to preserve and to transmit to a
and interests. (800a) second heir the whole or part of the inheritance, shall be
Art. 880. If the heir be instituted under a suspensive valid and shall take effect, provided such substitution
condition or term, the estate shall be placed under does not go beyond one degree from the heir originally
administration until the condition is fulfilled, or until it instituted, and provided further, that the fiduciary or first
becomes certain that it cannot be fulfilled, or until the heir and the second heir are living at the time of the
arrival of the term. death of the testator. (781a)
The same shall be done if the heir does not give the Art. 864. A fideicommissary substitution can never
security required in the preceding article. (801a) burden the legitime. (782a)
Art. 881. The appointment of the administrator of the Art. 865. Every fideicommissary substitution must be
estate mentioned in the preceding article, as well as the expressly made in order that it may be valid.
manner of the administration and the rights and The fiduciary shall be obliged to deliver the inheritance
obligations of the administrator shall be governed by to the second heir, without other deductions than those
the Rules of Court. (804a) which arise from legitimate expenses, credits and
Art. 884. Conditions imposed by the testator upon the improvements, save in the case where the testator has
heirs shall be governed by the rules established for provided otherwise. (783)
conditional obligations in all matters not provided for by Art. 866. The second heir shall acquire a right to the
this Section. (791a) succession from the time of the testator's death, even
3. Institution with a Term though he should die before the fiduciary. The right of
the second heir shall pass to his heirs. (784)
Art. 885. The designation of the day or time when the Art. 867. The following shall not take effect:
effects of the institution of an heir shall commence or (1) Fideicommissary substitutions which are
cease shall be valid. not made in an express manner, either by
In both cases, the legal heir shall be considered as giving them this name, or imposing upon the
called to the succession until the arrival of the period or
67
fiduciary the absolute obligation to deliver the
property to a second heir; The simple or vulgar is that provided in Art. 859 of the Civil
(2) Provisions which contain a perpetual Code which reads:
prohibition to alienate, and even a temporary
one, beyond the limit fixed in article 863; "ART. 859. The testator may designate
(3) Those which impose upon the heir the one or more persons to substitute the heir or heirs
charge of paying to various persons instituted in case such heir or heirs should die
successively, beyond the limit prescribed in before him, or should not wish, or should be
article 863, a certain income or pension; incapacitated to accept the inheritance.
(4) Those which leave to a person the whole
part of the hereditary property in order that he "A simple substitution, without a statement of the
may apply or invest the same according to cases to which it refers, shall comprise the three
secret instructions communicated to him by mentioned in the preceding paragraph, unless the
the testator. (785a) testator has otherwise provided."
Art. 868. The nullity of the fideicommissary substitution
does not prejudice the validity of the institution of the The fideicommissary substitution is described in the Civil
heirs first designated; the fideicommissary clause shall Code as follows:
simply be considered as not written. (786)
Art. 869. A provision whereby the testator leaves to a "ART. 863. A fideicommissary substitution
person the whole or part of the inheritance, and to by virtue of which the fiduciary or first heir
another the usufruct, shall be valid. If he gives the instituted is entrusted with the obligation to
usufruct to various persons, not simultaneously, but preserve and to transmit to a second heir the
successively, the provisions of Article 863 shall apply. whole or part of inheritance, shall be valid and
(787a) shall take effect, provided such substitution does
Palacios vs. Ramirez not go beyond one degree from the heir originally
instituted, and provided further that the fiduciary or
The main issue in this appeal is the manner of partitioning first heir and the second heir are living at time of
the testate estate of Jose Eugenio Ramirez among the the death of the testator."
principal beneficiaries, namely: his widow Marcelle Demoron
de Ramirez; his two grandnephews Roberto and Jorge It will be noted that the testator provided for a vulgar
Ramirez; and his companion Wanda de Wrobleski. substitution in respect of the legacies of Roberto and Jorge
Ramirez, the appellants,
The task is not trouble-free because the widow Marcelle is a The appellants also question the "sustitucion vulgar y
French who lives in Paris, while the companion Wanda is an fideicomisaria" in connection with Wanda's usufruct over
Austrian who lives in Spain. Moreover, the testator provided two-thirds of the estate in favor of Juan Pablo Jankowski and
for substitutions. Horace V. Ramirez.

