Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-9776

July 31, 1957

TESTATE ESTATE OF CARLOS PALANCA Y TAGUINLAY, deceased. ROMAN OZAETA, Special

Administrator, Appellant,
vs.
TERESA PALANCA DEL RIO, CARMEN PALANCA, CONSUELO PALANCA, MANUEL
PALANCA and ALFREDO PALANCA, oppositors-appellees.
G.R. No. L-9851

July 31, 1957

TESTATE ESTATE OF CARLOS PALANCA, deceased. SYCIP GORRES, VELAYO &

CO., movant-appellant,
vs.
ROMAN OZAETA, Special Administrator and appellee.
TERESA PALANCA DEL RIO, ET AL., oppositors-appellees.
Arturo S. Monzon for the movant and appellant.
Lichauco and Picazo for special administrator and appellant.
Sison and Sison for the Cuartero children.
De los Santos and De los Santos for Sebastian C. Palanca.
Rafael Dinglasan for Angel C. Palanca. Manuel V. San Jose for Rosa Gonzales and her children.
LABRADOR, J.:
On May 5, 1955, the special administrator filed a petition in court for authority to pay the accounting
firm of Sycip, Gorres, Velayo & Co. the sum of P3,650, for services rendered in taking inventory of
assets in 1950, tax consultations in 1950 to 1954, and preparation of income tax returns for 1953
and 1954. The court below denied this motion, on the ground that the services covered by the fees
of the accounting firm were rendered to the former special administrator Philippine Trust Company.
Upon being notified of the denial of the special administrator's petition to pay it, the accounting firm
appeared in court and asked for the reconsideration of the order of denial. Opposition to this motion
for reconsideration was filed by heirs Teresa, Carmen, Consuelo, Manuel, Elena and Alfredo, all
surnamed Palanca y Cuartero, on the following grounds: as to the fees for services in the taking of
the inventory in 1950, Mr. Ozaeta, who asked for said services, was not yet the special administrator
when said services were rendered; the tax consultations from 1950 to 1954 cover years in which Mr.
Ozaeta was not yet the special administrator, and as the same was rendered during the incumbency
of the Philippine Trust, the fees should be paid for by Mr. Ozaeta himself. After various arguments,
the court refused to grant the reconsideration of its original order denying the petition, and so appeal
therefrom was taken to this Court.
Since the pendency of the case in court, the oppositors-appellees have presented a withdrawal of
their opposition, on the ground that they have already assigned their rights, titles and participations
in the said estate to the eight children of Rosa Gonzales Vda. de Palanca, and no longer have any

interest in the estate, nor do they have any personality to further intervene in the proceedings. A
similar motion has also been filed by Sebastian Palanca, who states that he has transferred his
share to the inheritance to Carlos Palanca, Jr. For their part Rosa Gonzales Vda. de Palanca and
her eight children have filed a statement expressing conformity to the payment of the fees.
The withdrawal of the objections notwithstanding, it seems that it is still necessary to decide the
questions raised, i.e., whether the services rendered to the special administrator named in the will,
previous to his actual appointment as such and at his instance, are chargeable against the estate.
There is no question that the services rendered were for the benefit of the estate. The Rules require
that the administrator should submit an inventory of the properties of the estate within three months
from his appointment (Sec. 1, Rule 84, Rules of Court). As Mr. Ozaeta expected to be appointed
administrator of the estate immediately, in view of his designation as executor of the will of the
decedent, it was proper, necessary and expedient for him, even before his actual appointment to
employ the services of accountants in order that they can prepare the accounts or the inventory in
due time and within the period prescribed by the Rules.
The general rule is that acts done by an executor in the interest of his trust, prior to his qualification
as such, become binding on the estate upon his qualification (Baker vs. Cauthorn, et al., 55 N. E.
963). In the said case the court held:
It is contended by appellant that the services rendered by appellees were to the said James
E. Baker before he actually became the executor of decedent's will, and that said Baker is
individually liable for the value of whatever services were so rendered, and not said estate. It
is not contended that appellees were not retained, nor that the advice was not given, nor that
the services were not of the value of $100, but the sole contention seems to be that,
because the actual work which was done occupied prior to the time appellant in fact qualified
as executor, said Baker was individually liable, and appellees had no claim against the
estate which he (Baker) was representing. . . .
We think the evidence sustains the finding and judgment of the lower court. It shows that the
services rendered by appellees were connected with the settlement of his decedent's estate.
There was no special agreement between James E. Baker and appellees that they were to
look to the estate alone for payment; hence they could, if they so desired, look to said James
E. Baker personally for the value of such services. Long vs. Rodman, 58 Ind. 58. Appellees
waived the right to hold said James E. Baker personally and elected to hold the estate, for
the value of such services. . . . After the executor has qualified, his authority over the
decedent's property reaches back to the time of the decedent's death, and covers all acts
done by him in the interest of his trust. Gilkey vs. Hamilton, 22 Mich. 283. Under the
evidence in this case, we think the executor of the will of Nancy L. Baker could have the
claim of appellees, and rightfully insisted upon its allowance as a credit in his settlement of
the trust. Not having done this, the only way open to appellees to secure payment for their
services from the trust fund was to file the claim against the estate, and proceed as the
record shows they have done. We find no error in the record. (Baker vs. Cauthorn, et al.,
supra, pp. 963-964.)
The services rendered in the years 1953-54 were also as useful to the estate as those rendered in
connection with the preparation of the inventory. Whoever may have contracted the services of the

accountants, whether it was Mr. Ozaeta before his appointment or the Philippine Trust, such services
were for the benefit of the estate and have redounded to the estate's benefit.
For the foregoing considerations, the order denying payment to the firm of Sycip, Gorres, Velayo &
Co. of the sum of P3,650 is hereby reversed, and the authority for the payment of the same by the
special administrator from the funds of the estate is hereby granted. Without costs.
Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endencia and Felix,
JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-29300 June 21, 1978
PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the
deceased Pedro Gallanosa being substituted by his legal heirs, namely his above-named
widow and his children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren
named IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the
late SIKATUNA GALLANOSA, son of Pedro D.H. GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of Sorsogon
and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G.
HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN
R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS,
EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO R.
HITOSIS, minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented by their legal
guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS-BALBIDO,
MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA
HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE,
RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES,
SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors
MILAGROS HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA,
represented by their legal guardian and father ERNESTO BANEGA, FELICITAS HITOSISPENAFLOR, GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA
HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO
VDA. DE GANOLA and LEONA HITOSIS-GABITO GAMBA, respondents.
Haile Frivaldo for petitioners.
Joaquin R Mitosis for private respondents.

AQUINO, J.:

In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul the orders
of respondent Judge dated May 3 trial June 17, 1968, wherein he reconsidered his order of January
10, 1968, dismissing, on the ground of prescription, the complaint in Civil Case No. 2233 of the
Court of First Instance of Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an
estimated value of P50,000, trial claims for damages exceeding one million pesos. The undisputed
facts are as follows:
1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years
old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as survived by his brother,
Leon Hitosis. His other brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and
only sister, Teodora, were all dead.
2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of
Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published. In that will,
Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas,
and, should Tecla predecease him, as was the case, his one-half share would be assigned to the
spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first
marriage, grew up under the care of Florentino; he had treated Pedro as his foster child, and Pedro
has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate
properties consisting of three parcels of abaca land and parcel of riceland to his protege
(sasacuyang ataman), Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by the testator's legal heirs, namely, his
surviving brother, Leon, trial his nephews trial nieces. After a hearing, wherein the oppositors did not
present any evidence in support of their opposition, Judge Pablo S. Rivera, in his decision of
October 27, 1939, admitted the will to probate and appointed Gallanosa as executor. Judge Rivera
specifically found that the testator executed his last will "gozando de buena salud y facultades
mentales y no obrando en virtud de amenaza, fraude o influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo Fortajada,
submitted a project of partition covering sixty-one parcels of land located in various parts of
Sorsogon, large cattle trial several pieces of personal property which were distributed in accordance
with Florentino's will. The heirs assumed the obligations of the estate amounting to P7,129.27 in the
portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of
partition was approved by Judge Doroteo Amador in his order of March 13, 1943, thus confirming the
heirs' possession of their respective shares. The testator's legal heirs did not appeal from the decree
of probate trial from the order of partition trial distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers trial sisters
instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the
recovery of the said sixty-one parcels of land. They alleged that they, by themselves or through their
predecessors-in-interest, had been in continuous possession of those lands en concepto de
dueo trial that Gallanosa entered those lands in 1951 trial asserted ownership over the lands. They
prayed that they be declared the owners of the lands trial that they be restored to the possession
thereof. They also claimed damages (Civil Case No. 696).

6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the ground of
bar by the prior judgment in the probate proceeding. Judge Anatolio C. Maalac dismiss the
complaint on the ground of res judicata in his order of August 14, 1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-in-interest had intervened
in the testate proceedings in Civil Case No. 3171 of this Court for- the purpose of
contesting the probate of the will of (the) late Florentino Hitosis; trial had their
opposition prospered trial the will denied of probate, the proceedings would have
been converted into one of intestacy (Art. 960 Civil Code) and the settlement of the
estate of the said deceased would have been made in accordance with the
provisions of law governing legal or intestate succession ... , in which case the said
plaintiffs, as the nearest of kin or legal heirs of said Florentino Mitosis, would have
succeeded to the ownership and possession of the 61 parcels of land in question
forming part of his estate (art. 1003, Civil Code).
However, the derision of the Court was adverse to them, when it their opposition trial
ordered the probate of his will. From this decision (Annex K) legalizing the said will,
the oppositors did not file any appeal within the period fixed by law, despite the fact
that they were duly notified thereof, so that the said decision had become final trial it
now constitutes a bar to any action that the plaintiffs may institute for the purpose of
a redetermination of their rights to inherit the properties of the late Florentino Hitosis.
In other words, the said decision of this Court in Civil Case special ) No. 3171, in
which the herein plaintiffs or their predecessors-in-interest had intervened as parties
oppositors, constitutes a final judicial determination of the issue that the said
plaintiffs, as ordinary heirs, have no legal rights to succeed to any of the properties of
the late Florentino Hitosis; consequently, their present claim to the ownership trial
possession of the 61 parcels of land in question is without any legal merit or basis.
7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest.
But the same plaintiffs or oppositors to the probate of the will, trial their heirs, with a persistence
befitting a more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of
Civil Case No. 696 trial twenty-eight years after the probate of the will another action in the same
court against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will of
Florentino Hitosis trial and for the recovery of the same sixty-one parcels of land. They prayed for the
appointment of a receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud trial deceit,
caused the execution trial simulation of the document purporting to be the last will trial testament of
Florentino Hitosis. While in their 1952 complaint the game plaintiffs alleged that they were in
possession of the lands in question, in their 1967 complaint they admitted that since 1939, or from
the death of Florentino Hitosis, the defendants (now the petitioners) have been in possession of the
disputed lands (Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which
was transferred to Branch I in Sorsogon town where Special Proceeding No. 3171 trial Civil Case
No. 696 were decided trial which was re-docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was
dismissed by respondent Judge. The plaintiffs filed a motion for reconsideration Respondent Judge.

granted it trial set aside the order of dismissal. He denied defendants' motion for the reconsideration
of his order setting aside that dismissal order.
The petitioners or the defendants below contend in this certiorari case that the lower court has no
jurisdiction to set aside the 1939 decree of probate trial the 1952 order of dismissal in Civil Case No.
696 trial that it acted with grave abuse of discretion in not dismissing private respondents' 1967
complaint.
The issue is whether, under the facts set forth above, the private respondents have a cause of action
the "annulment" of the will of Florentino Hitosis trial for the recovery of the sixty-one parcels of land
adjudicated under that will to the petitioners.
We hold that the lower court committed a grave abuse of discretion in reconsideration its order of
dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case No. 696 which is the
same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary lawyer to
conclude upon a causal perusal of the 1967 complaint that it is baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in 1939 by the
lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the
defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of
The complaint of the same parties that the same court dismissed in 1952.
It is evident from the allegations of the complaint trial from defendants' motion to dismiss that
plaintiffs' 1967 action is barred by res judicata, a double-barrelled defense, trial by prescription,
acquisitive trial extinctive, or by what are known in the jus civile trial the jus
gentium as usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos, L-19872,
December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may
take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The
probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules
of Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A
special proceeding is distinct trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec. 1,
Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967 complaint, is
a two-pronged defense because (1) the 1939 trial 1943 decrees of probate trial distribution in
Special Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil Case No. 696 of the lower
court constitute bars by former judgment, Rule 39 of the Rules of Court provides:
SEC. 49. Effect of judgments. The effect of a judgment or final order rendered by
a court or judge of the Philippines, having jurisdiction to pronounce the judgment or
order, may be as follows:

(a) In case of a judgment or order against a specific thing, or in respect to the

probate of a will or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status of a particular person or
his relationship to another, the judgment or order is conclusive upon the title to the
thing the will or administration, or the condition, status or relationship of the person;
however, the probate of a will or granting of letters of administration shall only be
prima facie evidence of the death of the testator or intestate;
(b) In other cases the judgment or order is, with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation thereto,
conclusive between the parties trial their successors in interest by title subsequent to
the commencement of the action or special proceeding, litigating of the same thing
trial under the same title trial in the same capacity;
(c) In any other litigation between the same parties or their successors in interest,
that only is deemed to have been adjudged in a former judgment which appears
upon its face to have been so adjudged, or which was actually trial necessarily
included therein or necessary thereto.
The 1939 decree of probate is conclusive as to the due execution or formal validity of the will (Sec.
625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).
That means that the testator was of sound trial disposing mind at the time when he executed the will
and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him
in the presence of the required number of witnesses, and that the will is genuine trial is not a forgery.
Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a
criminal action for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970 Edition,
p. 395; Manahan vs. Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be
raised anymore (Santos vs. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after the
decree of probate had become final. That case is summarized as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal. V. died. His will was admitted to
probate without objection. No appeal was taken from said order. It was admitted that
due trial legal notice had been given to all parties. Fifteen months after the date of
said order, a motion was presented in the lower court to have said will declared null
and void, for the reason that fraud had been practised upon the deceased in the
making of his will.
Held: That under section 625 of Act No. 190, the only time given parties who are
displeased with the order admitting to probate a will, for an appeal is the time given
for appeals in ordinary actions; but without deciding whether or not an order
admitting a will to probate will be opened for fraud, after the time allowed for an
appeal has expired, when no appeal is taken from an order probating a will, the heirs
can not, in subsequent litigation in the same proceedings, raise questions relating to
its due execution. The probate of a will is conclusive as to its due execution trial as to

the testamentary capacity of The testator. (See Austria vs. Heirs of Ventenilla. 99
Phil. 1069).
On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate
proceeding for the settlement of the estate of Florentino Hitosis, having been rendered in a
proceeding in rem, is under the abovequoted section 49(a), binding upon the whole world (Manalo
vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil.
1361, 1364; McMaster vs. Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res judicata with respect to
private respondents' complaint, The 1952 order of dismissal rendered by Judge Maalac in Civil
Case No. 696, a judgment in personam was an adjudication on the merits (Sec. 4, Rule 30, old
Rules of Court). It constitutes a bar by former judgment under the aforequoted section 49(b)
(Anticamara vs. Ong, L-29689. April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for the annulment of the
testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously, they realized that the
final adjudications in those cases have the binding force of res judicata and that there is no ground,
nor is it timely, to ask for the nullification of the final orders trial judgments in those two cases.
It is a fundamental concept in the organization of every jural system, a principle of public policy, that,
at the risk of occasional errors, judgments of courts should become final at some definite date fixed
by law. Interest rei publicae ut finis sit litum. "The very object for which the courts were constituted
was to put an end to controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Pealosa vs.
Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra).
After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court
has expired, a final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction
or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or
collateral fraud. In the latter case, the period for annulling the judgment is four years from the
discovery of the fraud (2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246;
Mauricio vs. Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of plaintiffs'
counsel, held that the action for the recovery of the lands had not prescribed because the rule in
article 1410 of the Civil Code, that "the action or defense for the declaration of the inexistence of
a contract does not prescribe", applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial testaments. The trial
court trial plaintiffs' counsel relied upon the case of Dingle vs. Guillermo, 48 0. G. 4410, allegedly
decided by this Court, which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time
cannot give efficacy to voidcontracts, a ruling elevated to the category of a codal provision in article
1410. The Dingle case was decided by the Court of Appeals. Even the trial court did not take pains
to verify the misrepresentation of plaintiffs' counsel that the Dingle case was decided by this Court.
An elementary knowledge of civil law could have alerted the trial court to the egregious error of
plaintiffs' counsel in arguing that article 1410 applies to wills.
WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial set aside trial
its order of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.

SO ORDERED.
Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.
Concepcion, Jr., J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 75773

April 17, 1990

TOMAS JIMENEZ, VISITACION JIMENEZ, DIGNO JIMENEZ, ANTONIO JIMENEZ, AMADEO

JIMENEZ, MODESTO JIMENEZ and VIRGINIA JIMENEZ, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, HON. AMANDA VALERA-CABIGAO, in her
capacity as Presiding Judge, Regional Trial Court, Branch XXXVII, Lingayen, Pangasinan,
LEONARDO JIMENEZ, JR. and CORAZON JIMENEZ, respondents.
Simplicio M. Sevilleja for petitioners.
Bitty S. Viliran for private respondents.
Leonardo B. Jimenez, Jr. for respondents.

