G.R. No.

L-20374

October 11, 1923

In re of Dolores Coronel, deceased. LORENZO PECSON, applicant-appellee, vs. AGUSTIN CORONEL, ET AL., opponents-appellants. Fisher, DeWitt, Perkins and Brady for appellants. Ross and Lawrence and Guillermo Lualhati for appellee.

ROMUALDEZ, J.: On November 28, 1922, the Court of First Instance of Pampanga probated as the last will and testament of Dolores Coronel, the document Exhibit A, which translated is as follows: In the name of God, Amen: I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the full exercise of my mental faculties, do hereby make my last will and testament, and revoke all former wills by me executed. I direct and order that my body be buried in conformity with my social standing. That having no forced heirs, I will all my properties, both movable and immovable, to my nephew, Lorenzo Pecson, who is married to my niece Angela Coronel, in consideration of the good services with he has rendered, and is rendering to me with good will and disinterestedness and to my full satisfaction. I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my will, without bond. Should he not be able to discharge his duties as such executor for any reason whatsoever, I name and appoint as substitute executor my grandson Victor Pecson, a native and resident of the town of Betis, without requiring him to give bond.
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All my real and paraphernal property as well as my credits for I declare that I have no debts, are specified in an inventory. In testimony whereof and as I do not know how to write my name, I have requested Vicente J. Francisco to write my name at the foot hereof and on the left margin of each of its sheet before me and all the undersigned witnesses this July 1, 1918. VICENTE J. FRANCISCO "For the testatrix Dolores Coronel The foregoing document was executed and declared by Dolores Coronel to be her last will and testament in our presence, and as the testatrix does not know how to write her name, she requested Vicente J. Francisco to sign her name under her express direction in our presence, at the foot, and on the left margin of each and every sheet, hereof. In testimony whereof, each of us signed these presents in the presence of others and of the testatrix at

the foot hereof and on the margin of each and everyone of the two sheets of which this document is composed, which are numbered "one" and "two" on the upper part of the face thereof. (Sgd.) SANTOS "MAXIMO VERGARA SOTERO DUMAUAL MARCOS DE LOS

LA CRUZ

MARIANO L. CRISOSTOMO DAMIAN CRISOSTOMO

PABLO BARTOLOME

MARCOS DE

On the left margin of the two sheets of the will the following signatures also appear: Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel, M. Vergara, Pablo Bartolome, Sotero Dumaual Crisostomo, Marcos de la Cruz, Marcos de los Santos. The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel, who is a niece of the deceased Dolores Coronel. The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow of the deceased Macario Gozum, in her own behalf and that of her three minor children, Hilarion Coronel, Geronimo Coronel, Maria Coronel and her husband Eladio Gongco, Juana Bituin, widow of the deceased Hipolito Coronel, in her own behalf and that of her three children, Generosa, Maria, and Jose, all minors, Rosario Coronel, Agustin Coronel, Filomeno Coronel, Casimiro Coronel, Alejo Coronel, Maria Coronel, Severina Coronel, Serapia Coronel, Maria Juana de Ocampo, widow of the deceased Manuel Coronel, Dionisia Coronel, and her husband Pantaleon Gunlao. The probate of this will is impugned on the following grounds: (a) That the proof does not that the document Exhibit A above copied contains the last will of Dolores Coronel, and (b) that the attestation clause is not in accordance with the provisions of section 618 of the Code of Civil Procedure, as amended by Act No. 2645. These are the two principal questions which are debated in this case and which we will now examine separately. As to the first, which is the one raised in the first assignment of error, the appellants argue: First, that it was improbable and exceptional that Dolores Coronel should dispose of her estate, as set forth in the document Exhibit A, her true being that the same be distributed among her blood relatives; and second, that if such will not expressed in fact, it was due to extraneous illegal influence. Let us examine the first point. The opponents contend that it was not, nor could it be, the will of the testatrix, because it is not natural nor usual that she should completely exclude her blood relatives from her vast estate, in order to will the same to one who is only a relative by affinity, there appearing no sufficient motive for such exclusion, inasmuch as until the death of Dolores Coronel, she maintained very cordial relations with the aforesaid relatives who had helped her in the management and direction of her lands. It appears, however, from the testimony of Attorney Francisco (page 71, transcript of the stenographic notes) that Dolores Coronel revealed to him her suspicion against some of her nephews as having been accomplices in a robbery of which she had been a victim.

As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the opponents admit that he rendered them at least from the year 1914, although there is proof showing that he rendered such services long before that time. The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of relative one's estate an exceptional case. It is true that ties of relationship in the Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced heirs is rendered sacred by the civil Code in force in the Philippines since 1889. It is so provided in the first paragraph of article in the following terms: Any person who was no forced heirs may dispose by will of all his property or any part of it in favor of any person qualified to acquire it. Even ignoring the precedents of this legal precept, the Code embodying it has been in force in the Philippines for more than a quarter of a century, and for this reason it is not tenable to say that the excercise of the liberty thereby granted is necessarily exceptional, where it is not shown that the inhabitants of this country whose customs must have been take into consideration by the legislator in adopting this legal precept, are averse to such a liberty. As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a whim of the moment. The proof adduced by this appelle, although contradicted, shows by a preponderance of evidence that besides the services which the opponents admit had been rendered by him to Dolores Coronel since the year 1914, he had also rendered services prior to that time and was the administrator and manager of the affairs of said Dolores in the last years of her life. And that this was not a whim of the moment is shown by the fact that six years before the execution of the will in question, said Lorenzo Pecson was named and appointed by Dolores Coronel as her sole heir in the document Exhibit B, which, translated, is as follows: 1. That my present property was acquired by me by inheritance from my parents, but a great part thereof was acquired by me by my own efforts and exertions; 2. That I have made no inventory of my properties, but they can be seen in the title deeds in my possession and in the declarations of ownership; 3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known resident of the town, my heir to succeed to all my properties; 4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default, Victor Pecson, a resident of the same town; 5. That as to my burial and other things connected with the eternal rest of my soul, I leave them to the sound direction of the aforesaid Lorenzo Pecson; 6. That as I cannot write I requested Martin Pangilinan, a native and resident of this town, to write this will in accordance with my wishes and precise instructions. In testimony whereof I had the said Martin Pangilinan write my name and surname, and affixed my mark between my name and surname, and don Francisco Dumaual, Don Mariano Sunglao, Don Sotero Dumaual, Don Marcos de la Cruz and Don Martin Pangilinan

signed as witnesses, they having been present at the beginning of, during, and after, the execution of this my last will. (Sgd.) Witnesses: (Sgd.) "MARIANO SUNGLAO MARCOS DE LA CRUZ FRANCISCO DUMAUAL SOTERO DUMAUAL MARTIN PANGILINAN" "DOLORES CORONEL