Jose Eugenio Ramirez, a Filipino national, died in Spain on They allege that the substitution in its vulgar aspect is void
December 11, 1964, with only his widow as compulsory heir. because Wanda survived the testator or stated differently
His will was admitted to probate by the Court of First because she did not predecease the testator. But dying
Instance of Manila, Branch X, on July 27, 1965. Maria Luisa before the testator is not the only case for vulgar substitution
Palacios was appointed administratrix of the estate. On June for it also includes refusal or incapacity to accept the
23, 1966, the administratrix submitted a project of partition inheritance as provided in Art. 859 of the Civil Code, supra.
as follows: the property of the deceased is to be divided into Hence, the vulgar substitution is valid.
two parts. One part shall go to the widow "en pleno dominio" As regards the substitution in its fideicommissary aspect, the
in satisfaction of her legitime; the other part or "free portion" appellants are correct in their claim that it is void for the
shall go to Jorge and Roberto Ramirez "en nuda following reasons:
propriedad." Furthermore, one third (1/3) of the free portion
is charged with the widow's usufruct and the remaining two- (a) The substitutes (Juan Pablo Jankowski and
third (2/3) with a usufruct in favor of Wanda. Horace V. Ramirez) are not related to Wanda, the heir
originally instituted. Art. 863 of the Civil Code validates a
Jorge and Roberto opposed the project of partition on the fideicommissary substitution "provided such substitution
grounds: (a) that the provisions for vulgar substitution in does not go beyond one degree from the heir originally
favor of Wanda de Wrobleski with respect to the widow's instituted."
usufruct and in favor of Juan Pablo Jankowski and Horacio "Scaevola, Maura, and Traviesas construe
V. Ramirez, with respect to Wanda's usufruct are invalid 'degree' as designation, substitution, or
because of the first heirs (Marcelle and Wanda) survived the transmission. The Supreme Court of Spain has
testator; (b) that the provisions for fideicommissary decidedly adopted this construction. From this
substitutions are also invalid because the first heirs are not point of view, there can be only one transmission
related to the second heirs or substitutes within the first or substitution, and the substitute need not be
degree, as provided in Article 863 of the Civil Code; (c) that related to the first heir. Manresa, Morell, and
the grant of a usufruct over real property in the Philippines in Sanchez Roman, however, construe the word
favor of Wanda de Wrobleski, who is an alien, violates 'degree' as generation, and the present Code has
Section 5, Article XIII of the Philippine Constitution; and that obviously followed this interpretation, by providing
(d) the proposed partition of the testator's interest in the that the substitution shall not go beyond one
Santa Cruz (Escolta) Building between the widow Marcelle, degree 'from the heir originally instituted.' The
and the appellants, violates the testator's express will to give Code thus clearly indicates that the second heir
this property to them. Nonetheless, the lower court approved must be related to and be one generation from the
the project of partition in its order dated May 3, 1967. It is first heir.
this order which Jorge and Roberto have appealed to this
Court. "From this, it follows that the fideicommissary can
only be either a child or a parent of the first heir.
The widow's legitime. These are the only relatives who are one
It is the one-third usufruct over the free portion which the generation or degree from the fiduciary." (Op. cit.,
appellants question and justifiably so. It appears that the pp. 193-194.).
court a quo approved the usufruct in favor of Marcelle
because the testament provides for a usufruct in her favor of (b) There is no absolute duty imposed on Wanda to
one-third of the estate. The court a quo erred for Marcelle transmit the usufruct to the substitutes as required by Arts.
who is entitled to one-half of the estate "en pleno dominio" 865 and 867 of the Civil Code. In fact, the appellee admits
as her legitime and which is more than what she is given "that the testator contradicts the establishment of a
under the will is not entitled to have any additional share in fideicommissary substitution when he permits the properties
the estate. To give Marcelle more than her legitime will run subject of the usufruct to be sold upon mutual agreement of
counter to the testator's intention for as stated above his the usufructuaries and the naked owners." (Brief, p. 26).
dispositions even impaired her legitime and tended to favor
Wanda. The usufruct of Wanda.