FERNAN, CJ.:
This is a petition for review on certiorari seeking to reverse and set aside the decision of the Court
of Appeals dated May 29, 1986 which dismissed the petition for certiorari and mandamus in AC-G.R.
No. 06578 entitled "Tomas Jimenez, et. al. vs. Hon. Amanda Valera-Cabigao."
1

The facts are as follows:

The marriage of Leonardo (Lino) Jimenez and Consolacion Ungson produced four (4) children,
namely: Alberto, Leonardo, Sr., Alejandra and Angeles. During the existence of the marriage, Lino
Jimenez acquired five (5) parcels of land in Salomague, Bugallon, Pangasinan.
After the death of Consolacion Ungson, Lino married Genoveva Caolboy with whom he begot the
seven petitioners herein: Tomas, Visitacion, Digno, Antonio, Amadeo, Modesto and Virginia, all
surnamed Jimenez. Lino Jimenez died on August 11, 1951 while Genoveva Caolboy died on
November 21, 1978.
Thereafter, in April 1979, Virginia Jimenez filed a petition before the Court of First Instance of
Pangasinan, Branch V, docketed as Special Proceedings No. 5346, praying to be appointed as
administratrix of the properties of the deceased spouses Lino and Genoveva. Enumerated in her
petition were the supposed heirs of the deceased spouses which included herein co-petitioners and
the four children of Lino Jimenez by Consolacion Ungson, his previous wife.
2

In October, 1979, herein private respondent Leonardo Jimenez, Jr., son of Leonardo Jimenez, Sr.,
filed a motion for the exclusion of his father's name and those of Alberto, Alejandra, and Angeles
from the petition, inasmuch as they are children of the union of Lino Jimenez and Consolacion
Ungson and not of Lino Jimenez and Genoveva Caolboy and because they have already received
their inheritance consisting of five (5) parcels of lands in Salomague, Bugallon, Pangasinan.
3

On March 23, 1981, petitioner Virginia Jimenez was appointed administrator of the Intestate Estate
of Lino Jimenez and Genoveva Caolboy. On May 21, 1981, she filed an inventory of the estate of
the spouses Lino Jimenez and Genoveva Caolboy wherein she included the five (5) parcels of land
in Salomague, Bugallon, Pangasinan. As a consequence, Leonardo Jimenez, Jr. moved for the
exclusion of these properties from the inventory on the ground that these had already been
adjudicated to Leonardo Sr., Alberto, Alejandra and Angeles by their deceased father Lino Jimenez.
Private respondent Leonardo Jimenez, Jr. presented testimonial and documentary evidence in
support of his motion while petitioner Virginia Jimenez, other than cross-examining the witnesses of
Leonardo, presented no evidence of her own, oral or documentary.
4

On September 29, 1981, the probate court ordered the exclusion of the five (5) parcels of land from
the inventory on the basis of the evidence of private respondent Leonardo Jimenez, Jr. which
consisted among others of: (1) Tax Declaration showing that the subject properties were acquired
during the conjugal partnership of Lino Jimenez and Consolacion Ungson; and, (2) a Deed of Sale
dated May 12, 1964 wherein Genoveva Caolboy stated, that the subject properties had been
adjudicated by Lino Jimenez to his children by a previous marriage, namely: Alberto, Leonardo,
Alejandra and Angeles. The motion for reconsideration of said order was denied on January 26,
1982.
5

Petitioner Virginia Jimenez then went to the Court of Appeals on a petition for certiorari and
prohibition, docketed thereat as CA-G.R. No. SP-13916, seeking the annulment of the order dated
September 29, 1981 as well as the order of January 26, 1982. On November 18, 1982, the Court of
Appeals dismissed the petition because (1) Genoveva Caolboy, petitioners' mother, had admitted
that the subject parcels of land had been adjudicated to the children of the previous nuptial; (2) the
subject properties could not have been acquired during the marriage of Lino Jimenez to Genoveva
Caolboy because they were already titled in the name of Lino Jimenez even prior to 1921, long
before Lino's marriage to Genoveva in 1940; (3) the claim of Virginia Jimenez was barred by
prescription because it was only in 1981 when they questioned the adjudication of the subject
properties, more than ten (10) years after Genoveva had admitted such adjudication in a public
document in 1964; and, (4) petitioner Virginia Jimenez was guilty of laches. This decision became
final and executory.
7

Two (2) years after, petitioners filed an amended complaint dated December 10, 1984 before the
Regional Trial Court of Pangasinan, Branch XXXVII, docketed thereat as Civil Case No. 16111, to
recover possession/ownership of the subject five (5) parcels of land as part of the estate of Lino
Jimenez and Genoveva Caolboy and to order private respondents to render an accounting of the
produce therefrom. Private respondents moved for the dismissal of the complaint on the grounds
that the action was barred by prior judgment in CA-G.R. No. SP-13916 dated November 18, 1982
and by prescription and laches. However, petitioners opposed the motion to dismiss contending that
(1) the action was not barred by prior judgment because the probate court had no jurisdiction to
determine with finality the question of ownership of the lots which must be ventilated in a separate
action; and, (2) the action instituted in 1981 was not barred by prescription or laches because private
respondents' forcible acquisition of the subject properties occurred only after the death of petitioners'
mother, Genoveva Caolboy in 1978.

On February 13, 1985, the trial court resolved to dismiss the complaint on the ground of res
judicata. On May 31, 1985, petitioners' motion for reconsideration of the resolution was denied. As
earlier intimated, the petition forcertiorari and mandamus filed by petitioners before the appellate
court was likewise denied due course and dismissed in a decision dated May 29, 1986.
8

Hence, this recourse.

The issue in this case is whether in a settlement proceeding (testate or intestate) the lower court has
jurisdiction to settle questions of ownership and whether res judicata exists as to bar petitioners'
present action for the recovery of possession and ownership of the five (5) parcels of land. In the
negative, is the present action for reconveyance barred by prescription and/or laches?
We reverse. Petitioners' present action for recovery of possession and ownership is appropriately
filed because as a general rule, a probate court can only pass upon questions of title provisionally.
Since the probate, court's findings are not conclusive being prima facie, a separate proceeding is
necessary to establish the ownership of the five (5) parcels of land.
10

11

The patent reason is the probate court's limited jurisdiction and the principle that questions of title or
ownership, which result in inclusion or exclusion from the inventory of the property, can only be
settled in a separate action.
12

All that the said court could do as regards said properties is determine whether they should or
should not be included in the inventory or list of properties to be administered by the administrator. If
there is a dispute as to the ownership, then the opposing parties and the administrator have to resort
to an ordinary action for a final determination of the conflicting claims of title because the probate
court cannot do so.
13

The provisional character of the inclusion in the inventory of a contested property was again
reiterated in the following cases: Pio Barreto Realty Development, Inc. vs. Court of
Appeals, Junquera vs. Borromeo, Borromeo vs. Canonoy, Recto vs. de la Rosa. It has also
been held that in a special proceeding for the probate of a will, the question of ownership is an
extraneous matter which the probate court cannot resolve with finality. This pronouncement no
doubt applies with equal force to an intestate proceeding as in the case at bar.
14

15

16

17

18

Res judicata does not exist because of the difference in the causes of actions. Specifically in S.P.
No. 5346, the action was for the settlement of the intestate estate of Lino Jimenez and Genoveva
Caolboy while Civil Case No. 16111 was an action for the recovery of possession and ownership of
the five (5) parcels of land. Moreover, while admittedly, the Court of First Instance of Pangasinan,
Branch V in S.P. No. 5346 had jurisdiction, the same was merely limited jurisdiction. Any
pronouncement by said court as to title is not conclusive and could still be attacked in a separate
proceeding. Civil Case No. 16111, on the other hand. was lodged before the Regional Trial Court of
Pangasinan, Branch XXXVII in the exercise of the court's general jurisdiction. It was, in fact, such
"separate or ordinary proceedings" contemplated by the rules for a final determination of the issue of
ownership of the disputed properties. To repeat, since the determination of the question of title to the
subject properties in S.P. 5346 was merely provisional, petitioners are not barred from instituting the
appropriate action in Civil Case No. 16111.
19

Indeed, the grounds relied upon by private respondents in their motion to dismiss do not appear to
be indubitable. Res judicata has been shown here to be unavailable and the other grounds of
prescription and laches pleaded by private respondents are seriously disputed. The allegation in the
complaint is that the heirs of Leonardo Jimenez, Sr. (referring to private respondents,) forcibly
intruded into and took possession of the disputed properties only in 1978, after the death of
1wphi1

Genoveva Caolboy. Since the action for reconveyance was instituted in 1984, it would appear that
the same has not yet prescribed or otherwise barred by laches.
There are a number of factual issues raised by petitioners before the lower court which cannot be
resolved without the presentation of evidence at a full-blown trial and which make the grounds for
dismissal dubitable. Among others, the alleged admission made by petitioners' mother in the deed of
sale is vehemently denied, as well as the fact itself of adjudication, there being no showing that the
conjugal partnership of Lino Jimenez and Consolacion Ungson had been liquidated nor that a
judicial or extra-judicial settlement of the estate of Lino Jimenez was undertaken whereby such
adjudication could have been effected.
The grounds stated in the motion to dismiss not being indubitable, the trial court committed grave
abuse of discretion in dismissing the complaint in Civil Case No. 16111.
WHEREFORE, the questioned decision of the respondent appellate court is hereby REVERSED.
Civil Case No. 16111 is reinstated and the Regional Trial Court of Pangasinan, Branch XXXVII is
directed to proceed in said case with dispatch.
SO ORDERED.
Feliciano, Bidin and Cortes, JJ., concur.
Gutierrez, Jr., J, is on leave.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-57848 June 19, 1982
RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners,
vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of First
Instance of Rizal and BERNARDO S. ASENETA, respondents.

MELENCIO-HERRERA, J.:
A Petition to Review the Decision of April 28, 1981 of respondent Appellate Court in CA-G.R. No.
12032-R entitled "Rafael E. Maninang and Soledad L. Maninang vs. Hon. Ricardo Pronove, Judge
of the Court of First Instance of Rizal, Pasig, Branch XI, and Bernardo S. Aseneta".
Pertinent to the controversy are the following antecedental facts:
On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital at age 81. She
left a holographic will, the pertinent portions of which are quoted hereunder:

xxx xxx xxx

It is my will that all my real properties located in Manila, Makati, Quezon City, Albay
and Legaspi City and all my personal properties shagllbe inherited upon my death by
Dra. Soledad L. Maninang with whose family I have lived continuously for around the
last 30 years now. Dra. Maninang and her husband Pamping have been kind to
me. ... I have found peace and happiness with them even during the time when my
sisters were still alive and especially now when I am now being troubled by my
nephew Bernardo and niece Salvacion. I am not incompetent as Nonoy would like
me to appear. I know what is right and wrong. I can decide for myself. I do not
consider Nonoy as my adopted son. He has made me do things against my will.
xxx xxx xxx
On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of the Will of the decedent
with the Court of First Instance-Branch IV, Quezon City (Sp. Proc. No. Q-23304, hereinafter referred
to as the Testate Case).
On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted son, claims to be the
sole heir of decedent Clemencia Aseneta, instituted intestate proceedings with the Court of First
Instance-Branch XI, Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter the Intestate Case" for
brevity).
On December 23, 1977, the Testate and Intestate Cases were ordered consolidated before Branch
XI, presided by respondent Judge.
Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the ground that the
holographic will was null and void because he, as the only compulsory heir, was preterited and,
therefore, intestacy should ensue. In support of said Motion to Dismiss, respondent Bernardo cited
the cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs. Nuguid (17 SCRA 449), and Ramos vs.
Baldovino (2 CA Rep. 2nd, 878). 1
In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it is still the rule that in a
case for probate of a Will, the Court's area of inquiry is limited to an examination of and resolution on
the extrinsic validity of the will; and that respondent Bernardo was effectively disinherited by the
decedent. 2
On September 8, 1980, the lower Court ordered the dismissal of the Testate Case in this wise:
For reasons stated in the motion to dismiss filed by petitioner Bernardo S. Aseneta
which the Court finds meritorious, the petition for probate of will filed by Soledad L.
Maninang and which was docketed as Sp. Proc. No. Q-23304 is DISMISSED,
without pronouncement as to costs.
On December 19, 1980, the lower Court denied reconsideration for lack of merit and in the same
Order appointed Bernardo as the administrator of the intestate estate of the deceased Clemencia
Aseneta "considering that he is a forced heir of said deceased while oppositor Soledad Maninang is
not, and considering further that Bernardo Aseneta has not been shown to be unfit to perform the
duties of the trust. "

Petitioners Maninang resorted to a certiorari Petition before respondent Court of Appeals alleging
that the lower Court exceeded its jurisdiction in issuing the Orders of dismissal of the Testate Case
(September 8, 1980) and denial of reconsideration (December 19, 1980).
On April 28, 1981, respondent Court 3 denied certiorari and ruled that the trial Judge's Order of
dismissal was final in nature as it finally disposed of the Testate Case and, therefore, appeal was the
proper remedy, which petitioners failed to avail of. Continuing, it said that even granting that the lower
Court committed errors in issuing the questioned Orders, those are errors of judgment reviewable only by
appeal and not by Certiorari. 'Thus, this Petition before us.
We find that the Court a quo a quo acted in excess of its jurisdiction when it dismissed the Testate
Case. Generally, the probate of a Will is mandatory.
No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. 4
The law enjoins the probate of the Will and public policy requires it, because unless the Will is
probated and notice thereof given to the whole world, the right of a person to dispose of his property
by Will may be rendered nugatory. 5
Normally, the probate of a Will does not look into its intrinsic validity.
... The authentication of a will decides no other question than such as touch upon the
capacity of the testator and the compliance with those requisites or solemnities which
the law prescribes for the validity of wills. It does not determine nor even by
implication prejudge the validity or efficiency (sic) of the provisions, these may be
impugned as being vicious or null, notwithstanding its authentication. The que0stions
relating to these points remain entirely unaffected, and may be raised even after the
will has been authenticated .... 6
Opposition to the intrinsic validity or legality of the provisions of the will cannot be
entertained in Probate proceeding because its only purpose is merely to determine if
the will has been executed in accordance with the requirements of the law. 7
Respondent Bernardo, however, relies on the pronouncement in Nuguid vs. Nuguid 8, reading:
In a proceeding for the probate of a will, the Court's area of inquiry is limited to an
examination of, and resolution on, the extrinsic validity of the will, the due execution
thereof, the testatrix's testamentary capacity and the compliance with the requisites
or solemnities prescribed by law. The intrinsic validity of the will normally comes only
after the court has declared that the will has been duly authenticated. However,
where practical considerations demand that the intrinsic validity of the will be passed
upon, even before it is probated, the Court should meet that issue. (Emphasis
supplied)
Our ruling in Balanay vs. Hon. Martinez 9 had a similar thrust:
The trial court acted correctly in passing upon the will's intrinsic validity even before
its formal validity had been established. The probate of a will might become an Idle

ceremony if on its face it appears to be intrinsically void. Where practical

considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue.
The Nuguid and the Balanay cases provide the exception rather than the rule. The intrinsic validity of
the Wills in those cases was passed upon even before probate because "practical considerations"
so demanded. Moreover, for the parties in the Nuguid case, the "meat of the controversy" was the
intrinsic validity of the Will; in fact, the parties in that case "shunted aside the question of whether or
not the Will should be allowed probate." Not so in the case before us now where the probate of the
Will is insisted on by petitioners and a resolution on the extrinsic validity of the Will demanded.
Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid as it completely
preterited the parents of the testator. In the instant case, a crucial issue that calls for resolution is
whether under the terms of the decedent's Will, private respondent had been preterited or
disinherited, and if the latter, whethe r it was a valid disinheritance. Preterition and disinheritance
are two diverse concepts.
... Preterition "consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited." (Neri
vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a testamentary disposition
depriving any compulsory heirs of his share in the legitimate for a cause authorized
by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law",
1956 ed., Vol. III, p. 8, citing cases) Disinheritance is always "voluntary", preterition
upon the other hand, is presumed to be "involuntary" (Sanchez Roman, Estudios de
Derecho Civil 2nd edition, Volume 2.o p. 1131). 10
The effects of preterition and disinheritance are also totally different.
... The effects flowing from preterition are totally different from those of
disinheritance. Pretention under Article 854 of the New Civil Code shall annul the
institution of heir. This annulment is in toto, unless in the wail there are, in addition,
testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also
"annul the institution of heirs", but only "insofar as it may prejudice the person
disinherited", which last phrase was omitted in the case of preterition (III Tolentino,
Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the
disinherited heirs have been illegally deprived. 11
By virtue of the dismissal of the Testate Case, the determination of that controversial issue
has not been thoroughly considered. We gather from the assailed Order of the trial Court that
its conclusion was that respondent Bernardo has been preterited We are of opinion, however,
that from the face of the Will, that conclusion is not indubitable.
As held in the case of Vda. de Precilla vs. Narciso 12

... it is as important a matter of public interest that a purported will is not denied
legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, ...
Coming now to the procedural aspect, suffice it to state that in view of our finding that respondent
Judge had acted in excess of his jurisdiction in dismissing the Testate Case, certiorari is a proper
remedy. An act done by a Probate Court in excess of its jurisdiction may be corrected
by Certiorari. 13 And even assuming the existence of the remedy of appeal, we harken to the rule that in
the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal
would not afford speedy and adequate relief.
WHEREFORE, the Decision in question is set aside and the Orders of the Court of First InstanceBranch XI, Rizal, dated September 8, 1980 and December 19, 1980, are nullified. Special
Proceeding No. Q-23304 is hereby remanded to said Court of First Instance-Branch XI. Rizal,
therein to be reinstated and consolidated with Special Proceeding No. 8569 for further proceedings.
No pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Plana and Relova JJ., concur.
Vasquez, J., took no part.
Gutierrez, Jr., J., I concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-56340 June 24, 1983
SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST
INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
Ceniza, Rama & Associates for private respondents.

PLANA, J.:
I. FACTS:

This is a case of hereditary succession.

Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived
by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two legitimate children
Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not
natural, by the name of Lewellyn Barlito Quemada QUEMADA PASTOR, JR. is a Philippine citizen,
having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino by his
mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged
holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE
COURT), docketed as SP No. 3128-R. The will contained only one testamentary disposition: a
legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by
Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in PinaBarot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte
hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether or not
covered or affected by the holographic will. He assumed office as such on December 4, 1970 after
filing a bond of P 5,000.00.
On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his
wife an action for reconveyance of alleged properties of the estate, which included the properties
subject of the legacy and which were in the names of the spouses PASTOR, JR. and his wife, Maria
Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by
inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court of First Instance
of Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for
probate and the order appointing QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed
to the Court of Appeals in CA-G.R. No. 52961- R, the order was affirmed in a decision dated May 9,
1977. On petition for review, the Supreme Court in G.R. No. L-46645 dismissed the petition in a
minute resolution dated November 1, 1977 and remanded the same to the PROBATE COURT after
denying reconsideration on January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after
pleading asking for payment of his legacy and seizure of the properties subject of said legacy.
PASTOR, JR. and SOFIA opposed these pleadings on the ground of pendency of the reconveyance
suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by
the PROBATE COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for
March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the e ground of pendency of the
reconveyance suit, no hearing was held on March 25. Instead, the PROBATE COURT required the
parties to submit their respective position papers as to how much inheritance QUEMADA was
entitled to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted their
Memorandum of authorities dated April 10, which in effect showed that determination of how much

QUEMADA should receive was still premature. QUEMADA submitted his Position paper dated April
20, 1980. ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the
Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to February 1980. The statement
revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group
distributed as follows:
1. A. Pastor, Jr. ...................................40.5%
2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of
First Instance of Cebu, the PROBATE COURT issued the now assailed Order of Execution and
Garnishment, resolving the question of ownership of the royalties payable by ATLAS and ruling in
effect that the legacy to QUEMADA was not inofficious. [There was absolutely no statement or claim
in the Order that the Probate Order of December 5, 1972 had previously resolved the issue of
ownership of the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of
PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the
Pastor Group, 42% belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The
remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus
directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's estate, of which
QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable
banking institution for payment of the estate taxes and other obligations of the estate. The 33%
share of PASTOR, JR. and/or his assignees was ordered garnished to answer for the accumulated
legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to over two million
pesos.
The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution
and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day.
Notified of the Order on September 6, 1980, the oppositors sought reconsideration thereof on the
same date primarily on the ground that the PROBATE COURT gravely abused its discretion when it
resolved the question of ownership of the royalties and ordered the payment of QUEMADA's legacy
after prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE
COURT ordered suspension of payment of all royalties due PASTOR, JR. and/or his assignees until
after resolution of oppositors' motion for reconsideration.
Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by
his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for certiorari
and Prohibition with a prayer for writ of preliminary injunction (CA-G.R. No. SP- 11373-R). They
assailed the Order dated August 20, 1980 and the writ of execution and garnishment issued
pursuant thereto. The petition was denied on November 18, 1980 on the grounds (1) that its filing
was premature because the Motion for Reconsideration of the questioned Order was still pending
determination by the PROBATE COURT; and (2) that although "the rule that a motion for
reconsideration is prerequisite for an action for certiorari is never an absolute rule," the Order
assailed is "legally valid. "

On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's
decision of November 18, 1980, calling the attention of the appellate court to another order of the
Probate Court dated November 11, 1980 (i.e., while their petition for certiorari was pending decision
in the appellate court), by which the oppositors' motion for reconsideration of the Probate Court's
Order of August 20, 1980 was denied. [The November 11 Order declared that the questions of
intrinsic validity of the will and of ownership over the mining claims (not the royalties alone) had been
finally adjudicated by the final and executory Order of December 5, 1972, as affirmed by the Court of
Appeals and the Supreme Court, thereby rendering moot and academic the suit for reconveyance
then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the 33% share of
PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before
PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s 42% share, what was
ordered was just the transfer of its possession to the custody of the PROBATE COURT through the
special administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy from
August 1980 until fully paid.] Nonetheless, the Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the
decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate
Court dated August 20, 1980, November 11, 1980 and December 17, 1980, Med by petitioners on
March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order.
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was
denied in the Resolution of the same Division dated October 18, 1982, although the bond of
petitioners was increased from P50,000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent filed seven successive
motions for early resolution. Five of these motions expressly prayed for the resolution of the question
as to whether or not the petition should be given due course.
On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact
and in effect was given due course when this case was heard on the merits on September 7, (should
be October 21, 1981) and concise memoranda in amplification of their oral arguments on the merits
of the case were filed by the parties pursuant to the resolution of October 21, 1981 . . . " and denied
in a resolution dated December 13, 1982, private respondent's "Omnibus motion to set aside
resolution dated October 18, 1982 and to submit the matter of due course to the present
membership of the Division; and to reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the
Court en banc resolved to CONFIRM the questioned resolutions insofar as hey resolved that the
petition in fact and in effect had been given due course.
II. ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order of execution and
garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to
implement the Probate Order of December 5, 1972, to wit: the Order of November 11, 1980
declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic
validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order of
December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the
royalties he should have received from the death of PASTOR, SR. in 1966 up to February 1980.