The appellants find in the testament Exhibit B something to support their contention that the intention of Dolores Coronel was to institute the said Pecson not as sole beneficiary, but simply as executor and distributor of all her estate among her heirs, for while Lorenzo Pecson's contention that he was appointed sold beneficiary is based on the fact that he enjoyed the confidence of Dolores Coronel in 1918 and administered all her property, he did not exclusively have this confidence and administration in the year 1912. Although such administration and confidence were enjoyed by Pecson always jointly with others and never exclusively, this fact does not show that the will of the testatrix was to appoint Pecson only as executor and distributor of her estate among the heirs, nor does it prevent her, the testatrix, from instituting him in 1912 or 1918 as sole beneficiary; nor does it constitute, lastly, a test for determining whether or not such institution in favor of Pecson was the true will of the testatrix. We find, therefore, nothing strange in the preterition made by Dolores Coronel of her blood relatives, nor in the designation of Lorenzo Pecson as her sole beneficiary. Furthermore, although the institution of the beneficiary here would not seem the most usual and customary, still this would not be null per se. In the absence of any statutory restriction every person possesses absolute dominion over his property, and may bestow it upon whomsoever he pleases without regard to natural or legal claim upon his bounty. If the testator possesses the requisite capacity to make a will, and the disposition of his property is not affected by fraud of undue influence, the will is not rendered invalid by the fact that it is unnatural, unreasonable, or unjust. Nothing can prevent the testator from making a will as eccentric, as injudicious, or as unjust as caprice, frivolity, or revenge can dictate. However, as has already been shown, the unreasonable or unjustice of a will may be considered on the question of testamentary capacity. (40 Cyc., 1079.) The testamentary capacity of Dolores Coronel is not disputed in this case. Passing to the second question, to wit, whether or not the true last will of Dolores Coronel was expressed in the testament Exhibit A, we will begin with expounding how the idea of making the aforesaid will here controverted was borne and carried out. About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney Francisco who was then her legal adviser and who, considering that in order to make the expression of her last will more legally valid, though it necessary that the statement be prepared in conformity with the laws in force at time of the death of the testatrix, and observing that the will Exhibit B lacked the extrinsic formalities required by Act No. 2645 enacted after its execution, advised Dolores Coronel that the will be remade. She followed the advice, and Attorney Francisco, after receiving her instructions,

drew the will Exhibit A in accordance therewith, and brought it to the house of Dolores Coronel for its execution. Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the witnesses and asked her whether the will was in accordance with her wishes. Dolores Coronel answer that it was, and requested her attorney, Mr. Francisco, to sign the will for her, which the attorney accordingly did in the presence of the witnesses, who in turn signed it before the testatrix and in the presence of each other. Upon the filing of the motion for a rehearing on the first order allowing the probate of the will, the opponents presented an affidavit of Pablo Bartolome to the effect that, following instructions of Lorenzo Pecson, he had informed the testatrix that the contents of the will were that she entrusted Pecson with the distribution of all her property among the relatives of the said Dolores. But during the new trial Pablo Bartolome, in spite of being present in the court room on the day of the trial, was not introduced as a witness, without such an omission having been satisfactorily accounted for. While it is true that the petitioner was bound to present Pablo Bartolome, being one of the witnesses who signed the will, at the second hearing when the probate was controverted, yet we cannot consider this point against the appellee for this was not raised in any of the assignments of error made by the appellants. (Art. 20, Rules of the Supreme Court.) On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to prove before the court the statement by him in his affidavit, since it was their duty to prove what they alleged, which was that Dolores Coronel had not understood the true contents of the will Exhibit A. Having suppressed, without explanation, the testimony of Pablo Bartolome, the presumption is against the opponents and that is, that such a testimony would have been adverse had it been produced at the hearing of the case before the court. (Sec 334, subsec. 5, Code of Civil Procedure.) The opponents call our attention to the fourth clause of the document which says: "I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed and ordained in this my will, without bond. Should he not be able to discharge his duties as such executor for any reason whatsoever, I name and appoint as a substitute executor my grandson Victor Pecson, resident of the town of Betis, without requiring him to give bond," and contend that this clause is repugnant to the institution of Lorenzo Pecson as sole beneficiary of all her estate, for if such was the intention of the testatrix, there would have been no necessity of appointing an executor, nor any reason for designating a substitute in case that the first one should not be able to discharge his duties, and they perceived in this clause the idea which, according to them, was not expressed in the document, and which was that Pecson was simply to be a mere executor entrusted with the distribution to the estate among the relatives of the testatrix, and that should he not be able to do so, this duty would devolved upon his substitutes. But it is not the sole duty of an executor to distribute the estate, which in estate succession, such as the instant case, has to be distributed with the intervention of the court. All executor has, besides, other duties and general and special powers intended for the preservation, defense, and liquidation of the estate so long as the same has not reached, by order of the court, the hands of those entitled thereto. The fact that Dolores Coronel foresaw the necessity of an executor does not imply a negation of her desire to will all her estate to Lorenzo Pecson. It is to be noted, furthermore, that in the will, it was ordered that her body be given a burial in accordance with her social standing and she had a perfect right to designate a person who should see to it that this order was complied with. One of the functions of an executor is the fulfillment of what is ordained in the will.

It is argued that the will of the testatrix was to will her estate to her blood relatives, for such was the promise made to Maria Coronel, whom Rosario Coronel tends to corroborate. We do not find such a promise to have been sufficiently proven, and much less to have been seriously made and coupled with a positive intention on the part of Dolores Coronel to fulfill the same. In the absence of sufficient proof of fraud, or undue influence, we cannot take such a promise into account, for even if such a promise was in fact made, Dolores Coronel could retract or forget it afterwards and dispose of her estate as she pleased. Wills themselves, which contain more than mere promises, are essentially revocable. It is said that the true will of Dolores Coronel not expressed in the will can be inferred from the phrase used by Jose M. Reyes in his deposition when speaking of the purpose for which Lorenzo Pecson was to receive the estate, to wit: in order that the latter might dispose of the estate in the most appropriate manner Weight is given to this phrase from the circumstance that its author was requested by Attorney Francisco to explain the contents of Exhibit B and had acted as interpreter between Dolores Coronel and Attorney Francisco at their interviews previous to the preparation of Exhibit A, and had translated into the Pampango dialect this last document, and, lastly, was present at the execution of the will in question. The disputed phrase "in order that the latter might dispose of the estate in the most appropriate manner" was used by the witness Reyes while sick in a hospital and testifying in the course of the taking of his deposition. The appellants interpret the expression "dispose in the most appropriate manner" as meaning to say "distribute it among the heirs." Limiting ourselves to its meaning, the expression is a broad one, for the disposition may be effected in several and various ways, which may not necessarily be a "distribution among the heirs," and still be a "disposition in the most appropriate manner." "To dispose" is not the same as "to distribute." To judge correctly the import of this phrase, the circumstances under which it was used must be taken into account in this particular instance. The witness Reyes, the author of the phrase, was not expressing his own original ideas when he used it, but was translating into Spanish what Dolores Coronel had told him. According to the facts, the said witness is not a Spaniard, that is to say, the Spanish language is not his native tongue, but, perhaps, the Pampango dialect. It is an admitted fact based on reason and experience that when a person translates from one language to another, it is easier for him to express with precision and accuracy when the version is from a foreign language to a native one than vice-versa. The witness Reyes translated from the Pampango dialect, which must be more familiar to him, to the Spanish language which is not his own tongue. And judging from the language used by him during his testimony in this case, it cannot be said that this witness masters the Spanish language. Thus is explained the fact that when asked to give the reason for the appointment of an executor in the will, he should say at the morning session that "Dolores Coronel did appoint Don Lorenzo Pecson and in his default, Victor Pecson, to act during her lifetime, but not after he death," which was explained at the afternoon session by saying "that Dolores Coronel did appoint Don Lorenzo Pecson executor of all her estate during his lifetime and that in his default, either through death or incapacity, Mr. Victor Pecson was appointed executor." Taking into account all the circumstances of this witness, there is ground to attribute his inaccuracy as to the discharge of the duties of an executor, not to ignorance of the elementary rule of law on the matter, for the practice of which he was qualified, but to a non-mastery of the Spanish language. We find in this detail of translation made by the witness Reyes no sufficient reason to believe that the will