The substitutions.
The court a quo upheld the validity of the usufruct given to
It may be useful to recall that "Substitution is the Wanda on the ground that the Constitution covers not only
appointment of another heir so that he may enter into the succession by operation of law but also testamentary
inheritance in default of the heir originally instituted." (Art. succession. We are of the opinion that the Constitutional
857, Civil Code.) And that there are several kinds of provision which enables aliens to acquire private lands does
substitutions, namely: simple or common, brief or not extend to testamentary succession for otherwise the
compendious, reciprocal, and fideicommissary. (Art. 858, prohibition will be for naught and meaningless. Any alien
Civil Code.) According to Tolentino, "Although the Code would be able to circumvent the prohibition by paying money
enumerates four classes, there are really only two principal to a Philippine landowner in exchange for a devise of a piece
classes of substitutions: the simple and the fideicommissary. of land.
The others are merely variations of these two." (III Civil
Code, p. 185 [1973]).
68
This opinion notwithstanding, We uphold the usufruct in until the time came for him to deliver said property to the
favor of Wanda because a usufruct, albeit a real right, does fideicomisario, it is obvious that the nude ownership over the
not vest title to the land in the usufructuary and it is the property, upon the death of the testatrix, passed to and was
vesting of title to land in favor of aliens which is proscribed acquired by another person, and that person cannot be other
by the Constitution. than the fideicomisarrio. (6 Manreza, p. 145)
It seems to be of the essence of a fideicommissary
Crisologo vs. Singson substitution that an obligation be clearly imposed upon the
first heir to preserve and transmit to another the whole or
Action for partition commenced by the spouses Consolacion part of the estate bequeathed to him, upon his death or upon
Florentino and Francisco Crisologo against Manuel Singson the happening of a particular event. For this reason Art. 785
in connection with a residential lot located at Plaridel St., of the old Civil Code provides that a fideicommissary
Vigan, Ilocos Sur, with an area of approximately 193 square substitution shall have no effect unless it is made expressly
meters, and the improvements existing thereon, covered by ("de una manera expresa") either by giving it such name, or
Tax No. 10765-C. Their complaint alleged that Singson by imposing upon the first heir the absolute obligation
owned one half proindiviso of said property and that ("obligación terminante") to deliver the inheritance to a
Consolacion Florentino owned the other half by virtue of the substitute or second heir.
provisions of the duly probated last will of Doña Leona
Singson, the original owner, and the project of partition A careful perusal of the testamentary clause under
submitted to, and approved by the Court of First Instance of consideration shows that the substitution of heirs provided
Ilocos Sur in Special Proceeding No. 453; that plaintiffs had for therein is not expressly made of the fideicommissary
made demands for the partition of said property, but kind, nor does it contain a clear statement to the effect that
defendant refused to accede thereto, thus compelling them appellee, during her lifetime, shall only enjoy usufructuary
to bring action. rights over the property bequeathed to her, naked ownership
Defendant's defense was that Consolacion Florentino was a thereof being vested in the brothers of the testatrix. As
mere usufructuary of, and not owner of one half proindiviso already stated, it merely provides that upon appellee's
of the property in question, and that, therefore, she was not death-whether this happens before or after that of the
entitled to demand partition thereof. testatrix-her share shall belong to the brothers of the
testatrix.