The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not
questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction or
with grave abuse of discretion when it issued the assailed Orders. Their argument runs this way:
Before the provisions of the holographic win can be implemented, the questions of ownership of the
mining properties and the intrinsic validity of the holographic will must first be resolved with finality.
Now, contrary to the position taken by the Probate Court in 1980 i.e., almost eight years after the
probate of the will in 1972 the Probate Order did not resolve the two said issues. Therefore, the
Probate Order could not have resolved and actually did not decide QUEMADA's entitlement to the
legacy. This being so, the Orders for the payment of the legacy in alleged implementation of the
Probate Order of 1972 are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having
become final and executory, how can its implementation (payment of legacy) be restrained? Of
course, the question assumes that QUEMADA's entitlement to the legacy was finally adjudged in the
Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved
with finality the questions of ownership and intrinsic validity. A negative finding will necessarily render
moot and academic the other issues raised by the parties, such as the jurisdiction of the Probate
Court to conclusively resolve title to property, and the constitutionality and repercussions of a ruling
that the mining properties in dispute, although in the name of PASTOR, JR. and his wife, really
belonged to the decedent despite the latter's constitutional disqualification as an alien.
On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the
validity of the order of execution and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership
(a) In a special proceeding for the probate of a will, the issue by and large is restricted to the
extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76,
Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate Court
cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or
should not be included in the inventory of estate properties, the Probate Court may pass upon the
title thereto, but such determination is provisional, not conclusive, and is subject to the final decision
in a separate action to resolve title. [3 Moran, Comments on the Rules of Court (1980 ed.), p. 458;
Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.]
(b) The rule is that execution of a judgment must conform to that decreed in the dispositive part of
the decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in
case of ambiguity or uncertainty, the body of the decision may be scanned for guidance in construing
the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA
329; Robles vs. Timario. 107 Phil. 809.)
The Order sought to be executed by the assailed Order of execution is the Probate Order of
December 5, 1972 which allegedly resolved the question of ownership of the disputed mining
properties. The said Probate Order enumerated the issues before the Probate Court, thus:

Unmistakably, there are three aspects in these proceedings: (1) the probate of the
holographic will (2) the intestate estate aspect; and (3) the administration
proceedings for the purported estate of the decedent in the Philippines.
In its broad and total perspective the whole proceedings are being impugned by the
oppositors on jurisdictional grounds, i.e., that the fact of the decedent's residence
and existence of properties in the Philippines have not been established.
Specifically placed in issue with respect to the probate proceedings are: (a) whether
or not the holographic will (Exhibit "J") has lost its efficacy as the last will and
testament upon the death of Alvaro Pastor, Sr. on June 5, 1966, in Cebu City,
Philippines; (b) Whether or not the said will has been executed with all the formalities
required by law; and (c) Did the late presentation of the holographic will affect the
validity of the same?
Issues In the Administration Proceedings are as follows: (1) Was the ex- parte
appointment of the petitioner as special administrator valid and proper? (2) Is there
any indispensable necessity for the estate of the decedent to be placed under
administration? (3) Whether or not petition is qualified to be a special administrator of
the estate; and (4) Whether or not the properties listed in the inventory (submitted by
the special administrator but not approved by the Probate Court) are to be excluded.
Then came what purports to be the dispositive portion:
Upon the foregoing premises, this Court rules on and resolves some of the problems
and issues presented in these proceedings, as follows:
(a) The Court has acquired jurisdiction over the probate proceedings as it hereby
allows and approves the so-called holographic will of testator Alvaro Pastor, Sr.,
executed on July 31, 1961 with respect to its extrinsic validity, the same having been
duly authenticated pursuant to the requisites or solemnities prescribed by law. Let,
therefore, a certificate of its allowance be prepared by the Branch Clerk of this Court
to be signed by this Presiding Judge, and attested by the seal of the Court, and
thereafter attached to the will, and the will and certificate filed and recorded by the
clerk. Let attested copies of the will and of the certificate of allowance thereof be sent
to Atlas Consolidated Mining & Development Corporation, Goodrich Bldg., Cebu City,
and the Register of Deeds of Cebu or of Toledo City, as the case may be, for
recording.
(b) There was a delay in the granting of the letters testamentary or of administration
for as a matter of fact, no regular executor and/or administrator has been appointed
up to this time and - the appointment of a special administrator was, and still is,
justified under the circumstances to take possession and charge of the estate of the
deceased in the Philippines (particularly in Cebu) until the problems causing the
delay are decided and the regular executor and/or administrator appointed.
(c) There is a necessity and propriety of a special administrator and later on an
executor and/or administrator in these proceedings, in spite of this Court's
declaration that the oppositors are the forced heirs and the petitioner is merely

vested with the character of a voluntary heir to the extent of the bounty given to him
(under) the will insofar as the same will not prejudice the legitimes of the
oppositor for the following reasons:
1. To submit a complete inventory of the estate of the
decedent-testator Alvaro Pastor, Sr.
2. To administer and to continue to put to prolific
utilization of the properties of the decedent;
3. To keep and maintain the houses and other
structures and belonging to the estate, since the
forced heirs are residing in Spain, and prepare them
for delivery to the heirs in good order after partition
and when directed by the Court, but only after the
payment of estate and inheritance taxes;
(d) Subject to the outcome of the suit for reconveyance of ownership and possession
of real and personal properties in Civil Case No. 274-T before Branch IX of the Court
of First Instance of Cebu,the intestate estate administration aspect must proceed,
unless, however, it is duly proven by the oppositors that debts of the decedent have
already been paid, that there had been an extrajudicial partition or summary one
between the forced heirs, that the legacy to be given and delivered to the petitioner
does not exceed the free portion of the estate of the testator, that the respective
shares of the forced heirs have been fairly apportioned, distributed and delivered to
the two forced heirs of Alvaro Pastor, Sr., after deducting the property willed to the
petitioner, and the estate and inheritance taxes have already been paid to the
Government thru the Bureau of Internal Revenue.
The suitability and propriety of allowing petitioner to remain as special administrator
or administrator of the other properties of the estate of the decedent, which
properties are not directly or indirectly affected by the provisions of the holographic
will (such as bank deposits, land in Mactan etc.), will be resolved in another order as
separate incident, considering that this order should have been properly issued
solely as a resolution on the issue of whether or not to allow and approve the
aforestated will. (Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the
contrary, it is manifest therein that ownership was not resolved. For it confined itself to the question
of extrinsic validity of the win, and the need for and propriety of appointing a special administrator.
Thus it allowed and approved the holographic win "with respect to its extrinsic validity, the same
having been duly authenticated pursuant to the requisites or solemnities prescribed by law." It
declared that the intestate estate administration aspect must proceed " subject to the outcome of the
suit for reconveyance of ownership and possession of real and personal properties in Civil Case
274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the statement refers only to
the "intestate" aspect, it defies understanding how ownership by the estate of some properties could
be deemed finally resolved for purposes of testate administration, but not so for intestate purposes.
Can the estate be the owner of a property for testate but not for intestate purposes?] Then again, the
Probate Order (while indeed it does not direct the implementation of the legacy) conditionally stated

that the intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to
be given and delivered to the petitioner does not exceed the free portion of the estate of the
testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity)
was in fact not resolved. Finally, the Probate Order did not rule on the propriety of allowing
QUEMADA to remain as special administrator of estate properties not covered by the holographic
will, "considering that this (Probate) Order should have been properly issued solely as a resolution
on the issue of whether or not to allow and approve the aforestated will. "
(c) That the Probate Order did not resolve the question of ownership of the properties listed in the
estate inventory was appropriate, considering that the issue of ownership was the very subject of
controversy in the reconveyance suit that was still pending in Branch IX of the Court of First Instance
of Cebu.
(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when
they reviewed the Probable Order were only the matters properly adjudged in the said Order.
(e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the Probate
Court in its Order of November 11, 1980 explained that the basis for its conclusion that the question
of ownership had been formally resolved by the Probate Order of 1972 are the findings in the latter
Order that (1) during the lifetime of the decedent, he was receiving royalties from ATLAS; (2) he had
resided in the Philippines since pre-war days and was engaged in the mine prospecting business
since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his
father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-fetched.
(f) It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order
adjudged with finality the question of ownership of the mining properties and royalties, and that,
premised on this conclusion, the dispositive portion of the said Probate Order directed the special
administrator to pay the legacy in dispute.
2. Issue of Intrinsic Validity of the Holographic Will (a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate
children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership and
set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the
administration and liquidation of the estate of PASTOR, SR. which will include, among others, the
determination of the extent of the statutory usufructuary right of his wife until her death. * When the
disputed Probate order was issued on December 5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and
his wife.

(b) So, also, as of the same date, there had been no prior definitive determination of the assets of
the estate of PASTOR, SR. There was an inventory of his properties presumably prepared by the
special administrator, but it does not appear that it was ever the subject of a hearing or that it was
judicially approved. The reconveyance or recovery of properties allegedly owned but not in the name
of PASTOR, SR. was still being litigated in another court.

(c) There was no appropriate determination, much less payment, of the debts of the decedent and
his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the Probate Court
ordered that... a notice be issued and published pursuant to the provisions of Rule 86 of the
Rules of Court, requiring all persons having money claims against the decedent to
file them in the office of the Branch Clerk of this Court."
(d) Nor had the estate tax been determined and paid, or at least provided for, as of December 5,
1972.
(e) The net assets of the estate not having been determined, the legitime of the forced heirs in
concrete figures could not be ascertained.
(f) All the foregoing deficiencies considered, it was not possible to determine whether the legacy of
QUEMADA - a fixed share in a specific property rather than an aliquot part of the entire net estate of
the deceased - would produce an impairment of the legitime of the compulsory heirs.
(g) Finally, there actually was no determination of the intrinsic validity of the will in other respects. It
was obviously for this reason that as late as March 5, 1980 - more than 7 years after the Probate
Order was issued the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic validity
of the will.
3. Propriety of certiorari
Private respondent challenges the propriety of certiorari as a means to assail the validity of the
disputed Order of execution. He contends that the error, if any, is one of judgment, not jurisdiction,
and properly correctible only by appeal, not certiorari.
Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of
discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate court
to be overlooked or condoned.
(a) Without a final, authoritative adjudication of the issue as to what properties compose the estate of
PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL
DE PASTOR) involving properties not in the name of the decedent, and in the absence of a
resolution on the intrinsic validity of the will here in question, there was no basis for the Probate
Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to the
payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the
subsequent implementing orders for the payment of QUEMADA's legacy, in alleged implementation
of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of basis.
(b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the
estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts
and expenses, before apportionment and distribution of the residue among the heirs and legatees.
(Bernardo vs. Court of Appeals, 7 SCRA 367.)

(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the
legacy to QUEMADA would collide with the provision of the National Internal Revenue Code
requiring payment of estate tax before delivery to any beneficiary of his distributive share of the
estate (Section 107 [c])
(d) The assailed order of execution was unauthorized, having been issued purportedly under Rule
88, Section 6 of the Rules of Court which reads:
Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been
in possession. Where devisees, legatees, or heirs have entered into possession of
portions of the estate before the debts and expenses have been settled and paid and
have become liable to contribute for the payment of such debts and expenses, the
court having jurisdiction of the estate may, by order for that purpose, after hearing,
settle the amount of their several liabilities, and order how much and in what manner
each person shall contribute, and may issue execution as circumstances require.
The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is
not a debt of the estate; indeed, legatees are among those against whom execution is authorized to
be issued.
... there is merit in the petitioners' contention that the probate court generally cannot
issue a writ of execution. It is not supposed to issue a writ of execution because its
orders usually refer to the adjudication of claims against the estate which the
executor or administrator may satisfy without the necessity of resorting to a writ of
execution. The probate court, as such, does not render any judgment enforceable by
execution.
The circumstances that the Rules of Court expressly specifies that the probate court
may issue execution (a) to satisfy (debts of the estate out of) the contributive shares
of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule
88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to
satisfy the costs when a person is cited for examination in probate proceedings (Sec.
13, Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that
those are the only instances when it can issue a writ of execution. (Vda. de Valera
vs. Ofilada, 59 SCRA 96, 108.)
(d) It is within a court's competence to order the execution of a final judgment; but to order the
execution of a final order (which is not even meant to be executed) by reading into it terms that are
not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion
tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat
the right of a prevailing party to the execution of a valid and final judgment, is inapplicable. For when
an order of execution is issued with grave abuse of discretion or is at variance with the judgment
sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the
order of execution.
(e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies the
terms of the judgment sought to be executed or does not find support in the dispositive part of the
latter, there are circumstances in the instant case which justify the remedy applied for.

Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of
three mining claims which are one of the objects of conflicting claims of ownership. She is not an
heir of PASTOR, SR. and was not a party to the probate proceedings. Therefore, she could not
appeal from the Order of execution issued by the Probate Court. On the other hand, after the
issuance of the execution order, the urgency of the relief she and her co-petitioner husband seek in
the petition for certiorari states against requiring her to go through the cumbersome procedure of
asking for leave to intervene in the probate proceedings to enable her, if leave is granted, to appeal
from the challenged order of execution which has ordered the immediate transfer and/or
garnishment of the royalties derived from mineral properties of which she is the duly registered
owner and/or grantee together with her husband. She could not have intervened before the issuance
of the assailed orders because she had no valid ground to intervene. The matter of ownership over
the properties subject of the execution was then still being litigated in another court in a
reconveyance suit filed by the special administrator of the estate of PASTOR, SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of Appeals,
appeal was not available to him since his motion for reconsideration of the execution order was still
pending resolution by the Probate Court. But in the face of actual garnishment of their major source
of income, petitioners could no longer wait for the resolution of their motion for reconsideration. They
needed prompt relief from the injurious effects of the execution order. Under the circumstances,
recourse to certiorari was the feasible remedy.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The
Order of execution issued by the probate Court dated August 20, 1980, as well as all the Orders
issued subsequent thereto in alleged implementation of the Probate Order dated December 5, 1972,
particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set aside; and
this case is remanded to the appropriate Regional Trial Court for proper proceedings, subject to the
judgment to be rendered in Civil Case No. 274-R.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera Vasquez and Relova JJ., concur.
Gutierrez, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-55509 April 27, 1984
ETHEL GRIMM ROBERTS, petitioner,
vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATEGRIMM, EDWARD MILLER GRIMM II and LINDA GRIMM, respondents.
N. J. Quisumbing and Associates for petitioners.

Angara, Abello, Concepcion, Regala and Cruz for respondents.