expressed by Dolores Coronel at the said interview with Attorney Francisco was to appoint Lorenzo Pecson executor and mere distributor of her estate among her heirs. As to whether or not the burden of proof was on the petitioner to establish that he was the sole legatee to the exclusion of the relatives of Dolores Coronel, we understand that it was not his duty to show the reasons which the testatrix may have had for excluding her relatives from her estate, giving preference to him. His duty was to prove that the will was voluntary and authentic and he, who alleges that the estate was willed to another, has the burden of proving his allegation. Attorney Francisco is charged with having employed improper means of making Lorenzo Pecson appear in the will as sole beneficiary. However, after an examination of all the proceedings had, we cannot find anything in the behavior of this lawyer, relative to the preparation and execution of the will, that would justify an unfavorable conclusion as to his personal and professional conduct, nor that he should harbor any wrongful or fraudulent purpose. We find nothing censurable in his conduct in advising Dolores Coronel to make a new will other than the last one, Exhibit B (in the drawing of which he does not appear to her intervened), so that the instrument might be executed with all the new formalities required by the laws then in force; nor in the preparation of the new will substantially in accordance with the old one; nor in the selection of attesting witnesses who were persons other than the relatives of Dolores Coronel. Knowing, as he did, that Dolores was excluding her blood relatives from the inheritance, in spite of her having been asked by him whether their exclusion was due to a mere inadvertence, there is a satisfactory explanation, compatible with honorable conduct, why said attorney should prescind from such relatives in the attesting of the will, to the end that no obstacle be placed in the way to the probating thereof. The fact that this attorney should presume that Dolores was to ask him to sign the will for her and that he should prepare it containing this detail is not in itself fraudulent. There was in this case reason so to presume, and it appears that he asked her, through Pablo Bartolome, whom she wanted to sign the document in her stead. No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in the will, because the latter was already his client at the execution of said will. Attorney Francisco denied this fact, which we cannot consider proven after examining the evidence. The conduct observed by this attorney after the death of Dolores Coronel in connection with the attempted arrangement between Lorenzo Pecson and the opponents, does not, in our opinion, constitute any data leading to the conclusion that an heir different from the true one intended by the testatrix should have been fraudulently made to appear instituted in the will exhibit A. His attitude towards the opponents, as can be gathered from the proceedings and especially from his letter Exhibit D, does not show any perverse or fraudulent intent, but rather a conciliatory purpose. It is said that such a step was well calculated to prevent every possible opposition to the probate of the will. Even admitting that one of his objects in entering into such negotiations was to avoid every possible to the probate of the will, such object is not incompatible with good faith, nor does it necessarily justify the inference that the heir instituted in the instrument was not the one whom the testatrix wanted appointed. The appellants find rather suspicious the interest shown by the said attorney in trying to persuade Lorenzo Pecson to give them some share of the estate. These negotiations were not carried out by the attorney out of his own initiative, but at the instance of the same opponent, Agustin Coronel, made by the latter in his own behalf and that of his coopponents.

As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he should have tried, through fraud or any undue influence, to frustrate the alleged intention of the testatrix to leave her estate to her blood relatives. The opponents insinuate that Lorenzo Pecson employed Attorney Francisco to carry out his reproachable designs, but such depraved instrumentality was not proven, nor was it shown that said lawyer, or Lorenzo Pecson, should have contrived or put into execution any condemnable plan, nor that both should have conspired for illegal purposes at the time of the preparation and execution of the will Exhibit A. Although Norberto Paras testified having heard, when the will was being read to Dolores Coronel, the provision whereby the estate was ordered distributed among the heirs, the preponderance of the evidence is to the effect that said Norberto Paras was not present at such reading of the will. Appellant do not insist on the probative force of the testimony of this witness, and do not oppose its being stricken out. The data furnished by the case do not show, to our mind, that Dolores Coronel should have had the intention of giving her estate to her blood relatives instead of to Lorenzo Pecson at the time of the execution of the will Exhibit A, nor that fraud or whatever other illegal cause or undue influence should have intervened in the execution of said testament. Neither fraud nor evil is presumed and the record does not show either. Turning to the second assignment of error, which is made to consist in the will having been probated in spite of the fact that the attestation clause was not in conformity with the provision of section 618 of the Code of Civil Procedure, as amended by Act No. 2645, let us examine the tenor of such clause which literally is as follows: The foregoing document was executed and declared by Dolores Coronel to be her last will testament in our presence, and as testatrix does not know how to write her name, she requested Vicente J. Francisco to sign her name under her express direction in our presence at the foot and on the left margin of each and every sheet hereof. In testimony whereof, each of us signed these presents in the presence of others of the testatrix at the foot hereof and on the margin of each and everyone of the two pages of which this document is composed. These sheets are numbered correlatively with the words "one and "two on the upper part of the face thereof. (Sgd.) "Maximo Vergara, Sotero Dumaual, Marcos de los Santos, Mariano L. Crisostomo, Pablo Bartolome, Marcos de la Cruz, Damian Crisostomo." Appellants remark that it is not stated in this clause that the will was signed by the witnesses in the presence of the testatrix and of each other, as required by section 618 of the Code of Civil Procedure, as amended, which on this particular point provides the following: The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the latter witnessed and signed the will and all pages thereof in the presence of the testator and of each other. Stress is laid on the phrase used in the attestation clause above copied, to wit: each of us signed in the presence of others.