It is admitted that Doña Leona Singson, who died single on In the light of the foregoing, we believe, and so hold, that the
January 13, 1948, was the owner of the property in question last will of the deceased Dña. Leona Singson established a
at the time of her death. On July 31, 1951 she executed her mere sustitución vulgar, the substitution of Consolacion
last will which was admitted to probate in Special Florentino by the brothers of the testatrix: to be effective or
Proceeding No. 453 of the lower court whose decision was to take place upon the death of the former, whether it
affirmed by the Court of Appeals in G. R. No. 3605-R. At the happens before or after that of the testatrix.
time of the execution of the will her nearest living relatives In view of the foregoing, the appealed judgment is affirmed,
were her brothers Evaristo, Manuel and Dionisio Singson, with costs.
and her nieces Rosario, Emilia and Trinidad, and her
grandniece Consolacion, all surnamed Florentino. C. Time-limitation on inalienability
Art. 870. The dispositions of the testator declaring all or
The issue to be decided is whether the testamentary part of the estate inalienable for more than twenty years
disposition above-quoted provided for what is called are void. (n)
sustitución vulgar or for a sustitución fideicomisaria. This
issue is, we believe, controlled by the pertinent provisions of XVII. LEGACIES AND DEVISEES
the Civil Code in force in the Philippines prior to the
effectivity of the New Civil Code, in view of the fact that the Art. 924. All things and rights which are within the
testatrix died on January 13, 1948. They are the following: commerce of man be bequeathed or devised. (865a)
Art. 925. A testator may charge with legacies and
"ART. 774. The testator may designate one or more devises not only his compulsory heirs but also the
persons to substitute the heir or heirs instituted in case legatees and devisees.
such heir or heirs should die before him, or should not The latter shall be liable for the charge only to the extent
wish or should be unable to accept the inheritance. of the value of the legacy or the devise received by
"A simple substitution, without a statement of the cases to them. The compulsory heirs shall not be liable for the
which it is to apply, shall include the three mentioned in charge beyond the amount of the free portion given
the next preceding paragraph, unless the testator has them. (858a)
otherwise provided." Art. 926. When the testator charges one of the heirs with
a legacy or devise, he alone shall be bound.
"ART. 781. Fidei-comissary substitutions by virtue of Should he not charge anyone in particular, all shall be
which the heir is charged to preserve and transmit to a liable in the same proportion in which they may inherit.
third person the whole or part of the inheritance shall be (859)
valid and effective, provided they do not go beyond the Art. 927. If two or more heirs take possession of the
second degree, or that they are made in favor of persons estate, they shall be solidarily liable for the loss or
living at the time of the death of the testator." destruction of a thing devised or bequeathed, even
though only one of them should have been negligent. (n)
"ART. 785. The following shall be inoperative: Art. 928. The heir who is bound to deliver the legacy or
1. Fiduciary substitutions not made devise shall be liable in case of eviction, if the thing is
expressly, either by giving them this name or by indeterminate and is indicated only by its kind. (860)
imposing upon the fiduciary the absolute Art. 929. If the testator, heir, or legatee owns only a part
obligation of delivering the property to a second of, or an interest in the thing bequeathed, the legacy or
heir." * * *. devise shall be understood limited to such part or
interest, unless the testator expressly declares that he
In accordance with the first legal provision quoted above, the gives the thing in its entirety. (864a)
testator may not only designate the heirs who will succeed Art. 930. The legacy or devise of a thing belonging to
him upon his death, but also provide for substitutes in the another person is void, if the testator erroneously
event that said heirs do not accept or are in no position to believed that the thing pertained to him. But if the thing
accept the inheritance or legacies, or die ahead of him. bequeathed, though not belonging to the testator when
The testator may also bequeath his properties to a particular he made the will, afterwards becomes his, by whatever
person with the obligation, on the part of the latter, to deliver title, the disposition shall take effect. (862a)
the same to another person, totally or partially, upon the Art. 931. If the testator orders that a thing belonging to
occurrence of a particular event. another be acquired in order that it be given to a legatee
or devisee, the heir upon whom the obligation is
It is clear that the particular testamentary clause under imposed or the estate must acquire it and give the same
consideration provides for a substitution of the heir named to the legatee or devisee; but if the owner of the thing
therein in this manner: that upon the death of Consolacion refuses to alienate the same, or demands an excessive
Florentino-whether this occurs before or after that of the price therefor, the heir or the estate shall only be
testatrix-the property bequeathed to her shall be delivered obliged to give the just value of the thing. (861a)
("se dará") or shall belong in equal parts to the testatrix's Art. 932. The legacy or devise of a thing which at the
three brothers, Evaristo, Manuel and Dionisio, or their forced time of the execution of the will already belonged to the
heirs, should anyone of them the ahead of Consolacion legatee or devisee shall be ineffective, even though
Florentino. If this clause created what is known as another person may have some interest therein.