AQUINO, J.:

+.wph!1

The question in this case is whether a petition for allowance of wills and to annul a partition,
approved in anintestate proceeding by Branch 20 of the Manila Court of First Instance, can be
entertained by its Branch 38 (after a probate in the Utah district court).
Antecedents. Edward M. Grimm an American resident of Manila, died at 78 in the Makati Medical
Center on November 27, 1977. He was survived by his second wife, Maxine Tate Grimm and their
two children, named Edward Miller Grimm II (Pete) and Linda Grimm and by Juanita Grimm Morris
and Ethel Grimm Roberts (McFadden), his two children by a first marriage which ended in divorce
(Sub-Annexes A and B. pp. 36-47, Rollo).
He executed on January 23, 1959 two wills in San Francisco, California. One will disposed of his
Philippine estate which he described as conjugal property of himself and his second wife. The
second win disposed of his estate outside the Philippines.
In both wills, the second wife and two children were favored. The two children of the first
marriage were given their legitimes in the will disposing of the estate situated in this country. In the
will dealing with his property outside this country, the testator said:
t.hqw

I purposely have made no provision in this will for my daughter, Juanita Grimm
Morris, or my daughter, Elsa Grimm McFadden (Ethel Grimm Roberts), because I
have provided for each of them in a separate will disposing of my Philippine property.
(First clause, pp. 43-47, Rollo).
The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. LaVar Tate on
March 7, 1978 in Probate No. 3720 of the Third Judicial District Court of Tooele County, Utah.
Juanita Grimm Morris of Cupertino, California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe
Village, Quezon City were notified of the probate proceeding (Sub-Annex C, pp. 48-55, Rollo).
Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in January,
1978 (p. 53, Rollo). In its order dated April 10, 1978, the Third Judicial District Court admitted to
probate the two wills and the codicil It was issued upon consideration of the stipulation dated April 4,
1978 "by and between the attorneys for Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II,
E. LaVar Tate, Juanita Kegley Grimm (first wife), Juanita Grimm Morris and Ethel Grimm Roberts"
(Annex C, pp. 48-51, Rollo).
Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as the first
parties, and Ethel, Juanita Grimm Morris and their mother Juanita Kegley Grimm as the second
parties, with knowledge of the intestate proceeding in Manila, entered into a compromise
agreement in Utah regarding the estate. It was signed by David E. Salisbury and Donald B.
Holbrook, as lawyers of the parties, by Pete and Linda and the attorney-in-fact of Maxine and by the
attorney-in-fact of Ethel, Juanita Grimm Morris and Juanita Kegley Grimm.
In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as personal
representatives (administrators) of Grimm's Philippine estate (par. 2). It was also stipulated that
Maxine's one-half conjugal share in the estate should be reserved for her and that would not be less

than $1,500,000 plus the homes in Utah and Santa Mesa, Manila (par. 4). The agreement indicated
the computation of the "net distributable estate". It recognized that the estate was liable to pay the
fees of the Angara law firm (par. 5).
It was stipulated in paragraph 6 that the decedent's four children "shall share equally in the Net
Distributable Estate" and that Ethel and Juanita Morris should each receive at least 12-1/2% of the
total of the net distributable estate and marital share. A supplemental memorandum also dated April
25, 1978 was executed by the parties (Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate
case).
Intestate proceeding No. 113024.-At this juncture, it should be stated that forty- three days after
Grimm's death, or January 9, 1978, his daughter of the first marriage, Ethel, 49, through lawyers
Deogracias T. Reyes and. Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First
Instance intestate proceeding No. 113024for the settlement of his estate. She was named special
administratrix.
On March 11, the second wife, Maxine, through the Angara law office, filed an opposition and motion
to dismiss the intestate proceeding on the ground of the pendency of Utah of a proceeding for the
probate of Grimm's will. She also moved that she be appointed special administratrix, She submitted
to the court a copy of Grimm's will disposing of his Philippine estate. It is found in pages 58 to 64 of
the record.
The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new lawyer,
William C. Limqueco (partner of Gerardo B. Macaraeg, p. 78, testate case withdrew that opposition
and motion to dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint
administrators. Apparently, this was done pursuant to the aforementioned Utah compromise
agreement. The court ignored the will already found in the record.
The three administrators submitted an inventory. With the authority and approval of the court, they
sold for P75,000 on March 21, 1979 the so-called Palawan Pearl Project, a business owned by the
deceased. Linda and Juanita allegedly conformed with the sale (pp. 120-129, Record). It turned out
that the buyer, Makiling Management Co., Inc., was incorporated by Ethel and her husband, Rex
Roberts, and by lawyer Limqueco (Annex L, p. 90, testate case).
Also with the court's approval and the consent of Linda and Juanita, they sold for P1,546,136 to
Joseph Server and others 193,267 shares of RFM Corporation (p. 135, Record).
Acting on the declaration of heirs and project of partition signed and filed by lawyers Limqueco and
Macaraeg (not signed by Maxine and her two children), Judge Conrado M. Molina in his order of July
27, 1979 adjudicated to Maxine onehalf (4/8) of the decedent's Philippine estate and one-eighth (1/8)
each to his four children or 12-1/2% (pp. 140-142, Record). No mention at all was made of the will in
that order.
Six days later, or on August 2, Maxine and her two children replaced Limqueco with Octavio del
Callar as their lawyer who on August 9, moved to defer approval of the project of partition. The court
considered the motion moot considering that it had already approved the declaration of heirs and
project of partition (p. 149, Record).
Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he was no longer
connected with Makiling Management Co., Inc. when the Palawan Pearl Project was sold: that it was
Maxine's son Pete who negotiated the sale with Rex Roberts and that he (Limqueco) was going to
sue Maxine for the lies she imputed to him (Annex H, p. 78, testate case).

Ethel submitted to the court a certification of the Assistant Commissioner of Internal Revenue dated
October 2, 1979. It was stated therein that Maxine paid P1,992,233.69 as estate tax and penalties
and that he interposed no objection to the transfer of the estate to Grimm's heirs (p. 153, Record).
The court noted the certification as in conformity with its order of July 27, 1979.
After November, 1979 or for a period of more than five months, there was no movement or activity in
the intestate case. On April 18, 1980 Juanita Grimm Morris, through Ethel's lawyers, filed a motion
for accounting "so that the Estate properties can be partitioned among the heirs and the present
intestate estate be closed." Del Callar, Maxine's lawyer was notified of that motion.
Before that motion could be heard, or on June 10, 1980, the Angara law firm filed again its
appearance in collaboration with Del Callar as counsel for Maxine and her two children, Linda and
Pete. It should be recalled that the firm had previously appeared in the case as Maxine's counsel on
March 11, 1978, when it filed a motion to dismiss the intestate proceeding and furnished the court
with a copy of Grimm's will. As already noted, the firm was then superseded by lawyer Limqueco.
Petition to annul partition and testate proceeding No. 134559. On September 8, 1980, Rogelio A.
Vinluan of the Angara law firm in behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower
court a petition praying for the probate of Grimm's two wills (already probated in Utah), that the 1979
partition approved by the intestate court be set aside and the letters of administration revoked, that
Maxine be appointed executrix and that Ethel and Juanita Morris be ordered to account for the
properties received by them and to return the same to Maxine (pp. 25-35, Rollo).
Grimm's second wife and two children alleged that they were defraud due to the machinations of the
Roberts spouses, that the 1978 Utah compromise agreement was illegal, that the intestate
proceeding is void because Grimm died testate and that the partition was contrary to the decedent's
wills.
Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his order of
October 27, 1980. Ethel then filed a petition for certiorari and prohibition in this Court, praying that
the testate proceeding be dismissed, or. alternatively that the two proceedings be consolidated and
heard in Branch 20 and that the matter of the annulment of the Utah compromise agreement be
heard prior to the petition for probate (pp. 22-23, Rollo).
Ruling. We hold that respondent judge did not commit any grave abuse of discretion, amounting
to lack of jurisdiction, in denying Ethel's motion to dismiss.
A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass
either real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule
75, Rules of Court).
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot
vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who
died testate should be settled in an intestate proceeding. Therefore, the intestate case should be
consolidated with the testate proceeding and the judge assigned to the testate proceeding should
continue hearing the two cases.
Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer
to the petition unless she considers her motion to dismiss and other pleadings sufficient for the
purpose. Juanita G. Morris, who appeared in the intestate case, should be served with copies of
orders, notices and other papers in the testate case.

WHEREFORE the petition is dismissed. The temporary restraining order is dissolved. No costs.
SO ORDERED.

1wph1.t

Makasiar (Chairman), Guerrero and De Castro, JJ., concur.

Escolin, J., concur in the result.
Concepcion, Jr. and Abad Santos, JJ., took no part.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16763 December 22, 1921
PASCUAL COSO, petitioner-appellant,
vs.
FERMINA FERNANDEZ DEZA, ET AL., objectors-appellees.
Eduardo Gutierrez Repide & Felix Socias for appellant.
Jose Varela Calderon & Benito Jimenez Zoboli for appellees.

OSTRAND, J.:
This is an appeal from a decision of the Court of First Instance of Manila setting aside a will on the
ground of undue influence alleged to have been exerted over the mind of a testator by one Rosario
Lopez. The will gives the tercio de libre disposicion to an illegitimate son had by the testator with said
Rosario Lopez, and also provides for the payment to her of nineteen hundred Spanish duros by way
the reimbursement for expenses incurred by her in taking care of the testator in Barcelona during the
years 1909 to 1916, when he is alleged to have suffered from a severe illness.
The evidence shows that the testator, a married man and resident of the Philippine Islands, became
acquainted with Rosario Lopez in Spain in 1898 and that he had illicit returns with her for many
years thereafter. After his return to the Philippines she followed him, arriving in Manila in February,
1918, and remained in close communication with him until his death in February, 1919. There is no
doubt that she exercised some influence over him and the only question for our determination is
whether this influence was of such a character as to vitiate the will.
The English and American rule in regard to undue influence is thus stated in 40 Cyc., 1144-1149.
Mere general or reasonable influence over a testator is not sufficient to invalidate a will; to
have that effect the influence must be "undue." The rule as to what constitutes "undue

influence" has been variously stated, but the substance of the different statements is that, to
be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and
subjugates the mind of the testator as to destroy his free agency and make his express the
will of another, rather than his own.
1awphil.net

. . . such influence must be actually exerted on the mind of the testator in regard to the
execution of the will in question, either at time of the execution of the will, or so near thereto
as to be still operative, with the object of procuring a will in favor of particular parties, and it
must result in the making of testamentary dispositions which the testator would not otherwise
have made. . . .
. . . and while the same amount of influence may become "undue" when exercised by one
occupying an improper and adulterous relation to testator, the mere fact that some influence
is exercised by a person sustaining that relation does not invalidate a will, unless it is further
shown that the influence destroys the testator's free agency.
The burden is upon the parties challenging the will to show that undue influence, in the sense above
expressed, existed at the time of its execution and we do not think that this burden has been carried
in the present case. While it is shown that the testator entertained strong affections for Rosario
Lopez, it does not appear that her influence so overpowered and subjugated his mind as to "destroy
his free agency and make him express the will of another rather than his own." He was an intelligent
man, a lawyer by profession, appears to have known his own mind, and may well have been
actuated only by a legitimate sense of duty in making provisions for the welfare of his illegitimate son
and by a proper feeling of gratitude in repaying Rosario Lopez for the sacrifices she had made for
him. Mere affection, even if illegitimate, is not undue influence and does not invalidate a will. No
imposition or fraud has been shown in the present case.
Influence gained by kindness and affection will not be regarded as `undue,' if no imposition
or fraud be practiced, even though it induces the testator to make an unequal and unjust
disposition of his property in favor of those who have contributed to his comfort and
ministered to his wants, if such disposition is voluntarily made. (Mackall vs. Mackall, 135 U.
S., 1677.)
It may be further observed that under the Civil Law the right of a person with legal heirs to dispose of
his property by will is limited to only a portion of his estate, and that under the law in force in these
Islands before the enactment of the Code of Civil Procedure, the only outside influences affecting
the validity of a will were duress, deceit, and fraud. The present doctrine of undue influence
originated in a legal system where the right of the testator to dispose of his property by will was
nearly unlimited. Manifestly, greater safeguards in regard to execution of wills may be warranted
when the right to so dispose of property is unlimited than when it is restricted to the extent it is in this
jurisdiction. There is, therefore, certainly no reason for giving the doctrine of undue influence a wider
scope here than it enjoys in the United States.
For the reasons stated, the decision of the lower court disallowing the will of Federico Gimenez
Zoboli is hereby reversed and it is ordered that the will be admitted to probate. No costs will be
allowed. So ordered.
Johnson, Street, Malcolm, Avancea, Villamor, Johns and Romualdez, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-24819

May 30, 1969

TESTATE ESTATE OF CATALINA DE LA CRUZ, deceased, ANDRES PASCUAL, petitionerappellee,

vs.
PEDRO DE LA CRUZ, ET AL., oppositors-appellants.
Avelino Pascual for petitioner-appellee.
Raul Manglapus and Feria, Feria, Lugtu and La'O for oppositors-appellants.
REYES, J.B.L., J.:
This is an appeal from the decision of the Court of First Instance of Rizal (in Sp. Proc. No. 3312)
admitting to probate the purported will of Catalina de la Cruz.
On 2 January 1960, Catalina de la Cruz, single and without any surviving descendant or ascendant,
died at the age of 89 in her residence at San Roque, Navotas, Rizal. On 14 January 1960, a petition
for the probate of her alleged will was filed in the Court of First Instance of Rizal by Andres Pascual,
who was named in the said will as executor and sole heir of the decedent. 1
Opposing the petition, Pedro de la Cruz and 26 other nephews and nieces of the late Catalina de la
Cruz contested the validity of the will on the grounds that the formalities required by law were not
complied with; that the testatrix was mentally incapable of disposing of her properties by will at the
time of its execution; that the will was procured by undue and improper pressure and influence on
the part of the petitioner; and that the signature of the testatrix was obtained through fraud.
After hearing, during which the parties presented their respective evidences, the probate court
rendered judgment upholding the due execution of the will, and, as therein provided, appointed
petitioner Andres Pascual executor and administrator of the estate of the late Catalina de la Cruz
without bond. The oppositors appealed directly to the Court, the properties involved being valued at
more than P300,000.00, raising only the issue of the due execution of the will.
In this instance, oppositors-appellees claim that the lower court erred in giving credence to the
testimonies of the subscribing witnesses and the notary that the will was duly executed,
notwithstanding the existence of inconsistencies and contradictions in the testimonies, and in
disregarding their evidence that the will was not signed by all the witnesses in the presence of one
another, in violation of the requirement of the law.
On this point, the lower court said:
Regarding the alleged contradictions and inconsistencies in the testimony of the three
attesting witnesses and of the Notary Public, some of which have been enumerated in the
Memorandum of Oppositors' counsel, this Court has taken pains in noting said

inconsistencies but found the same not substantial in nature sufficient to discredit their entire
testimony on the due execution of Exhibit "D". It is to be noted that Exhibit "D" was signed in
1954 and that the attesting witnesses testified in Court in 1962 or after a lapse of eight years
from the date of the signing of the document. It is, therefore, understandable and reasonable
to expect that said witnesses will not retain a vivid picture of the details surrounding the
execution and signing of the will of Catalina de la Cruz. What is important and essential is
that there be unanimity and certainty in their testimony regarding the identity of the
signatures of the testatrix, the attesting witnesses, and the Notary Public, and the fact that
they were all present at the time those signatures were affixed on the document Exhibit
"D". ....
In this jurisdiction, it is the observed rule that, where a will is contested, the subscribing with are
generally regarded as the best qualified to testify on its due execution. However, it is similarly
recognized that for the testimony of such witnesses to be entitled to full credit, it must be reasonable
and unbiased, and not overcome by competent evidence, direct or circumstantial. 2 For it must be
remembered that the law does not simply require the presence of three instrumental witnesses; it
demands that the witnesses be credible. 3
In connection with the issue under consideration, we agree with the trial judge that the contradictions
and inconsistencies appearing in the testimonies of the witnesses and the notary, pointed out by the
oppositors-appellants (such as the weather condition at the time the will was executed; the
sequence of the signing by the witnesses; and the length of time it took to complete the act), relate
to unimportant details of the impressions of the witnesses about certain details which could have
been affected by the lapse of time and the treachery of human memory, and which inconsistencies,
by themselves, would not alter the probative value of their testimonies on the due execution of the
will [cf. Peo. vs. Sigue, 86 Phil. 139-140 (3 years interval)].
In Estate of Javellana vs. Javellana, L-13781, 30 January 1960, 106 Phil. 1076, this Court ruled:
For the purpose of determining the due execution of a will, it is not necessary that the
instrumental witnesses should give an accurate and detailed account of the proceeding,
such as recalling the order of the signing of the document by the said witnesses. It is
sufficient that they have seen or at least were so situated at the moment that they could have
seen each other sign, had they wanted to do so. In fact, in the instant case, at least two
witnesses, ... both testified that the testator and the 3 witnesses signed in the presence of each and every
one of them (Jaboneta vs. Gustilo, 5 Phil. 451; Neyra vs. Neyra, 42 Off. Gaz. 2817; Fernandez vs. Tantoco, 49 Phil. 380.).

Neither do we believe that the fact that the witnesses were better known to proponent Andres
Pascual than to the testatrix suffices to render their testimony suspect. Under the circumstances,
considering the admitted fact that when the will was executed (1954) the testatrix was already 83
years old, suffering from rheumatism to the extent that she had to wear thick socks and soft shoes, it
did not unlikely that she should have entrusted the task of requesting them to act as witnesses to
Andres Pascual himself, albeit the said witnesses, testifying eight years later, should have stated
that they were asked by Catalina to witness her testament. The error of recall, considering the eightyear interval, is consonant with the well known vagaries of human memory and recollection,
particularly since the main detail that must have stuck in his minds is that they did witness the
signing of the will, upon which their attention must have principally concentrated. That they did so is
attested by their signatures and those of the deceased testatrix, which are nowhere impugned; nor is
there any claim by appellants that the latter was incapable of reading and understanding the will that
she signed. In fact, the evidence is that she did read it before signing. The authorities are to the
effect that friendly relations of the witnesses with the testator or the beneficiaries do not affect the
credibility of the former, 4 so that the proven friendship between the proponent and the instrumental

witnesses would have no bearing on the latter's qualification to testify on the circumstances
surrounding the signing of the will.
Appellant's main reliance is the alleged tape recording of a conversation between instrumental
witness Manuel Jiongco and oppositor Pedro B. Cruz at the latter's house sometime in 1960 (which
recording was admittedly taken without Jiongco's knowledge) wherein said witness is supposed to
have stated that when he signed the will the other witnesses' signatures were already affixed, and
were not then present, and that he (Jiongco) signed the document in 1958 or 1959 (Exhibit 22;
transcription; Exhibit 23 et. seq.).
There are two circumstances that militate against giving credence to particular evidence. The first is
that there is no adequate proof that the declarations tape recorded were in fact made by Jiongco.
The latter denied that the voice was his, and in this respect the trial judge stated (Record on Appeal,
pages 83-84):
We do not doubt the fact that Manuel Jiongco was in the house of Pedro Cruzon the
occasion that Exhibit "23" was taken. But it is important to note that when said recording was
replayed before Manuel Jiongco in Court he denied that the voice which uttered the abovequoted portions in the conversation was his. So that with the denial of Manuel Jiongco, the
Court was left with no other recourse than to make its own comparison between the natural
voice of the witness, Manuel Jiongco, while testifying on the witness stand and his supposed
recorded voice in Exhibit "23". It is to be admitted that we noted some similarity between the
two voices but it was not enough to justify a categorical and definite conclusion that the
recorded voice identified by Pedro Cruz to be that of Manuel Jiongco is in truth and in fact
the voice of the latter. Between a testimony given in Court under oath which was subjected
to and stood of rigorous cross-examination and loose statements made out of Court which
even then are of doubtful source, this Court gives full faith and credence to the former. And
this is true even if this particular witness admits having a poor memory, and his
trustworthiness is assailed due to a previous record of an administrative case filed against
him wherein he was fined for a charge of falsification of public document (see Exh. "25").
This is so, because the veracity of his testimony in Court regarding the due execution of
Exhibit "D" is corroborated and confirmed by the testimony of the two other attesting
witnesses to the document and the Notary Public who notarized the same.
Not having heard Jiongco testify, this court is not in a position to contradict the appreciation of the
trial court that the voice in the tape recording was not really that of Jiongco. And considering that he
denied that fact under oath, that the tape recording was not supported by truly impartial evidence,
and was done without the knowledge of the witness, we cannot see our way clear to rule that
Jiongco has been successfully impeached, and shown guilty of false testimony. It would be
dangerous to rule otherwise.
The second point that renders incredible the alleged assertion of Jiongco in the tape recording, that
he signed the testament only in 1958 or 1959, is that in the Notarial Registry of the notary, Gatdula,
the ratification of the testament appears among the entries for 1954, as well as in the corresponding
copies (Exhibit I) filed by him with Bonifacio Sumulong, the employee in charge of the Notarial
Section of the Clerk of Court's office, who produced them at the trial upon subpoena, and who
testified to his having searched for and found them in the vaults of the Clerk of Court's office. No
evidence exists that these documents were not surrendered and filed at the Clerk of Court's office,
as required by law, and in the regular course of official duty. Certainly, the notary could not have
reported in 1954 what did not happen until 1958.