Two interpretations can absolutely be given here to the expression "of others." One, that insinuated by the appellants, namely, that it is equivalent to "of other persons," and the other, that contended by the appellee, to wit, that the phrase should be held to mean "of the others," the article "the" having inadvertently been omitted. Should the first interpretation prevail and "other persons" be taken to mean persons different from the attesting witnesses, then one of the solemnities required by law would be lacking. Should the second be adopted and "of others" construed as meaning the other witnesses to the will, then the law would have been complied with in this respect. Including the concomitant words, the controverted phrase results thus: "each of us signed these presents in the presence of others and of the testatrix." If we should omit the words "of others and," the expression would be reduced to "each of us signed these presents in the presence of the testatrix," and the statement that the witnesses signed each in the presence of the others would be lacking. But as a matter of fact, these words "of others and" are present. Then, what for are they there? Is it to say that the witnesses signed in the presence of other persons foreign to the execution of the will, which is completely useless and to no purpose in the case, or was it for some useful, rational, necessary object, such as that of making it appear that the witnesses signed the will each in the presence of the others? The first theory presupposes that the one who drew the will, who is Attorney Francisco, was an unreasonable man, which is an inadmissible hypothesis, being repugnant to the facts shown by the record. The second theory is the most obvious, logical and reasonable under the circumstances. It is true that the expression proved to be deficient. The deficiency may have been caused by the drawer of the will or by the typist. If by the typist, then it must be presumed to have been merely accidental. If by the drawer, it is explainable taking into account that Spanish is not only not the native language of the Filipinos, who, in general, still speak until nowadays their own dialects, but also that such language is not even the only official language since several years ago. In Re will of Abangan (40 Phil., 476), this court said: The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisite entirely unnecesary, useless and frustrative of the testator's last will, must be disregarded. We believe it to be more reasonable to construe the disputed phrase "of others" as meaning "of the other witnesses," and that a grammatical or clerical error was committed consisting in the omission of the article "the". Grammatical or clerical errors are not usually considered of vital importance when the intention is manifest in the will. The court may correct clerical mistakes in writing, and disregard technical rules of grammar as to the construction of the language of the will when it becomes necessary for it to do so in order to effectuate the testators manifest intention as ascertained from the context of the will. But unless a different construction is so required the ordinary rules of grammar should be adhered to in construing the will. (40 Cyc., 1404).

And we understand that in the present case the interpretation we adopt is imperative, being the most adequate and reasonable. The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided by this court and invoked by the appellants, refers so far as pertinent to the point herein at issue, to an attestation clause wherein the statement that the witnesses signed the will in the presence of each other is totally absent. In the case at bar, there is the expression "in the presence of others" whose reasonable interpretation is, as we have said, "in the presence of the other witnesses." We do not find any party between the present case and that of Re Estate of Geronima Uy Coque above cited. Finally, we will take up the question submitted by the opponents as to the alleged insufficiency of the evidence to show that the attesting witnesses Damian Crisostomo and Sotero Dumaual were present at the execution of the will in controversy. Although this point is raised in the first assignment of error made by the appellants, and not in the second, it is discussed in this place because it refers to the very fact of attestation. However, we do not believe it necessary to analyze in detail the evidence of both parties on this particular point. The evidence leads us to the conclusion that the two witnesses aforementioned were present at the execution and signing of the will. Such is also the conclusion of the trial judge who, in this respect, states the following, in his decision: As to the question of whether or not the testatrix and witnesses signed the document Exhibit A in accordance with the provisions of law on the matter, that is, whether or not the testatrix signed the will, or caused it to be signed, in the presence of the witnesses, and the latter in turn signed in her presence and that of each other, the court, after observing the demeanor of the witnesses for both parties, is of the opinion that those for the petitioner spoke the truth. It is neither probable nor likely that a man versed in the law, such as Attorney Francisco, who was present at the execution of the will in question, and to whose conscientiousness in the matter of compliance with all the extrinsic formalities of the execution of a will, and to nothing else, was due the fact that the testatrix had cancelled her former will (Exhibit B) and had new one (Exhibit A) prepared and executed, should have consented the omission of formality compliance with which would have required little or no effort; namely, that of seeing to it that the testatrix and the attesting witnesses were all present when their respective signatures were affixed to the will." And the record does not furnish us sufficient ground for deviating from the line reasoning and findings of the trial judge. In conclusion we hold that the assignments of error made by the appellants are not supported by the evidence of record. The judgment appealed from if affirmed with costs against the appellants. So ordered.

LAJOM VS LEUTERIO (GR NO. L-13557) Maximo Viola died on September 3, 1933. Judicial proceedings of histestate estate were instituted in the Court of First Instance.

An agreement of partition and distribution was executed by andbetween Jose P. Viola, Rafael Viola and Silvio Viola, legitimate childrenof Maximo Viola and Juana Toura, whereby the properties left by theirfather, Maximo Viola, were divided among themselves. Donato Lajom filed in the Court of First Instance a complaint praying,among other things, that he be declared a natural child of MaximoViola, impliedly recognized and acknowledged in accordance with thelaws in force prior to the Civil Code, thereby being a co-heir of Jose P.Viola, Rafael Viola and Silvio Viola; that the agreement of partition anddistribution executed in 1935 by these three legitimate children of Maximo Viola be declaired null and void. Said decision of the Court of First Instance of Nueva Ecija was, onappeal, affirmed by this Court. When Rafael Viola filed the report required in this order, DonatoLajom noticed that nothing was said in the aforementioned reportconcerning the fruits of a riceland, with an area of 215 hectares,allegedly donated by Dr. Maximo Viola to said Rafael Viola. So, Lajomasked that Rafael Viola be ordered to include the products of saidriceland in his report, in order that the property may be included inthe redistribution of the Viola Estate. Rafael Viola objected thereto upon the ground that said property wasnot "mentioned or included in the complaint filed in this case." Theobjection was sustained and the petition was denied.Issue:1.Whether other properties should be collated or not openfor future determination.2.Petitioner having been the victim of preterition, theinstitution of heirs made by the deceased Dr. Maximo Viola becameineffective, and that Civil Case No. 8077 was thereby converted into anintestate proceedings for the settlement of his estate.Held: 1. In any event, respondent Judge was merely enforcing a decisionthat had already become final. Any order directing what was notrequired in said decision and the same contained nopronouncement with respect to the riceland adverted to above would be in excess of his jurisdiction and therefore, null and void. 2. This contention is clearly untenable. There might have been merit therein if we were dealing with a special proceedings forthe settlement of the testate estate of a deceased person which, in consequence of said preterition, would thereby

acquire thecharacter of a proceeding for the settlement of an intestate estate,with jurisdiction over any and all properties of the deceased. But, CivilCase No. 8077 is an ordinary civil action, and the authority of the court having jurisdiction over the same is limited to theproperties described in the pleadings, which admittedly do notinclude the aforementioned riceland.
G.R. No. L-13557 April 25, 1960