sustitución vulgar, the necessary result would be that If the testator expressly orders that the thing be freed
Consolacion Florentino, upon the death of the testatrix, from such interest or encumbrance, the legacy or devise
became the owner of one undivided half of the property, but shall be valid to that extent. (866a)
if it provided for a sustitución fideicomisaria, she would have Art. 933. If the thing bequeathed belonged to the legatee
acquired nothing more than usufructuary rights over the or devisee at the time of the execution of the will, the
same half. In the former case, she would undoubtedly be legacy or devise shall be without effect, even though it
entitled to partition, but not in the latter. As Manresa says, if may have subsequently alienated by him.
the fiduciary did not acquire full ownership of the property If the legatee or devisee acquires it gratuitously after
bequeathed, by will, but mere usufructuary rights thereon such time, he can claim nothing by virtue of the legacy
69
or devise; but if it has been acquired by onerous title he may petition the court for the first installment upon the
can demand reimbursement from the heir or the estate. death of the testator, and for the following ones which
(878a) shall be due at the beginning of each period; such
Art. 934. If the testator should bequeath or devise payment shall not be returned, even though the legatee
something pledged or mortgaged to secure a should die before the expiration of the period which has
recoverable debt before the execution of the will, the commenced. (880a)
estate is obliged to pay the debt, unless the contrary Art. 946. If the thing bequeathed should be subject to a
intention appears. usufruct, the legatee or devisee shall respect such right
The same rule applies when the thing is pledged or until it is legally extinguished. (868a)
mortgaged after the execution of the will. Art. 947. The legatee or devisee acquires a right to the
Any other charge, perpetual or temporary, with which pure and simple legacies or devises from the death of
the thing bequeathed is burdened, passes with it to the the testator, and transmits it to his heirs. (881a)
legatee or devisee. (867a) Art. 948. If the legacy or device is of a specific and
Art. 935. The legacy of a credit against a third person or determinate thing pertaining to the testator, the legatee
of the remission or release of a debt of the legatee shall or devisee acquires the ownership thereof upon the
be effective only as regards that part of the credit or death of the testator, as well as any growing fruits, or
debt existing at the time of the death of the testator. unborn offspring of animals, or uncollected income; but
In the first case, the estate shall comply with the legacy not the income which was due and unpaid before the
by assigning to the legatee all rights of action it may latter's death.