In view of the evidence, we do not feel justified in concluding that the trial court erred in accepting
the concordant testimony of the instrumental witnesses as warranting the probate of the will in
question, taking into account the unexcelled opportunity of the court a quo to observe the demeanor,
and judge the credibility, of the witness thereby. Furthermore, it would not be the first time in this
jurisdiction that a will has been admitted to probate even if the instrumental witness testified contrary
to the other two, provided the court is satisfied, as in this case, that the will was executed and
attested in the manner provided by law (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 admit the will to probate where only the testimony of one witness is subjected to
serious, if unsuccessful attack.
Contestants further assail the admission to probate on the ground that the execution of the will was
tainted by fraud and undue influence exerted by proponent on the testarix, and affirm that it was
error for the lower court to have rejected their claim. Said the court in this regard (Record on Appeal,
page 87):
It is a settled rule in this jurisdiction that the mere fact that a Will was made in favor of a
stranger is not in itself proof that the same was obtained through fraud and undue pressure
or influence, for we have numerous instances where strangers are preferred to blood
relatives in the institution of heirs. But in the case at bar, Andres Pascual, although not
related by blood to the deceased Catalina de la Cruz, was definitely not a stranger to the
latter for she considered him as her own son. As a matter of fact it was not only Catalina de
la Cruz who loved and cared for Andres Pascual but also her sisters held him with affection
so much so that Catalina's sister, Florentina Cruz, made him also her sole heir to her
property in her Will without any objection from Catalina and Valentina Cruz.
Before considering the correctness of these findings, it is worthwhile to recall the basic principles on
undue pressure and influence as laid down by the jurisprudence of this Court: that to be sufficient to
avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of
the testator as to destroy his free agency and make him express the will of another rather than his
own (Coso vs. Fernandez Deza, 42 Phil. 596; Icasiano vs. Icasiano, L-18979, 30 June 1964; Teotico
vs. Del Val, L-18753, 26 March 196); that the contention that a will was obtained by undue influence
or improper pressure cannot be sustained on mere conjecture or suspicion, as it is enough that there
was opportunity to exercise undue influence, or a possibility that it may have been exercised
(Ozaeta vs. Cuartero, L-5597, 31 May 1956); that the exercise of improper pressure and undue
influence must be supported by substantial evidence that it was actually exercised (Ozatea vs.
Cuartero, ante; Teotico vs. Del Val, L-18753, 26 March 1965); that the burden is on the person
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 invalidate a will (Coso vs.
Fernandez Deza, ante); nor is moderate and reasonable solicitation and entreaty addressed to the
testator (Barreto vs. Reyes, L-5831-31, 31 January 1956), or omission of relatives, not forced heirs,
evidence of undue influence (Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 416).
Tested against these rulings, the circumstances marshalled by the contestants certainly fail to
establish actual undue influence or improper pressure exercised on the testarix by the proponent.
Their main reliance is on the assertion of the latter, in the course of his testimony, that the deceased
"did not like to sign anything unless I knew it" (t.s.n., page 7, 27 January 1962), which does not
amount to proof that she would sign anything that proponent desired. On the contrary, the evidence
of contestants-appellants, that proponent purchased a building in Manila for the testarix, placed the
title in his name, but caused the name "Catalina de la Cruz" to be painted thereon in bold letters to
mislead the deceased, even if true, demonstrates that proponent's influence was not such as to
overpower to destroy the free will of the testarix. Because if the mind of the latter were really

subjugated by him to the extent pictured by the contestants, then proponent had no need to recourse
to the deception averred.
lawphi1.et

Nor is the fact that it was proponent, and not the testarix, who asked Dr. Sanchez to be one of the
instrumental witnesses evidence of such undue influence, for the reason that the rheumetism of the
testarix made it difficult for her to look for all the witnesses. That she did not resort to relatives or
friends is, likewise explainable: it would have meant the disclosure of the terms of her will to those
interested in her succession but who were not favored by her, thereby exposing her to unpleasant
importunity and recriminations that an aged person would naturally seek to avoid. The natural desire
to keep the making of a will secret can, likewise, account for the failure to probate the testament
during her lifetime.
We conclude that the trial court committed no error in finding the appellant's evidence established at
most grounds for suspicion but fell far short of establishing actual exercise of improper pressure or
influence. Considering that testarix considered proponent as her own son, to the extent that she
expressed no objection to his being made the sole heir of her sister, Florentina Cruz, in derogation of
her own rights, we find nothing abnormalin her instituting proponent also as her own beneficiary. As
stated by the Court in the Knutson case
The truth of the matter is that bequests and devises to those in whom the testator has
confidence and who have won his affection are more likely to be free from undue influence
that bequests or devises to others. (In re Knutson's Will, 41 Pac. 2d 793).
Appellants invoked presumption of undue influence held to exist by American authorities where the
beneficiary participates in the drafting of execution of the will favoring him; but since the will was
prepared by Atty. Pascual, although nephew of the proponent, we do not think the presumption
applies; for in the normal course of events, said attorney would follow the instructions of the testatrix;
and a member of the bar in good standing may not be convicted of unprofessional conduct, or of
having conspired to falsify a statement, except upon clear proof.
The charge of fraud, being premised on the existence of undue influence, needs no separate
discussion.
WHEREFORE, the decree of probate appealed from is affirmed; with costs against contestantsappellants.
Dizon, Makalintal, Zaldivar, Sanchez, Fernando, Capistrano and Barredo, JJ., concur.
Teehankee, J., took no part.
Concepcion, C.J., and Castro, J., are on leave, took no part.
Footnotes
Although not related by blood, petitioner claims he was taken into, and grew up with, the
family of the deceased.
1

Junquera vs. Borromeo, L-18498, 30 March 1967, 19 SCRA 656.

Article 805, Civil Code of the Philippines.

95 C.J.S. 326-327; Yowell vs. Hunter, 85 NE 2d 674; In re Reid's Estate, 138 So. 2d 342.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA
JUGO,respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent Court of
Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution
dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the
resolution dated December 28, 1982 denying petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by
him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the
presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their
signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was acknowledged before
the Notary Public Romeo Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole
and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a
certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952,
he had been estranged from his lawfully wedded wife and had been living with petitioner as husband
and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J.
Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised
to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his
entire estate and the free portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned legal wife,
Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo,
whom I declare and admit to be legally and properly entitled to inherit from me; that
while I have been estranged from my above-named wife for so many years, I cannot
deny that I was legally married to her or that we have been separated up to the
present for reasons and justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all
the things which she has done for me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and consent, did comport and represent

myself as her own husband, in truth and in fact, as well as in the eyes of the law, I
could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the
deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and
asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition
alleging inter alia that the execution of the Will was procured by undue and improper influence on the
part of the petitioner; that at the time of the execution of the Will, the testator was already very sick
and that petitioner having admitted her living in concubinage with the testator, she is wanting in
integrity and thus, letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner from December 1952 until 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
invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal
denying the probate of the will. The respondent court declared the Will to be valid except that the
devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of
the Civil Code of the Philippines. The dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question declared
valid except the devise in favor of the appellant which is declared null and void. The
properties so devised are instead passed on in intestacy to the appellant in equal
shares, without pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of
Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the
decision be changed to "appellees" so as to read: "The properties so devised are instead passed on
intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was
granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the
respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court acted in excess of its
jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly
drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein
petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot be passed
upon and decided in the probate proceedings but in some other proceedings because the only
purpose of the probate of a Will is to establish conclusively as against everyone that a Will was
executed with the formalities required by law and that the testator has the mental capacity to execute
the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of
the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by

the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a
declaration of the nullity of the testamentary provision in the Will in favor of the person with whom
the testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament itself
expressly admits indubitably on its face the meretricious relationship between the testator and the
petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17
SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al.(G.R. No. L- 39247, June 27,
1975). Respondents also submit that the admission of the testator of the illicit relationship between
him and the petitioner put in issue the legality of the devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it
went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner
null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will. The rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his
last Will and testament, irrespective of whether its provisions are valid and
enforceable or otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's area of inquiry is limited
to the extrinsic validity thereof. The testators testamentary capacity and the
compliance with the formal requisites or solemnities prescribed by law are the only
questions presented for the resolution of the court. Any inquiry into
the intrinsic validity or efficacy of the provisions of the will or the legality of any devise
or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition for probate.
Probate is one thing; the validity of the testamentary provisions is another. The first
decides the execution of the document and the testamentary capacity of the testator;
the second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA
1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the facts that a will
was executed with the formalities required by law and that the testator was in a
condition to make a will, is the only purpose of the proceedings under the new code
for the probate of a will. (Sec. 625). The judgment in such proceedings determines
and can determine nothing more. In them the court has no power to pass upon the
validity of any provisions made in the will. It can not decide, for example, that a
certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court
is not powerless to do what the situation constrains it to do and pass upon certain provisions of the
Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as
universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter
how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to
determine the intrinsic validity of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA
452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal validity, and in declaring it
void.
We are of the opinion that in view of certain unusual provisions of the will, which are
of dubious legality, and because of the motion to withdraw the petition for probate
(which the lower court assumed to have been filed with the petitioner's authorization)
the trial court acted correctly in passing upon the will's intrinsic validity even before
its formal validity had been established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G.
1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26,
1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties
are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that
the testator had the mental capacity to execute his Will. The petitioner states that she completely
agrees with the respondent court when in resolving the question of whether or not the probate court
correctly denied the probate of Martin Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of
Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary
provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the record, in the event of probate or if the court rejects the
will, probability exists that the case will come up once again before us on the same
issue of the intrinsic validity or nullity of the will. Result, waste of time, effort,
expense, plus added anxiety. These are the practical considerations that induce us to

a belief that we might as well meet head-on the issue of the validity of the provisions
of the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al.,
77 Phil. 517, 522). After all, there exists a justiciable controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision to the proper
court in a separate action for that purpose simply because, in the probate of a will, the court does not
ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage at the
time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by
reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be brought by
the spouse of the donor or donee; and the guilt of the donor and donee may be
proved by preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter vivos shall
apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the
testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal
wife from whom he had been estranged "for so many years." He also declared that respondents
Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been
living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was
entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband
but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds
of matrimony because of my aforementioned previous marriage.
There is no question from the records about the fact of a prior existing marriage when Martin Jugo
executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an
ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a
marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while
the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief
that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:

First. The last will and testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and petitioner, the devisee.
Second. Petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to
present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the legacy given in
the will to petitioner by the deceased testator at the start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had lived with
as man and wife, as already married, was an important and specific issue brought by
the parties before the trial court, and passed upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner
who opted to present evidence on her alleged good faith in marrying the testator.
(Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute the testimony of
petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at length on the
meretricious relationship of his brother and petitioner. (TSN of August 18,1975).
Clearly, the good faith of petitioner was by option of the parties made a decisive
issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the question.
When the court a quo held that the testator Martin Jugo and petitioner 'were deemed
guilty of adultery or concubinage', it was a finding that petitioner was not the innocent
woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private respondents
respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town
in Tarlac where neither she nor the testator ever resided. If there was nothing to hide
from, why the concealment' ? Of course, it maybe argued that the marriage of the
deceased with private respondent Rufina Gomez was likewise done in secrecy. But it
should be remembered that Rufina Gomez was already in the family way at that time
and it would seem that the parents of Martin Jugo were not in favor of the marriage
so much so that an action in court was brought concerning the marriage. (Testimony
of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when they were still
both single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez
on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5,
1952. There was a space of about 30 years in between. During those 30 years, could

it be believed that she did not even wonder why Martin Jugo did not marry her nor
contact her anymore after November, 1923 - facts that should impel her to ask her
groom before she married him in secrecy, especially so when she was already about
50 years old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself
conclusive demonstration that she new that the man she had openly lived for 22
years as man and wife was a married man with already two children.
FOURTH: Having admitted that she knew the children of respondent Rufina Gomez,
is it possible that she would not have asked Martin Jugo whether or not they were his
illegitimate or legitimate children and by whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the deceased
testator, is it possible that she would not have known that the mother of private
respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez,
considering that the houses of the parents of Martin Jugo (where he had lived for
many years) and that of respondent Rufina Gomez were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say
the least, inherently improbable, for they are against the experience in common life
and the ordinary instincts and promptings of human nature that a woman would not
bother at all to ask the man she was going to marry whether or not he was already
married to another, knowing that her groom had children. It would be a story that
would strain human credulity to the limit if petitioner did not know that Martin Jugo
was already a married man in view of the irrefutable fact that it was precisely his
marriage to respondent Rufina Gomez that led petitioner to break off with the
deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between
persons who are living in adultery or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate
the legacy because the testator admitted he was disposing the properties to a person with whom he
had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals,
now Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-23079 February 27, 1970

RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA
CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents.
Salonga, Ordoez, Yap, Sicat and Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.
Villareal, Almacen, Navarra and Amores for other respondents.

CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special
Proceedings 2457) a petition for probate, ante mortem, of her last will and testament. The probate
was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria
Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia. This opposition
was, however, dismissed and the probate of the will allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the
respondents Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga,
all of whom had been assumed and declared by Basilia as her own legally adopted children.
On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The
respondent Perfecto Cruz was appointed executor without bond by the same court in accordance
with the provisions of the decedent's will, notwithstanding the blocking attempt pursued by the
petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in
intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the
five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance
with law, in effect rendering these respondents mere strangers to the decedent and without any right
to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a
quo allowed the petitioners' intervention by its order of December 22, 1959, couched in broad terms,
as follows: "The Petition in Intervention for Partition filed by the above-named oppositors [Ruben
Austria, et al.,] dated November 5, 1959 is hereby granted."

In the meantime, the contending sides debated the matter of authenticity or lack of it of the several
adoption papers produced and presented by the respondents. On motion of the petitioners Ruben
Austria, et al., these documents were referred to the National Bureau of Investigation for
examination and advice. N.B.I. report seems to bear out the genuineness of the documents, but the
petitioners, evidently dissatisfied with the results, managed to obtain a preliminary opinion from a
Constabulary questioned-document examiner whose views undermine the authenticity of the said
documents. The petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption
papers to the Philippine Constabulary for further study. The petitioners likewise located former
personnel of the court which appeared to have granted the questioned adoption, and obtained
written depositions from two of them denying any knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after they were allowed to intervene, the petitioners
Ruben Austria, let al., moved the lower court to set for hearing the matter of the genuineness of the
adoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by the court
for hearing arrived, however, the respondent Benita Cruz-Meez who entered an appearance
separately from that of her brother Perfecto Cruz, filed on February 28, 1963 a motion asking the
lower court, by way of alternative relief, to confine the petitioners' intervention, should it be permitted,
to properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently
submitted their respective memoranda, and finally, the lower court issued an order on June 4, 1963,
delimiting the petitioners' intervention to the properties of the deceased which were not disposed of
in the will.
The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition,
from the respondents. On October 25, 1963 the same court denied the petitioners' motion for
reconsideration.
A second motion for reconsideration which set off a long exchange of memoranda from both sides,
was summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25,
1963 and the order of April 21, 1964, all restricting petitioners' intervention to properties that were not
included in the decedent's testamentary dispositions.
The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate
of the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Benta and
Lauro Austria Mozo, three of a number of nephews and nieces who are concededly the nearest
surviving blood relatives of the decedent. On the other side are the respondents brothers and
sisters, Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of
whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the decedent by
virtue of legal adoption. At the heart of the controversy is Basilia's last will immaculate in its
extrinsic validity since it bears the imprimatur of duly conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of the tie which the
respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The lower
court had, however, assumed, by its orders in question, that the validity or invalidity of the adoption
is not material nor decisive on the efficacy of the institution of heirs; for, even if the adoption in
question were spurious, the respondents Perfecto Cruz, et al., will nevertheless succeed not as

compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling apparently finds
support in article, 842 of the Civil Code which reads:
One who has no compulsory heirs may dispose of by will all his estate or any part of
it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs.
The lower court must have assumed that since the petitioners nephews and niece are not
compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling
testamentary disposition. The petitioners' interest is confined to properties, if any, that have not been
disposed of in the will, for to that extent intestate succession can take place and the question of the
veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend
to them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the
decedent's will. They have thus raised squarely the issue of whether or not such institution of heirs
would retain efficacy in the event there exists proof that the adoption of the same heirs by the
decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
The statement of a false cause for the institution of an heir shall be considered as not
written, unless it appears from the will that the testator would not have made such
institution if he had known the falsity of such cause.
Coming closer to the center of the controversy, the petitioners have called the attention of the lower
court and this Court to the following pertinent portions of the will of the deceased which recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing
na mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz,
Benita at Isagani, na pawang may apelyidong Cruz.
xxx xxx xxx
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ariariang maiiwan, sa kaparaanang sumusunod:
A.Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto,
Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang
kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang
sapilitang mana (legiti[ma]), ang kalahati () ng aking kaparti sa lahat ng aming ariariang gananciales ng aking yumaong asawang Pedro Cruz na napapaloob sa
Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa
No. 1 ng parafo IV ng testamentong ito, ang kalahati () ng mga lagay na lupa at

palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama

na si Calixto Austria, at ang kalahati () ng ilang lagay na lupa na nasa Tinejeros,
Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria.
The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia
was deceived into believing that she was legally bound to bequeath one-half of her entire estate to
the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had
the deceased known the adoption to be spurious, she would not have instituted the respondents at
all the basis of the institution being solely her belief that they were compulsory heirs. Proof
therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening
of the estate wide to intestacy. Did the lower court then abuse its discretion or act in violation of the
rights of the parties in barring the petitioners nephews and niece from registering their claim even to
properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following
requisites must concur: First, the cause for the institution of heirs must be stated in the will; second,
the cause must be shown to be false; and third, it must appear from the face of the will that the
testator would not have made such institution if he had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana"
(compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix's belief that under the law she could not do otherwise.
If this were indeed what prompted the testatrix in instituting the respondents, she did not make it
known in her will. Surely if she was aware that succession to the legitime takes place by operation of
law, independent of her own wishes, she would not have found it convenient to name her supposed
compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well
indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own
proposition, is highly speculative of what was in the mind of the testatrix when she executed her will.
One fact prevails, however, and it is that the decedent's will does not state in a specific or
unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis
of guesswork or uncertain implications.
And even if we should accept the petitioners' theory that the decedent instituted the respondents
Perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false
assumption that her adoption of these respondents was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause
the testator may have written in his will for the institution of heirs. Such institution may be annulled
only when one is satisfied, after an examination of the will, that the testator clearly would not have
made the institution if he had known the cause for it to be false. Now, would the late Basilia have
caused the revocation of the institution of heirs if she had known that she was mistaken in treating
these heirs as her legally adopted children? Or would she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this point or at best is vague
and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed
from the language of the law on succession and were used, respectively, to describe the class of
heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the
decedent would have willed her estate other than the way she did if she had known that she was not
bound by law to make allowance for legitimes. Her disposition of the free portion of her estate (libre

disposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and the
children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the
respondents more than what she thought the law enjoined her to give to them. Compare this with the
relatively small devise of land which the decedent had left for her blood relatives, including the
petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben Austria.
Were we to exclude the respondents Perfecto Cruz, et al. from the inheritance, then the petitioners
and the other nephews and nieces would succeed to the bulk of the testate by intestacy a result
which would subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the
Civil Code: "The words of a will are to receive an interpretation which will give to every expression
some effect, rather than one which will render any of the expressions inoperative; and of two modes
of interpreting a will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention
on the part of the testator to dispose of practically his whole estate,2 as was done in this case.
Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator
allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect. 3 A
probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was possessed of
testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence.
In this situation, it becomes our duty to give full expression to her will. 4
At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a
separate action brought for that purpose, and cannot be the subject of a collateral attack. 5
To the petitioners' charge that the lower court had no power to reverse its order of December 22,
1959, suffice it to state that, as borne by the records, the subsequent orders complained of served
merely to clarify the first an act which the court could legally do. Every court has the inherent
power to amend and control its processes and orders so as to make them conformable to law and
justices.6 That the court a quo has limited the extent of the petitioners' intervention is also within its
powers as articulated by the Rules of Court.7
ACCORDINGLY, the present petition is denied, at petitioners cost.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, Barredo and
Villamor, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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.
xxx

xxx

xxx

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

xxx

xxx

xxx

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."
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
Regala and Castro, JJ., took no part.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-39247 June 27, 1975

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY,
JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch VI;
AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.
Roberto M. Sarenas for petitioner.
Jose B. Guyo for private respondents.