DONATO LAJOM, petitioner, vs. HON. JOSE N. LEUTERIO, Judge of the Court of First Instance of Nueva Ecija, and RAFAEL VIOLA,respondents. M. Almario and J. T. Lajom for petitioner. M. H. de Joya for respondents. CONCEPCION, J.: This is a petition for a writ of certiorari and mandamus to set aside certain orders, and reinstate another order, of respondent Judge. The factual background of this case may be found in our decision in G. R. No. L-6457, entitled "Donato Lajom vs.Jose Viola, et al." (promulgated May 30, 1956), from which we quote: Maximo Viola died on September 3, 1933. Judicial proceedings of his testate estate were instituted in the Court of First Instance of Bulacan (Civil Case No. 4741) and closed on March 17, 1937. An agreement of partition and distribution (dated October 25, 1935) was executed by and between Jose P. Viola, Rafael Viola and Silvio Viola, legitimate children of Maximo Viola and Juana Toura, whereby the properties left by their father, Maximo Viola, were divided among themselves. On March 17, 1939, Donato Lajom (plaintiff-appellee herein) filed in the Court of First Instance of Nueva Ecija a complaint, amended on May 16, 1939, praying, among other things, that he be declared a natural child of Maximo Viola, impliedly recognized and acknowledged in accordance with the laws in force prior to the Civil Code, thereby being a co-heir of Jose P. Viola, Rafael Viola and Silvio Viola (defendantsappellants); that the agreement of partition and distribution executed in 1935 by these three legitimate children of Maximo Viola be declaired null and void after collation, payment of debts and accounting of fruits, anew partition be ordered adjusdication one-seventh of the estate left by Maximo Viola by Donato Lajom and two-seventh to each of the three appellants. The latter filed a demurrer to the amended complaint which was sustained by the Court of First Instance of Nueva Ecija in its order of July 31, 1939, holding that the allegation of the amended complaint called for the exercise of probate jurisdication and that as the complaint showed that the will of the deceased Maximo Viola had already been probated in the Court of First Instance of Bulacan which had first taken cognizance of the settlement of his estate, the Court of First Instance of Nueva Ecija could not subsequently assume the same jurisdiction. Upon appeal to the Supreme Court by the plaintiff-appellee, the order sustaining the demurrer was reversed and the case was remanded to the Court of First Instance of Nueva Ecija for further proceeding. On December 21, 1942, the defendants-appellants accordingly filed an answer to the amended complaint containing specific denials and setting up the affirmative defenses that

the appellants are the sole heirs of Maximo Viola; that corresponding judicial proceedings of his testate estate were duly instituted and terminated in the Court of First Instance of Bulacan, of which plaintiff-appellee was fully aware; that the action was filed by the appellee two years after the termination of said testate proceedings and almost six years after the death of Maximo Viola, without having previously asserted any right whatsoever to any part of said estate, and he is therefore now barred from doing so; and that assuming the appellee to be an acknowledged natural child of Maximo Viola, his right of action had prescribed. After trial, the Court of First Instance of Nueva Ecija rendered a decision in favor of the plaintiff, the dispositive part of which reads as follows: EN VISTA DE LAS CONSIDERACIONES ARRIBA EXPUESTAS, el Juzgado falla este asunto a favor del demandante y contra de los demandados, declarando al demandante, Donato Lajom, hijo natural, implicita y tacitamente, reconocido por su padre, el difundo Dr. Maximo Viola, de acuerdo con la Ley de Toro; se declara la particion y distribucion hecha por los demandados "Convenio de Particion y Adjudicacion de los Bienes Dejados por el Difundo Dr. Maximo Viola, ilegal, nulo y de ningun valor; se ordena la colacion de los bienes en cuestion, poniendo los mismos en manos de un administrador judicial; se ordena a todos y cada uno de los aqui demandados a presentar una liquidacion de los frutos y ptoductos provenientes de dichas propiedades asignadas a cada uno de ellos desde el Octubre 25, 1935, con el fin de una nueva distribucion; se ordena a los demandados Jose P. Viola y Silvio Viola a someter una liquidacion de los frutos y productos de las tres parcelas de terreno mencionadas en los parrafos 1 y 2 del Annex "A" que han sido puestas bajo su administracion en el Procedimiento Especial No. 4741 del Juzgado de Primera Instancia de Bulacan a partir del 3 del Septembre de 1933; y finalmente, se ordena la particion y adjudicacion a favor del demandante de una septima (/7) parte de dichas propiedades y productos; dos septimas (2/7) parbes a cada uno de los aqui demandados, cuando todas esas propiedadespertenecientes al finado Dr. Maximo Viola sean colados, todas las deudas pagodas y los frutos rendidos. Con costas. Said decision of the Court of First Instance of Nueva Ecija was, on appeal, affirmed by this Court in said case No. L-6457 on May 30, 1956. When the decision of this Court became final, the records were remanded to the lower court where plaintiff filed a motion for the execution of the judgment, the collation of all properties of the late Dr. Maximo Viola and the redistribution of his estate as indicated in said judgment. Acting on the motion, respondent Judge issued an order dated October 30, 1956, pertinent parts of which are of the following tenor: The decision annulled the partition entered into by the defendants and ordered the "collation of all the properties in question", placing the same in the hands of a judicial administrator. What the properties in question are, do not clearly appear. In the inventory attached to the original complaint, 75 parcels of land were enumerated. In the agreement of partition which was annulled, the inventory of the estate of the late Dr. Maximo Viola enumerates only 47 parcels of land. These 47 parcels, according to the agreement of partition, were all conjugal. In the motion for execution, plaintiff now enumerates 84 parcels of land. The decision did not state what properties belonged to the late Dr. Maximo Viola, but it did provide for the partition of all the estate belonging to the late Dr. Viola after the same had been collated and all the debts paid and the fruits me liquidated. It would he manifestly unfair to either party to consider the 75 parcels of land enumerated in the inventory attached to the amended complaint as the conjugal properties of the late Dr. Maximo Viola and his deceased wife, or to limit the same to the 47 parcels enumerated in the inventory of the estate of the late Dr. Maximo Viola attached to the agreement of partition. As a starting point, however, of the 47 parcels enumerated in the agreement of partition and marked, as Exhibit F-1, which is

Exhibit A of the deed of partition, are undoubtedly the properties of the late Maximo Viola which must be partitioned among the plaintiff and the defendants in accordance with the decision. Accordingly, the defendants, who are in possession of each and everyone of these 47 parcels, are hereby ordered to deliver the same to the judicial administrator to be hereinafter appointed, for his administration until the final partition in accordance with the decision of this Court. As there is a disagreement among the parties with respect to the other properties, the plaintiff is hereby ordered to submit within 15 days upon receipt of this order a list of such other properties which he believes belong to the late Dr. Maximo Viola. The defendants shall file their opposition thereto within a like period after which the same shall be set for hearing to determine whether or not such properties belong to he late Dr. Maximo Viola and which should be partitioned among his heir's. The decision ordering the defendants to collate is questioned by the defendants, first, on ground that what has been left by will should not be collated, and second, that what has been left by way of donation to some of the defendants should not also be collated. The decision requires the defendants to collate all the properties of the late Dr. Maximo viola so that they may be partitioned among the heirs. That decision is now final, and it is not for this, Court to say that the Court rendering the decision had committed an error. If error there had been, it is now beyond the power of this Court or any Court to correct the same. However, the will having completely omitted the plaintiff who is a compulsory heir, and having disposed of all the properties in favor of the defendants, it naturally encroached upon the legitime of the plaintiff. Such testamentary dispositions may not impair the legitimate (Art. 1037, Spanish Civil Code). In another sense, the plaintiff, being a compulsory heir in the direct line, and having been preterited, the institution is annulled in its entirety (Art. 814, Spanish Civil Code now Art. 854, N.C.C., Neri vs. Akutin, 72 Phil., 322). With respect to the properties donated by the late Dr. Maximo Viola and his wife to some of the defendants, the same must be collated, but the donation having been made jointly by the spouses, only thereof must be brought into collation in accordance with Article 1046 of the Spanish Civil Code. Moreover, the same things donated are not to be brought to collation and partition, but only their value at the time of the donation in accordance with Article 1045 also of the Spanish Code. In accordance with the agreement of the parties, Mr. Manuel V. Gallego, Jr. is hereby appointed administrator of the properties herein collated and may take his oath and assume the performance of his duties upon the filing of a bond in the sum of P20,000. In accordance with the dispositive part of the decisions, the defendants Jose P. Viola and Silvio Viola are hereby ordered to submit a liquidation of the fruits and products of the three parcels of land mentioned in paragraphs 1 and 2 of Annex A. Each and everyone of the defendants is hereby ordered to submit a liquidation of the fruits and products of the properties assigned to each and everyone of them from October 25, 1935, all within 15 days from the receipt of this order. When Rafael Viola filed the report required in this order, Donato Lajom noticed that nothing was said in the aforementioned report concerning the fruits of a riceland, with an area of 215 hectares, allegedly donated by Dr. Maximo Viola to said Rafael Viola. So, Lajom asked that Rafael Viola be ordered to include the products of said riceland in his report, in order that the property may be included in the redistribution of the Viola Estate. Rafael Viola objected thereto upon the ground that said property was not "mentioned or included in the complaint filed in this case." The objection was sustained and the petition was denied in an order dated October 30, 1957, stating that:

. . . In paragraph II of the amended complaint (p. 43 of the record) only the donation inter vivos in favor of the defendants Jose Viola and Silvio Viola were questioned. The dispositive part of the decision required the defendants to collate the properties in question. The properties which were donated to Rafael Viola had not been put in issue by the pleadings and they are not in question and, therefore, cannot be deemed to have been embraced in the dispositive part of the decision requiring the defendants to collate the properties in question. A motion for reconsideration of said order of October 30, 1957 was denied, on January 30, 1958, upon the ground that: The decision required the defendants to collate the properties in question. The properties donated to Rafael Viola and which are sought to be collated by the plaintiff are not in question, not having been put in issue by the pleadings. Neither are they mentioned in the inventory of the 75 parcels which are annexed to the complaint. If the court, in its previous orders, made mention of collation of all the properties of the deceased, the court had committed an error, and, therefore, corrects that error in accordance with this order and in the order of October 30, 1957. Thereupon Lajom instituted the present case for certiorari and mandamus, with the prayer: . . . that the respondent Judge be ordered to set aside his Order of October 30, 1957 and January 30, 1958 and reinstate his original Order of October 30, 1956 requiring 'the defendants to collate all the properties of the late Dr. Maxinio Viola so that they may be partitioned among the heirs' and 'with respect to the property donated by the late Dr. Maximo Viola and his wife to some of the defendants the same must be collated. Petitioner maintains that the riceland aforementioned was involved in case G. R. No. L-6457, because respondents maintained in their brief and in the motion for reconsideration filed by them in the Supreme Court that the lower court had erred in ordering the collation of all the properties of the deceased. Moreover, he urges that the order of respondent Judge of October 30, 1956, had already declared that all properties of the deceased, including those donated by him, were subject to collation; that said order became final and executory, no appeal having been taken therefrom; and that, consequently, said order could not be validly modified or reversed by the aforementioned orders of respondent Judge, dated October 30, 1957 and January 30, 1958. We find no merit in this pretense. The decision affirmed by this Court in G. R. No. L-6457 ordained the collation of the "properties in question". The properties in question were described in an inventory attached to petitioner's original complaint in case No. 8077 and did not include the aforementioned riceland, with an area of 215 hectares. Indeed, Lajom admits that he did not include, and could not have included or mentioned it, in his complaint because, at the time of its filing, he did not know of the existence of said property. Hence, the same was not in question in case No. 8077, and was not covered by the decision therein rendered and subsequently affirmed by the Supreme Court in Case No. L-6457. It is not accurate to say that the order of October 30, 1956, had directed the collation of all property of the deceased. It did not even require the collation of 75 parcels of land enumerated in the inventory already adverted to. It expressed the view that one-half of the 47 parcels covered by the agreement of partition therein nullified, should be delivered to the administrator to be hereinafter appointed. Then it added:

. . . As there is a disagreement among the parties with respect to the other properties, the plaintiff is hereby ordered to submit within 15 days upon receipt of this order a list of such other properties which he believes belong to the late Dr. Maximo Viola. The defendants shall file their opposition thereto within a like period after which the same shall be set for hearing to determine whether or not such properties belong to the late Dr. Maximo Viola and which should be partitioned among his heirs. Thus, it left the question whether other properties should be collated or not open for future determination. In any event, respondent Judge was merely enforcing a decision that had already become final. Any order directing what was not required in said decision and the same contained no pronouncement with respect to the riceland adverted to above would be in excess of his jurisdiction and therefore, null and void. It is next alleged that petitioner having been the victim of preterition, the institution of heirs made by the deceased Dr. Maximo Viola became ineffective, and that Civil Case No. 8077 was thereby converted into an intestate proceedings for the settlement of his estate. This contention is clearly untenable. There might have been merit therein if we were dealing with a special proceedings for the settlement of the testate estate of a deceased person, which, in consequence of said preterition, would thereby acquire the character of a proceeding for the settlement of an intestate estate, with jurisdiction over any and all properties of the deceased. But, Civil Case No. 8077 is an ordinary civil action, and the authority of the court having jurisdiction over the same is limited to the properties described in the pleadings, which admittedly do not include the aforementioned riceland. Without prejudice, therefore, to the institution of the corresponding intestate proceedings by the proper party, the petition herein should, therefore, be, as it is hereby, denied, with costs against the petitioner. It is so ordered.

AZNAR VS DUNCAN 17 SCRA 590 Edward E. Christensen, a citizen of California with domicile in thePhilippines, died leaving a will which was admitted to probate. In that same decision the court declared that Maria HelenChristensen Garcia (hereinafter referred to as Helen Garcia) was anatural child of the deceased. The Court of First Instance of Davao issued an order approving theproject of partition submitted by the executor, wherein the propertiesof the estate were divided equally between Lucy Duncan, whom thetestator had expressly recognized in his will as his daughter and HelenGarcia, who had been judicially declared as such after his death.

 The said order was based on the proposition that since HelenGarcia had been preterited in the will the institution of Lucy Duncan asheir was annulled, and hence the properties passed to both of them asif the deceased had died intestate, saving only the legacies left in favorof certain other persons, which legacies have been duly approved bythe lower court and distributed to the legatees. Issue: Whether the estate, after deducting the legacies, should pertain to her andto Helen Garcia in equal shares, or whether the inheritance of Lucy Duncanas instituted heir should be merely reduced to the extent necessary tocover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate.Held: Manresa defines preterition as the omission of the heir in thewill, either by not naming him at all or, while mentioning himas father, son, etc., by not instituting him as heir withoutdisinheriting him expressly, nor assigning to him some part of the properties. Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917, and April 23, 1932,respectively . In each one of those cases the testator left to one whowas a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed therest of the estate to other persons . It was held that Article 815applied, and the heir could not ask that the institution of heirsbe annulled entirely, but only that the legitime be completed.(6 Manresa, pp. 438, 441.) The foregoing solution is indeed more in consonance with theexpressed wishes of the testator in the present case as may begathered very clearly from the provisions of his will. He refusedto acknowledge Helen Garcia as his natural daughter, and limited hershare to a legacy of P3,600.00. The fact that she was subsequentlydeclared judicially to possess such status is no reason to assume thathad the judicial declaration come during his lifetime his subjectiveattitude towards her would have undergone any change and that hewould have willed his estate equally to her and to Lucy Duncan, whoalone was expressly recognized by him. The case is remanded with instructions to partition the hereditaryestate anew as indicated

in this decision, that is, by giving tooppositor-appellee

Maria Helen Christensen Garcia no morethan the portion corresponding to her as legitime, equivalentto one-fourth (1/4) of the hereditary estate , after which shall notinclude those imposed in the will of the decedent, in accordance withArticle 908 of the Civil Code Aznar v. Duncan 17 SCRA 590 | Villarica