have against the debtor. In the second case, by giving From the moment of the testator's death, the thing
the legatee an acquittance, should he request one. bequeathed shall be at the risk of the legatee or devisee,
In both cases, the legacy shall comprise all interests on who shall, therefore, bear its loss or deterioration, and
the credit or debt which may be due the testator at the shall be benefited by its increase or improvement,
time of his death. (870a) without prejudice to the responsibility of the executor or
Art. 936. The legacy referred to in the preceding article administrator. (882a)
shall lapse if the testator, after having made it, should Art. 949. If the bequest should not be of a specific and
bring an action against the debtor for the payment of his determinate thing, but is generic or of quantity, its fruits
debt, even if such payment should not have been and interests from the time of the death of the testator
effected at the time of his death. shall pertain to the legatee or devisee if the testator has
The legacy to the debtor of the thing pledged by him is expressly so ordered. (884a)
understood to discharge only the right of pledge. (871) Art. 950. If the estate should not be sufficient to cover all
Art. 937. A generic legacy of release or remission of the legacies or devises, their payment shall be made in
debts comprises those existing at the time of the the following order:
execution of the will, but not subsequent ones. (872) (1) Remuneratory legacies or devises;
Art. 938. A legacy or devise made to a creditor shall not (2) Legacies or devises declared by the
be applied to his credit, unless the testator so expressly testator to be preferential;
declares. (3) Legacies for support;
In the latter case, the creditor shall have the right to (4) Legacies for education;
collect the excess, if any, of the credit or of the legacy or (5) Legacies or devises of a specific,
devise. (837a) determinate thing which forms a part of the
Art. 939. If the testator orders the payment of what he estate;
believes he owes but does not in fact owe, the (6) All others pro rata. (887a)
disposition shall be considered as not written. If as Art. 951. The thing bequeathed shall be delivered with all
regards a specified debt more than the amount thereof its accessories and accessories and in the condition in
is ordered paid, the excess is not due, unless a contrary which it may be upon the death of the testator. (883a)
intention appears. Art. 952. The heir, charged with a legacy or devise, or
The foregoing provisions are without prejudice to the the executor or administrator of the estate, must deliver
fulfillment of natural obligations. (n) the very thing bequeathed if he is able to do so and
Art. 940. In alternative legacies or devises, the choice is cannot discharge this obligation by paying its value.
presumed to be left to the heir upon whom the Legacies of money must be paid in cash, even though
obligation to give the legacy or devise may be imposed, the heir or the estate may not have any.
or the executor or administrator of the estate if no The expenses necessary for the delivery of the thing
particular heir is so obliged. bequeathed shall be for the account of the heir or the
If the heir, legatee or devisee, who may have been given estate, but without prejudice to the legitime. (886a)
the choice, dies before making it, this right shall pass to Art. 953. The legatee or devisee cannot take possession
the respective heirs. of the thing bequeathed upon his own authority, but
Once made, the choice is irrevocable. shall request its delivery and possession of the heir
In the alternative legacies or devises, except as herein charged with the legacy or devise, or of the executor or
provided, the provisions of this Code regulating administrator of the estate should he be authorized by
obligations of the same kind shall be observed, save the court to deliver it. (885a)
such modifications as may appear from the intention Art. 954. The legatee or devisee cannot accept a part of
expressed by the testator. (874a) the legacy or devise and repudiate the other, if the latter
Art. 941. A legacy of generic personal property shall be be onerous.
valid even if there be no things of the same kind in the Should he die before having accepted the legacy or
estate. devise, leaving several heirs, some of the latter may
A devise of indeterminate real property shall be valid accept and the others may repudiate the share
only if there be immovable property of its kind in the respectively belonging to them in the legacy or devise.
estate. (889a)
The right of choice shall belong to the executor or Art. 955. The legatee or devisee of two legacies or
administrator who shall comply with the legacy by the devises, one of which is onerous, cannot renounce the
delivery of a thing which is neither of inferior nor of onerous one and accept the other. If both are onerous or
superior quality. (875a) gratuitous, he shall be free to accept or renounce both,
Art. 942. Whenever the testator expressly leaves the or to renounce either. But if the testator intended that
right of choice to the heir, or to the legatee or devisee, the two legacies or devises should be inseparable from
the former may give or the latter may choose whichever each other, the legatee or devisee must either accept or
he may prefer. (876a) renounce both.