AQUINO, J.:

Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated
February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting the
testate proceeding into an intestate proceeding and ordering the issuance of the corresponding
notice to creditors (Special Case No. 1808). The antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the
age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate
children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob,
Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his
mother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria
Julian declared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that
she was the absolute owner of two parcels of land which she inherited from her father (par. III), and
(c) that it was her desire that her properties should not be divided among her heirs during her
husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par.
IV).
Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years
old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my
properties") should be divided and distributed in the manner set forth in that part of her will. She
devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the
will her husband's one half share of the conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of
testamentary capacity, undue influence, preterition of the husband and alleged improper partition of
the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate certain properties
which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr.
dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed that
he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument captioned
"Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he manifested that
out of respect for his wife's will he "waived and renounced' his hereditary rights in her estate in favor
of their six children. In that same instrument he confirmed the agreement, which he and his wife had
perfected before her death, that their conjugal properties would be partitioned in the manner
indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of
Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition
and reset for hearing the probate of the will. It gave effect to the affidavit and conformity of Felix
Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk of court as special
administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the
grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of the
conjugal lots and (b) that she could not partition the conjugal estate by allocating portions of the nine
lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros, opposed that
motion. The lower court denied it in its order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to be the
lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated

September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and
requesting authority to proceed by intestate estate proceeding." In that motion Montaa claimed to
be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or
allegedly effected a compromise of future legitimes. He prayed that the probate of the will be
withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of
the same date he asked that the corresponding notice to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated
October 15, 1973 manifested their conformity with the motion for the issuance of a notice to
creditors. They prayed that the will be declared void for being contrary to law and that an intestacy
be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a notice to
creditors was in order since the parties had agreed on that point. It adopted the view of Attys.
Montaa and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the
petition for the probate, converted the testate proceeding into an intestate proceeding, ordered the
issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974.
The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The notice to
creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite of
petitioner's motion of April 17, 1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15,
1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the ground
that Atty. Montaa had no authority to withdraw the petition for the allowance of the will. Attached to
the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaa and signed by
Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they
terminated Montaa's services and informed him that his withdrawal of the petition for the probate of
the will was without their consent and was contrary to their repeated reminder to him that their
mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court
denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of
its own independent assessment of its provisions and not because of Atty. Montaa's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will,
before ruling on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of dubious
legality, and because of the motion to withdraw the petition for probate (which the lower court
assumed to have been filed with the petitioner's authorization), the trial court acted correctly in
passing upon the will's intrinsic validity even before its formal validity had been established. The
probate of a will might become an idle ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA
449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho
vs. Udan, L-19996, April 30, 1965, 13 SCRA 693).
1wph1.t

But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and
in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its

order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his
renunciation of his hereditary rights which presumably included his one-half share of the conjugal
estate.
The rule is that "the invalidity of one of several dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be presumed that the testator would not have made
such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code).
"Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if
they can be separated from the invalid without defeating the intention of the testator or interfering
with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to
law because, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143,
Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal
declaration does not nullify the entire will. It may be disregarded.
The provision of the will that the properties of the testatrix should not be divided among her heirs
during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash
is contrary to article 1080 of the Civil Code which reads:
ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by
will, such partition shall be respected, insofar as it does not prejudice the legitime of
the compulsory heirs.
A parent who, in the interest of his or her family, to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of the right granted him in this
article, by ordering that the legitime of the other children to whom the property is not
assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her six children (her
husband had renounced his hereditary rights and his one-half conjugal share). She did not assign
the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to
require that the legitimes be paid in cash. On the other hand, her estate may remain undivided only
for a period of twenty years. So, the provision that the estate should not be divided during her
husband's lifetime would at most be effective only for twenty years from the date of her death unless
there are compelling reasons for terminating the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal
partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a
donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil
Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A
portion of the estate should be adjudicated to the widower for his support and maintenance. Or at
least his legitime should be respected.
Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the
partition therein may be given effect if it does not prejudice the creditors and impair the legitimes.
The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the
meantime, the net income should be equitably divided among the children and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his wife's will and his
renunciation of his hereditary rights, his one-half conjugal share became a part of his deceased

wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will
without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a will shall only
pass thereby, as if the testator had it at the time of making the will, should it expressly appear by the
will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing
belonging to another person is void, if the testator erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to partition the
conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose of
by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the
dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal
estate, such partition has become valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her
sister and preterited her parents. Her will was intrinsically void because it preterited her compulsory
heirs in the direct line. Article 854 of the Civil Code provides that "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." Since the preterition of the parents
annulled the institution of the sister of the testatrix and there were no legacies and devises, total
intestacy resulted (.Art. 960[2], Civil Code).
1wph1.t

In the instant case, the preterited heir was the surviving spouse. His preterition did not produce
intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. .
It results that the lower court erred in not proceeding with the probate of the will as contemplated in
its uncancelled order of June 18, 1973. Save in an extreme case where the will on its face is
intrinsically void, it is the probate court's duty to pass first upon the formal validity of the will.
Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil.
479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima
facie proof that the supposed testator has willed that his estate should be distributed in the manner
therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given
effect independent of the attitude of the parties affected thereby" (Resolution, Vda. de Precilla vs.
Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of
testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is
preferable to intestacy. An interpretation that will render a testamentary disposition operative takes
precedence over a construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an
intention on the part of the testator to dispose of practically his whole estate. So compelling is the
principle that intestacy should be avoided and that the wishes of the testator should prevail that
sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs.
Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).

As far as is legally possible, the expressed desire of the testator must be followed and the
dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30,
1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will because any
disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February
28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although
no executor or regular administrator has been appointed. The record reveals that it appointed a
special administrator. A notice to creditors is not in order if only a special administrator has been
appointed. Section 1, Rule 86 of the Rules of Court, in providing that "immediately after granting
letters of testamentary or of administration, the court shall issue a notice requiring all persons having
money claims against the decedent to file them in the office of the clerk of said court" clearly
contemplates the appointment of an executor or regular administrator and not that of a special
administrator.
It is the executor or regular administrator who is supposed to oppose the claims against the estate
and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court).
We also take this occasion to point out that the probate court's appointment of its branch clerk of
court as special administrator (p. 30, Rollo) is not a salutary practice because it might engender the
suspicion that the probate Judge and his clerk of court are in cahoots in milking the decedent's
estate. Should the branch clerk of court commit any abuse or devastavit in the course of his
administration, the probate Judge might find it difficult to hold him to a strict accountability. A court
employee should devote his official time to his official duties and should not have as a sideline the
administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its
order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is
directed to conduct further proceedings in Special Case No. 1808 in consonance with this opinion.
Costs, against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

Footnotes
* The pertinent provisions of the will are as follows:
"II. That I am the absolute owner of the southern half of the following conjugal
properties which I acquired during my married life with my husband, Felix Balanay,
Sr., namely: (Here follows an enumeration of nine lots).
1wph1.t

"III. I am the absolute owner of the following paraphernal properties which I inherited
from my deceased father, Cecilio Julian, namely: (Here follows a description of two
lots).

"IV. It is my desire and I direct that in the interest of my family, my properties shall not
be divided among my heirs during the lifetime of my husband, Felix Balanay, Sr. but
should be kept intact. The respective legitimes of my husband and my children
should be paid in cash out of the proceeds of sale of the produce and rents derived
from said properties.
"V. After the death of my husband, Felix Balanay, Sr., my properties shall be divided
and distributed in the manner as follows:" (Here follows a partition of the nine
conjugal lots and the two paraphernal lots. The testatrix divided among her six
children not only her two paraphernal lots, one of which she devised to Emilia
Pabaonon and the other lot to Felix Balanay, Jr., but also the nine conjugal lots. She
did not restrict the partition to her one-half conjugal share but included her husband's
one-half share.).
The Lawphil Project - Arellano Law Foundation

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-54919 May 30, 1984
POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court
of First Instance of Manila and NENITA CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the
Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the
last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein
private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes
Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C.
Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed
an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated
unto himself the ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a
will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for
her appointment as administratrix of the estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and
was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the
testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167
Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on
July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New
Jersey as executor; that after the testatrix death, her last will and testament was presented,
probated, allowed, and registered with the Registry of Wins at the County of Philadelphia, U.S.A.,
that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined
and waived his appointment as executor in favor of the former, is also a resident of Philadelphia,
U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging
among other things, that he has every reason to believe that the will in question is a forgery; that the
intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply inasmuch as they would work injustice and injury
to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a
Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to
verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his
daughter Adoracion." Hence, an ex-partepresentation of evidence for the reprobate of the
questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established that Adoracion C. Campos, in
her lifetime, was a citizen of the United States of America with a permanent
residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive,
Adoracion C. Campos executed a Last Will and Testament in the county of
Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos died in
the City of Manila (Exhibit C) leaving property both in the Philippines and in the
United States of America; that the Last Will and Testament of the late Adoracion C.
Campos was admitted and granted probate by the Orphan's Court Division of the
Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania,
County of Philadelphia, U.S.A., and letters of administration were issued in favor of
Clement J. McLaughlin all in accordance with the laws of the said foreign country on
procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not
suffering from any disqualification which would render her unfit as administratrix of
the estate in the Philippines of the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is
hereby admitted to and allowed probate in the Philippines, and Nenita Campos
Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters
of Administration with the Will annexed issue in favor of said Administratrix upon her
filing of a bond in the amount of P5,000.00 conditioned under the provisions of
Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his
opposition, acknowledging the same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the
will be set aside on the ground that the withdrawal of his opposition to the same was secured
through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among
the papers which he signed in connection with two Deeds of Conditional Sales which he executed
with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that
the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special
proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He made several
motions for postponement until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the
Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice
of hearing provided:
Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in
the morning for submission for reconsideration and resolution of the Honorable
Court. Until this Motion is resolved, may I also request for the future setting of the
case for hearing on the Oppositor's motion to set aside previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called
for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of
adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order
dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a
motion for reconsideration but the same was denied. In the same order, respondent judge also
denied the motion to vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally
has been questioned by the respondent, his children and forced heirs as, on its face, patently null
and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament.
Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was
granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos
merged upon his death with the rights of the respondent and her sisters, only remaining children and
forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted without or in
excess of his jurisdiction when:
1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic)
upon the filing of the Motion to Dismiss opposition with waiver of rights or interests
against the estate of deceased Adoracion C. Campos, thus, paving the way for the
hearing ex-parte of the petition for the probate of decedent will.
2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by way
of a motion presented prior to an order for the distribution of the estate-the law
especially providing that repudiation of an inheritance must be presented, within 30
days after it has issued an order for the distribution of the estate in accordance with
the rules of Court.

3) He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in
complete disregard of Law of Succession
4) He denied petitioner's petition for Relief on the ground that no evidence was
adduced to support the Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petition a denial of the due process and a
grave abuse of discretion amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case, the fact that the Testator at the
time of death was a usual resident of Dasmarias, Cavite, consequently Cavite Court
of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No.
L-7792, July 1955).
The first two issues raised by the petitioner are anchored on the allegation that the respondent judge
acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to
the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to
support petitioner's contention that the motion to withdraw was secured through fraudulent means
and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of
the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that
the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion
was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case
and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner
cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of
filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing
the probate of the will ex-parte, there being no other opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a general rule, the
probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof,
the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed
by law. The intrinsic validity of the will normally comes only after the court has declared that the will
has been duly authenticated. However, where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the issue.
(Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of
Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the
law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus, the respondent
judge should have denied its reprobate outright, the private respondents have sufficiently
established that Adoracion was, at the time of her death, an American citizen and a permanent
resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the
Civil Code which respectively provide:
Art. 16 par. (2).

xxx xxx xxx

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the decedent.
the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the
national law of the decedent. Although the parties admit that the Pennsylvania law does not provide
for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it would be contrary to the sound and
established public policy and would run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by
Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was
squarely applied in the case ofBellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be involved in
our system of legitimes, Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's national law. Specific provisions
must prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of
Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the Philippine Law on
legitimes cannot be applied to the testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear
the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was
the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is
no reason why the petitioner should have been led to believe otherwise. The court even admonished
the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing.
There was no denial of due process. The fact that he requested "for the future setting of the case for
hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given
preference in lieu of the petition for relief. Furthermore, such request should be embodied in a
motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit.
Under Rule 73, Section 1, of the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons settled. If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his

will shall be proved, or letters of administration granted, and his estate settled, in the
Court of First Instance in the province in which he resided at the time of his death,
and if he is an inhabitant of a foreign country, the Court of First Instance of any
province in which he had estate. The court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that court, in the original case, or when
the want of jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of
First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at
the time of her death was a citizen and permanent resident of Pennsylvania, United States of
America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled
rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See
Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.
SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.
Teehankee, J., (Chairman), took no part.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23445

June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and

Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios,
Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before
her demise. Petitioner prayed that said will be admitted to probate and that letters of administration
with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and
mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground
therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the
deceased, oppositors who are compulsory heirs of the deceased in the direct ascending line
were illegally preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.

1wph1.t

The court's order of November 8, 1963, held that "the will in question is a complete nullity and will
perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition
without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of
a will. The court's area of inquiry is limited to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and
the compliance with the requisites or solemnities by law prescribed, are the questions solely to be
presented, and to be acted upon, by the court. Said court at this stage of the proceedings is not
called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any
devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not
the will should be allowed probate. For them, the meat of the case is the intrinsic validity of the will.
Normally, this comes only after the court has declared that the will has been duly authenticated. 2 But
petitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit:
Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained.
On the contrary, this litigation will be protracted. And for aught that appears in the record, in the
event of probate or if the court rejects the will, probability exists that the case will come up once
again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time,
effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the provisions of the will in
question.3 After all, there exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the
will is a complete nullity. This exacts from us a study of the disputed will and the applicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain
amount of property, do hereby give, devise, and bequeath all of the property which I may have when
I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness
whereof, I have signed my name this seventh day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the
Civil Code of Spain of 1889, which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the testator, shall void the institution
of heir; but the legacies and betterments4 shall be valid, in so far as they are not
inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a necessity.
On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o
aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo
tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el
testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia
forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision
sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before
us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204
Pa. 484.6

The word "annul" as used in statute requiring court to annul alimony provisions of divorce
decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out;
to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35).
Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to
abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They
thus received nothing by the testament; tacitly, they were deprived of their legitime; neither were they
expressly disinherited. This is a clear case of preterition. Such preterition in the words of Manresa
"anulara siempre la institucion de heredero, dando caracter absoluto a este ordenamiento referring
to the mandate of Article 814, now 854 of the Civil Code. 9 The one-sentence will here institutes
petitioner as the sole, universal heir nothing more. No specific legacies or bequests are therein
provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid
died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o
en parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa que
se anulara la institucion de heredero en cuanto prejudique a la legitima del deseheredado
Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como
especial en el caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de
uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o
parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos
los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya
institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al
determinar, como efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion
that the universal institution of petitioner to the entire inheritance results in totally abrogating the will.
Because, the nullification of such institution of universal heir without any other testamentary
disposition in the will amounts to a declaration that nothing at all was written. Carefully worded
and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the
"Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses
the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido
antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa,
porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no
se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los

herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de
quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una interpretacion
contraria a sus terminos y a los principios que informan la testamentifaccion, pues no porque
parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste
juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo que el
legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the
devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises merit
consideration only when they are so expressly given as such in a will. Nothing in Article 854
suggests that the mere institution of a universal heir in a will void because of preterition would
give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be,
in addition to such institution, a testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. Sanchez Roman, speaking of the two component parts
of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la
pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas
otras disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire inheritance including "la porcion libre (que)
no hubiese dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of petitioner as
universal heir. That institution, by itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of
preterition". 15From this, petitioner draws the conclusion that Article 854 "does not apply to the case
at bar". This argument fails to appreciate the distinction between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs
nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any
compulsory heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own
words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la
misma se denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be
"involuntaria". 19 Express as disinheritance should be, the same must be supported by a legal cause
specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their
names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which
the said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution
of heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions
in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code,
such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the
person disinherited", which last phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have
been illegally deprived. Manresa's expressive language, in commenting on the rights of the
preterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runs
thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos
tercios, 22 el caso.23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their
legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so
instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case
heretofore cited,viz:
But the theory is advanced that the bequest made by universal title in favor of the children by
the second marriage should be treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted, will result in a complete
abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may
be made to fall into the concept of legacies and betterments reducing the bequest
accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the
institution, would. be absolutely meaningless and will never have any application at all. And
the remaining provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they would be absorbed by Article
817. Thus, instead of construing, we would be destroying integral provisions of the Civil
Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision.
With reference to article 814, which is the only provision material to the disposition of this
case, it must be observed that the institution of heirs is therein dealt with as a thing separate
and distinct from legacies or betterments. And they are separate and distinct not only
because they are distinctly and separately treated in said article but because they are in
themselves different. Institution of heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property bequeathed by a particular or special
title. ... But again an institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the
Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the will before
us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the
same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed.
No costs allowed. So ordered.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ.,
concur.
Footnotes
1

Castaeda vs. Ale

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:
This is a petition for review on certiorari of the decision