FACTS:Christensen died testate. The will was admitted to probate. The court declared that Helen Garciawas a natural child of the deceased. The Court of First Instance equally divided the properties of theestate of Christensen between Lucy Duncan (whom testator expressly recognized in his will as hisdaughter) and Helen Garcia. In the order, the CFI held that Helen Garcia was preterited in the will thus,the institution of Lucy Duncan as heir was annulled and the properties passed to both of them as if thedeceased died intestate.ISSUE:Whether the estate, after deducting the legacies, should be equally divided or whether the inheritance of Lucy as instituted heir should be merely reduced to the extent necessary to cover the legitime of HelenGarcia, equivalent to of the entire estate.HELD:The inheritance of Lucy should be merely reduced to cover the legitime of Helen Garcia.Christensen refused to acknowledge Helen Garcia as his natural daughter and limited her shareto a legacy of P3,600.00. When a testator leaves to a forced heir a legacy worth less than the legitime,but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate toother persons, the heir could not ask that the institution of the heirs be annulled entirely, but only that thelegitime be completed.
G.R. No. L-24365 June 30, 1966

IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN, deceased. ADOLFO C. AZNAR, executor and appellee, vs. MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant. MARIA HELEN CHRISTENSEN, oppositor and appellee. J. Salonga and L. M. Abellera for oppositor and appellee. Carlos Dominguez, Jr. for executor-appellee. M. R. Sotelo for appellant. MAKALINTAL, J.:

Edward E. Christensen, a citizen of California with domicile in the Philippines, died leaving a will executed on March 5, 1951. The will was admitted to probate by the Court of First Instance of Davao in its decision of February 28, 1954. In that same decision the court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen Garcia) was a natural child of the deceased. The declaration was appealed to this Court, and was affirmed in its decision of February 14, 1958 (G.R. No. L-11484). In another incident relative to the partition of the deceased's estate, the trial court approved the project submitted by the executor in accordance with the provisions of the will, which said court found to be valid under the law of California. Helen Garcia appealed from the order of approval, and this Court, on January 31, 1963, reversed the same on the ground that the validity of the provisions of the will should be governed by Philippine law, and returned the case to the lower court with instructions that the partition be made as provided by said law (G.R. No. L-16749). On October 29, 1964, the Court of First Instance of Davao issued an order approving the project of partition submitted by the executor, dated June 30, 1964, wherein the properties of the estate were divided equally between Maria Lucy Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and hereinafter referred to as merely Lucy Duncan), whom the testator had expressly recognized in his will as his daughter (natural) and Helen Garcia, who had been judicially declared as such after his death. The said order was based on the proposition that since Helen Garcia had been preterited in the will the institution of Lucy Duncan as heir was annulled, and hence the properties passed to both of them as if the deceased had died intestate, saving only the legacies left in favor of certain other persons, which legacies have been duly approved by the lower court and distributed to the legatees. The case is once more before us on appeal, this time by Lucy Duncan, on the sole question of whether the estate, after deducting the legacies, should pertain to her and to Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitime of Helen Garcia, equivalent to 1/4 of the entire estate. The will of Edward E. Christensen contains, among others, the following clauses which are pertinent to the issue in this case: 3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (Now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A. 4. I further declare that I now have no living ascendants, and no descendants except my above-named daughter, MARIA LUCY CHRISTENSEN DANEY. xxx xxx xxx

7. I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency, the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted.

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12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime; Provided, however, that should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having living issue, then and in that event, the life interest herein given shall terminate, and if so terminated, then I give, devise, and bequeath to my daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my property with the same force and effect as if I had originally so given, devised and bequeathed it to her; and provided, further, that should the said MARIA LUCY CHRISTENSEN DANEY die without living issue, then, and in that event, I give, devise and bequeath all the rest, remainder and residue of my property one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California, U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share and share alike, the share of any of the three above named who may predecease me, to go in equal parts to the descendants of the deceased; and, provided further, that should my sister Mrs. Carol Louise C. Borton die before my own decease, then, and in that event, the share of my estate devised to her herein I give, devise and bequeath to her children, Elizabeth Borton de Trevio, of Mexico City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., and Richard Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who may die before my own decease, share and share alike. The trial court ruled, and appellee now maintains, that there has been preterition of Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to Article 854 of the Civil Code, which provides: ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. On the other hand, appellant contends that this is not a case of preterition, but is governed by Article 906 of the Civil Code, which says: "Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied." Appellant also suggests that considering the provisions of the will whereby the testator expressly denied his relationship with Helen Garcia, but left to her a legacy nevertheless although less than the amount of her legitime, she was in effect defectively disinherited within the meaning of Article 918, which reads: ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devices and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitimate.

Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled only to her legitime, and not to a share of the estate equal that of Lucy Duncan as if the succession were intestate. Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of Article 815. Commenting on Article 815, Manresa explains: Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se encuentra plivado totalmente de su legitima: ha recibido por cualquir titulo una porcion de los bienes hereditarios, porcion que no alcanza a completar la legitima, pero que influeye poderosamente en el animo del legislador para decidirle a adoptar una solucion bien diferente de la sealada para el caso de pretericion. El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero haciendo un calculo equivocado, ha repartido en favor de extraos o en favor de otros legitimarios por via de legado donacion o mejora mayor cantidad de la que la ley de consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al complemento de la porcion que forzosamente la corresponde. ... Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo de herencia legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de bienes menos que la legitima o igual a la misma. Tal sentido, que es el mas proprio en al articulo 815, no pugna tampoco con la doctrina de la ley.Cuando en el testamento se deja algo al heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en el testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed., 1951, p. 437.) On the difference between preterition of a compulsory heir and the right to ask for completion of his legitime, Sanchez Roman says: La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo pero se presume involuntaria la omision en que consiste en cuanto olvida o no atiende el testador en su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido, prescindiendo absoluta y totalmente de el y no mencionandole en ninguna de sus disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni por titulo de heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle mas o menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su legitima, ya no seria caso de pretericion, sino de complemento de aquella. El primer supuesto o de pretericion se regula por el articulo 814, y produce accion de nulidad de la institucion de heredero; y el segundo, o de complemento de legitima por el 815 y solo original la accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI, Vol. 2, p. 1131.) Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. Manresa continues: Se necesita pues (a) Que la omision se refiera a un heredero forzoso; (b) Que la omision sea completa; que el heredero forzoso nada reciba en el testamento.
1wph1.t