Art. 943. If the heir, legatee or devisee cannot make the Any compulsory heir who is at the same time a legatee
choice, in case it has been granted him, his right shall or devisee may waive the inheritance and accept the
pass to his heirs; but a choice once made shall be legacy or devise, or renounce the latter and accept the
irrevocable. (877a) former, or waive or accept both. (890a)
Art. 944. A legacy for education lasts until the legatee is Art. 956. If the legatee or devisee cannot or is unwilling
of age, or beyond the age of majority in order that the to accept the legacy or devise, or if the legacy or devise
legatee may finish some professional, vocational or for any reason should become ineffective, it shall be
general course, provided he pursues his course merged into the mass of the estate, except in cases of
diligently. substitution and of the right of accretion. (888a)
A legacy for support lasts during the lifetime of the Art. 957. The legacy or devise shall be without effect:
legatee, if the testator has not otherwise provided. (1) If the testator transforms the thing
If the testator has not fixed the amount of such legacies, bequeathed in such a manner that it does not
it shall be fixed in accordance with the social standing retain either the form or the denomination it
and the circumstances of the legatee and the value of had;
the estate. (2) If the testator by any title or for any cause
If the testator or during his lifetime used to give the alienates the thing bequeathed or any part
legatee a certain sum of money or other things by way thereof, it being understood that in the latter
of support, the same amount shall be deemed case the legacy or devise shall be without
bequeathed, unless it be markedly disproportionate to effect only with respect to the part thus
the value of the estate. (879a) alienated. If after the alienation the thing
Art. 945. If a periodical pension, or a certain annual, should again belong to the testator, even if it
monthly, or weekly amount is bequeathed, the legatee be by reason of nullity of the contract, the
70
legacy or devise shall not thereafter be valid, and probate of a will are requirements of public policy, being
unless the reacquisition shall have been primarily designed to protect the testator's expressed
effected by virtue of the exercise of the right of wishes, which are entitled to respect as a consequence of
repurchase; the decedent's ownership and right of disposition within legal
(3) If the thing bequeathed is totally lost during limits. Evidence of it is the duty imposed on a custodian of a
the lifetime of the testator, or after his death will to deliver the same to the Court, and the fine and
without the heir's fault. Nevertheless, the imprisonment prescribed for its violation (Revised Rule 75) It
person obliged to pay the legacy or devise would be non-sequitur to allow public policy to be evaded on
shall be liable for eviction if the thing the pretext of estoppel. Whether or not the order overruling
bequeathed should not have been determinate the allegation of estoppel is still appealable or not, the
as to its kind, in accordance with the defense is patently unmeritorious and the Court of Appeals
provisions of Article 928. (869a) correctly so ruled.
Art. 958. A mistake as to the name of the thing
bequeathed or devised, is of no consequence, if it is The last issue, that of revocation, is predicated on paragraph
possible to identify the thing which the testator intended 2 of Article 957 of the Civil Code of 1
to bequeath or devise. (n)
Art. 959. A disposition made in general terms in favor of As observed by the Court of Appeals, the existence of any
the testator's relatives shall be understood to be in favor such change or departure from the original intent of the
of those nearest in degree. (751) testatrix, expressed in her 1930 testament, is rendered
doubtful by the circumstance that the subsequent alienations
Fernandez vs. Dimagiba in 1943 and 1944 were executed in favor of the legatee
herself, appellee Dimagiba. In fact, as found by the Court of
It appears from the record that on January 19, 1955, Ismaela Appeals in its decision annulling these conveyances
Dimagiba, now respondent, submitted to the Court of First (affirmed in that point by this Supreme Court in Reyes vs.