* of respondent. Court of Appeals in AC-G.R. SP No. 05744

promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of
the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss
the petition in Special Proceedings No. 591 ACEB No special pronouncement is
made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court
of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch
XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same
petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on
the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio,
Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The
will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27)
with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private
respondents. The will contained provisions on burial rites, payment of debts, and the appointment of
a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the
testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands and
money which I earned jointly with my wife Rosa Diongson shall all be given by me to
my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing
at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain predeceased me, all the money properties, lands, houses there in Bantayan and here in
Cebu City which constitute my share shall be given to me to his children, namely:
Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all
surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to
be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the
latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for
the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir
and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was
denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court, respondents filed
with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was
subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March
11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial
court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No.
591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for the review
of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was
filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for
petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the extrinsic
validity of the will sought to be probated and it cannot pass upon the intrinsic validity
thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate.
The preterition mentioned in Article 854 of the New Civil Code refers to preterition of
"compulsory heirs in the direct line," and does not apply to private respondents who

are not compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that
mere institution of a universal heir in the will would give the heir so instituted a share
in the inheritance but there is a definite distinct intention of the testator in the case at
bar, explicitly expressed in his will. This is what matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the
petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devisees and legacies
shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall he
effectual, without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs
nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code
may not apply as she does not ascend or descend from the testator, although she is a compulsory
heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even
if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however,
the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption
by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9).
Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were a legitimate child of the adopter and makes
the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and
preterited in the will of the testator and that both adopted child and the widow were deprived of at
least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is
a clear case of preterition of the legally adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession the
entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora
o donacion" Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA
[1982]). The only provisions which do not result in intestacy are the legacies and devises made in
the will for they should stand valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire inheritance of
the testator results in totally abrogating the will because the nullification of such institution of
universal heirs-without any other testamentary disposition in the will-amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no
leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has been left by universal title to petitioner
and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the
opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and
devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a probate
proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by it
either as executor or as a claimant of the estate and an interested party is one who would be
benefited by the estate such as an heir or one who has a claim against the estate like a creditor
(Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a
devisee or a legatee there being no mention in the testamentary disposition of any gift of an
individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At
the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil
Code as a person called to the succession either by the provision of a will or by operation of law.
However, intestacy having resulted from the preterition of respondent adopted child and the
universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing
to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB
must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an
oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de
Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308
[1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of
certiorari and prohibition are not available where the petitioner has the remedy of appeal or some
other plain, speedy and adequate remedy in the course of law (DD Comendador Construction
Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid
grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the
general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the
due execution thereof, the testator's testamentary capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court
has declared that the will has been duly authenticated. Said court at this stage of the proceedings is
not called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v.
Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114
SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of
Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court
is not powerless to do what the situation constrains it to do and pass upon certain provisions of the
will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate
moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held
that the will in question was a complete nullity and dismissed the petition without costs. On appeal

the Supreme Court upheld the decision of the probate court, induced by practical considerations.
The Court said:
We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before us on the same issue
of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a belief that
we might as well meet head-on the issue of the validity of the provisions of the will in
question. After all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving
spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was
fully substantiated by the evidence during the hearing held in connection with said motion. The Court
upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals
with the validity of the provisions of the will. Respondent Judge allowed the probate of the will. The
Court held that as on its face the will appeared to have preterited the petitioner the respondent judge
should have denied its probate outright. Where circumstances demand that intrinsic validity of
testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the
probate court should meet the issue. (Nepomuceno v. Court of Appeals,supra; Nuguid v.
Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No.
591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal
capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the
adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order
dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters
properly to be resolved after a hearing on the issues in the course of the trial on the merits of the
case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on
February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case to progress
when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters
were instituted as universal heirs coupled with the obvious fact that one of the private respondents
had been preterited would have been an exercise in futility. It would have meant a waste of time,
effort, expense, plus added futility. The trial court could have denied its probate outright or could
have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of
the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the
right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a
grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not
dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence
of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a

petition for certiorari may be entertained, particularly where appeal would not afford speedy and
adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned
decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated
October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or
inadvertence.
To my mind, an important distinction has to be made as to whether the omission of a forced heir in
the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or
inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability
to determine how the testator would have distributed his estate if none of the heirs had been omitted
or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received nothing in the will. (111
Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum
supplied).
On the other hand, if the omission is intentional, the effect would be a defective disinheritance
covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but
only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is
partial unlike in true preterition where the nullity is total.
Pretention is presumed to be only an involuntary omission; that is, that if the testator
had known of the existence of the compulsory heir at the time of the execution of the

will, he would have instituted such heir. On the other hand, if the testator attempts to
disinherit a compulsory heir, the presumption of the law is that he wants such heir to
receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition,
pp. 174-175).
In the case at bar, there seems to have been mistake or in advertence in the omission of the
adopted daughter, hence, my concurrence in the result that total intestacy ensued.

Separate Opinions
MELENCIO-HERRERA, J., concurring:
I concur in the result on the basic proposition that preterition in this case was by mistake or
inadvertence.
To my mind, an important distinction has to be made as to whether the omission of a forced heir in
the will of a testator is by mistake or inadvertence, or voluntary or intentional. If by mistake or
inadvertence, there is true preterirton and total intestacy results. The reason for this is the "inability
to determine how the testator would have distributed his estate if none of the heirs had been omitted
or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received nothing in the will. (111
Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum
supplied).
On the other hand, if the omission is intentional, the effect would be a defective disinheritance
covered by Article 918 of the Civil Code in which case the institution of heir is not wholly void but
only insofar as it prejudices the legitime of the person disinherited. Stated otherwise. the nullity is
partial unlike in true preterition where the nullity is total.
Pretention is presumed to be only an involuntary omission; that is, that if the testator
had known of the existence of the compulsory heir at the time of the execution of the
will, he would have instituted such heir. On the other hand, if the testator attempts to
disinherit a compulsory heir, the presumption of the law is that he wants such heir to
receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition,
pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the omission of the
adopted daughter, hence, my concurrence in the result that total intestacy ensued.
Footnotes
* Penned by Justice Jose A. R. Melo and concurred in by Justices Milagros A.
German and Nathanael P. De Pano, Jr.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-38972 September 28, 1987
PAZ GARCIA vda. de MAPA,

* SEGUNDO MAPA, PRISCILLA M. MONZON, TERESA MAPA, IGNACIO SALAZAR AND

JOSE SALAZAR,petitioners,
vs.
COURT OF APPEALS, LUIS HIDROSOLLO and TEODORO HIDROSOLLO, in their own behalf and as Joint Administrators of the
testate estate of Ludovico Hidrosollo, and VICTORIA ** HIDROSOLLO, CORAZON HIDROSOLLO, ROSARIO HIDROSOLLO and
MAGDALENA HIDROSOLLO,respondents.

FERNAN, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. No.
40448-R entitled "Paz Garcia Vda. de Mapa, et al. vs. Luis Hidrosollo, et al." reversing the decision
of the then Court of First Instance of Manila in Civil Case No. 59566, bearing the same title.
The antecedent facts of the case are as follows:
On January 16, 1965, petitioners Paz Garcia Vda. de Mapa, et al. instituted Civil Case No. 59566
before the then Court of First Instance of Manila to recover from the estate of the late Ludovico
Hidrosollo, then the subject of Special Proceedings No. 52229 of the same court, the properties left
by the late Concepcion Mapa de Hidrosollo. They claimed that the deceased Concepcion Mapa de
Hidrosollo, in her last will and testament dated June 2, 1951 and admitted to probate in Special
Proceedings No. 46015, instituted Ludovico Hidrosollo as universal heir to the residue of her estate
with the obligation as trustee to hold the same in trust for petitioners herein who are nephews and
nieces of the deceased Concepcion Mapa de Hidrosollo and for respondents Luis, Teodoro,
Victorina, Corazon, Violets, *** Rosario and Magdalena, all surnamed Hidrosollo, who are nephews and nieces of Ludovico
Hidrosollo; that Ludovico, however, died without fulfilling the obligation so that the estate of Concepcion formed part of the estate of
Ludovico. They prayed in the alternative that judgment be rendered either a) declaring a trust to have been created in their favor and their cobeneficiaries over the residue of the estate of Concepcion Mapa de Hidrosollo and ordering therein defendants Luis and Teodoro Hidrosollo
as administrators of the estate of Ludovico Hidrosollo, to deliver to them 6/13 of the said properties; or b) declaring the institution of Ludovico
Hidrosollo as universal heir with a provision for fideicommissary substitution in their favor and their co- beneficiaries as null and void,
declaring the residue of the estate of Concepcion Mapa de Hidrosollo to have been subject to intestate succession, declaring them to be the
sole heirs to said residue and ordering therein defendants Luis and Teodoro Hidrosollo to turn over to them the said properties.

Respondents, in their Answer, denied the existence of a trust and alleged that Ludovico Hidrosollo,
being the surviving spouse of the deceased Concepcion Mapa de Hidrosollo became the latter's
universal heir when she died without descendants or ascendants; that as such universal heir,
Ludovico stepped into the rights, title and claims of the deceased Concepcion Mapa de Hidrosollo,

so that the controverted properties became part of his own estate subject of settlement in Special
Proceedings No. 52229. They further claimed that Civil Case No. 59566 was barred by the order of
the same court sitting as a probate court in Special Proceedings No. 52229 which denied petitioners'
motion for intervention, and that petitioners, in having instituted Civil Case No. 59566 had forfeited
any benefits under the will.
In disposing of the case, the lower court ruled that a trust was created over the properties of
petitioners' claim, however, respondents had forfeited their rights thereto; and that the denial of
petitioners' motion to intervene in Special Proceedings No. 52229 did not deprive the petitioners of
their right to institute a separate action to recover what pertains to them in their own right. Thus, the
lower court ordered respondents Luis and Teodoro Hidrosollo or whoever of the rest of therein
defendants had disposition of the properties to reconvey the same in favor of petitioners, to render
an accounting of the income of said properties and to deliver to petitioners the net proceeds of such
income.
Respondents moved for a reconsideration of the decision, but were denied the relief sought. Their
appeal to the Court of Appeals proved fruitful as the appellate court reversed the decision of the
lower court and ruled instead that no trust nor fideicommissary substitution was created in
Concepcion Mapa de Hidrosollo's Will and that petitioners' claim was barred by a final judgment, i.e.,
the order denying their motion to intervene in Special Proceedings No. 52229 from which no appeal
was taken.
Hence, this present recourse, petitioners maintaining that the will of Concepcion Mapa de Hidrosollo
created a trust in their favor, not a fideicommissary substitution, and that the denial of their motion to
intervene in Special Proceedings No. 52229 did not constitute a bar to Civil Case No. 59566.
We find both contentions meritorious.
A careful perusal and scrutiny of the pertinent provisions of Concepcion Mapa de Hidrosollo's Will
reveal that she intended to create a trust in favor of both petitioners and private respondents. These
provisions read:
OCTAVA: Del resto de todos mis bienes parafernales y ganaciales, instituyo por mi
unico y universal heredero, a mis esposo Ludovico Hidrosollo, a quien, al mismo
tiempo, nombro como mi Abacea (sic) testamentario con relvacin (sic) de fianza.
NOVENA: Encargo a mi esposo que en el caso de que me abreviva (sic), disponga
de los bienes que le queden a favor de nuestros sobrinos, todos en partes iguales, a
saber:

1. Jose Agustin
Mapa

8. Victorina
Hidrosollo

2. Segundo
Mapa

9. Corazon
Hidrosollo

3. Priscilla
Mapa

10. Luis
Hidrosollo

4. Teresa
Mapa

11. Violeta
Hidrosollo

5. Ignacio
Salazar

12. Rosario
Hidrosollo

6. Jose
Salazar

13.
Magdalena
Hidrosollo

7. Teodoro
Hidrosollo

DECIMA: Los beneficiarios nombrados en la clausula que antecede tendran la

obligacion de entregar, cada ano a Salvador Genova, centras esta viva, doce
cavanes de palay, con la condicion de que dicho Salvador ayude a Luis Hidrosollo
en la recoleccion de cada cosecha. Dichos beneficiarios tendran iqualmente la
obligacion de permitir al menciado Salvador Genova a tener su casa en nuestro
solar en I laud, dentro de la poblacion de Dumarao, sin pago alguno.
UNDECIMA: Encargo igualmente a mi esposo, como heredero universal mio que, si
a su muerte, hubiese alguna dueda contraida por el durante su supervivencia sobre
mi dicha deuda sea cargada a la parte que corresponda a sus sobrinos por
consagunidad todos appellidados Hidrosollo, y no debera en mio alguno afectar la
participacion de mis sobrinos, cuatro de ellos appellidados Mapa y dos appellidados
Salazar.
xxx xxx xxx
DECIMA TERCERA: Es tambien mi voluntad la desque los bienes permanezcan en
todo tiempo en comunidad, y que los beneficiarios se abstengan an absoluto de
venderos o gravarlos en cualquier forma, en respeto a la memoria de sus tios que
solo miran el proprio bien de sus dichos sobrinos.
xxx xxx xxx

DECIMA QUINTO: Encargo a mis sobrinos nombrados en esta testamento que la

administracion de los bienes de la comunidad sea encomendada a Ignacio Salazar y
a Luis Hidrosollo conjuntamente, y en el caso de que ambos o cualquiera de ellos no
pudiere por cualquier motive, complier con el cometido, que dicha administracion se
ponga en manos de los sobrinos, uno del groupo Mapa o Salazar y el otro del grupo
Hidrosollo. (pp. 58-59, Rollo).
Thus, under paragraph 8 of the Will, Ludovico Hidrosollo was instituted as sole and universal heir to
the rest of the properties not covered by the legacies in the preceding paragraphs. Under paragraph
9, however, said Ludovico Hidrosollo was charged (encargo) with the obligation to deliver the rest of
the estate in equal parts to the Mapa, Salazar and Hidrosollo nephews and nieces, who, as
beneficiaries, were directed to deliver annually to one Salvador Genova, during his lifetime, 12
cavans of palay on the condition that the latter assist Luis Hidrosollo in each harvest. Said
beneficiaries were likewise required to allow said Salvador Genova to maintain his house on a parcel
of land situated at Ilaud, Municipality of Dumarao, without payment of any compensation (Par. 10 of
the Will).
In paragraph 11 of the same Will, the testatrix expressly provided that any obligations which her
husband might incur after her death, shall be charged against the share corresponding to the
Hidrosollo nephews and nieces and in no case shall the participation of her own nephews and
nieces be charged with said obligations. She likewise expressed the wish that all her properties
should always remain in co-ownership among her beneficiaries, who should abstain from selling or
encumbering the same in any manner whatsoever (par. 13) and that the same be administered
jointly by Ignacio Salazar and Luis Hidrosollo, or in case of their inability, by a nephew or niece from
each of the two groups (par. 15).
Although the word "trust" itself does not appear in the Will, the testatrix's intent to create one is
nonetheless clearly demonstrated by the stipulations in her Will. In designating her husband
Ludovico Hidrosollo as universal and sole heir with the obligation to deliver the properties to
petitioners and private respondents, she intended that the legal title should vest in him, and in
significantly referring to petitioners and private respondents as "beneficiarios," she intended that the
beneficial or equitable interest to these properties should repose in them. To our mind, these
designations, coupled with the other provisions for co-ownership and joint administration of the
properties, as well as the other conditions imposed by the testatrix effectively created a trust in favor
of the parties over the properties adverted to in the Will. "No particular words are required for the
creation of an express trust, it being sufficient that a trust is clearly intended. " (Art. 1443, Civil Code
of the Philippines).
However, we must not lose sight of the fact that as the surviving spouse of the testatrix, Ludovico
Hidrosollo was entitled to a legitime of one-half (1/2) of her hereditary estate. As that portion is
reserved by law for the compulsory heirs, no burden, encumbrance, condition or substitution of any
kind whatsoever may be imposed upon the legitime by the testator. (Art. 904, second
paragraph, Ibid) The trust created by Concepcion Mapa should therefore be, as it is hereby declared
to be effective only on the free portion of her estate, i.e., that portion not covered by Ludovico
Hidrosollo's legitime.
Anent the issue of res judicata, We rule that the order denying petitioners' motion for intervention in
Special Proceedings No. 52229 did not constitute an adjudication on the merits and therefore could
not operate as a bar to Civil Case No. 59566.
The reason given by the probate court for denying petitioners 'motion for intervention is as follows:

... that there is no fideicommissary substitution because the testatrix did not impose
upon her spouse the absolute obligation to deliver the property to said petitioners.
When the testatrix provided in her will that her husband dispose of in favor of the
petitioners his remaining properties it only shows that he was not absolutely
obligated to preserve and transmit to the petitioners the properties by him acquired
under the will of his deceased wife. If the testatrix intended to entrust the property to
her husband with the obligation to preserve and to transmit the remaining properties
to the petitioners, she could have said so in an express manner. However, even
assuming that Clause 9 could be interpreted to he a fideicommissary substitution,
such substitution can not be given effect in the face of an opposition and in view of
Art, 863 of the Civil Code of the Philippines, requiring that substitution must not go
beyond one degree from the heir originally instituted. It will be noticed that the
second heirs instituted are merely "sobrinos" of the fiduciary or first heir (surviving
spouse). Upon these facts, the Court is of the opinion that the movants for
intervention do not have a legal interest in the estate under the present
administration. (pp. 50-51, Record on Appeal, p. 101, Rollo).
Since the denial order was anchored primarily on the nonexistence of, or the ineffectivity of a
fideicommissary substitution, and did not resolve the issue of trust alleged by petitioners, said order
cannot be considered an adjudication on the merits of petitioners' claim against the estate.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 40448-A is hereby reversed.
Private respondents Luis and Teodoro Hidrosollo or their successors as administrators of the estate
of Ludovico Hidrosollo are hereby ordered to deliver to petitioners their lawful shares in the trust
constituted over the free portion of the estate of Concepcion Mapa. Said Luis and Teodoro Hidrosollo
or their successors are further ordered to render an accounting of the income of the properties
pertaining to petitioners and to deliver to the latter the net proceeds of such income.
No pronouncement as to costs.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

Footnotes
* Petitioner Paz Garcia vda. de Mapa died during the pendency of the petition,
survived by her co-petitioners Segundo Mapa, Priscilla M. Monzon and Teresa Mapa.
** Should be Victorina.
*** Her name does not appear in the title of the petition as one of the respondents,
but she is a defendant in the original complaint as well as a defendant-appellee in the
appellate court. The omission might have been an oversight
Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION
G.R. No. L-38972 September 28, 1987
PAZ GARCIA vda. de MAPA,

* SEGUNDO MAPA, PRISCILLA M. MONZON, TERESA MAPA, IGNACIO SALAZAR AND

JOSE SALAZAR,petitioners,
vs.
COURT OF APPEALS, LUIS HIDROSOLLO and TEODORO HIDROSOLLO, in their own behalf and as Joint Administrators of the
testate estate of Ludovico Hidrosollo, and VICTORIA ** HIDROSOLLO, CORAZON HIDROSOLLO, ROSARIO HIDROSOLLO and
MAGDALENA HIDROSOLLO,respondents.