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B. Que la omision sea completa Esta condicion se deduce del mismo Articulo 814 y resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que se reconociese el derecho del heredero como tal heredero, pero el articulo 815 desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita este, de la privacion parcial. Los efectos deben ser y son, como veremos completamente distintos (6 Manresa, p. 428.) La privacion de la legitima puede ser total o parcial. Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es menguarla o reducirla dejar al legitimario una porcion, menor que la que le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues, una regla general, y las consecuencias del que brantamiento de esta regla se determina en los articulos 814 y 815. (6 Manresa p. 418.) Again Sanchez Roman: QUE LA OMISSION SEA TOTAL. Aunque el articulo 814 no consigna de modo expreso esta circunstancia de que la pretericion o falta de mencion e institucion o disposicion testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer distincion o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo de un modo indudable el siguiente articulo 815, al decir que el heredero forzoso a quien el testador haya dejado por cualquier titulo, menos de la legitima que la corresponda, podria pedir el complemento de la misma, lo cual ya no son el caso ni los efectos de la pretericion, que anula la institucion, sino simplemente los del suplemento necesario para cubrir su legitima. (Sanchez Roman Tomo VI, Vol. 2.0 p. 1133.) The question may be posed: In order that the right of a forced heir may be limited only to the completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that what has been left to him in the will "by any title," as by legacy, be granted to him in his capacity as heir, that is, a titulo de heredero? In other words, should he be recognized or referred to in the will as heir? This question is pertinent because in the will of the deceased Edward E. Christensen Helen Garcia is not mentioned as an heir indeed her status as such is denied but is given a legacy of P3,600.00. While the classical view, pursuant to the Roman law, gave an affirmative answer to the question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 p. 937), that view was changed by Article 645 of the "Proyecto de Codigo de 1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the citation given above, comments as follows: RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. Se inspira el Codigo en esta materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se le dejaba por titulo de tal el completo de su legitima, la accion para invalidar la institucion hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella de inoficioso, y aun cuando resultara favorecido como donotario, por otro titulo que no fuera el de heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando era

instituido heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era cuando bastaba el ejercicio de la accion ad suplementum para completarla, sin necesidad de anular las otras instituciones de heredero o demas disposiciones contenidas en el testamento. El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad que le inspira cual es la de que se complete la legitima del heredero forzoso, a quien por cualquier titulo se haya dejado menos de lo que le corresponda, y se le otorga tan solo el derecho de pedir el complemento de la misma sin necesidad de que se anulen las disposiciones testamentarias, que se reduciran en lo que sean inoficiosas conforme al articulo 817, cuya interpretacion y sentido tienen ya en su apoyo la sancion de la jurisprudencia (3); siendo condicion precisa que lo que se hubiere dejado de menos de la legitima al heredero forzoso, lo haya sido en el testamento, o sea por disposicion del testador, segun lo revela el texto del articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es por titulo de legado o donacion mortis causa en el testamento y, no fuera de al. (Sanchez Roman, Tomo VI, Vol. 2.0 p. 937.) Manresa cites particularly three decisions of the Supreme Court of Spain dated January 16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and willed the rest of the estate to other persons. It was held that Article 815 applied, and the heir could not ask that the institution of heirs be annulled entirely, but only that the legitime be completed. (6 Manresa, pp. 438, 441.) The foregoing solution is indeed more in consonance with the expressed wishes of the testator in the present case as may be gathered very clearly from the provisions of his will. He refused to acknowledge Helen Garcia as his natural daughter, and limited her share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to possess such status is no reason to assume that had the judicial declaration come during his lifetime his subjective attitude towards her would have undergone any change and that he would have willed his estate equally to her and to Lucy Duncan, who alone was expressly recognized by him. The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in support of their theory of preterition. That decision is not here applicable, because it referred to a will where "the testator left all his property by universal title to the children by his second marriage, and (that) without expressly disinheriting the children by his first marriage, he left nothing to them or, at least, some of them." In the case at bar the testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00. The estate of the deceased Christensen upon his death consisted of 399 shares of stocks in the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4) of said estate descended to Helen Garcia as her legitime. Since she became the owner of her share as of the moment of the death of the decedent (Arts. 774, 777, Civil Code), she is entitled to a corresponding portion of all the fruits or increments thereof subsequently accruing. These include the stock dividends on the corporate holdings. The contention of Lucy Duncan that all such dividends pertain to her according to the terms of the will cannot be sustained, for it would in effect impair the right of ownership of Helen Garcia with respect to her legitime. One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substitute heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her

decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this, point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864 Civil Code), which means that the legitime must descend to the heir concerned in fee simple. Wherefore, the order of the trial court dated October 29, 1964, approving the project of partition as submitted by the executor-appellee, is hereby set aside; and the case is remanded with instructions to partition the hereditary estate anew as indicated in this decision, that is, by giving to oppositorappellee Maria Helen Christensen Garcia no more than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the hereditary estate, after deducting all debts and charges, which shall not include those imposed in the will of the decedent, in accordance with Article 908 of the Civil Code. Costs against appellees in this instance. Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P. Bengzon, Zaldivar and Sanchez, JJ., concur. RESOLUTION July 30, 1967 MAKALINTAL, J.: Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to an alleged oversight and asking for the corresponding correction, in the last paragraph before the dispositive part of our decision, which reads as follows: One point deserves to be here mentioned, although no reference to it has been made in the brief for oppositor-appellant. It is the institution of substituted heirs to the estate bequeathed to Lucy Duncan in the event she should die without living issue. This substitution results in effect from the fact that under paragraph 12 of the will she is entitled only to the income from said estate, unless prior to her decease she should have living issue, in which event she would inherit in full ownership; otherwise the property will go to the other relatives of the testator named in the will. Without deciding this point, since it is not one of the issues raised before us, we might call attention to the limitations imposed by law upon this kind of substitution, particularly that which says that it can never burden the legitime (Art. 864, Civil Code), which means that the legitime must descend to the heir concerned in fee simple. (Decision, June 30, 1966, pages 14-15; emphasis ours). Oppositor-appellant points out that the matter of substitution of heirs was taken up and discussed in her brief particularly in pages 28 and 32 thereof. This is indeed quite true, but the reference to and discussion of the rights of the substitute heirs (called American heirs in the brief) appears to be merely for the purpose of refuting the theory advanced by appellees and not for the purpose of having the rights of said heirs defined in so far as, under the terms of the will, they may affect the legitime of oppositor-appellant. This point of course was not and could hardly have been squarely raised as an issue inasmuch as the substitute heirs are not parties in this case. We have nevertheless called attention "to the limitations imposed by law upon this kind of substitution," because in the brief for oppositor-appellant, at page 45, she makes the conclusion "that the Last Will and Testament of Edward E. Christensen are valid under Philippine Law and must be given full force and effect;" and to give them full force and effect would precisely affect the legitime of oppositorappellant.

Wherefore, the last paragraph before the dispositive part of our decision quoted above is amended by eliminating the following phrase in the first sentence: "although no reference to it has been made in the brief for oppositor-appellant."