Instance a petition for the probate of the purported will of the Court of Appeals and Dimagiba, L-5618 and L-5620,
late Benedicta de los Reyes, executed on October 22, 1930, promulgated on July 31, 1954), "no consideration whatever
and annexed to the petition. The will instituted the petitioner was paid by respondent Dimagiba" on account of the
as the sole heir of the estate of the deceased. The petition transfers, thereby rendering it even more doubtful whether in
was set for hearing, and in due time, Dionisio Fernandez, conveying the property to her legatee, the testatrix merely
Eusebio Reyes and Luisa Reyes, and one month later, intended to comply in advance with what she had ordained
Mariano, Cesar, Leonor and Paciencia, all surnamed Reyes, in her testament, rather than an alteration or departure
all claiming to be heirs intestate of the decedent, filed therefrom. 1 Revocation being an exception, we believe,
oppositions to the probate asked. Grounds advanced for the with the Courts below, that in the circumstances of the
opposition were forgery, vices of consent of the testatrix, particular case, Article 957 of the Civil Code of the
estoppel by laches of the proponent, and revocation of the Philippines does not apply to the case at bar.
will by two deeds of conveyance of the major portion of the
estate made by the testatrix in favor of the proponent in Not only that, but even if it were applicable, the annulment of
1943 and 1944, but which conveyances were finally set the conveyances would not necessarily result in the
aside by this Supreme Court in a decision promulgated on revocation of the legacies, if we bear in mind that the
August 3, 1954, in cases G.R. Nos. L-5618 and L-5620 findings made in the decision decreeing the annulment of
(unpublished). the subsequent 1943 and 1944 deeds of sale were also that

Oppositors Fernandez and Reyes petitioned for If the annulment was due to undue influence, as the quoted
reconsideration and/or new trial, insisting that the issues of passage implies, then the transferor was not expressing her
estoppel and revocation be considered and resolved; own free will and intent in making the conveyances. Hence,
whereupon, on July 27, 1959, the Court overruled the claim it can not be concluded, either, that such conveyances
that proponent was in estoppel to ask for the probate of the established a decision on her part to abandon the original
will, but "reserving unto the parties the right to raise the legacy. True it is that the legal provision quoted prescribes
issue of implied revocation at the opportune time." that the recovery of the alienated property "even if it be by
reason of the nullity of the contract" does not revive the
On February 27, 1962, after receiving further evidence on legacy; but as pointed out by Scaevola (Codigo Civil, Vol.
the issue whether the execution by the testatrix of deeds of XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not
sale of the larger portion of her estate in favor of the be taken in an absolute sense. 2 Certainly, it could not be
testamentary heir, made in 1943 and 1944, subsequent to maintained, for example, that if a testator's subsequent
the execution of her 1930 testament, had revoked the latter alienation were voided because the testator was mentally
under Article 957(2) of the 1950 Civil Code (Art. 869 of the deranged at the time, the revocatory effect ordained by the
Civil Code of 1889), the trial Court resolved against the article should still ensue. And the same thing could be said if
oppositors and held the will of the late Benedicta de los the alienation (posterior to the will) were avoided on account
Reyes "unaffected and unrevoked by the deeds of sale." of physical or mental duress. Yet, an alienation through
Whereupon, the oppositors elevated the case to the Court of undue influence in no way differs from one made through
Appeals. violence or intimidation. In either case, the transferor is not
In this instance, both sets of oppositors-appellants pose expressing his real intent, 3 and it can not held that there
three main issues: (a) whether or not the decree of the Court was in fact an alienation that could produce a revocation of
of First Instance allowing the will to probate had become the anterior bequest.
final for lack of appeal; (b) whether or not the order of the
Court of origin dated July 27, 1959, overruling the estoppel Belen vs. BPI
invoked by oppositors-appellants had likewise become final;
and (c) whether or not the 1930 will of Benedicta de los Benigno Diaz executed a codicil on September 29, 1944 On
Reyes had been impliedly revoked by her execution of November 7, 1944, Benigno Diaz died; and the aforesaid
deeds of conveyance in favor of the proponent on March 26, codicil, together with the will, was admitted to probate in
1943 and April 3, 1944. Special Proceedings No. 894 of the same Court of First
Instance of Manila. The proceedings for the administration of
There being no controversy that the probate decree of the the estate of Benigno Diaz were closed in 1950 and the
Court below was not appealed on time, the same had estate was thereafter put under the administration of the
become final and conclusive. Hence, the appellate courts appellee Ban