FERNAN, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. No.
40448-R entitled "Paz Garcia Vda. de Mapa, et al. vs. Luis Hidrosollo, et al." reversing the decision
of the then Court of First Instance of Manila in Civil Case No. 59566, bearing the same title.
The antecedent facts of the case are as follows:
On January 16, 1965, petitioners Paz Garcia Vda. de Mapa, et al. instituted Civil Case No. 59566
before the then Court of First Instance of Manila to recover from the estate of the late Ludovico
Hidrosollo, then the subject of Special Proceedings No. 52229 of the same court, the properties left
by the late Concepcion Mapa de Hidrosollo. They claimed that the deceased Concepcion Mapa de
Hidrosollo, in her last will and testament dated June 2, 1951 and admitted to probate in Special
Proceedings No. 46015, instituted Ludovico Hidrosollo as universal heir to the residue of her estate
with the obligation as trustee to hold the same in trust for petitioners herein who are nephews and
nieces of the deceased Concepcion Mapa de Hidrosollo and for respondents Luis, Teodoro,
Victorina, Corazon, Violets, *** Rosario and Magdalena, all surnamed Hidrosollo, who are nephews and nieces of Ludovico
Hidrosollo; that Ludovico, however, died without fulfilling the obligation so that the estate of Concepcion formed part of the estate of
Ludovico. They prayed in the alternative that judgment be rendered either a) declaring a trust to have been created in their favor and their cobeneficiaries over the residue of the estate of Concepcion Mapa de Hidrosollo and ordering therein defendants Luis and Teodoro Hidrosollo
as administrators of the estate of Ludovico Hidrosollo, to deliver to them 6/13 of the said properties; or b) declaring the institution of Ludovico
Hidrosollo as universal heir with a provision for fideicommissary substitution in their favor and their co- beneficiaries as null and void,
declaring the residue of the estate of Concepcion Mapa de Hidrosollo to have been subject to intestate succession, declaring them to be the
sole heirs to said residue and ordering therein defendants Luis and Teodoro Hidrosollo to turn over to them the said properties.

Respondents, in their Answer, denied the existence of a trust and alleged that Ludovico Hidrosollo,
being the surviving spouse of the deceased Concepcion Mapa de Hidrosollo became the latter's
universal heir when she died without descendants or ascendants; that as such universal heir,
Ludovico stepped into the rights, title and claims of the deceased Concepcion Mapa de Hidrosollo,
so that the controverted properties became part of his own estate subject of settlement in Special
Proceedings No. 52229. They further claimed that Civil Case No. 59566 was barred by the order of
the same court sitting as a probate court in Special Proceedings No. 52229 which denied petitioners'
motion for intervention, and that petitioners, in having instituted Civil Case No. 59566 had forfeited
any benefits under the will.
In disposing of the case, the lower court ruled that a trust was created over the properties of
petitioners' claim, however, respondents had forfeited their rights thereto; and that the denial of
petitioners' motion to intervene in Special Proceedings No. 52229 did not deprive the petitioners of
their right to institute a separate action to recover what pertains to them in their own right. Thus, the
lower court ordered respondents Luis and Teodoro Hidrosollo or whoever of the rest of therein
defendants had disposition of the properties to reconvey the same in favor of petitioners, to render

an accounting of the income of said properties and to deliver to petitioners the net proceeds of such
income.
Respondents moved for a reconsideration of the decision, but were denied the relief sought. Their
appeal to the Court of Appeals proved fruitful as the appellate court reversed the decision of the
lower court and ruled instead that no trust nor fideicommissary substitution was created in
Concepcion Mapa de Hidrosollo's Will and that petitioners' claim was barred by a final judgment, i.e.,
the order denying their motion to intervene in Special Proceedings No. 52229 from which no appeal
was taken.
Hence, this present recourse, petitioners maintaining that the will of Concepcion Mapa de Hidrosollo
created a trust in their favor, not a fideicommissary substitution, and that the denial of their motion to
intervene in Special Proceedings No. 52229 did not constitute a bar to Civil Case No. 59566.
We find both contentions meritorious.
A careful perusal and scrutiny of the pertinent provisions of Concepcion Mapa de Hidrosollo's Will
reveal that she intended to create a trust in favor of both petitioners and private respondents. These
provisions read:
OCTAVA: Del resto de todos mis bienes parafernales y ganaciales, instituyo por mi
unico y universal heredero, a mis esposo Ludovico Hidrosollo, a quien, al mismo
tiempo, nombro como mi Abacea (sic) testamentario con relvacin (sic) de fianza.
NOVENA: Encargo a mi esposo que en el caso de que me abreviva (sic), disponga
de los bienes que le queden a favor de nuestros sobrinos, todos en partes iguales, a
saber:

1. Jose Agustin
Mapa

8. Victorina
Hidrosollo

2. Segundo
Mapa

9. Corazon
Hidrosollo

3. Priscilla
Mapa

10. Luis
Hidrosollo

4. Teresa
Mapa

11. Violeta
Hidrosollo

5. Ignacio

12. Rosario

Salazar

Hidrosollo

6. Jose
Salazar

13.
Magdalena
Hidrosollo

7. Teodoro
Hidrosollo

DECIMA: Los beneficiarios nombrados en la clausula que antecede tendran la

obligacion de entregar, cada ano a Salvador Genova, centras esta viva, doce
cavanes de palay, con la condicion de que dicho Salvador ayude a Luis Hidrosollo
en la recoleccion de cada cosecha. Dichos beneficiarios tendran iqualmente la
obligacion de permitir al menciado Salvador Genova a tener su casa en nuestro
solar en I laud, dentro de la poblacion de Dumarao, sin pago alguno.
UNDECIMA: Encargo igualmente a mi esposo, como heredero universal mio que, si
a su muerte, hubiese alguna dueda contraida por el durante su supervivencia sobre
mi dicha deuda sea cargada a la parte que corresponda a sus sobrinos por
consagunidad todos appellidados Hidrosollo, y no debera en mio alguno afectar la
participacion de mis sobrinos, cuatro de ellos appellidados Mapa y dos appellidados
Salazar.
xxx xxx xxx
DECIMA TERCERA: Es tambien mi voluntad la desque los bienes permanezcan en
todo tiempo en comunidad, y que los beneficiarios se abstengan an absoluto de
venderos o gravarlos en cualquier forma, en respeto a la memoria de sus tios que
solo miran el proprio bien de sus dichos sobrinos.
xxx xxx xxx
DECIMA QUINTO: Encargo a mis sobrinos nombrados en esta testamento que la
administracion de los bienes de la comunidad sea encomendada a Ignacio Salazar y
a Luis Hidrosollo conjuntamente, y en el caso de que ambos o cualquiera de ellos no
pudiere por cualquier motive, complier con el cometido, que dicha administracion se
ponga en manos de los sobrinos, uno del groupo Mapa o Salazar y el otro del grupo
Hidrosollo. (pp. 58-59, Rollo).
Thus, under paragraph 8 of the Will, Ludovico Hidrosollo was instituted as sole and universal heir to
the rest of the properties not covered by the legacies in the preceding paragraphs. Under paragraph
9, however, said Ludovico Hidrosollo was charged (encargo) with the obligation to deliver the rest of
the estate in equal parts to the Mapa, Salazar and Hidrosollo nephews and nieces, who, as
beneficiaries, were directed to deliver annually to one Salvador Genova, during his lifetime, 12

cavans of palay on the condition that the latter assist Luis Hidrosollo in each harvest. Said
beneficiaries were likewise required to allow said Salvador Genova to maintain his house on a parcel
of land situated at Ilaud, Municipality of Dumarao, without payment of any compensation (Par. 10 of
the Will).
In paragraph 11 of the same Will, the testatrix expressly provided that any obligations which her
husband might incur after her death, shall be charged against the share corresponding to the
Hidrosollo nephews and nieces and in no case shall the participation of her own nephews and
nieces be charged with said obligations. She likewise expressed the wish that all her properties
should always remain in co-ownership among her beneficiaries, who should abstain from selling or
encumbering the same in any manner whatsoever (par. 13) and that the same be administered
jointly by Ignacio Salazar and Luis Hidrosollo, or in case of their inability, by a nephew or niece from
each of the two groups (par. 15).
Although the word "trust" itself does not appear in the Will, the testatrix's intent to create one is
nonetheless clearly demonstrated by the stipulations in her Will. In designating her husband
Ludovico Hidrosollo as universal and sole heir with the obligation to deliver the properties to
petitioners and private respondents, she intended that the legal title should vest in him, and in
significantly referring to petitioners and private respondents as "beneficiarios," she intended that the
beneficial or equitable interest to these properties should repose in them. To our mind, these
designations, coupled with the other provisions for co-ownership and joint administration of the
properties, as well as the other conditions imposed by the testatrix effectively created a trust in favor
of the parties over the properties adverted to in the Will. "No particular words are required for the
creation of an express trust, it being sufficient that a trust is clearly intended. " (Art. 1443, Civil Code
of the Philippines).
However, we must not lose sight of the fact that as the surviving spouse of the testatrix, Ludovico
Hidrosollo was entitled to a legitime of one-half (1/2) of her hereditary estate. As that portion is
reserved by law for the compulsory heirs, no burden, encumbrance, condition or substitution of any
kind whatsoever may be imposed upon the legitime by the testator. (Art. 904, second
paragraph, Ibid) The trust created by Concepcion Mapa should therefore be, as it is hereby declared
to be effective only on the free portion of her estate, i.e., that portion not covered by Ludovico
Hidrosollo's legitime.
Anent the issue of res judicata, We rule that the order denying petitioners' motion for intervention in
Special Proceedings No. 52229 did not constitute an adjudication on the merits and therefore could
not operate as a bar to Civil Case No. 59566.
The reason given by the probate court for denying petitioners 'motion for intervention is as follows:
... that there is no fideicommissary substitution because the testatrix did not impose
upon her spouse the absolute obligation to deliver the property to said petitioners.
When the testatrix provided in her will that her husband dispose of in favor of the
petitioners his remaining properties it only shows that he was not absolutely
obligated to preserve and transmit to the petitioners the properties by him acquired
under the will of his deceased wife. If the testatrix intended to entrust the property to
her husband with the obligation to preserve and to transmit the remaining properties
to the petitioners, she could have said so in an express manner. However, even
assuming that Clause 9 could be interpreted to he a fideicommissary substitution,
such substitution can not be given effect in the face of an opposition and in view of
Art, 863 of the Civil Code of the Philippines, requiring that substitution must not go
beyond one degree from the heir originally instituted. It will be noticed that the

second heirs instituted are merely "sobrinos" of the fiduciary or first heir (surviving
spouse). Upon these facts, the Court is of the opinion that the movants for
intervention do not have a legal interest in the estate under the present
administration. (pp. 50-51, Record on Appeal, p. 101, Rollo).
Since the denial order was anchored primarily on the nonexistence of, or the ineffectivity of a
fideicommissary substitution, and did not resolve the issue of trust alleged by petitioners, said order
cannot be considered an adjudication on the merits of petitioners' claim against the estate.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 40448-A is hereby reversed.
Private respondents Luis and Teodoro Hidrosollo or their successors as administrators of the estate
of Ludovico Hidrosollo are hereby ordered to deliver to petitioners their lawful shares in the trust
constituted over the free portion of the estate of Concepcion Mapa. Said Luis and Teodoro Hidrosollo
or their successors are further ordered to render an accounting of the income of the properties
pertaining to petitioners and to deliver to the latter the net proceeds of such income.
No pronouncement as to costs.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

Footnotes
* Petitioner Paz Garcia vda. de Mapa died during the pendency of the petition,
survived by her co-petitioners Segundo Mapa, Priscilla M. Monzon and Teresa Mapa.
** Should be Victorina.
*** Her name does not appear in the title of the petition as one of the respondents,
but she is a defendant in the original complaint as well as a defendant-appellee in the
appellate court. The omission might have been an oversight
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13876

February 28, 1962

CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees,

vs.
DR. MANUEL SINGSON, defendant-appellant.
Felix V. Vergara for defendant-appellant.
B. Martinez for plaintiffs-appellees.
DIZON, J.:

Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo
against Manuel Singson in connection with a residential lot located a Plaridel St., Vigan, Ilocos Sur,
with an area of approximately 193 square meters, and the improvements existing thereon, covered
by Tax No. 10765-C. Their complaint alleged that Singson owned one-half pro-indiviso of said
property and that Consolacion Florentino owned the other half by virtue of the provisions of the duly
probated last will of Da. Leona Singson, the original owner, and the project of partition submitted to,
and approved by the Court of First Instance of Ilocos Sur in special Proceeding No. 453; that
plaintiffs had made demands for the partition of said property, but defendant refused to accede
thereto, thus compelling them to bring action.
Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of
one-half pro-indiviso of the property in question, and that, therefore, she was not entitled to demand
partition thereof.
After trial upon the issue thus posed, the lower court rendered judgment as follows:
1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the house and
lot described in the complaint to the extent of each of an undivided 1/2 portion thereof; .
2. Ordering the aforesaid co-owners to execute an agreement of partition of the said property
within 30 days from receipt of this judgment unless it be shown that the division thereof may
render it unserviceable, in which case the provisions of Art. 498 of the New Civil Code may
be applied; .
1wph1.t

3. That in the event the said parties shall fail to do so, this Court will appoint the
corresponding commissioners to make the partition in accordance with law; and .
4. Without special pronouncement as to costs." .
From the above judgment, defendant Singson appealed.
It is admitted that Da. Leona Singson, who died single on January 13, 1948, was the owner of the
property in question at the time of her death. On July 31, 1951 she executed her last will which was
admitted to probate in Special Proceeding No. 453 of the lower court whose decision was affirmed
by the Court of Appeals in G.R. No. 3605-R. At the time of the execution of the will, her nearest living
relatives were her brothers Evaristo, Manuel and Dionisio Singson, her nieces Rosario, Emilia and
Trinidad, and her grandniece Consolation, all surnamed Florentino.
Clause IX of her last will reads as follows: .
NOVENO. Ordeno que se de a mi nieta por parte de mi hermana mia y que al mismo
tiempo vive en mi casa, y, por tanto, bajo mi proteccion, y es la CONSOLACION
FLORENTINO:
(A). La mitad de mi casa de materials fuertes con techo de hierro galvanizado, incluyendo la
mitad de su solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle Plaridel, actualmente
arrendada por los hermanos Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si
falleciere antes o despues que yo mi citada nieta, esta propiedad se dara por partes iguales
entre mis tres hermanos Evaristo, Manuel y Dionisio, o a sus herederos forzosos en el caso
de que alguno de ellas murieie antes ... (Exhibit F.)

The issue to be decided is whether the testamentary disposition above-quoted provided for what is
calledsustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe, controlled by the
pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the New Civil
Code, in view of the fact that the testatrix died on January 13, 1948. They are the following: .
Art. 774. The testator may designate one or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die before him, or should not wish or should be
unable to accept the inheritance.
A simple substitution, without a statement of the cases to which it is to apply, shall include
the three mentioned in the next preceeding paragraph, unless the testator has otherwise
provided:
Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to preserve
and transmit to a third person the whole or part of the inheritance shall be valid and effective,
provided they do not go beyond the second degree, or that they are made in favor of
persons living at the time of the death of the testator." .
Art. 785. The following shall be inoperative: .
1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing
upon the fiduciary the absolute obligation of delivering the property to a second heir." ....
In accordance with the first legal provision quoted above, the testator may not only designate the
heirs who will succeed him upon his death, but also provide for substitutes in the event that said
heirs do not accept or are in no position to accept the inheritance or legacies, or die ahead of him.
The testator may also bequeath his properties to a particular person with the obligation, on the part
of the latter, to deliver the same to another person, totally or partially, upon the occurrence of a
particular event (6 Manresa, p. 1112).
It is clear that the particular testamentary clause under consideration provides for a substitution of
the heir named therein in this manner: that upon the death of Consolacion Florentino whether this
occurs before or after that of the testatrix the property bequeathed to her shall be delivered ("se
dara") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio,
or their forced heirs, should anyone of them die ahead of Consolacion Florentino. If this clause
created what is known as sustitucion vulgar, the necessary result would be that Consolacion
Florentino, upon the death of the testatrix, became the owner of one undivided half of the property,
but if it provided for a sustitution fideicomisaria, she would have acquired nothing more than
usufructuary rights over the same half. In the former case, she would undoubtedly be entitled to
partition, but not in the latter. As Manresa says, if the fiduciary did not acquire full ownership of the
property bequeathed by will, but mere usufructuary rights thereon until the time came for him to
deliver said property to the fideicomisario, it is obvious that the nude ownership over the property,
upon the death of the testatrix, passed to and was acquired by another person, and the person
cannot be other than the fideicomisario (6 Manresa p. 145).
It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed
upon the first heir to preserve and transmit to another the whole or part of the estate bequeathed to
him, upon his death or upon the happening of a particular event. For this reason, Art. 785 of the old
Civil Code provides that a fideicommissary substitution shall have no effect unless it is made
expressly ("de una manera expresa") either by giving it such name, or by imposing upon the first heir

the absolute obligation ("obligacion terminante") to deliver the inheritance to a substitute or second
heir. In this connection Manresa says: .
Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se ordeno o
encargue al primer heredero, cuando sea tal, que conserve y transmita a una tercera
persona o entidad el todo a parte de la herencia. O lo que es lo mismo, la sustitucion
fideicomisaria, como declaran las resoluciones de 25 de Junio de 1895, 10 de Febrero de
1899 y 19 de Julio de 1909, exige tres requisitos: .
1.o Un primer heredero llamado al goce de los bienes preferentemente.
2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero el todo
o parte del caudal.
3.o Un segundo heredero.
A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro mas, el del que el
fideicomisario tenga derecho a los bienes de la herencia desde el momento de la muerte del
testador, puesto que ha de suceder a este y no al fiduciario.
Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento de
ambos o de cualquiera de ellos, asigna la parte del fallecido o fallecidos, a los herederos
legitimos o a otras personas, solo existe una sustitucion vulgar, porque falta el requisito de
haberse impuesto a los primeros herederos la obligacion de conservar y transmitir los
bienes, y el articulo 789, en su parrafo primero, evige que la sustitucion sea expresa, ya
dandole el testador el nombre de sustitucion fideicomisaria, ya imponiendo al sustituido la
obligacion terminante de conservar y transmitir los bienes a un segundo heredero.
A careful perusal of the testamentary clause under consideration shows that the substitution of heirs
provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear
statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the
property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As
already stated, it merely provides that upon appellee's death whether this happens before or after
that of the testatrix her share shall belong to the brothers of the testatrix.
In the light of the foregoing, we believe, and so hold, that the last will of the deceased Da. Leona
Singson, established a mere sustitucion vulgar, the substitution Consolacion Florentino by the
brothers of the testatrix to be effective or to take place upon the death of the former, whether it
happens before or after that of the testatrix.
IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and
De Leon, JJ., concur.

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